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Heather K. Cavanaugh, P.C., OSB No. 031641 heather.cavanaugh@millernash.com Counsel of Record Jonathan H. Singer, OSB No. 105048 (District Court Admission Pending) jonathan.singer@millernash.com MILLER NASH LLP 3400 U.S. Bancorp Tower 111 S.W. Fifth Avenue Portland, Oregon 97204 Telephone: (503) 224-5858 Fax: (503) 224-0155 Attorneys on behalf of the Oregon Area Jewish Committee and the Oregon Board of Rabbis

Andrew Schlesinger, OSB No. 065008 schlesinger.andrew@gmail.com 4111 S.W. Garden Home Road Portland, Oregon 97219 Telephone: (503) 893-0002 Attorney on behalf of the Community Relations Committee of the Jewish Federation of Greater Portland

UNITED STATES DISTRICT COURT DISTRICT OF OREGON EUGENE DIVISION DEANNA L. GEIGER and JANINE M. NELSON; ROBERT DUEHMIG and WILLIAM GRIESAR, Plaintiffs, v. JOHN KITZHABER, in his official capacity as Governor of Oregon; ELLEN ROSENBLUM, in her official capacity as Attorney General of Oregon; JENNIFER WOODWARD, in her official capacity as State Registrar, Center for Health Statistics, Oregon Health Authority; and RANDY WALRUFF, in his official capacity as Multnomah County Assessor, Defendants. CV No. 6:13-cv-01834-MC AMICUS BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

Amicus Brief in Support of Motion for Summary Judgment

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PAUL RUMMELL and BENJAMIN WEST; LISA CHICKADONZ and CHRISTINE TANNER; BASIC RIGHTS EDUCATION FUND, Plaintiffs, v. JOHN KITZHABER, in his official capacity as Governor of Oregon; ELLEN ROSENBLUM, in her official capacity as Attorney General of Oregon; JENNIFER WOODWARD, in her official capacity as State Registrar, Center for Health Statistics, Oregon Health Authority; and RANDY WALRUFF, in his official capacity as Multnomah County Assessor, Defendants.

CV No. No. 6:13-cv-02256-MC

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TABLE OF CONTENTS Page INTRODUCTION ......................................................................................................................... 1 ARGUMENT ................................................................................................................................. 2 I. II. The Civil Right to Marry Cannot Be Denied on the Basis of Sexual Orientation ............................................................................................................. 2 There Is No Conflict Between the Right to Same-Sex Civil Marriage and the Right to Free Exercise of Religion ................................................................... 5

CONCLUSION .............................................................................................................................. 7

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TABLE OF AUTHORITIES Page

Cases Bourke v. Beshear, No. 3:13-CV-750-H, 2014 WL 556729 (W.D. Ky. Feb. 12, 2014) .......................................3, 6 De Leon v. Perry, No. SA-13-CA-00982-OLG, 2014 WL 715741 (W.D. Tex. Feb. 26, 2014) .............................3 DeBoer v. Snyder, No. 12-CV-10285, 2014 WL 1100794 (E.D. Mich. Mar. 21, 2014) .........................................4 Garden State Equality v. Dow, 82 A.3d 336 (N.J. Super. Ct. Law Div. 2013) ...........................................................................4 Griego v. Oliver, 316 P.3d 865 (N.M. 2013) .....................................................................................................4, 7 Griswold v. Connecticut, 381 U.S. 479 (1965) ...................................................................................................................4 Heller v. Doe, 509 U.S. 312 (1993) ...................................................................................................................4 Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694 (2012) .................................................................................................................5 Kitchen v. Herbert, 961 F. Supp. 2d 1181 (D. Utah 2013) ....................................................................................5, 6 Lawrence v. Texas, 539 U.S. 558 (2003) ...................................................................................................................4 Loving v. Virginia, 388 U.S. 1 (1967) .......................................................................................................................5 Romer v. Evans, 517 U.S. 620 (1996) ...................................................................................................................3 SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471 (9th Cir. 2014) .....................................................................................................4

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TABLE OF AUTHORITIES (continued) Page United States v. Windsor, 133 S. Ct. 2675 (2013) ...............................................................................................................3 W. V. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) ...................................................................................................................2 Zablocki v. Redhail, 434 U.S. 374 (1978) ...................................................................................................................4 Statutes Defense of Marriage Act ("DOMA"), 1 U.S.C. 7 .........................................................................3 ORS 106.305(8) ...............................................................................................................................5 Other Authorities U.S. Const., Amdt. 1 ................................................................................................................1, 5, 7 U.S. Const., Amdt. 5 ........................................................................................................................3 Or. Const. Art. I, 3 ....................................................................................................................5, 6 Or. Const. Art. XV, 5a ..................................................................................................................3

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INTRODUCTION The issues raised by this case come at the intersection of civil and religious life, since marriage implicates not only a legal relationship but often also a religious one. Yet this case need not raise a conflict between civil and religious rights. The right to civil marriage is a fundamental one that cannot be denied to individuals on the basis of their sexual orientation. The First Amendment right to free exercise of religion is enshrined in the Bill of Rights, and it protects the right of churches, synagogues, mosques, and other places of religious worship to perform religious marriages in accordance with their faiths. A ruling by the Court recognizing the liberty interest of same-sex couples to civilly marry therefore need not infringe on the right to freely exercise religious beliefsincluding the right of synagogues, churches, mosques, and other places of religious worship to recognize, or not to recognize, same-sex marriages. The Oregon Area Jewish Committee ("OAJC") is an independent affiliate of a national organization founded to protect the rights of American Jews. OAJC believes that the right to practice one's religionor not to practice a religionand separation of church and state are crucial to the freedom and security of Jews and all other Americans, and that an adult has the right to marry any other adult of his or her choice. The Jewish Federation of Greater Portland ("JFGP") is the central planning, coordinating, and fundraising body for a wide range of local and international agencies that offer the entire community a broad spectrum of humanitarian programs. JFGP's Community Relations Committee ("CRC") develops and articulates consensus positions concerning matters of public importance on behalf of the organized Jewish community of northwest Oregon and southwest Washington. The Oregon Board of Rabbis ("OBR") is the largest organization of rabbis in the region. Its members represent the spectrum of Jewish movements and synagogues. Its purpose is to increase Jewish awareness and knowledge in Page 1 Amicus Brief in Support of Motion for Summary Judgment
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Oregon and Southern Washington State. Oregon Clergy Amici1 are a group of Jewish and Christian religious leaders from around Oregon who have individually signed on to this brief. Pursuant to the Court's February 13, 2014 Order, and with the consent of counsel of all plaintiffs and defendants, OAJC, CRC, OBR, and Oregon Clergy Amici (collectively, "Amici") file this brief in support of the proposition that recognizing the right of all adults to civilly marry need not create any conflict with the right of free exercise of religion. ARGUMENT I. The Civil Right to Marry Cannot Be Denied on the Basis of Sexual Orientation. "The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts." W. V. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943). And so it is the role of the judiciary to protect the rights of
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Oregon Clergy Amici include the following individuals, whose organizations have been listed for identification purposes only: Rabbi Joshua Boettiger, Temple Emek Shalom, Ashland; Rabbi Jacqueline Brodsky, Ashland; Rabbi Michael Z. Cahana, Senior Rabbi, Congregation Beth Israel, Portland; Cantor Ida Rae Cahana, Senior Cantor, Congregation Beth Israel, Portland; Rabbi Abby Cohen, Director of Spiritual Life, Cedar Sinai Park, Portland; Reverend Chuck Currie, Senior Minister, Sunnyside and University Park Churches, Portland; Rabbi Boris Dolin, Associate Rabbi, Talmud Torah-Head of School, Temple Beth Israel, Eugene; Rabbi Elizabeth Dunsker, President, Oregon Board of Rabbis; Rabbi Bradley Greenstein, Associate Rabbi, Congregation Neveh Shalom, Portland; Right Reverend Michael Hanley, Bishop of Oregon, Portland; Rabbi Maurice Harris, Eugene; Rabbi Johanna M. Hershenson, Temple Beth Tikvah, Bend; Rabbi Yitzhak Husbands-Hankin, Senior Rabbi, Temple Beth Israel, Eugene; Rabbi Daniel Isaak, Senior Rabbi, Congregation Neveh Shalom, Portland; Rabbi Rachel L. Joseph, Assistant Rabbi, Congregation Beth Israel, Portland; Reverend Mark Knutson, Augustana Lutheran Church, Portland; Rabbi Debra Kolodny, Congregation Pnai Or, Portland; Very Reverend William Lupfer, Trinity Episcopal Cathedral, Portland; Rabbi Sue Mauer Morningstar, Ashland; Rabbi Kim L. Rosen, Beit Midrash Eitz Chaim, Portland; Reverend Bill Sinkford, First Unitarian Universalist, Portland; Rabbi Ariel Stone, Congregation Shir Tikvah, Portland; Reverend Tara Wilkins, Bridgeport United Church of Christ and Executive Director of Communities of Welcoming Congregations, Portland; and Rabbi Joey Wolf, Havurah Shalom, Portland. Page 2 Amicus Brief in Support of Motion for Summary Judgment
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the people from abridgment by their government. No legislative acts are immune to review including those directly enacted by the voters of a state. See Romer v. Evans, 517 U.S. 620 (1996) (striking a state's constitutional ban on local ordinances prohibiting discrimination on the basis of sexual orientation enacted in a statewide referendum). Marriage is a fundamental right, and Oregon's voter-approved limitation of that right to only heterosexual couples is not constitutional. Or. Const. Art. XV, 5a ("Measure 36"). During its last term, the United States Supreme Court struck Section 3 of the Defense of Marriage Act ("DOMA"), which defined "marriage" for purposes of federal law as "'only a legal union between one man and one woman as husband and wife'" and "spouse" as only "'a person of the opposite sex who is a husband or a wife.'" United States v. Windsor, 133 S. Ct. 2675, 2683 (2013) (quoting DOMA, 1 U.S.C. 7). The statute, the Supreme Court held, "writes inequality into the entire United States Code," id. at 2694, and because "the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage . . . DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution." Id. at 2695. In the less than one year since the Supreme Court's decision in Windsor, several federal district courts have interpreted the opinion in the context of constitutional challenges to statewide bans on same-sex marriage. These courts have been unanimous in holding that the reasoning of Windsor compels recognition of same-sex couples' right to marry. See Bourke v. Beshear, No. 3:13-CV-750-H, 2014 WL 556729, at *9 (W.D. Ky. Feb. 12, 2014) ("Indeed, to date, all federal courts that have considered same-sex marriage rights post-Windsor have ruled in favor of same-sex marriage rights."); De Leon v. Perry, No. SA-13-CA-00982-OLG, 2014 WL 715741, at *6, *27 (W.D. Tex. Feb. 26, 2014) (joining six other federal district courts in Page 3 Amicus Brief in Support of Motion for Summary Judgment
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declaring a state's bans on same-sex marriage to be unconstitutional); DeBoer v. Snyder, No. 12CV-10285, 2014 WL 1100794 (E.D. Mich. Mar. 21, 2014) (concluding after review of evidence presented at trial that state same-sex marriage ban is unconstitutional). State supreme courts in the wake of the Windsor decision have also held that same-sex couples have the right to marry. See, e.g., Garden State Equality v. Dow, 82 A.3d 336 (N.J. Super. Ct. Law Div. 2013); Griego v. Oliver, 316 P.3d 865 (N.M. 2013). In addition, the Court of Appeals for the Ninth Circuit has since held that "classifications based on sexual orientation are subject to a standard higher than rational basis review." SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471, 474 (9th Cir. 2014). Amici will not belabor the examination of recent case law prohibiting states from prohibiting individuals' right to marry, particularly in light of the fine briefing by plaintiffs (Dkt. No. 33) and State Defendants (Dkt. No. 53). But Amici write to reiterate that "the right to marry is of fundamental importance." Zablocki v. Redhail, 434 U.S. 374, 383 (1978). See also Griswold v. Connecticut, 381 U.S. 479, 486 (1965) (marriage is "intimate to the degree of being sacred"). Further, the fact that voters, legislatures, and courts in some states have only in recent decades recognized that this fundamental right cannot and should not be denied to same-sex couples is not sufficient justification for continued denial of this right. See Lawrence v. Texas, 539 U.S. 558, 577 (2003) ("'[T]he fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice . . . .'") (quoting Bowers v. Hardwick, 478 U.S. 186, 216 (1986) (Stevens, J., dissenting)); Heller v. Doe, 509 U.S. 312, 326 (1993) ("Ancient lineage of a legal concept does not give it immunity from attack for lacking a rational basis."). This rule was no better articulated than by the United States Supreme Page 4 Amicus Brief in Support of Motion for Summary Judgment
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Court in Loving v. Virginia, 388 U.S. 1, 6, 12 (1967), which struck down a ban on interracial marriage with roots as far back as "the colonial period" and held that the Constitution "requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State." Measure 36 restricts the freedom of choice to marry, or not marry, a person of the same sex. Accordingly, the Court should declare Measure 36 unconstitutional. II. There Is No Conflict Between the Right to Same-Sex Civil Marriage and the Right to Free Exercise of Religion. Same-sex civil marriage does not, in itself, threaten religious liberty. Indeed, striking the ban on same-sex civil marriage would have the effect of "expand[ing] religious freedom because some churches . . . desire to perform same-sex wedding ceremonies but are currently unable to do so." Kitchen v. Herbert, 961 F. Supp. 2d 1181, 1214, (D. Utah 2013). But religious liberty issues could arise if the state were to pressure churches, synagogues, mosques, and other places of religious worship to recognize or officiate marriages in a way that would require them to violate their religious commitments. The state legislature recognized this balance in permitting domestic partnerships: "Providing recognition to same-sex partnerships through a domestic partnership system in no way interferes with the right of each religious faith to choose freely to whom to grant the religious status, sacrament or blessing of marriage under the rules or practices of that faith." ORS 106.305(8). The Supreme Court also recently affirmed that under the First Amendment the government may not interfere "with an internal church decision that affects the faith and mission of the church itself." Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694, 707 (2012). See also Or. Const. Art. I, 3

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("No law shall in any case whatever control the free exercise, and enjoyment of religeous [sic] opinions, or interfere with the rights of conscience."). Amici believe that if the Court explicitly states that any ruling recognizing samesex couples' right to marry specifically relates to civil marriage, and not to religious marriage, it would avoid any potential conflict between fundamental rights. In so doing, the Court would join in the chorus of other courts examining the issue of marriage equality post-Windsor. In Kitchen, 961 F. Supp. 2d at 1214, the court noted that "its decision does not mandate any change for religious institutions, which may continue to express their own moral viewpoints and define their own traditions about marriage. If anything, the recognition of samesex marriage expands religious freedom because some churches that have congregations in Utah desire to perform same-sex wedding ceremonies but are currently unable to do so. By recognizing the right to marry a partner of the same sex, the State allows these groups the freedom to practice their religious beliefs without mandating that other groups must adopt similar practices." (Citations omitted.) Likewise in Bourke, 2014 WL 556729, at *10, the court explained that "[t]he beauty of our Constitution is that it accommodates our individual faith's definition of marriage while preventing the government from unlawfully treating us differently. This is hardly surprising since it was written by people who came to America to find both freedom of religion and freedom from it." The court accordingly made it clear that "no court can require churches or other religious institutions to marry same-sex couples or any other couple, for that matter. This is part of our constitutional guarantee of freedom of religion. That decision will always be based on religious doctrine." Id.

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The Griego court similarly explained that its "holding will not interfere with the religious freedom of religious organizations or clergy because (1) no religious organization will have to change its policies to accommodate same-gender couples, and (2) no religious clergy will be required to solemnize a marriage in contravention of his or her religious beliefs." Griego, 316 P.3d at 871. Put simply, there need not be a conflict between the right of same-sex couples to civilly marry and the right to free exercise. If the Court makes it clear that its ruling relates to civil, not religious, marriage, it could enjoin enforcement of Oregon's marriage laws that unconstitutionally discriminate against same-sex couples, while at the same time preserving the religious liberty rights enshrined in the Free Exercise Clause of the First Amendment. CONCLUSION Marriage is a fundamental right. The deprivation of this right for same-sex couples violates the United States Constitution. Marriage is ordained in the Jewish scripture, as well as in the Christian scripture and the scriptures of other faiths. See, e.g., Genesis 2:24; Matthew 19:6. But civil marriage and religious marriage are not the same, and a ruling relating to one need not impact the other. So for the reasons stated herein, Amici respectfully request that the Court issue an order finding Measure 36 to be an unconstitutional limitation on same-sex couples' right to be joined in civil marriages.

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DATED this 8th day of April, 2014. MILLER NASH LLP

s/ Heather K. Cavanaugh Heather K. Cavanaugh, P.C. OSB No. 031641 heather.cavanaugh@millernash.com Counsel of Record Jonathan H. Singer OSB No. 105048 (District Court Admission Pending) jonathan.singer@millernash.com Telephone: (503) 224-5858 Fax: (503) 224-0155 Attorneys on behalf of the Oregon Area Jewish Committee and the Oregon Board of Rabbis

s/ Andrew Schlesinger Andrew Schlesinger (with consent) OSB No. 065008 schlesinger.andrew@gmail.com 4111 S.W. Garden Home Road Portland, Oregon 97219 Telephone: (503) 893-0002 Attorney on behalf of the Community Relations Committee of the Jewish Federation of Greater Portland

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s/ Rabbi Joshua Boettiger Rabbi Joshua Boettiger (with consent) Temple Emek Shalom,* Ashland Signatory to Brief * - Organization listed for identification purposes only

s/ Rabbi Jacqueline Brodsky Rabbi Jacqueline Brodsky (with consent) Signatory to Brief

s/ Rabbi Michael Z. Cahana Rabbi Michael Z. Cahana (with consent) Senior Rabbi, Congregation Beth Israel,* Portland Signatory to Brief * - Organization listed for identification purposes only

s/ Cantor Ida Rae Cahana Cantor Ida Rae Cahana (with consent) Senior Cantor, Congregation Beth Israel,* Portland Signatory to Brief * - Organization listed for identification purposes only

s/ Rabbi Abby Cohen Rabbi Abby Cohen (with consent) Director of Spiritual Life, Cedar Sinai Park,* Portland Signatory to Brief * - Organization listed for identification purposes only

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s/ Reverend Chuck Currie Reverend Chuck Currie (with consent) Senior Minister, Sunnyside and University Park Churches,* Portland Signatory to Brief * - Organization listed for identification purposes only

s/ Rabbi Boris Dolin Rabbi Boris Dolin (with consent) Associate Rabbi, Talmud Torah-Head of School Temple Beth Israel,* Eugene Signatory to Brief * - Organizations listed for identification purposes only

s/ Rabbi Elizabeth Dunsker Rabbi Elizabeth Dunsker (with consent) President, Oregon Board of Rabbis* Signatory to Brief * - Organization listed for identification purposes only

s/ Rabbi Bradley Greenstein Rabbi Bradley Greenstein (with consent) Associate Rabbi, Congregation Neveh Shalom,* Portland Signatory to Brief * - Organization listed for identification purposes only

s/ Right Reverend Michael Hanley Right Reverend Michael Hanley (with consent) Bishop of Oregon,* Portland Signatory to Brief * - Organization listed for identification purposes only Page 10 - Amicus Brief in Support of Motion for Summary Judgment
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s/ Rabbi Maurice Harris Rabbi Maurice Harris (with consent) Signatory to Brief

s/ Rabbi Johanna M. Hershenson Rabbi Johanna M. Hershenson (with consent) Temple Beth Tikvah,* Bend Signatory to Brief * - Organization listed for identification purposes only

s/ Rabbi Yitzhak Husbands-Hankin Rabbi Yitzhak Husbands-Hankin (with consent) Senior Rabbi, Temple Beth Israel,* Bend Signatory to Brief * - Organization listed for identification purposes only

s/ Rabbi Daniel Isaak Rabbi Daniel Isaak (with consent) Senior Rabbi, Congregation Neveh Shalom* Portland Signatory to Brief * - Organization listed for identification purposes only

s/ Rabbi Rachel L. Joseph Rabbi Rachel L. Joseph (with consent) Assistant Rabbi, Congregation Beth Israel* Portland Signatory to Brief * - Organization listed for identification purposes only

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s/ Reverend Mark Knutson Reverend Mark Knutson (with consent) Augustana Lutheran Church,* Portland Signatory to Brief * - Organization listed for identification purposes only

s/ Rabbi Debra Kolodny Rabbi Debra Kolodny (with consent) Congregation P'nai Or,* Portland Signatory to Brief * - Organization listed for identification purposes only

s/ Very Reverend William Lupfer Very Reverend William Lupfer (with consent) Trinity Episcopal Cathedral,* Portland Signatory to Brief * - Organization listed for identification purposes only

s/ Rabbi Sue Mauer Morningstar Rabbi Sue Mauer Morningstar (with consent) Signatory to Brief

s/ Rabbi Kim L. Rosen Rabbi Kim L. Rosen (with consent) Beit Midrash Eitz Chaim,* Portland Signatory to Brief * - Organization listed for identification purposes only

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s/ Reverend Bill Sinkford Reverend Bill Sinkford (with consent) First Unitarian Universalist,* Portland Signatory to Brief * - Organization listed for identification purposes only

s/ Rabbi Ariel Stone Rabbi Ariel Stone (with consent) Congregation Shir Tikvah,* Portland Signatory to Brief * - Organization listed for identification purposes only

s/ Reverend Tara Wilkins Reverend Tara Wilkins (with consent) Bridgeport United Church of Christ Executive Director of Communities of Welcoming Congregations,* Portland Signatory to Brief * - Organizations listed for identification purposes only

s/ Rabbi Joey Wolf Rabbi Joey Wolf (with consent) Havurah Shalom,* Portland Signatory to Brief * - Organization listed for identification purposes only

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