This document is a motion for summary judgment filed by plaintiffs in a lawsuit challenging Alaska's bans on same-sex marriage. The motion argues that Alaska's marriage bans violate due process and equal protection under the U.S. Constitution. It asserts that the fundamental right to marry applies to same-sex couples, and that the bans discriminate based on sexual orientation without furthering a compelling state interest. The motion also argues that Alaska's laws refusing to recognize same-sex marriages validly performed elsewhere are unconstitutional. The motion contains a table of contents and cites to supporting legal precedents.
This document is a motion for summary judgment filed by plaintiffs in a lawsuit challenging Alaska's bans on same-sex marriage. The motion argues that Alaska's marriage bans violate due process and equal protection under the U.S. Constitution. It asserts that the fundamental right to marry applies to same-sex couples, and that the bans discriminate based on sexual orientation without furthering a compelling state interest. The motion also argues that Alaska's laws refusing to recognize same-sex marriages validly performed elsewhere are unconstitutional. The motion contains a table of contents and cites to supporting legal precedents.
This document is a motion for summary judgment filed by plaintiffs in a lawsuit challenging Alaska's bans on same-sex marriage. The motion argues that Alaska's marriage bans violate due process and equal protection under the U.S. Constitution. It asserts that the fundamental right to marry applies to same-sex couples, and that the bans discriminate based on sexual orientation without furthering a compelling state interest. The motion also argues that Alaska's laws refusing to recognize same-sex marriages validly performed elsewhere are unconstitutional. The motion contains a table of contents and cites to supporting legal precedents.
1215 W. 8 th Ave. Anchorage, AK 99501 (907) 279-5001 (907) 279-5437 Amendel@mendelandassociates.com Heather Gardner AK Bar #0111079 Caitlin Shortell AK Bar #0405027 Attorneys for Matthew Hamby, et al
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA
MATTHEW HAMBY and CHRISTOPHER SHELDEN, a married couple, CHRISTINA LABORDE and SUSAN TOW, a married couple, SEAN EGAN and DAVID ROBINSON, a married couple, TRACEY WIESE and KATRINA CORTEZ, a married couple, and COURTNEY LAMB and STEPHANIE PEARSON, unmarried persons,
Plaintiffs,
vs.
SEAN C. PARNELL, in his official capacity as Governor of Alaska, MICHAEL GERAGHTY, in his official capacity as Attorney General of the State of Alaska, WILLIAM J. STREUR, in his official capacity as Commissioner of the State of Alaska, Department of Health and Social Services, and PHILLIP MITCHELL, in his official capacity as State Registrar and Licensing Officer, Alaska Bureau of Vital Statistics,
Defendants.
) ) ) Case No. 3:14-cv-00089-TMB
PLAINTIFFS RULE 56 MOTION FOR SUMMARY JUDGMENT
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Hamby, et al v. Parnell, et al Case No. 3:14-cv-00089-TMB II TABLE OF CONTENTS Table of Cases and Authorities ...................................................................................... iv-ix INTRODUCTION ..............................................................................................................1 ISSUES PRESENTED.........................................................................................................3 BACKGROUND .................................................................................................................4 A. Alaskas Statutory Marriage Bans and Constitutional Prohibition .........................4
B. The Plaintiffs in this Action .....................................................................................6 LEGAL STANDARD ........................................................................................................10 ARGUMENT .....................................................................................................................10 I. ALASKAS MARRIAGE BANS VIOLATE DUE PROCESS AND EQUAL PROTECTION ........................................................................................11
A. Marriage is a Fundamental Right Under the Due Process Clause .........................11
B. The Fundamental Right to Marry is not Restricted to Heterosexuals ....................14
C. The Marriage Bans Violate Due Process Because the State Cannot Show that they Further a Legitimate Interest ...................................................................16
II. ALASKAS MARRIAGE BANS DENY PLAINTIFFS EQUAL PROTECTION OF THE LAWS ...........................................................................23
A. Alaskas Marriage Bans Violate Equal Protection Because They Impermissibly Infringe on a Fundamental Right ...................................................23
B. Alaskas Bans on Marriage of Same-Sex Couples Violate Equal Protection Because They Discriminate Based on Sexual Orientation and Gender without Furthering a Compelling State Interest ..................................................................24
1. SmithKline Requires Application of Heightened Scrutiny Because Alaskas Marriage Bans Discriminate on the Basis of Sexual Orientation .........................24
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Hamby, et al v. Parnell, et al Case No. 3:14-cv-00089-TMB III 2. Alaskas Marriage Bans Violate Equal Protection under Heightened Scrutiny Applicable to Discrimination Based on Sexual Orientation ...................28
3. The Marriage Bans also Violate Equal Protection Because They Cannot Survive the Scrutiny Applicable to Laws That Discriminate on the Basis of Gender....................................................................................................................31
III. ALASKAS ANTI-RECOGNITION LAWS VIOLATE THE MARRIED PLAINTIFFS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND EQUAL PROTECTION ........................................................................................34
A. Alaskas Anti-Recognition Laws Violate the Fundamental Right to Remain Married ...................................................................................................................34
1. Alaskas Anti-Recognition Laws Inflict Significant Harm on Married Same-Sex Couples And Their Children..................................................................37
B. Alaskas Anti-Recognition Laws Violate Equal Protection ............................38
C. Section 2 of DOMA does not Bar Plaintiffs Claims ......................................40
IV. BAKER v. NELSON DOES NOT BAR PLAINTIFFS CLAIMS .........................40
V. DEFENDANTS OTHER AFFIRMATIVE DEFENSES LACK MERIT ............43 CONCLUSION ..................................................................................................................46
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Hamby, et al v. Parnell, et al Case No. 3:14-cv-00089-TMB IV TABLE OF CASES AND AUTHORITIES Supreme Court Decisions Abbott Laboratories v. Gardner, 387 U.S. 136 (1967) ..........................................44 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ..............................10, 11, 43 Baker v. Carr, 369 U.S. 186 (1962) .......................................................................44 Baker v. Nelson, 409 U.S. 810 (1972) .............................................................41, 42 Califano v. Westcott, 443 U.S. 76 (1979) ..............................................................33 City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432 (1985) ...............18 Ex Parte Young, 209 U.S. 123 ...............................................................................45 Frontiero v. Richardson, 411 U.S. 677 (1973) ......................................................42 Graham v. Richardson, 403 U.S. 365 (1991) ........................................................41 Griswold v. Connecticut, 381 U.S. 479 (1965) ................................................11, 35 Hicks v. Miranda, 422 U.S. 332 (1975) .................................................................41 Hodgson v. Minnesota, 497 U.S. 417 (1990) .........................................................12 J.E.B. v Alabama ex rel. T.B., 511 U.S. 127 (1994) ........................................26, 32 Lawrence v. Texas, 539 U.S. 558 (2003) .......................................15, 17, 30, 37, 42 Loving v. Virginia, 388 U.S. 1 (1967)..............................3, 10, 11, 13, 1, 17, 32, 35 Lucas v. Forty-Fourth General Assembly of State of Colo., 377 U.S. 713 (1964) .....................................................................................................................18 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ............................................43 Mandel v. Bradley, 432 U.S. 173 (1977) ...............................................................42 M.L.B. v. S.L.J., 519 U.S. 102 (1996) ....................................................................35 New York City Transit Authority v. Beazer, 440 U.S. 568 (1979) .........................18 Case 3:14-cv-00089-TMB Document 20 Filed 08/29/14 Page 4 of 55
Hamby, et al v. Parnell, et al Case No. 3:14-cv-00089-TMB V Orr v Orr, 440 U.S. 268 (1979) .............................................................................33 Plyler v. Doe, 457 U.S. 202 (1982) ...................................................................19 Powers v. Ohio, 499 U.S. 400 (1991) ..................................................................32 Reed v Reed, 404 U.S. 71 (1971) .........................................................................33 Reno v. Flores, 507 U.S. 292 (1993) ....................................................................11 Roberts v. U.S. Jaycees, 468 U.S. 609 (1984) ..........................................12, 13, 35 Romer v. Evans, 517 U.S. 620 (1996) ......................................................17, 42, 43 Stanton v. Stanton, 421 U.S. 7 (1975) ..................................................................33 Turner v. Safley, 482 U.S. 78 (1987) .........................................................10, 11, 14 U.S. v. Salerno, 481 U.S. 729 (1987) .....................................................................11 U.S. v. Virginia, 518 U.S. 515 (1996) ..............................................................23, 34 United States v. Windsor, __ U.S. __133 S. Ct. 2675 (2013) .................................... ............................................1, 2, 3, 15, 16, 17, 20, 23, 27, 28, 30, 35, 36, 38, 39, 42 Washington v. Glucksberg, 521 U.S. 702 (1997) ......................................11, 24, 35 Zablocki v. Redhail, 434 U.S. 374 (1978) ............................1, 10, 13, 14, 15, 24, 36
Ninth Circuit Court Decisions Hibbs v. Department of Human Resources, 273 F.3d 844 (9th Cir. 2001) ............26 SmithKline Beecham Corp. v. Abbott Laboratories, 740 F.3d 471 (9th Cir. 2014) ...................................................................................3, 23, 24, 25, 26, 27, 39, U.S. v. Juvenile Male, 670 F.3d 999 (9th Cir. 2012) ................................10, 12, 16
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Hamby, et al v. Parnell, et al Case No. 3:14-cv-00089-TMB VI Other Federal Cases Baskin v. Bogan, __F.Supp.2d__, 2014 WL 2884868 (S.D. Ind. 2014) ..........1, 21 Bishop v. Smith, 962 F.Supp.2d 124 (N.D. Ill. 1997) ...............................17, 21, 39 Bishop v Smith, __F.3d__, 2014 WL 3537847 (10th Cir. Jul. 18, 2004) ...1, 19, 21 Bishop v. U.S. ex rel. Holder, 962 F.Supp.2d 1252 (N.D. Okla. 2014) ...............18 Bostic v. Rainey, 970 F.Supp.2d 456 (E.D. Va. 2014) ...................................15, 21 Bostic v. Schaefer, __F.3d__, 2014 WL 3702493 (4th Cir. 2014) .......1, 10, 14, 21 Bourke v. Beshear, __F.Supp.2d__, 2014 WL 556729 (W.D. Ky. Feb. 12, 2014) .................................................................................................................1, 21 Brenner v. Scott, __F.Supp.2d__, 2014 WL 4113100 (N.D. Fla. Aug. 21, 2014) .................................................................................................................1, 21 Ctr. For Individual Freedom v. Carmouche, 449 F.3d 655 (5th Cir. 2006) ........10 DeBoer v. Snyder, 973 F. Supp.2d 757 (E.D. Mich. 2014) ............................18, 21 DeLeon v. Perry, 975 F. Supp.2d 632 (W.D.Tex. 2014) ...................18, 29, 36, 40 Gable v. Patton, 142 F.3d 940, 944 (6th Cir. 1998) .............................................10 Geiger v. Kitzhaber, __F.Supp.2d__, 2014 WL 054264 (D.Or. 2014) ...1, 18, 21 Gray v. Orr, __F.Supp.2d__, 2013 WL 6355918 (N.D.Ill. 2013) .......................21 Henry v. Himes, __F.Supp.2d__, 2014 WL 1418395 (S.D. Ohio 2014).............21 Kitchen v. Herbert, 961 F.Supp.2d 1181 (D. Utah 2013) ..............................15, 21 Kitchen v. Herbert, 755 F.3d 1193, 2014 (10th Cir. 2014) ..............................1, 15 Latta v. Otter, __F.Supp.2d__, 2014 WL 1909999 (D. Idaho 2014) ..........................................................................1, 3, 18, 21, 27, 36 Lisco v. Love, 219 F.Supp. 922 (D. Colo. 1963) ..................................................17 Love v. Beshear, 989 F.Supp.2d 536 (W.D. Ky. 2014) ....................................1, 21 Case 3:14-cv-00089-TMB Document 20 Filed 08/29/14 Page 6 of 55
Hamby, et al v. Parnell, et al Case No. 3:14-cv-00089-TMB VII Massachusetts v. United States Dept. of Health & Human Services, 682 F.3d 1 (1st Cir. 2012) .......................................................................................5, 26 Obergefell v Wymyslo, 962 F.Supp.2d 968 (S.D. Ohio 2013) .............................36 Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010) .......................21 Whitewood v. Wolf, 992 F.Supp.2d 410, (M.D.Pa. 2014) ................................1, 21 Windsor v. United States, 699 F.3d 169 (2d Cir. 2012) ...........................26, 29, 41 Wolf v. Walker, 986 F.Supp.2d 982 (W.D. Wis. 2014) .........................................1
Other State Cases Baker v Nelson, 191 N.W.2d 185 (Minn. 1971) ...................................................41 Baker v. State, 722 A.2d 864 (Vt. 1999) ................................................................5 Baehr v. Lewin, 852 P.2d 44 (Haw. 1993) .............................................................4 Brause v. Bureau of Vital Statistics, 1998 WL 88743, (Alaska Super. 1998) (3AN-95-06562 CI, 1998) ............................................................................5 Garden State Equality v. Dow, 434 N.J.Super. 163 (N.J.Super.L. 2013) .............1 Goodridge v. Department of Public Health, 798 N.E.2d 941 (Mass. 2003) ....5, 21 Griego v. Oliver, 316 P.3d 865 (N.M. 2013) .........................................................1 In re Balas, 449 B.R. 567 (Bankr. CD. Cal. 2011) ..............................................26 In re Marriage Cases, 183 P.3d 384 (Cal. 2008) ...........................................21, 26 In re Opinions of the Justices to the Senate, 802 N.E.2d 565 (Mass. 2004) ..........5 Kerrigan v. Commissioner of Public Health, 957 A.2d 407 (Conn. 2008) ..........26 Morrison v. Sunshine Mining Co., 127 P.2d 766 (Idaho 1942) ...........................37 Case 3:14-cv-00089-TMB Document 20 Filed 08/29/14 Page 7 of 55
Hamby, et al v. Parnell, et al Case No. 3:14-cv-00089-TMB VIII Perez v. Lippold, 198 P.2d 17 (Cal. 1948) .....................................................13, 32 Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009) ..................................................26 Wright v. Arkansas, No. 60CV-13-2662 (Ark. Cir. Ct. 2d Div. 2014) ..................1 Federal Statutes 28 U.S.C. 1738C ................................................................................................40 42 U.S.C. 1983 ............................................................................................43, 45
Federal Rules of Civil Procedure Fed. R. Civ. P. 56 .....................................................................................10, 11, 46
United States Constitution Art. III, 2 .............................................................................................................15
Alaska Statutes AS 13.12.102 ..................................................................................................22, 37 AS 13.12.202 ..................................................................................................22, 37 AS 13.12.402-.405 ..........................................................................................22, 37 AS 13.26.145 ............................................................................................22, 30, 37 AS 13.26.210 ............................................................................................22, 30, 37 Case 3:14-cv-00089-TMB Document 20 Filed 08/29/14 Page 8 of 55
Hamby, et al v. Parnell, et al Case No. 3:14-cv-00089-TMB IX AS 13.75.020 ..................................................................................................22, 37 AS 23.30.215 ..................................................................................................22, 37 AS 23.30.395 ..................................................................................................22, 37 AS 25.05.011 ......................................................................................4, 7, 9, 10, 11 AS 25.05.013 ..................................................................................4, 7, 8, 9, 10, 36 AS 25.05.361 ....................................................................................................9, 30 AS 25.20.020 ............................................................................................22, 30, 37 AS 25.20.030 ..................................................................................................22, 37 AS 25.20.045 ........................................................................................8, 22, 30, 37 AS 25.23.020 ..................................................................................................22, 37 AS 25.23.090 ..............................................................................................8, 22, 37 AS 25.23.100 ..............................................................................................8, 22, 37 AS 34.77.070 ..................................................................................................22, 37 7 AAC 40.240-.280 ..............................................................................................22
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INTRODUCTION Since the Supreme Courts decision in United States v. Windsor, 1 the vast majority of courts to consider the issue have ruled that state laws barring same-sex couples from marriage or refusing to recognize their existing marriages are invalid, including the Fourth and Tenth Circuit Courts of Appeals, fourteen federal district courts, and three state courts. 2 In every corner of this country, judges have agreed Plaintiffs claims are meritorious and that states cannot exclude same-sex couples from marriage. Plaintiffs are five couples who live in Alaska. They have formed families here, contributed to their communities, and established close ties with their fellow Alaska citizens. Most of the couples have been together for years and all have committed to spend their lives together. One of the Plaintiff couples seeks to marry in Alaska. Four of the Plaintiff couples already have legally married in other statesas
1 __U.S.__, 133 S. Ct. 2675 (2013). 2 See Bostic v. Schaefer, __F.3d__, 2014 WL 3702493 (4th Cir. 2014); Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014); Bishop v. Smith, 2014 WL 3537847 (10th Cir. 2014); Brenner v. Scott, 2014 WL 4113100 (N.D. Fla. 2014); Love v. Beshear, 989 F.Supp.2d 536, 539 (W.D. Ky. 2014) (state bans on same-sex marriage do not withstand rational scrutiny under equal protection); Baskin v. Bogan, 2014 WL 2884868 (S.D. Ind. 2014) (statute barring same-sex marriage violates equal protection); Latta v. Otter, 2014 WL 1909999, *28 (D. Idaho 2014) (citing cases and noting that 10 [other] federal [district] courts across the country have in recent months reached similar conclusions); see also Wolf v. Walker, 986 F.Supp.2d 982 (W.D. Wis. 2014) (same-sex marriage ban does not further state interest in procreation); Whitewood v. Wolf, 992 F.Supp.2d 410 (M.D. Pa. 2014) (same-sex marriage prohibition does not survive intermediate scrutiny under equal protection analysis); Geiger v. Kitzhaber, __F.Supp.2d__, 2014 WL 2054264 (D.Or. 2014), stay denied (9th Cir. 14-35427) (May 19, 2014) (cannot survive rational basis); Wright v. Arkansas, No. 60CV-13-2662 (Ark. Cir. Ct. 2d Div. 2014); Griego v. Oliver, 316 P.3d 865 (N.M. 2013); Garden State Equality v. Dow, 434 N.J.Super. 163, 82 A.3d 336 (N.J.Super.L. 2013) (declining to stay decision striking down marriage ban). Case 3:14-cv-00089-TMB Document 20 Filed 08/29/14 Page 10 of 55
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many other Alaska residents have done. The federal government recognizes that the married Plaintiffs existing marriages are valid and recognizes those marriages for purposes of most federal benefits, but the State of Alaska does not. All of the couples wish their relationships to be accorded the same dignity, respect, and security as the relationships of other married couples they know in their state. Because of Alaskas marriage bans and anti-recognition laws, Plaintiffs are denied the legal stability and substantial protections that flow from civil marriage. Alaska law excludes them from what, for many, is lifes most important relationship, leaving them with no way to publicly express or formalize their commitment to one another or assume the duties and responsibilities that are an essential part of married life and that they would be honored to accept. 3 Alaskas treatment of them as legal strangers to one another demeans their deepest relationships and stigmatizes their children by communicating that their families are second class. 4
These harms violate the most basic principles of equal protection and due process, which require that the law treat all persons equally and provide that every person has a protected right to marry and establish a home and family. 5 While states generally have power to regulate marriage, they must exercise that power [s]ubject to constitutional guarantees. 6 Alaskas marriage bans infringe upon the fundamental right to marry and discriminate on the basis of sexual orientation and gender. Alaskas
3 Windsor, 133 S. Ct. at 2695. 4 Id. at 2695-96. 5 See Zablocki v. Redhail, 434 U.S. 374, 384 (1978). 6 Windsor, 133 S. Ct. at 2680 (citing Loving v. Virginia, 388 U.S. 1 (1967)). Case 3:14-cv-00089-TMB Document 20 Filed 08/29/14 Page 11 of 55
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laws cannot survive the heightened scrutiny that the Supreme Court and the Ninth Circuit have made plain that the courts must apply to such discriminatory laws. 7
Indeed, as further discussed below, Alaskas discriminatory marriage laws cannot withstand any level of constitutional scrutiny because Alaskas exclusion of same-sex couples from marriage has no rational justification and fails to further any legitimate governmental interest. Alaskas exclusion of same-sex couples from marriage and refusal to recognize the lawful marriages of those who married in other states violate the Fourteenth Amendment and Plaintiffs are entitled to summary judgment on their constitutional claims. ISSUES PRESENTED 1. Do Alaskas bans on marriage between same-sex couples violate the due process clause of the United States Constitution? 2. Do Alaskas bans on marriage between same-sex couples violate the equal protection clause of the United States Constitution? 3. Do Alaskas bans of recognition of marriages between same-sex couples violate the process clause of the United States Constitution? 4. Do Alaskas bans on recognition of marriages between same-sex couples violate the equal protection clause of the United States Constitution?
7 Windsor, 133 S. Ct. at 2693; SmithKline Beecham Corp. v. Abbott Labs. 740 F.3d 471, 482 (9th Cir. 2014); see also Latta v. Otter, __ F.Supp.2d__, 2014 WL 1909999 (D. Idaho 2014) (applying SmithKline to find Idahos same-sex marriage ban violates equal protection). Case 3:14-cv-00089-TMB Document 20 Filed 08/29/14 Page 12 of 55
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5. Do any of Defendants affirmative defenses prevent the Court from granting summary judgment to Plaintiffs? BACKGROUND A. Alaskas Statutory Marriage Bans and Constitutional Prohibition. Alaska Statute 25.05.011 restricts the definition of marriage to opposite sex couples: Marriage is a civil contract entered into by one man and one woman. Alaska Statute 25.05.013 bars the recognition in Alaska of same-sex marriages valid in other jurisdictions: A marriage entered into by persons of the same sex that is recognized by another state or foreign jurisdiction is void in this state. A same-sex relationship may not be recognized by the state as being entitled to the benefits of marriage. Prior to 1996, AS 25.05.013 did not exist and AS 25.05.011 contained no language limiting marriage to one man and one woman. There was no statutory bar to same-sex marriage in Alaska. Changes to the law were prompted by the prospect of legal same-sex marriage in Hawaii following the Supreme Court of Hawaiis 1993 decision, Baehr v. Lewin, 8 holding that Hawaiis denial of marriage to same-sex couples was subject to strict scrutiny under Hawaiis Equal Protection Clause and would be struck down absent a showing that it was narrowly tailored to serve a compelling state interest. 9
8 852 P.2d 44 (Haw. 1993). 9 See Attachment 1, at 2 n. 285, 3 n. 506, 4 n. 001, 5. Case 3:14-cv-00089-TMB Document 20 Filed 08/29/14 Page 13 of 55
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In 1995, two men filed suit against the Alaska Bureau of Vital Statistics challenging its refusal to issue a marriage license to them as unconstitutional. The Superior Court held that the denial of the marriage license was subject to strict scrutiny and ordered the state to provide a compelling state interest for denying them the right to marry. 10 In response to the 1998 decision, the Alaska legislature introduced a proposed amendment to the Alaska Constitution. That measure became a 1998 statewide ballot initiative to amend the state constitution to include Article I, 25, which provides: To be valid or recognized in this State, a marriage may exist only between one man and one woman. This amendment was adopted by popular vote. The same year Alaska amended its constitution to deny the right to marry to same-sex couples, other courts began to recognize that such laws were unconstitutional. In 1998, the Vermont Supreme Court ruled that same-sex couples must be treated equally to opposite-sex married couples as a matter of state constitutional law. 11 And in 2003 and 2004, the Massachusetts appellate court issued decisions holding that Massachusetts could not exclude same-sex couples from marriage under the Commonwealths constitution. 12
Prior to 1996, Alaska recognized all legal marriages from other jurisdictions, including interracial ones. Far from being a restrictive state, Alaska
10 Brause v. Bureau of Vital Statistics, 1998 WL 88743 (Alaska Super. 1998) (3AN-95- 06562 CI). 11 Baker v. State, 722 A.2d 864, 886 (Vt. 1999). 12 See In re Opinions of the Justices to the Senate, 802 N.E.2d 565 (Mass. 2004); Goodridge v. Department of Public Health, 798 N.E.2d 941, 961 (Mass. 2003). Case 3:14-cv-00089-TMB Document 20 Filed 08/29/14 Page 14 of 55
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extended a broader spectrum of civil rights and individual liberties to its citizens than the U.S. Constitution provided. For the first 39 years of statehood, the Alaska Constitution contained no provision limiting or restricting civil rights. The 1996 statutory amendments and the constitutional amendment limiting marriage to one man and one woman marked a stark departure from the states robust protection of civil rights. While Alaska continues to apply its longstanding rule of recognizing valid out-of-state marriages, it has carved out an exception to that rule applicable only to the marriages of same-sex couples. The plain language and context in which these changes occurred make clear that these unprecedented enactments were intended to single out and exclude gay and lesbian couples from lawful marriage. These laws are facially unconstitutional. B. The Plaintiffs in this Action. Plaintiffs are five Alaska same-sex couples. 13 Four of these couples are lawfully married but Alaska refuses to recognize them as married. 14 One couple wishes to marry in Alaska, its home state. 15 All five couples seek legal recognition of their commitment. These individuals are productive members of society, with diverse backgrounds. They have formed families, contributed to their professions and communities, and chosen Alaska as their home. Yet, because they are of the same sex,
13 Complaint for Declaratory and Injunctive Relief, III.A. 14 Id. 15 Id. at 5. Case 3:14-cv-00089-TMB Document 20 Filed 08/29/14 Page 15 of 55
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and for no other reason, Alaska law bars them from getting married or from having their out-of-state marriages recognized. 16
Matthew Hamby and Christopher Shelden are residents of the State of Alaska. 17 Christopher is a twenty-year employee of the State of Alaska. 18 Matthew has worked as a pharmacist for Providence Health in Anchorage for fifteen years. 19 After several years together, they married in Canada in 2008. 20 In December 2013, they renewed their vows in Utah, with Matthews mother in attendance. 21 Despite the fact that they have been legally married for six years, they remain legal strangers to one another in the eyes of the State of Alaska, which does not recognize their marriage. 22 They have experienced difficulties obtaining benefits, such as health insurance, extended to other married couples as a routine matter. 23
Susan Tow and Christina Laborde are residents of the State of Alaska. 24
Susan is a retired veteran of the U.S. Air Force, having served her country with distinction for twenty-two years before retiring in 2012. 25 She is also the biological
16 AS 25.05.011, AS 25.05.013; Alaska Const. Art. I 25. 17 Declaration of Matthew Hamby, 2. 18 Id. 2. 19 Id. 20 Id. 21 Id. 4-5. 22 AS 25.05.013. 23 See AS 25.05.013(b) (prohibiting same-sex couples from being entitled to the benefits of marriage). See generally Complaint 36. 24 Declaration of Susan Tow, 2. 25 Id. 3. Case 3:14-cv-00089-TMB Document 20 Filed 08/29/14 Page 16 of 55
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mother of two sons, ages twenty and seventeen. 26 Christina is a former state and federal employee who now works in the private sector in Anchorage. 27 Since 2005, Christina and Susan have raised their sons to young adulthood as co-parents. 28 Christina cared for their sons as a single parent while Susan was deployed in 2008-09. 29 They own a home in Anchorage together. 30 They entered into a civil union in Hawaii in February 2012 and were married in Maryland on July 27, 2013. 31 Despite raising a family, buying a house, supporting each other and their family through Susans military deployment, and reaching lifes milestones together as a family unit, they are legal strangers to each other in their home state. 32 Alaska does not recognize their marriage and the marriage bans complicate the process by which Christina could adopt the children. 33
Stephanie Pearson and Courtney Lamb are residents of Alaska. 34
Courtney grew up partly in Alaska as an Air Force dependent, and moved back to Alaska in 2003 because she considers Alaska home. 35 Stephanie has lived in Alaska for seven years. 36 The couple lives in Anchorage and wishes to marry in Alaska because both feel
26 Id. 4. 27 Id. 2. 28 Id. 6. 29 Id. 6-7. 30 Id. 12. 31 Id. 10. 32 Id. 6-10. 33 AS 25.05.013; AS 25.23.090(b); 25.23.100(g). 34 Declaration of Stephanie Pearson 2. 35 Id. 5. 36 Id. 2. Case 3:14-cv-00089-TMB Document 20 Filed 08/29/14 Page 17 of 55
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that they should be able to marry in their home state. 37 Because of the laws at issue in this lawsuit, however, Alaska will not issue a marriage license to a same-sex couple, criminalizes the act of solemnizing a marriage without a marriage license, and would not recognize a marriage performed in another state. 38
Sean Egan and David Robinson are residents of Alaska. 39 David grew up in Alaska and Sean moved to Alaska in 2005. 40 They were married in 2011 in New York. 41 Sean works for the University of Alaska, while David is a member the U.S. Air Force. 42 Despite their valid marriage from New York, which is recognized by the federal government and other states, the State of Alaska refuses to recognize their marriage and treats them as legal strangers under state law. 43
Tracey Wiese and Katrina Cortez are residents of Alaska. 44 Tracey moved to Alaska eighteen years ago and Katrina is a life-long Alaskan. 45 Tracey works for Providence Medical Center and is a business owner. 46 Tracey is the biological mother of a three-year-old girl whom Katrina co-parents. 47 Although Tracey and Katrina were legally married in Hawaii on March 10, 2014, the State of Alaska does not recognize
37 Id. 5. 38 AS 25.05.011; AS 25.05.361; AS 25.05.013. 39 Declaration of Sean Egan, 2, 7. 40 Id. 2. 41 Id. 3. 42 Id. 2, 3. 43 AS 25.05.013. 44 Declaration of Tracey Wiese, 2. 45 Id. 2. 46 Id. 3-4. 47 Id. 2. Case 3:14-cv-00089-TMB Document 20 Filed 08/29/14 Page 18 of 55
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their marriage, and in the eyes of the State of Alaska, they are legal strangers, their marriage void under state law. 48
LEGAL STANDARD Summary judgment is appropriate where there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. 49 A facial challenge to the constitutionality of a statute presents a question of pure law. 50
Here, there are no material facts in dispute, and Plaintiffs are entitled to summary judgment as a matter of law on their constitutional claims. Statement of Undisputed Material Facts 1. Plaintiffs are prevented from having their marriages recognized in Alaska by Article I, Section 25 of the Alaska State Constitution, amended in 1998, which provides that to be valid in the State of Alaska, a marriage must be only between one man and one woman, and by Alaska Statutes Section 25.05.013. 2. Stephanie Pearson and Courtney Lamb, an unmarried same-sex couple, are prevented from marrying one another in the State of Alaska by Article I, Section 25 of the Alaska State Constitution and by Alaska Statute 25.05.011.
48 Id. 6; AS 25.05.013. 49 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); see also Fed. R. Civ. P. 56(a). 50 Ctr. For Individual Freedom v. Carmouche, 449 F.3d 655, 662 (5th Cir. 2006); see also Gable v. Patton, 142 F.3d 940, 944 (6th Cir. 1998) (Because the four provisions are challenged with regard to facial constitutionality, thus implicating only issues of law, neither Plaintiff nor Defendants contest the appropriateness of summary judgment.). Case 3:14-cv-00089-TMB Document 20 Filed 08/29/14 Page 19 of 55
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ARGUMENT I. ALASKAS MARRIAGE BANS VIOLATE DUE PROCESS AND EQUAL PROTECTION. Alaska Statute 25.05.011 and the constitutional amendment enacted in 1998 prevent same-sex couples from marrying in Alaska by defining marriage as existing only between one man and one woman. The right to marry ones person of choice is a fundamental right due to all individuals, regardless of sexual orientation, race, or gender. 51 The Due Process Clause of the Fourteenth Amendment to the U.S. Constitution forbids the government from infringing on fundamental rights unless the infringement is narrowly tailored to serve a compelling state interest. 52 Here, the bans fail constitutional muster because they deprive Plaintiffs and other same-sex couples of the fundamental right to marry without serving any legitimate, much less compelling, state interest. Because there are no material facts in dispute, Plaintiffs are entitled to summary judgment on their claims. 53
A. Marriage is a Fundamental Right Under the Due Process Clause. The freedom to marry is a fundamental right protected by the Due Process Clause. A fundamental right is one that is so rooted in the traditions and conscience of
51 See Loving, 388 U.S. at 12; Zablocki, 434 U.S. at 384; Turner v. Safley, 482 U.S. 78, 95, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987); Kitchen, 755 F.3d at 1209; Bostic v Schaefer, __F.3d.__, 2014 WL 3702493, *10 (4th Cir. 2014). 52 Reno v. Flores, 507 U.S. 292, 303 (1993); see also U.S. v. Juvenile Male, 670 F.3d 999, 1012 (9th Cir. 2012) (citing Washington v. Glucksberg, 521 U.S. 702, 722, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997)). 53 See Anderson, 477 U.S. at 247; Fed. R. Civ. P. 56(a). Plaintiffs are prepared to respond to Alaskas affirmative defenses when they have been articulated. Case 3:14-cv-00089-TMB Document 20 Filed 08/29/14 Page 20 of 55
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our people as to be ranked as fundamental. 54 In the words of the United States Supreme Court, not only is the freedom to marry of fundamental importance for all individuals, it is also the most important relation in life. 55 It is one of the vital personal rights essential to the orderly pursuit of happiness by free men. 56 This freedom includes personal choice in matters of marriage and family life. 57 The right to marry the individual of ones choice can only be described as so rooted in the traditions and conscience of our people as to be ranked as fundamental. 58
Personal choice is integral to marriage. The fundamental right to choose ones spouse belongs to the individual: [T]he regulation of constitutionally protected decisions, such as where a person shall reside or whom he or she shall marry, must be predicated on legitimate state concerns other than disagreement with the choice the individual has made. 59 States may not regulate individuals decisions on whom to marry unless the regulations are strictly tailored to serve a compelling interest. 60
The Bill of Rights was designed to secure individual liberty. 61 The freedom to marry is protected by the Constitution precisely because of the intimate relationships a person forms, and the decision whether to formalize such relationships
54 Reno, 507 U.S. at 303 (quoting United States v. Salerno, 481 U.S. 729, 751, 107 S.Ct. 2076, 95 L.Ed.2d 668 (1987)). 55 Turner, 482 U.S. at 95. 56 Griswold v. Connecticut, 381 U.S. 479, 486 (1965). 57 Loving, 388 U.S. at 12. 58 See Flores, 507 U.S. at 303; Kitchen, 755 F.3d at 1209. 59 Hodgson v. Minnesota, 497 U.S. 417, 435 (1990). 60 United States v. Juvenile Male, 670 F.3d 999, 1012 (9th Cir. 2012). 61 Roberts v. United States Jaycees, 468 U.S. 609, 618, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984). Case 3:14-cv-00089-TMB Document 20 Filed 08/29/14 Page 21 of 55
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through marriage, implicate deeply held personal beliefs and core values. 62 Regulating individuals marriage choices undermines the core constitutional values and principles that underlie the fundamental right to marry. Permitting the government to make decisions about who can marry whom imposes an intolerable burden on individual dignity and self-determination. In Loving, the Supreme Court declared the anti-miscegenation statutes unconstitutional because the choice to marry ultimately resides with the individual and cannot be infringed by the State. 63 As the California Supreme Court recognized when it became the first state Supreme Court to strike down a ban on marriage by interracial couples, people are not interchangeable and the essence of the right to marry is freedom to join in marriage with the person of ones choice. 64
The freedom to marry the individual of ones choice is a fundamental right which Alaskas marriage bans greatly restrict. The bans deprive Plaintiffs of the protected choice and the fundamental right to marry the person with whom each has chosen to build a life, a home, and potentially, create a family. The bans significantly interfere with decisions to enter into the marital relationship they categorically bar individuals of a certain gender or sexual orientation from marrying whom they choose. 65
As explained in Section C below, these laws do not further any compelling or even
62 Id. at 619-620. 63 Loving, 388 U.S. at 12; see also Roberts, 468 U.S. at 620 ([T]he Constitution undoubtedly imposes constraints on the States power to control the selection of ones spouse.). 64 Perez v. Lippold, 198 P.2d 17, 21, 25 (Cal. 1948). 65 See Zablocki, 434 U.S. at 386; Kitchen, 755 F.3d at 1209. Case 3:14-cv-00089-TMB Document 20 Filed 08/29/14 Page 22 of 55
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legitimate government interests. B. The Fundamental Right to Marry is not Restricted to Heterosexuals.
In the context of challenges to same-sex marriage bans in other jurisdictions, states have argued that the fundamental right to marry applies only to individuals seeking to marry members of the opposite sex. 66 As other courts have reasoned, this argument lacks merit. The fundamental right to marry is not limited to certain people based on race, gender, sexual orientation, or other personal characteristics. The freedom to marry is of fundamental importance for all individuals. 67
Indeed, the Supreme Court has never defined the right to marry by reference to those permitted to exercise that right. The Supreme Courts decisions address the fundamental right to marry not the right to interracial marriage, the right to inmate marriage, or the right of people owing child support to marry. 68 As the Tenth Circuit observed in its recent decision upholding the district courts summary judgment striking down Utahs marriage ban, Kitchen v. Herbert, we cannot conclude that the fundamental liberty interest in this case is limited to the right to marry a person of the opposite sex. [T]he Supreme Court has traditionally described the right to marry in broad terms independent of the persons exercising it. 69 The Fourth Circuit agreed in Bostic v. Schaefer that the freedom to marry an individual of ones choice is not limited
66 See, e.g., Kitchen, 755 F.3d at 1209-10. 67 Zablocki, 434 U.S. at 384 (emphasis added). 68 See Loving, 388 U.S. at 12; Turner, 482 U.S. at 94-96; and Zablocki, 434 U.S. at 383- 86. Accord Kitchen, 755 F.3d at 1209; Bostic, __F.3d__, 2014 WL 3702493 at *9-10. 69 Kitchen, 755 F.3d at 1209; see also Bostic, __F.3d__, 2014 WL 3702493, *9-10. Case 3:14-cv-00089-TMB Document 20 Filed 08/29/14 Page 23 of 55
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to heterosexual persons. 70
The conclusion in Kitchen and Bostic is strongly supported by the Supreme Courts recent jurisprudence on sexual orientation, which has invalidated laws that discriminate against same-sex couples and confirmed that their relationships are entitled to equal protection under the law. In Lawrence v. Texas, 71 the Supreme Court held that lesbian and gay people have the same protected liberty and privacy interests in their intimate personal relationships as heterosexual people. The Court explained that decisions about marriage and relationships involv[e] the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, and that [p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do. 72
In United States v. Windsor, the Supreme Court powerfully reaffirmed the equal dignity of same-sex couples relationships in the context of federal recognition of marriages when it held that the Defense of Marriage Acts (DOMA) definition of marriage as only between one man and one woman was a violation of Due Process. The Windsor Court noted that the right to intimacy recognized in Lawrence can form but one element in a personal bond that is more enduring. 73 As subsequent decisions have concluded, Windsor makes clear that same-sex couples are like other couples with respect
70 Bostic, __F.3d__, 2014 WL 3702493, *9-10. 71 539 U.S. 558, 578, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003). 72 Id. at 574 (citation omitted). 73 United States v. Windsor, 133 S. Ct. at 2693, 2692 (quoting Lawrence v. Texas, 539 U.S. at 567). Case 3:14-cv-00089-TMB Document 20 Filed 08/29/14 Page 24 of 55
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to the inner attributes of marriage that form the core justifications for why the Constitution protects this fundamental human right. 74
The right to marry the person of ones choice attaches to all individuals, regardless of sexual-orientation, race, gender, profession, or any other distinction or characteristic. Every individual has the fundamental right to marry the person of his or her choice. Yet, Alaska law prevents same-sex couples from marrying. Such a law is subject to strict scrutiny. To withstand constitutional scrutiny under the Due Process Clause of the Fourteenth Amendment, Alaska must therefore show that its restriction on the right to marry is strictly tailored to further a compelling interest. Because Alaska cannot show that any legitimate interest is furthered by this regulation, the marriage bans violate Due Process. C. The Marriage Bans Violate Due Process Because the State Cannot Show That They Further a Legitimate Interest. While states may have a legitimate interest in regulating and/or promoting marriage, to survive a constitutional challenge, regulations restricting marriage must be narrowly tailored to serve a compelling state interest. 75 It is the governments burden to establish that its interests are compelling and that the challenged law serves the stated
74 Kitchen v. Herbert, 961 F. Supp. 2d 1181, 1200 (D. Utah 2013) (affd in Kitchen, 755 F.3d 1193); see also Bostic v. Rainey, 970 F.Supp.2d 456, 473 (E.D. Va. 2014) (Gay and lesbian individuals share the same capacity as heterosexual individuals to form, preserve and celebrate loving, intimate and lasting relationships. Such relationships are created through the exercise of sacred, personal choices choices, like the choices made by every other citizen, that must be free from unwarranted government interference.) (affd in Bostic, __F.3d__, 2014 WL 3702493). 75 Bostic, 2014 WL 3702493 at *10; Juvenile Male, 670 F.3d at 1012. Case 3:14-cv-00089-TMB Document 20 Filed 08/29/14 Page 25 of 55
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interests. 76 Although the State in this case has not yet substantively argued that its marriage bans serve any compelling interests, a few potential interests may be gleaned from the States Answer: Alaska voters had a fundamental right to decide the important public policy issue of whether to alter the traditional definition of marriage as between one man and one woman. 77 Circuit and district courts from other jurisdictions have considered these interests in marriage bans and found them insufficient to withstand constitutional scrutiny. This Court must do the same. The State suggests that the bans are lawful because they comport with the traditional definition of marriage. 78 But appeals to history and tradition cannot justify the harms that Alaskas marriage bans inflict on Plaintiffs. Tradition is not a legitimate reason to infringe upon the fundamental right to marry. 79 The Supreme Court held that banning interracial couples from marrying was unconstitutional in spite of a long history and tradition of keeping races separate. 80 In fact, preserving the traditional institution of marriage is just a kinder way of describing the States moral disapproval of same-sex couples. 81 Moral disapproval of same-sex couples and relationships is never a legitimate governmental interest that can save a law from
76 See Windsor, 133 S.Ct. at 2675; Kitchen, 755 F.3d at __________. 77 See answer at 19. 78 See id.; see also Att. 1. 79 See Loving, 388 U.S.at 12; Lawrence, 539 U.S. at 577-78; Bostic, __F.3d__, 2014 WL 3702493 at *12-13. 80 Loving, 388 U.S. at 12. 81 See Lawrence, 539 U.S. at 601 (Scalia, J., dissenting). Case 3:14-cv-00089-TMB Document 20 Filed 08/29/14 Page 26 of 55
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constitutional attack. 82 In a similar vein, defendant states in similar litigation across the United States have alleged that prohibiting same-sex couples from marrying serves to safeguard the institution of marriage. 83 This interest is not even rationally related to excluding same-sex couples from marriage. 84
The States suggestion that voters are entitled to approve discriminatory measures is highly disturbing and violates the essence of the Fourteenth Amendment. 85
The Bill of Rights exists to protect [personal rights] against the will of the majority. 86
Constitutional law is not a matter for majority vote. 87 Supreme Court precedent makes clear that [a] citizens constitutional rights can hardly be infringed simply because a majority of the people choose that it be. 88
Moreover, when laws draw distinctions based on some unpopular trait or affiliation, as Alaskas marriage laws do here, they create or reflect [a] special likelihood of bias on the part of the ruling majority. 89 Because those characteristics are so seldom relevant to the achievement of any legitimate state interest[,] laws grounded in such considerations are deemed to reflect prejudice and antipathy a view
82 Windsor, 133 S. Ct. at 2695; Lawrence, 539 U.S. at 571; Romer v. Evans, 517 U.S. 620, 634-35 (1996); Bostic, __F.3d__, 2014 WL 3702493 at *12; Bishop v. U.S. ex. Rel. Holder, 962 F.Supp.2d 1252, 1289 (N.D.Okla.2014). 83 See Bostic, __F.3d__, 2014 WL 3702493 at *13. 84 Id. 85 See answer at 19. 86 Lucas v. Forty-Fourth General Assembly of State of Colo., 377 U.S. 713, 736-37 (1964). 87 Id. at 737 n.30 (quoting Lisco v. Love, 219 F.Supp. 922, 944 (D. Colo. 1963)). 88 Id. 89 New York City Transit Authority v. Beazer, 440 U.S. 568, 593 (1979). Case 3:14-cv-00089-TMB Document 20 Filed 08/29/14 Page 27 of 55
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that those in the burdened class are not as worthy or deserving as others. 90 Such legislation is easily recognized as incompatible with the constitutional understanding that each person is to be judged individually and is entitled to equal justice under the law. 91
Nor can the marriage bans be defended, as they have been in other states, based on arguments that excluding same-sex couples and their children from marriage and the legal protections that accompany marriage will somehow promote procreation by opposite-sex couples, or that married opposite-sex couples supposedly make better parents than married same-sex couples. 92 Laws excluding same-sex couples from marriage are woefully underinclusiveno other non-procreative couples are barred from marriage under Alaska law. 93 Restricting the right to marry to opposite-sex couples does not differentiate between procreative and non-procreative couples. 94 As such, there is insufficient causal connection between prohibiting same- sex marriage and the interest in procreation to withstand constitutional scrutiny. 95
Included in this argument is the idea that the marriage bans serve to promote biological parenthood as well as households containing one mother and one
90 City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 440 (1985). 91 Plyler v. Doe, 457 U.S. 202, 216 n.14 (1982) (emphasis added). 92 Bostic, __F.3d__, 2014 WL 3702493 at *13-5; Kitchen, 755 F.3d at 1222-23; Geiger, 2014 WL 2054264 at *12-13; Latta, 2014 WL 1909999 at *23; DeBoer v. Snyder, 973 F.Supp.2d 757, 770 (E.D.Mich. 2014); DeLeon v. Perry, 975 F.Supp.2d 632, 654 (W.D.Tex. 2014). 93 See Bostic, __F.3d__, 2014 WL 3702493 at *14. 94 Id. 95 Kitchen, 755 F.3d at 1222. Case 3:14-cv-00089-TMB Document 20 Filed 08/29/14 Page 28 of 55
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father. 96 States have argued that prohibiting same-sex couples from marrying serves to promote optimal child welfare. 97 Courts have found that any link between this interest and marriage bans is so attenuated that it will not survive rational basis review, let alone strict scrutiny. 98 Even assuming that states have an interest in having children raised by their biological parents, prohibiting same-sex couples from marrying is not narrowly tailored to achieve that end. 99
The State of Alaskas potential arguments have no basis in reality, and there simply is no rational connection between forbidding same-sex couples to marry and any asserted governmental interest in encouraging procreation and parenting of biological children by married opposite-sex couples. Preventing same-sex couples from marrying does nothing to advance these goals, but serves only to penalize and inflict gratuitous injury on same-sex couples and the children they are already raising. 100
Summary judgment is appropriate in this case. As set forth in the Joint Planning Status Report, the parties do not disagree as to any material issue of fact. 101 The question at issue is whether Alaskas laws violate Due Process. The vast majority of courts agree that such laws are an impermissible infringement on a fundamental right. As a general matter, States defending such bans have been unable to articulate how their
96 See Att. 1 at 1. 97 See, e.g., Kitchen, 755 F.3d at 1223; see also Att. 1 at 1. 98 Latta, 2014 WL 1909999, *22. 99 Bishop v. Smith, __F.3d___, 2014 WL 3537847, *7-8 (10th Cir. Jul. 18, 2014). 100 See, e.g., Windsor, 133 S. Ct. at 2696; Kitchen, 755 F.3d at 1223. 101 See Document 13 -Joint Revised Scheduling and Planning Report III, at 2. Case 3:14-cv-00089-TMB Document 20 Filed 08/29/14 Page 29 of 55
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alleged interests are in fact served by their discriminatory laws. United States District Courts have recently held similar marriage bans unconstitutional in California, Florida, Idaho, Illinois, Indiana, Kentucky, Michigan, Ohio, Oklahoma, Oregon, Pennsylvania, Texas, Utah, Virginia, and Wisconsin. 102 Three of these summary judgment decisions have already been affirmed by circuit courts. 103 (Based on oral argument held on August 26, 2014, it seems highly likely that the Seventh Circuit will affirm the Wisconsin and Indiana judgments as well.) These decisions are well-reasoned and based on United States Supreme Court precedent. This Court would be well-advised to grant Plaintiffs motion for summary judgment.
102 Perry v. Schwarzenegger, 704 F.Supp.2d 921, 991 (N.D. Cal. 2010) (striking down California marriage ban and holding that [t]he freedom to marry is recognized as a fundamental right protected by the Due Process Clause, and Plaintiffs do not seek recognition of a new right); Brenner v. Scott, __F.Supp.2d__, 2014 WL 4113100 (N.D. Fla. 2014); Latta, 2014 WL 190999; Gray v. Orr, __F.Supp.2d__, 2013 WL 6355918 (N.D. Ill. 2013) (granting temporary injunction based on likelihood of success on merits of constitutional challenge); Baskin v. Bogan, __F.Supp.2d__, 2014 WL 2884868 (S.D. Ind. 2014) (on appeal to the 7th Cir.); Love v. Beshear, 989 F.Supp.2d 536, 539 (W.D. Ky. 2014); DeBoer, 973 F.Supp.2d at 760; Henry v. Himes, __F.Supp.__, 2014 WL 1418395 at *9 (S.D. Ohio 2014) (holding that the right to marriage is a fundamental right that is denied to same-sex couples in Ohio by the marriage recognition bans); Bishop, 962 F.Supp.2d at 1259; Geiger, 2014 WL 2054264; Whitewood, 992 F.Supp.2d at 420; De Leon, 975 F.Supp.2d at 659 (prohibiting Texas from defin[ing] marriage in a way that denies its citizens the freedom of personal choice in deciding whom to marry (quoting Windsor, 133 S.Ct. at 2689; Kitchen v. Herbert, 961 F.Supp.2d 1181, 1192 (Utah 2013); Bostic v. Rainey, 970 F.Supp.2d 456, 469 (E.D.Va. 2014); Wolf, 986 F.Supp.2d at *43 (holding that the Wisconsin ban violates plaintiffs fundamental right to marry). See also, In re Marriage Cases, 183 P.3d 384, 433-34 (Cal. 2008); Goodridge, 798 N.E.2d at 957. 103 Bostic v. Schaefer, __F.3d__, 2014 WL 3702493 (affirming District Courts summary judgment); Bishop v. Smith, __F.3d__, 2014 WL 3537847 (same); Kitchen, 755 F.3d at 1209 (same). Case 3:14-cv-00089-TMB Document 20 Filed 08/29/14 Page 30 of 55
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In this case, Plaintiffs in each couple have demonstrated their commitment to one another, built stable families together, and contributed to their communities, and they yearn to participate in the deeply valued and cherished institution of marriage, which confers important legal rights and obligations. 104 They seek to be treated as equal, respected, and participating members of society wholike othersare able to marry the person of their choice. Like the laws struck down by courts in other states, Alaskas marriage bans violate Plaintiffs dignity and autonomy by denying them the freedomenjoyed by all other Alaska residentsto marry the person with whom they have forged enduring bonds of love and commitment and who, to each of them, is irreplaceable. 105 Because the choice of whom to marry is the quintessential type of personal decision protected by due process, courts across the country have struck down state laws that purport to bar same- sex couples from marrying or deny recognition for valid marriages celebrated in other statesreaffirming that whether gay, lesbian, or heterosexual, all persons are guaranteed the fundamental right to marry. Like 3 of DOMA and other states marriage bans, AS 25.50.011 and the Alaskan constitutional provision restricting marriage to one man and one woman violate due process. The State cannot show that the bans are narrowly tailored to serve a
104 See, e.g., AS 13.12.102, 13.12.202, 13.12.402-.405, 13.26.145, 13.26.210, 13.75.020, 23.30.215, 23.30.395(40)(41), 25.20.020, 25.20.030, 25.20.045, 25.23.020, 25.23.090, 25.23.100, 34.15.140, 34.77.070; 7 AAC 40.240-.280; see generally Complaint, 36. 105 Id. Case 3:14-cv-00089-TMB Document 20 Filed 08/29/14 Page 31 of 55
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compelling state interestindeed, they cannot survive even rational basis review. The bans violate due process and Plaintiffs are entitled to relief as a matter of law. II. ALASKAS MARRIAGE BANS DENY PLAINTIFFS EQUAL PROTECTION OF THE LAWS. The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution provides that [n]o State [shall] deny to any person within its jurisdiction the equal protection of the laws. 106 Alaskas marriage bans violate equal protection for two reasons. First, because the laws infringe on a fundamental right, they are subject to, and fail, strict scrutiny review. Second, by excluding same-sex couples from marriage, Alaskas marriage bans discriminate based on sexual orientation and gender. Such discriminatory laws require heightened scrutiny under the Equal Protection Clause and must be invalidated unless they have an exceedingly persuasive justification. 107 Alaskas marriage bans not only fail this exacting scrutiny, but cannot survive even the more deferential rational basis review because there is no rational connection between any legitimate governmental objective and the exclusion of same-sex couples from the protections and obligations of civil marriage. In light of the settled law on this issue, summary judgment for Plaintiffs is appropriate. A. Alaskas Marriage Bans Violate Equal Protection Because They Impermissibly Infringe on a Fundamental Right. As explained in Section I above, marriage is a fundamental right due to every individual under the Due Process Clause of the Fourteenth Amendment to the
106 U.S. Const. Amend. XIV, 1. 107 United States v. Virginia, 518 U.S. 515, 531, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996); SmithKline, 740 F.3d at 483; see also Windsor, 133 S.Ct. at 2675. Case 3:14-cv-00089-TMB Document 20 Filed 08/29/14 Page 32 of 55
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United States Constitution. Under both the Due Process Clause and the Equal Protection Clause interference with a fundamental right warrants the application of strict scrutiny. 108 Thus, the marriage bans can only survive an equal protection challenge if the State of Alaska can show that the bans are narrowly tailored to serve a compelling government interest. As explained in Section I.C., above, the State cannot make the requisite showing. The marriage bans are an impermissible infringement on Alaskans fundamental right to marry the person of their choice. B. Alaskas Bans on Marriage of Same-Sex Couples Violate Equal Protection Because They Discriminate Based on Sexual Orientation and Gender without Furthering a Compelling State Interest.
1. SmithKline Requires Application of Heightened Scrutiny Because Alaskas Marriage Bans Discriminate on the Basis of Sexual Orientation. In SmithKline, the Ninth Circuit held that the Supreme Courts decision in United States v. Windsor requires that heightened scrutiny be applied to equal protection claims involving sexual orientation. 109 As explained below, there is no doubt that SmithKline requires this Court to apply heightened scrutiny to Plaintiffs Equal Protection claim. SmithKline involved a constitutional challenge to the peremptory strike of a prospective juror during jury selection for a trial between two pharmaceutical
108 Bostic, __F.3d__, 2014 WL 3702493 at *8 (citing Washington v. Glucksberg, 521 U.S. 702, 719-20 (1997); see also Zablocki, 434 U.S. at 383; Kitchen, 755 F.3d at 1222. 109 SmithKline, 740 F.3d at 481. Case 3:14-cv-00089-TMB Document 20 Filed 08/29/14 Page 33 of 55
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companies. 110 During jury selection, Juror B was the only member of the jury pool who was self-identified as gay. One of the drug companies exercised its peremptory strike against Juror B. The other company raised a Batson challenge, which the trial court denied. The denial was appealed. 111 The Ninth Circuit concluded that the challenge amounted to purposeful discrimination on the basis of sexual orientation which would require reversal unless the type of discrimination at issue was normally subject to rational basis review. 112 The dispositive question in SmithKline was therefore whether classifications based on sexual orientation are subject to heightened scrutiny under equal protection analysis. In answering this question, the Ninth Circuit carefully examined the Supreme Courts decision in Windsor and concluded that Windsor requires that when state action discriminates on the basis of sexual orientation, [courts] must examine its actual purposes and carefully consider the resulting inequality to ensure that our most fundamental institutions neither send nor reinforce messages of stigma or second-class status. 113 Notably, the court also held that earlier [Ninth Circuit] cases applying rational basis review to classifications based on sexual orientation cannot be reconciled with Windsor. 114 Rather, because we are required by Windsor to apply heightened scrutiny to classifications based on sexual orientation for purposes of
110 Id. 111 Id. 112 Id. 113 SmithKline, 740 F.3d at 483. 114 Id. Case 3:14-cv-00089-TMB Document 20 Filed 08/29/14 Page 34 of 55
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equal protection there can no longer be any question that gays and lesbians are no longer a group or class of individuals normally subject to rational basis review. 115 SmithKline therefore establishes that, in the Ninth Circuit, laws that discriminate based on an individuals sexual orientation are subject to heightened scrutiny. As numerous other courts have recently held, laws that restrict marriage or marriage recognition to opposite-sex couples purposefully discriminate based on sexual orientation. 116 Alaskas marriage laws, by design, discriminate based on an individuals sexual orientation. The Alaska legislature amended AS 25.50.011 specifically to prevent gay men and lesbians from marrying. 117 Similarly, the constitutional provision singles out same-sex couples for adverse treatment on the basis of sexual orientation. Because there is no question here that the marriage bans discriminate based on sexual orientation, SmithKline is controlling and requires that the court apply heightened scrutiny to Alaskas marriage bans. Historically, a discriminatory law subject to heightened scrutiny violates the Equal Protection Clause unless the government can show that the discrimination is
115 Id. (quoting J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 143 (1994)). 116 See e.g., Windsor v. United States, 699 F.3d 169, 181 (2d Cir. 2012) (analyzing federal DOMA as discriminating against gay and lesbian people); Massachusetts v. United States Dept. of Health & Human Services, 682 F.3d 1, 11 (1st Cir. 2012) (same); Perry, 704 F.Supp.2d at 997; In re Balas, 449 B.R. 567 (Bankr. C.D. Cal. 2011); In re Marriage Cases, 183 P. 3d at 442-43; Kerrigan v. Commissioner of Public Health, 957 A.2d 407, 431-32 (Conn. 2008); Varnum v. Brien, 763 N.W.2d 862, 896 (Iowa 2009). 117 See Attachment 1 at 2-3, 5. Case 3:14-cv-00089-TMB Document 20 Filed 08/29/14 Page 35 of 55
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substantially related to the achievement of an important governmental interest. 118 Under Windsor, a law whose principal purpose is to treat a particular group of people unequally violates equal protection unless a legitimate purpose overcomes the discriminatory purpose and effect. 119 Windsor requires this Court to evaluate the purported justifications of the challenged law, consider the laws actual purposes, and decide whether the proffered justifications overcome the injury and indignity inflicted on Plaintiffs and others like them. 120 Unlike rational basis review, heightened scrutiny under Windsor does not allow the consideration of post hoc justifications for the law. 121
The Court in Windsor did not consider hypothetical justifications for DOMA, as an ordinary rational basis analysis would require. Instead, it examined the statutes text and legislative history to determine that DOMAs principal purpose is to impose inequality, not for other reasons like governmental efficiency. 122 In addition, Windsor carefully considered the severe harm to same-sex couples and their families caused by DOMAs denial of recognition to their marriage and required Congress to articulate a legitimate governmental interest strong enough to overcome the disability on a class of persons. 123 This Court must apply the same careful consideration to Alaskas similarly purposeful unequal treatment of same-sex couples.
118 See Hibbs v. Department of Human Resources, 273 F.3d 844, 855 (9th Cir. 2001). 119 SmithKline, 740 F.3d at 483. 120 Id. at 481-82; see also Latta, __F.Supp.2d__, 2014 WL 1909999 at *18. 121 Id. 122 Windsor, 133 S.Ct. at 2694. 123 Id. at 2696. Case 3:14-cv-00089-TMB Document 20 Filed 08/29/14 Page 36 of 55
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2. Alaskas Marriage Bans Violate Equal Protection under Heightened Scrutiny Applicable to Discrimination Based on Sexual Orientation. Under the analysis required by Windsor and SmithKline, Alaskas marriage bans violate equal protection for the same reasons the Supreme Court in Windsor held that DOMA did so. In Windsor, the Supreme Court held that Section 3 of DOMA, which excluded married same-sex couples from federal benefits, violated basic due process and equal protection principles because it was enacted in order to treat a particular group of people unequally. 124 The Court found that no legitimate purpose sufficed to overcome that discriminatory purpose and effect. 125
Just as the principal purpose and necessary effect of DOMA were to impose inequality on same-sex couples and their children, so too the principal purpose and effect of Alaskas marriage bans is to prevent same-sex couples from gaining the protections of marriage. 126 Like DOMA, Alaskas marriage bans were enacted precisely in order to treat same-sex couples unequally. 127 The title of the legislation was An act clarifying statute relating to persons who may legally marry; relating to same-sex marriages and the short title was Prohibit Same Sex Marriages. 128 Various supporters of the legislation testified about the need to exclude same-sex couples from marriage and the desire to deny these couples access to the rights and privileges opposite-sex married
124 Id. at 2693. 125 Id. at 2696. 126 Id. at 2694, 2695. 127 See Attachment 1. 128 Id. Case 3:14-cv-00089-TMB Document 20 Filed 08/29/14 Page 37 of 55
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couples enjoy. 129 One testified that marriage should not apply to same-sex couples because gay literature and studies say that few gay couples are stable, [and] those that are stable have an understanding allowing outside sexual contact. 130 Referring to low life-expectancy, another testified that elevating the dangerous practices of homosexuality with legally protected status is devoid of reason and morality. 131 Others testified that the law should pass in order to protect discriminatory practices. 132
Supporters of the bill repeatedly referred to morality, appropriate sexual behavior, religious doctrine, protecting traditional marriage, and the like. 133 Alaskas marriage bans did not create any new rights or protections for opposite-sex couples; rather, their only purpose and effect were to ensure that same-sex couples could not exercise the freedom to marry. 134
Moreover, like DOMA, the bans inflict serious harms on same-sex couples and their children, depriving them of hundreds of rights and protections under Alaska law and stigmatizing their families as inferior and unworthy of respect. 135 Like DOMA, Alaskas bans burden the lives of same-sex couples by reason of government decree, in visible and public ways . . . from the mundane to the profound, and make it even more
129 See Attachment 1 at 1, 5. 130 Id. at 1. 131 Id. at 5. 132 Id. 133 Id. at 1, 5, 7. 134 Cf. DeLeon, 975 F.Supp.2d at 655 (the only purpose served by a state marriage ban is the same improper purpose that failed in Windsor and in Romer: to impose inequality and to make gay citizens unequal under the law) (internal citations omitted). 135 See Complaint, 36. Case 3:14-cv-00089-TMB Document 20 Filed 08/29/14 Page 38 of 55
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difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives. 136 The bans also bring financial harm to children of same-sex couples by denying their families a multitude of benefits that the State and the federal government offer to legal spouses and their children. 137
Also like DOMA, Alaskas marriage bans are not justified by any legitimate governmental interests sufficient to overcome those serious harms. The legislative history makes clear that Alaskas marriage bans were enacted primarily on the improper basis of moral disapproval. 138 Although the State of Alaska has not advanced any justifications, as explained in Section I.C, above, possible government interests cannot withstand even rational basis review, let alone heightened scrutiny. Moreover, every purported justification asserted by defendants in marriage cases around the country was presented to the Supreme Court by the Respondent in urging the Court to uphold DOMA in Windsor. 139 None of those purported governmental
136 Windsor, 133 S. Ct. at 2694. 137 Id. at 2695; see Complaint, 36, AS 25.05.361, 34.15.140, 25.20.020, 25.20.045, 25.24.020, 13.26.145, 13.26.210. 138 See generally Plaintiffs Attachment 1; Bostic, __F.3d__, 2014 WL 3702493 at *12; see also Lawrence, 539 U.S. at 571. 139 See Brief on the Merits for Respondent the Bipartisan Legal Advisory Group of the U.S. House of Representatives, Windsor, 133 S.Ct. at 2675, 2013 WL 267026 at *21, 43- 49 (arguing that Congress could rationally decide to retain the traditional definition for the same basic reasons that states adopted the traditional definition in the first place and that many continue to retain it). Case 3:14-cv-00089-TMB Document 20 Filed 08/29/14 Page 39 of 55
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interests was sufficient to save DOMA from invalidity, and they are equally insufficient under the careful consideration required here. 140
3. The Marriage Bans also Violate Equal Protection Because They Cannot Survive the Scrutiny Applicable to Laws That Discriminate on the Basis of Gender. In addition to discriminating against same-sex couples based on their sexual orientation, Alaskas marriage bans also openly discriminate based on gender. Each of the Plaintiff couples would be permitted to marry, or have their marriage recognized, if his or her partner were a different sex. Plaintiffs are denied these rights solely because they are not of a different sex. 141
In other marriage cases, defendants have argued that marriage bans do not discriminate based on gender since they prohibit both men from marrying men and women from marrying women. In Loving, the Supreme Court rejected the argument that Virginias law prohibiting interracial marriage should stand because it imposed its restrictions equally on members of different races. 142 It later found that racial classifications do not become legitimate on the assumption that all persons suffer them in equal degree. 143 And as explained by the California Supreme Court, [t]he decisive
140 Id. at 2696. 141 See Kitchen, 961 F.Supp.2d at 1206 (Amendment 3 [Utahs marriage ban] involves sex-based classifications because it prohibits a man from marrying another man, but does not prohibit that man from marrying a woman.); Perry, 704 F.Supp.2d at 996 (state marriage ban discriminates based both on sexual orientation and gender). 142 Loving, 388 U.S. at 8. 143 Powers v. Ohio, 499 U.S. 400, 410, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991) (holding that race-based peremptory challenges are invalid even though they affect all races). Case 3:14-cv-00089-TMB Document 20 Filed 08/29/14 Page 40 of 55
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question is not whether different races, each considered as a group, are equally treated. The right to marry is a right of individuals, not of racial groups. 144
That same reasoning applies to gender-based classifications. 145 Under Loving, Powers, and J.E.B., the gender-based classifications in Alaskas marriage bans are not valid simply because they affect men and women the same way. Rather, the relevant inquiry under the Equal Protection Clause is whether the law treats an individual differently because of his or her gender: [t]he neutral phrasing of the Equal Protection Clause, extending its guarantee to any person, reveals its concern with rights of individuals, not groups (though group disabilities are sometimes the mechanism by which the State violates the individual right in question). 146
Alaskas marriage bans impermissibly seek to enforce a gender-based requirement that a woman should only marry a man, and that a man should only marry a woman. Alaskas current marriage laws do not treat husbands and wives differently in any respect; spouses have the same rights and obligations regardless of their gender. A requirement that spouses must be of different genders is an irrational vestige of the outdated notion long rejected in other respects by the Alaska Legislature and the courts that men and women have different proper roles in marriage.
144 Perez, 198 P.2d at 20. 145 See J.E.B., 511 U.S. at 140-41 (citing Powers, 499 U.S. at 412, extending its reasoning to sex-based peremptory challenges, and holding that such challenges are unconstitutional even though they affect both male and female jurors). 146 J.E.B., 511 U.S. at 146, 152 (Kennedy, J., concurring in the judgment). Case 3:14-cv-00089-TMB Document 20 Filed 08/29/14 Page 41 of 55
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The Supreme Court has held that the government may not enforce gendered expectations about the roles that women and men should perform within the family, whether as caregivers, breadwinners, heads of households, or parents. 147 Like the laws in those cases, Alaskas marriage bans use a gender-based classification not to further an important governmental interest, but rather simply to reinforce the gendered expectation that marriage should include a man and a woman. While that expectation may hold true for some people, it does not hold true for the Plaintiff couples and other same-sex couples who yearn to be married to the person of their choice. Under settled law, gender-based classifications are presumed to be unconstitutional; such a law can be upheld only if supported by an exceedingly persuasive justification. 148 Alaskas reliance on gender to exclude same-sex couples is not supported by any exceedingly persuasive justification. To the contrary, as explained in the previous section, it cannot survive any level of constitutional review because there is no legitimate government interest in barring same-sex couples from marriage. As a matter of settled law, Alaskas statutory and constitutional same-sex marriage bans
147 See, e.g., Reed v. Reed, 404 U.S. 71, 76-77 (1971) (invalidating Idaho law that gave men preference over women in administering estates); see also Califano v. Westcott, 443 U.S. 76, 89 (1979) (finding unconstitutional a federal statute based on the stereotype that a father is the provider while the mother is the center of home and family life); Orr v. Orr, 440 U.S. 268, 283 (1979) (invalidating measure imposing alimony obligations on husbands, but not on wives, because it carries with it the baggage of sexual stereotypes); Stanton v. Stanton, 421 U.S. 7, 14-15 (1975) (finding unconstitutional state support statute assigning different age of majority to girls than to boys and stating, [n]o longer is the female destined solely for the home and the rearing of the family, and only the male for the marketplace and the world of ideas). 148 Virginia, 518 U.S. at 524 (internal quotation marks omitted). Case 3:14-cv-00089-TMB Document 20 Filed 08/29/14 Page 42 of 55
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impermissibly discriminate on the basis of gender and sexual orientation and are a violation of Plaintiffs right to equal protection. III. ALASKAS ANTI-RECOGNITION LAWS VIOLATE THE MARRIED PLAINTIFFS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND EQUAL PROTECTION. Alaska Statute 25.05.013 bars recognition of the marriage of same-sex couples lawfully married in other jurisdictions. The Alaska Constitution was amended in 1998 to contain a similar prohibition. In addition to violating the Due Process and Equal Protection Clauses for the same reasons as Alaskas marriage bans, these anti-recognition laws violate due process for other reasons. Plaintiffs are entitled to summary judgment on this issue as well. A. Alaskas Anti-Recognition Laws Violate the Fundamental Right to Remain Married. The right to privacy and respect for an existing marital relationship is, in itself, a distinct fundamental right, independent of an individuals right to marry in the first instance. Windsor held that legally married same-sex couples have a protected due process liberty interest in their existing marriages, and that this interest was violated by the federal governments refusal to respect them. 149 And years before Windsor, the Supreme Court recognized the fundamental importance of the right to remain married. Loving involved an anti-recognition law: the Supreme Court struck down Virginias law denying recognition to an interracial couple who legally married in the District of
149 Windsor, 133 S.Ct. at 2695 (holding that Section 3 of DOMA deprived same-sex spouses of the liberty of the person protected by the Fifth Amendment of the Constitution). Case 3:14-cv-00089-TMB Document 20 Filed 08/29/14 Page 43 of 55
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Columbia. 150 And the Court in Washington v. Glucksberg recognized marital privacy as a fundamental interest. 151 In M.L.B. v. S.L.J., 152 the Supreme Court explained: [c]hoices about marriage, family life, and the upbringing of children are among associational rights this Court has ranked as of basic importance in our society, and laws that interfere with those relationships require close consideration. 153 The entire marriage relationship lies within the zone of privacy created by fundamental constitutional guarantees. 154
Spousal relationships, like parent-child relationships, are among the intimate family bonds whose preservation must be afforded a substantial measure of sanctuary from unjustified interference by the State. 155 As noted in Zablocki, there is a difference between a sphere of privacy or autonomy surrounding an existing marital relationship into which the State may not lightly intrude and regulation of the conditions of entry into . . . the marital bond. 156 The right to remain married is thus fundamental in its own right. Windsor held that Section 3 of DOMA violated the due process rights of married same-sex couples by refusing to give them the same respect and protections given to other married couples under federal law. 157 For similar reasons, Alaskas anti- recognition law violates the due process rights of same-sex spouses by refusing to give
150 Loving, 388 U.S. at 12. 151 Washington, 521 U.S. at 719. 152 519 U.S. 102, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996) 153 Id. at 116-17 (internal citations and quotations omitted). 154 Griswold, 381 U.S. at 485. 155 Roberts, 468 U.S. at 618. 156 See Zablocki, 434 U.S. at 397 n.1 (Powell, J., concurring). 157 Windsor, 133 S. Ct. at 2695-96. Case 3:14-cv-00089-TMB Document 20 Filed 08/29/14 Page 44 of 55
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them the same respect and protections given to other married couples under Alaska law. In both cases, the denial of recognition interferes with existing marital relationships and touches many aspects of married and family life, from the mundane to the profound, and no legitimate purpose serves to overcome the infliction of those substantial harms. 158
Following Windsor, federal courts considering the question have consistently held the fundamental right to marry necessarily includes the right to remain married. 159 Accordingly, once you get married lawfully in one state, another state cannot summarily take your marriage away. 160 The Supreme Court has established that existing marital, family, and intimate relationships are areas into which the government should generally not intrude without substantial justification. 161 As the district court in Obergefell v. Wymyslo explained: [w]hen a state effectively terminates the marriage of a same-sex couple married in another jurisdiction, it intrudes into the realm of private marital, family, and intimate relations specifically protected by the Supreme Court. 162
The married Plaintiff couples have the same interests as other married couples in the
158 Id. at 2694. 159 Kitchen, 755 F.3d at 1213; Latta, F.Supp.2d at__, 2014 WL 1909999, at *13; Henry, __F.Supp.2d__, 2014 WL 1418395, at *7; DeLeon, 975 F.Supp.2d at 661- 62; Obergefell v. Wymyslo, 962 F.Supp.2d 968, 978 (S.D.Ohio 2013). 160 Obergefell, 962 F. Supp.2d at 973; see also Henry, 2014 Wl 1418395 at *9. 161 Obergefell, 962 F.Supp.2d at 978 (citing Roberts, 468 U.S. at 618; Lawrence, 539 U.S. at 578); AS 25.05.013. 162 Obergefell, 962 F.Supp.2d at 979; Bourke, 2014 WL 556729 at *13 (noting Windsor would seem to command that a [state] law refusing to recognize valid out-of-state same- sex marriages has only one effect: to impose inequality); Henry, 2014 WL 1418395 at *9. Case 3:14-cv-00089-TMB Document 20 Filed 08/29/14 Page 45 of 55
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liberty, autonomy, and privacy afforded by the fundamental right to marry and stay married. 1. Alaskas Anti-Recognition Laws Inflict Significant Harm on Married Same-Sex Couples And Their Children. By treating legally married same-sex couples as legal strangers to one another, Alaska disrupts their protected family relationships and, in effect, forces them, unlike other married couples, to shed [their marital status] like a garment on entering this state. 163 Marriage is the only means by which two adults can establish a family unit that must be legally respected by the state and by others. Alaskas laws provide married couples with protections and obligations that enable them to make a legally binding commitment to one another and to their children, and to be treated as a legal family. 164 These state-law protections range from the mundane to the profound, but many are designed to assist families in their times of greatest need and to protect them when misfortune strikes unexpectedly. 165 Alaskas anti-recognition laws deprive same-sex couples of the certainty, stability, permanence, and predictability that marriage is designed to provide, protections that other couples who married outside Alaska automatically enjoy. There is no doubt that when a state effectively terminates the marriage of a same-sex couple married in another jurisdiction, it intrudes into the
163 Morrison v. Sunshine Mining Co., 127 P.2d 766, 769 (Idaho 1942). 164 See, e.g., AS 13.12.102, 13.12.202, 13.12.402-.405, 13.26.145, 13.26.210, 13.75.020, 23.30.215, 23.30.395(40)(41), 25.20.020, 25.20.030, 25.20.045, 25.23.020, 25.23.090, 25.23.100, 34.15.140, 34.77.070. 165 Windsor, 133 S. Ct. at 2694; see, e.g., AS 13.26.145, 13.26.210, Complaint 36. Case 3:14-cv-00089-TMB Document 20 Filed 08/29/14 Page 46 of 55
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realm of private marital, family, and intimate relations specifically protected by the Supreme Court. 166 Alaskas anti-recognition laws tell[ ] those couples, and all the world, that their otherwise valid marriages are unworthy of recognition. 167
Alaskas anti-recognition laws also humiliate the children of married same-sex couples by telling them that the State of Alaska regards their parents marriages and their families as less worthy of recognition than other marriages and families indeed, that their families are worthy of no recognition at all. 168
B. Alaskas Anti-Recognition Laws Violate Equal Protection. Alaskas anti-recognition laws deprive the married Plaintiffs of equal protection for reasons similar to those that led the Supreme Court to invalidate Section 3 of DOMA. In Windsor, the Supreme Court held that DOMAs targeting of married same-sex couples required careful consideration for two reasons. First, the statute departed from the federal governments longstanding practice of deferring to the states to determine marital status. Second, it did so in order to subject a particular group of
166 Obergefell, 962 F.Supp.2d at 979. 167 Windsor, 133 S.Ct. at 2694; see also Obergefell, 962 F.Supp.2d at 979 (Ohios official statutory and constitutional establishment of same-sex couples married in other jurisdictions as a disfavored and disadvantaged subset of people has a destabilizing and stigmatizing impact on them.). 168 See Windsor, 133 S. Ct. at 2694. Case 3:14-cv-00089-TMB Document 20 Filed 08/29/14 Page 47 of 55
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married couples to unequal treatment. 169 The Court observed that DOMAs principal effect is to identify a subset of state-sanctioned marriages and make them unequal. 170
Like DOMA, Alaskas anti-recognition laws are unusual. They constitute an unprecedented departure from this states longstanding practice and law of recognizing valid marriages from other states, even where the marriage would have been prohibited under Alaska law. Further, like DOMA, Alaskas anti-recognition laws target married same-sex couples and were not enacted for any reason independent of excluding those married couples from recognition: [t]he principal purpose is to impose inequality. 171 Such a law fails the requirement of equal protection in the most basic way. 172
Alaskas anti-recognition laws violate equal protection for the same reasons that DOMA and other similar state anti-recognition laws that have been struck down since Windsor violate that guarantee. The State has no legitimate interest in treating the marriages of same-sex couples as inferior to or less respected than the marriages of opposite-sex couples, or in denying the many protections, benefits, and responsibilities of marriage to same-sex couples. The purpose and effect of these laws are to single out an unpopular group and cause its members harm. Such laws cannot survive equal protection review under any level of scrutiny, let alone under the heightened scrutiny required by Windsor and SmithKline.
169 Id. at 2693. 170 Id. at 2694. 171 Id. 172 Id. at 2693. Case 3:14-cv-00089-TMB Document 20 Filed 08/29/14 Page 48 of 55
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C. Section 2 of DOMA does not Bar Plaintiffs Claims. Defendants argue that Plaintiffs claims are barred by Section 2 of DOMA. 173 Section 2, however, has no impact on Plaintiffs claims because it is an entirely permissive federal law that does not mandate that states take any particular action, does not remove any discretion from states, does not confer benefits upon nonrecognizing states, and does not punish recognizing states. 174
It is Alaskas marriage bans, not Section 2 of DOMA, that harm Plaintiffs. 175 In addition, Congress cannot, through DOMA or otherwise, authorize Alaska to violate the Fourteenth Amendments guarantees of equal protection and due process through its marriage bans: [w]hatever powers Congress may have under the Full Faith and Credit Clause, Congress does not have the power to authorize the individual States to violate the Equal Protection Clause. 176 Accordingly, Section 2 cannot shield Defendants from an otherwise proper constitutional challenge to Alaskas discriminatory marriage laws.
IV. BAKER V. NELSON DOES NOT BAR PLAINTIFFS CLAIMS. Defendants erroneously assert that Baker v. Nelson 177 bars this Court from considering the merits of Plaintiffs claims. 178 In Baker, the Supreme Court summarily
173 See Answer at 19 (9. The State of Alaska is not required to give recognition to the marriage of Plaintiffs celebrated in other states under 28 U.S.C. 1738C.). 174 Bishop, 962 F.Supp.2d at 1266. 175 Id. (The injury of non-recognition stems exclusively from state law.). 176 See DeLeon, 975 F. Supp.2d at 661 (quoting Graham v. Richardson, 403 U.S. 365, 382, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971)). 177 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972). 178 See Answer at 19. Case 3:14-cv-00089-TMB Document 20 Filed 08/29/14 Page 49 of 55
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dismissed an appeal from the Supreme Court of Minnesota in a one-sentence opinion for want of a substantial federal question. 179 The Minnesota Supreme Court had held that a state statute that the court interpreted to bar same-sex marriages did not violate the Fourteenth Amendments Due Process or Equal Protection Clauses. 180
Summary dismissals are no longer binding when doctrinal developments illustrate that the Supreme Court no longer views a question as unsubstantial. 181 To say that intervening doctrinal developments have limited Bakers precedential effect regarding the issues in this case would be a considerable understatement. At the time Baker was decided, the Supreme Court had not yet held: (1) that classifications based on sex require heightened judicial scrutiny; 182 (2) that laws enacted to disadvantage gay and lesbian people lack a rational basis; 183 (3) that adult same-sex couples have a constitutionally protected right to engage in intimate sexual conduct and to have their relationships treated with equal dignity; 184 or (4) that married same-sex couples have a protected liberty interest in their marriages that must be given equal recognition and respect by the federal government. 185
179 Baker, 409 U.S. 810. 180 Baker v. Nelson, 191 N.W.2d 185, 185 (Minn. 1971). 181 Bostic, __F.3d__, 2014 WL 3702493 at *6 (quoting Hicks v. Miranda, 422 U.S. 332, 344, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975)). 182 See Frontiero v. Richardson, 411 U.S. 677, 688, 93 S.Ct. 1764 (1973) 183 See Romer, 517 U.S. 620. 184 See Lawrence, 539 U.S. at 559. 185 See Windsor, 133 S. Ct. at 2694. Case 3:14-cv-00089-TMB Document 20 Filed 08/29/14 Page 50 of 55
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Every federal court presented with this issue since the Supreme Court decided Windsor has concluded that doctrinal developments have stripped Baker of its status as binding precedent. 186 This Court should do the same. As the Fourth and Tenth Circuits and other courts have held, in light of significant doctrinal developments, Bakers summary affirmance is no longer controlling precedent. 187
Moreover, Baker does not control here because this case does not involve the precise issues presented and necessarily decided in Baker. 188 At the time Baker was decided, same-sex couples were not permitted to marry in any state, and no state had enacted a law denying recognition to married same-sex couples. Therefore Baker did not address the constitutionality of measures like Alaskas anti-recognition law. Further, unlike the marriage ban at issue here, the Minnesota law in Baker lacked an express statutory prohibition against same-sex marriages. 189 In contrast, Alaskas marriage ban intentionally targets same-sex couples in order to treat them unequally, rais[ing] the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected. 190 The Baker court did not have occasion to consider the validity of such a law.
186 See, e.g., Bostic, __F.3d__, 2014 WL 3702493 at *6; Kitchen, 755 F.3d at 1205-08; Windsor v. United States, 699 F.3d at 178-79 (2d Cir. 2012). 187 Bostic, 2014 WL 3702493, at *6; Kitchen, 755 F.3d at 1205-08. 188 Mandel v. Bradley, 432 U.S. 173, 176, 97 S.Ct. 2238, 53 L.Ed.2d 199 (1977). 189 Baker v. Nelson, 191 N.W.2d 185, 185 (Minn. 1971). 190 Romer, 517 U.S. at 634. Case 3:14-cv-00089-TMB Document 20 Filed 08/29/14 Page 51 of 55
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V. DEFENDANTS OTHER AFFIRMATIVE DEFENSES LACK MERIT. Plaintiffs have moved for summary judgment in their favor on their claims and on all of Defendants affirmative defenses. Plaintiffs reserve the right to respond in detail to affirmative defenses when they are more fully articulated by Defendants. Plaintiffs have standing under Article III to the Constitution which provides in part that [t]he judicial power shall extend to all cases, in law and equity, arising under this Constitution . . . . To have standing, (1) Plaintiffs must have suffered an injury in fact; (2) that injury must be caused by the conduct complained of; and (3) it must be likely that the injury will be redressed by a favorable decision. 191 For Plaintiffs to assert their claims against state and local officials for violating their constitutional rights, it must be shown that Defendants, acting under color of law, have deprived Plaintiffs of their rights, privileges, or immunities secured by the Constitution and laws . 192 Plaintiffs have suffered an injury in fact in that they have been denied the right to marry in their home state and the marriage laws deprive them of recognition of their marriages in other states. This injury is the direct result of the marriage amendment contained in Alaska State Constitution Article I, 25 and related statutes. If this court strikes down the marriage laws, the injury will be redressed, because Defendants will no longer be permitted to enforce the laws that deprive Plaintiffs of the right to marry and of recognition of their out of state marriages. Thus, Plaintiffs have standing to bring their claims. 193
191 Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). 192 42 U.S.C. 1983. 193 Id. Case 3:14-cv-00089-TMB Document 20 Filed 08/29/14 Page 52 of 55
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Plaintiffs claims are ripe because all ten plaintiffs have experienced and are experiencing ongoing injuries stemming from the prohibition of marriage between same sex couples or recognition of their out of state marriages pursuant to Alaskas marriage laws and meet the requirements of the United States Supreme Courts two-part test for assessing ripeness challenges that is often applied to constitutional challenges to federal and state statutes: [t]he problem is best seen in a twofold aspect, requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration. 194
Plaintiffs claims do not present a non-justiciable political question and this court should grant Plaintiffs summary judgment on Defendants affirmative defense. The justiciability of a case depends on it presenting legal questions, as opposed to political questions. The instant case does not display any of the characteristics of a non-justiciable political question. 195 Defendants have not and cannot demonstrate that the United States Constitution commits the issues raised by this lawsuit to a different branch of government than the judiciary Plaintiffs claims are not barred by the Tenth Amendment of the United States Constitution. The Tenth Amendment provides: [t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. Here, the States ability to define marriage is
194 Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49 (1967). 195 Baker v. Carr, 369 US 186, 227, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962).
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limited by the United States Constitutions requirements of equal protection and due process, as argued in this motion. Defendants also assert, unavailingly, that the Eleventh Amendment to the United States Constitution bars this action. The Eleventh Amendment to the United States Constitution provides: [t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. This affirmative defense is frivolous and should be rejected as completely lacking merit. Plaintiffs brought this action pursuant to 42 U.S. Code 1983, 196 which is a statutory exception to the Eleventh Amendments provision of statutory immunity to the states for claims of constitutional violation and the fact that such suits are permitted has been a settled matter of law since 1908 with the United States Supreme Courts decision in Ex Parte Young. 197
Defendants affirmative defenses lack merit and this court should grant summary judgment to Plaintiffs.
196 42 U.S.C 1983; see also Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908) (suits against the states permitted suits in federal courts against officials acting on behalf of states of the union to proceed despite the States sovereign immunity, when the State acted unconstitutionally). 197 209 U.S. 123. Case 3:14-cv-00089-TMB Document 20 Filed 08/29/14 Page 54 of 55
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CONCLUSION Summary judgment is appropriate where there is no genuine issue as to any material fact and [ ] the moving party is entitled to a judgment as a matter of law. 198
Here, there are no material facts in dispute, and Plaintiffs are entitled to summary judgment as a matter of law on their constitutional claims. Alaskas bans on the marriage of same-sex couples, as well as its bans on the recognition of existing marriages of same- sex couples, must be found unconstitutional. This motion is supported by Attachment 1 and Declarations of Plaintiffs. RESPECTFULLY SUBMITTED this 29TH day of August, 2014 at Anchorage, Alaska. By: ____________/s/____________ Allison Mendel #8310136 Mendel & Associates, Inc. 1215 W 8th Ave Anchorage, AK 99501 (907) 279-5001
Caitlin Shortell #0405027 310 K Street Suite 200 Anchorage, AK 99501 Telephone: (907) 272-8
198 Anderson, 477 U.S. at 247; see also Fed. R. Civ. P. 56(a). Case 3:14-cv-00089-TMB Document 20 Filed 08/29/14 Page 55 of 55 Hamby, et al v. Parnell, et al Case No. 3:14-cv-00089-TMB
Allison Mendel AK Bar #8310136 Mendel & Associates, Inc. 1215 W. 8 th Ave. Anchorage, AK 99501 (907) 279-5001 (907) 279-5437 Amendel@mendelandassociates.com Heather Gardner AK Bar #0111079 Caitlin Shortell AK Bar #0405027 Attorneys for Matthew Hamby, et al
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA
MATTHEW HAMBY and CHRISTOPHER SHELDEN, a married couple, CHRISTINA LABORDE and SUSAN TOW, a married couple, SEAN EGAN and DAVID ROBINSON, a married couple, TRACEY WIESE and KATRINA CORTEZ, a married couple, and COURTNEY LAMB and STEPHANIE PEARSON, unmarried persons,
Plaintiffs,
vs.
SEAN C. PARNELL, in his official capacity as Governor of Alaska, MICHAEL GERAGHTY, in his official capacity as Attorney General of the State of Alaska, WILLIAM J. STREUR, in his official capacity as Commissioner of the State of Alaska, Department of Health and Social Services, and PHILLIP MITCHELL, in his official capacity as State Registrar and Licensing Officer, Alaska Bureau of Vital Statistics,
Defendants.
) ) ) Case No. 3:14-cv-00089-TMB
PROPOSED ORDER GRANTING PLAINTIFFS RULE 56 MOTION FOR SUMMARY JUDGMENT
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PROPOSED ORDER GRANTING PLAINTIFFS RULE 56 MOTION FOR SUMMARY JUDGMENT
1. The Court having considered Plaintiffs motion for summary judgment and supporting documents attached thereto, and the Defendants opposition thereto, hereby GRANTS plaintiffs motion. There are no issues of material fact, and Plaintiffs are entitled to judgment on all claims.
_____________________ _____________________________ Dated The Honorable Timothy M. Burgess U.S. District Court Justice
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