United States District Court For The District of Idaho

Case 1:13-cv-00482-CWD Document 76 Filed 03/20/14 Page 1 of 38
Deborah A. Ferguson, ISB No. 5333 The Law Office of Deborah A. Ferguson, PLLC 202 N. 9th Street, Suite 401 C Boise, Idaho 83702 Tel.: (208) 484-2253 d@fergusonlawmediation.com Craig Harrison Durham, ISB No. 6428 Durham Law Office, PLLC 910 W. Main, Suite 328 Boise, Idaho 83702 Tel.: (208) 345-5183 craig@chdlawoffice.com Shannon P. Minter (pro hac vice) Christopher F. Stoll (pro hac vice) National Center for Lesbian Rights 870 Market Street, Suite 370 San Francisco, California 94102 Tel.: (415) 392-6257 cstoll@nclrights.org sminter@nclrights.org Attorneys for Plaintiffs UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO SUSAN LATTA and TRACI EHLERS, et al., Plaintiffs, v. C.L. BUTCH OTTER, as Governor of the State of Idaho, in his official capacity, et al., Defendants, and STATE OF IDAHO, Defendant-Intervenor. PLAINTIFFS MEMORANDUM IN OPPOSITION TO DEFENDANT GOVERNOR OTTERS MOTION FOR SUMMARY JUDGMENT Case No. 1:13-cv-00482-CWD
TABLE OF CONTENTS TABLE OF AUTHORITIES ......................................................................................................... ii INTRODUCTION ......................................................................................................................... 1 BACKGROUND ........................................................................................................................... 3 ARGUMENT ................................................................................................................................. 3 I. II. BAKER V. NELSON DOES NOT CONTROL THIS CASE ....................................... 3 THIS COURT SHOULD CAREFULLY EXAMINE THE ACTUAL INTENT AND EFFECT OF THE MARRIAGE BAN RATHER THAN SIMPLY DEFER TO THE LEGISLATIVE PROCESS ............................. 5 IDAHOS EXCLUSION OF SAME-SEX COUPLES FROM MARRIAGE VIOLATES DUE PROCESS ................................................................ 9 IDAHOS EXCLUSION OF SAME-SEX COUPLES IS SUBJECT TO AND FAILS HEIGHTENED SCRUTINY UNDER THE EQUAL PROTECTION CLAUSE .......................................................................................... 12 A. Idahos Marriage Ban Is Subject To Heightened Scrutiny Under Windsor and SmithKline And Cannot Survive Such Scrutiny ............................. 12 B. Idahos Marriage Ban Is Also Subject To Heightened Scrutiny Because It Discriminates On The Basis of Gender And GenderBased Stereotypes ................................................................................................ 16 V. IDAHOS MARRIAGE BAN DOES NOT RATIONALLY ADVANCE ANY LEGITIMATE GOVERNMENTAL INTEREST AND THEREFORE FAILS UNDER ANY LEVEL OF SCRUTINY ..................... 17 A. There Is No Rational Connection Between Idahos Exclusion Of Same-Sex Couples From Marriage And Fostering A Child-Centric Marriage Culture. ................................................................................................. 18 B. There Is No Rational Connection Between Excluding Same-Sex Couples From Marriage And Asserted Interests Relating To Procreation And Parenting ................................................................................... 21 C. There Is No Rational Connection Between Idahos Marriage Ban And The Asserted Interest In Accommodating Religious Freedom And Reducing The Potential For Civic Strife .................................................... 26 VI. IDAHO'S REFUSAL TO RECOGNIZE THE MARRIAGES OF SAME-SEX COUPLES VALIDLY CELEBRATED IN OTHER JURISDICTIONS IS UNCONSTITUTIONAL ........................................................ 29
III. IV.
CONCLUSION ............................................................................................................................ 30 i
TABLE OF AUTHORITIES
Cases Alber v. Alber, 93 Idaho 755 (Idaho 1970) ........................................................................................................ 22 Baker v. Nelson, 409 U.S. 810 (1972) .................................................................................................................... 3 Bd. of Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356 (2001) .................................................................................................................. 13 Bishop v. U.S., et al., No. 04-CV-848, 2014 WL 116013 (N.D. Okla. Jan. 14, 2014) .......................................... 19, 24 Bob Jones University v. United States, 461 U.S. 574 (1983) .................................................................................................................. 28 Bostic v. Rainey, No. 2:13CV395, 2014 WL 561978 (E.D. Va. Feb. 12, 2014) ...................................... 10, 18, 21 Cooper v. Aaron, 358 U.S. 1 (1958) ...................................................................................................................... 27 Dandridge v. Williams, 397 U.S. 471 (1970) .................................................................................................................... 8 De Leon v. Perry, No. SA13CA00982OLG, 2014 WL 715741 (W.D. Tex. Feb. 26, 2014) ..................... 9, 23 Doe v. Roe, 142 Idaho 202 (2005) ................................................................................................................ 23 Franchise Tax Bd. Of California v. Hyatt, 538 U.S. 488 (2003) .................................................................................................................. 30 Goodridge v. Dept of Pub. Health, 798 N.E.2d 941 (Mass. 2003) ................................................................................................... 10 Griswold v. Connecticut, 381 U.S. 479 (1965) .................................................................................................................... 2 Grutter v. Bollinger, 539 U.S. 306 (2003) .................................................................................................................... 8 ii
Heller v. Doe by Doe, 509 U.S. 312 (1993) .................................................................................................................. 10 Hicks v Miranda, 422 U.S. 332 (1975) .................................................................................................................... 5 High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563 (9th Cir. 1990) .................................................................................................... 13 In re Fonberg, 736 F.3d 901 (9th Cir. Jud. Council 2013) ............................................................................... 17 In re Levenson, 587 F.3d 925 (9th Cir. 2009) .................................................................................................... 17 In re Marriage Cases, 183 P.3d 384 (Cal. 2008) .......................................................................................................... 10 J.E.B. v. Alabama, 511 U.S. 127 (1994) ............................................................................................................ 13, 17 Kitchen v. Herbert, No. 2:13-CV-217, 2013 WL 6697874 (D. Utah Dec. 20, 2013) ............................ 12, 18, 19, 24 Lawrence v. Texas, 539 U.S. 558 (2003) ............................................................................................................ 10, 20 Lecates v. Justice of Peace Court No. 4, 637 F.2d 898 (3d Cir. 1980)........................................................................................................ 4 Loving v. Virginia, 388 U.S. 1 (1967) ...................................................................................................... 9, 11, 16, 27 Mandel v. Bradley, 432 U.S. 173 (1977) .................................................................................................................... 3 Massachusetts v. U.S. Dept of Health & Human Servs., 682 F.3d 1 (1st Cir. 2012) ......................................................................................................... 24 Meyer v. State of Nebraska, 262 U.S. 390 (1923) .................................................................................................................... 9 Neely v. Newton, 149 F.3d 1074 (10th Cir. 1998) .................................................................................................. 4 Palmer v. Thompson, 403 U.S. 217 (1971) .................................................................................................................. 27
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Parker v. Hurley, 514 F.3d 87 (1st Cir. 2008) ....................................................................................................... 28 Perez v. Lippold, 198 P.2d 17 (Cal. 1948) ............................................................................................................ 11 Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010) .................................................................................. 9, 10 Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992) .................................................................................................................. 20 Plessy v. Ferguson, 163 U.S. 537 (1896) .................................................................................................................. 22 Roberts v. U.S. Jaycees, 468 U.S. 609 (1984) .................................................................................................................. 11 Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477 (1989) .................................................................................................................... 4 Roe v. Roe, 228 Va. 722 (1985) ..................................................................................................................... 9 Romer v. Evans, 517 U.S. 620 (1996) ...................................................................................................... 15, 19, 23 Saenz v. Roe, 526 U.S. 489 (1999) .................................................................................................................. 30 Schlesinger v. Bellard, 419 U.S. 498 (1975) .................................................................................................................. 17 Smelt v. Cnty. of Orange, 374 F. Supp. 2d 861 (C.D. Cal. 2005) ........................................................................................ 5 SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471 (9th Cir. 2014) ........................................................................................ 12, 13, 14 Stoumen v. Reilly, 222 P.2d 678 (Cal. Dist. Ct. App. 1950) ..................................................................................... 9 Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622 (1994) .................................................................................................................... 7 Turner v. Safley, 482 U.S. 78 (1987) ...................................................................................................... 3, 4, 10, 21
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United States v. Windsor, 133 S. Ct. 2675 (2013) ....................................................................................................... passim Washington v. Glucksberg, 521 U.S. 702 (1997) ................................................................................................................ 7, 9 West Virginia State Bd. of Education v. Barnette, 319 U.S. 624 (1943) .................................................................................................................... 9 Windsor v. U.S., 699 F.3d 169 (2nd Cir. 2012).................................................................................................... 24 Zablocki v. Redhail, 434 U.S. 374 (1978) .................................................................................................................... 9 Statutes and Regulations Idaho Code 16-1508 ................................................................................................................... 22 Idaho Code 32-202 ..................................................................................................................... 19 Idaho Code 32-205 ..................................................................................................................... 19 Idaho Code 32-206 ..................................................................................................................... 19 Idaho Code 32-207 ..................................................................................................................... 19 Idaho Code 32-209 ..................................................................................................................... 19 Idaho Code 32-501 ..................................................................................................................... 19 Idaho Code 39-5405(1)-(2) ........................................................................................................ 22 Idaho Code 39-5405(3) .............................................................................................................. 22 Other Authorities Births: Final Data for 2010, available at http://www.cdc.gov/nchs/data/nvsr/nvsr61/nvsr61_01.pdf ............................ 23, 24 Brief of Amici Curiae Anti-Defamation League, et al., Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) (No. 12-144), 2013 WL 769319 ................... 27 Brief of the Am. Psychological Assn, the Am. Acad. of Pediatrics, and the Am. Med. Assn, et al. as Amici Curiae on the Merits in Support of Affirmance, Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) (No. 12-144), 2013 WL 769316 ............. 20, 25
Dan Levine, U.S. Gay Rights Ruling Wont Be Appealed, Company Says, Reuters, Mar. 10, 2014, available at http://internal.www.reuters.com/article/2014/03/10/usa-gayrights-appealidUSL2N0M723P20140310 ..................................................................................................... 12 Exec. Order No. 10450, 18 Fed. Reg. 2489 (Apr. 27, 1953) .......................................................... 9 Fed. R. Evid. 201 Advisory to Subdivision (a) Comm. Note ......................................................... 6 Kenneth Culp Davis, The Requirement of A Trial-Type Hearing, 70 Harv. L. Rev. 193 (1956).................................. 6 Kristin Anderson Moore et al., Marriage From a Childs Perspective: How Does Family Structure Affect Children and What Can We Do About It, Child Trends Research Brief 6 (June 2002), Gov. App. ........................ 26 Tr. of Oral Argument, Hollingsworth v. Perry, 133 S. Ct. 2652 (2013), available at http://www.supremecourt.gov/oral_arguments/argument_transcripts/12-144_5if6.pdf .......... 17
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INTRODUCTION The Plaintiffs in this case are four couples who have deep roots in Idaho, who have built their lives and families here, and who have worked hard to support themselves and their communities. They wish their relationships to be accorded the same dignity, respect, and security as the relationships of married couples they know in their State. But because of Idahos exclusion of same-sex couples from marriage, Plaintiffs are denied not only the substantial protections that flow from civil marriage, but also the common vocabulary of family life and belonging that other Idahoans may take for granted. By barring Plaintiffs and other same-sex couples from marriage, Idahos laws demean and stigmatize their relationships. The ban 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. United States v. Windsor, 133 S. Ct. 2675, 2695 (2013). The harms inflicted on Plaintiffs and other same-sex couples by that exclusion touch on virtually every aspect of life, from the mundane to the profound. Id. at 2694. Idahos marriage ban denies same-sex couples the vast array of state and federal protections that enable married couples to join their lives together, care for one another in times of illness and crisis, be recognized as a surviving spouse in the event of the other partners death, provide for one another financially, make important joint decisions, and have their relationship acknowledged and respected by the government and third parties. No matter how deeply they care for one another or how long they have stood by one another, Idahos law treats Plaintiffs and other same-sex couples as legal strangers. It communicates to them and to all the world that their relationships are not as real, valuable, or worthy as those of opposite-sex couples; that they are worthy of no recognition at all;
and that they are not, and never can be, true families. Like the federal law struck down in Windsor, the marriage bans avowed purpose and practical effect are to impose a disadvantage, a separate status, and so a stigma upon same-sex couples and their families. Id. at 2681. With remarkable candor, the Governor concedes that the express purpose of Idahos marriage ban is to provide special preference and recognition to opposite-sex couples and their children, in order to send the message that they are Idahos preferred families, Defendant Governor Otters Memorandum in Support of Motion for Summary Judgment (Gov. Mem.) at 38 (Dkt. 57-2), and to withhold protections from families headed by same-sex couples, in order to avoid sending the message that they are on a par with traditional man-woman unions, id. at 45. The Governor presents arguments that impoverish the meaning of marriage by reducing it to an institution designed primarily to deal with accidental procreation that may occur between a man and a woman. In contrast to that diminished, utilitarian model of marriage, the Supreme Court has described marriage as a bilateral loyalty that is intimate to the degree of being sacred, Griswold v. Connecticut, 381 U.S. 479, 486 (1965), and marrying couples frequently bind themselves together with vows to have and to hold and to love and to cherish each other. That commitment is of the highest meaning to many people, and the freedom to make that commitment does not hinge on a couples ability to have children or choices about having children. When a couple does have children, marriage also protects those children. The Governor nevertheless seeks to justify the stigma and injury inflicted on same-sex couples families by their exclusion from marriage based on fears that treating same-sex couples equally might, hypothetically, diminish the desire of opposite-sex couples to marry and have children. But when presented with similar hypothetical arguments from those defending the Federal Defense of Marriage Act (DOMA) in Windsor, the Supreme Court focused on the need to protect existing
families and existing children. The Court found that DOMA humiliate[d] . . . children now being raised by same-sex couples, making it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives, 133 S. Ct. at 2694, as well as causing them serious financial harm, id. at 2695. The Court held that such a law, which intentionally seeks to impose legal disabilities on a vulnerable group, violates basic due process and equal protection principles. Id. at 2693. Idahos marriage ban inflicts similar harms on the children now being raised by same-sex parents in Idaho. These children are also worthy of the States protection. Because Idahos law harms and stigmatizes an entire class of Idaho citizens without furthering any compelling, important, or even legitimate purpose, Plaintiffs ask this Court to hold that it violates the requirements of due process and equal protection. BACKGROUND Plaintiffs hereby incorporate by reference the Background section of their Memorandum in support of their Motion for Summary Judgment. ARGUMENT I. BAKER V. NELSON DOES NOT CONTROL THIS CASE. Baker v. Nelson, 409 U.S. 810 (1972), did not anticipate and therefore cannot possibly resolve the constitutional questions presented in this case. The precedential reach of a summary dismissal is limited and applies only to the precise issues and facts before the lower court. Mandel v. Bradley, 432 U.S. 173, 176 (1977); see also Turner v. Safley, 482 U.S. 78, 96 (1987). Even when a similar statute is subsequently challenged on the same constitutional grounds, lower courts must address the merits of that constitutional challenge so long as the two statutes or the facts of the cases present even potentially significant differences. See, e.g., Turner, 482 U.S. at
96; Neely v. Newton, 149 F.3d 1074, 1078-79 (10th Cir. 1998). As these precedents make plain, Baker cannot be stretched beyond its bounds to dispose of the new constitutional questions presented by this case. Cf. Lecates v. Justice of Peace Court No. 4, 637 F.2d 898, 907 (3d Cir. 1980) (To avoid our duty to decide a case properly before us by an unquestioning reliance on [a summary dismissal], where critical differences appear between the two cases, would retard the development of constitutional principles . . . .). Unlike Minnesotas statute in Baker, the laws challenged here were enacted for the express purpose of imposing a legal disability on same-sex couples. Moreover, they do so by excluding those couples not only from marriage, but from any recognition or protection as familiesas well as by creating an unprecedented exception to Idahos longstanding recognition of valid out-of-state marriages. And unlike Minnesota, Idaho enshrined these sweeping exclusions in its constitution, thereby ensuring that the discriminations they impose cannot be undone through the ordinary political process and seeking to mark same-sex couples and their children as a permanent underclass. See Memorandum in Support of Plaintiffs Motion for Summary Judgment and in Opposition to the Motions to Dismiss of Defendants Christopher Rich and State of Idaho (Pls. Mem.) at 16-17 (Dkt. 61). These critical differences between Minnesotas and Idahos laws render Baker non-controlling here. Moreover, even if the issues presented in Baker and this case were identical (which plainly they are not), the Supreme Courts equal protection and due process case law have progressed tremendously in the four decades since Baker was decided, and those changes deprive Baker of any precedential effect. See Pls. Mem. at 18. The Governor erroneously suggests that Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477 (1989), eliminated the ability of courts to consider whether doctrinal developments have deprived a summary dismissal of precedential effect. Gov. Mem. at 8-9. But as another district court has correctly observed, Rodriguez de Quijas
considered the binding effect of full opinions of the Supreme Court, not a dismissal for want of substantial federal question. Smelt v. Cnty. of Orange, 374 F. Supp. 2d 861, 874 n.19 (C.D. Cal. 2005), affd in part and vacated in part, 447 F.3d 673 (9th Cir. 2006). In contrast to full opinions of the Supreme Court, the [Supreme] Court . . . has stated doctrinal developments may show a summary dismissal is no longer binding. Id. (citing Hicks v. Miranda, 422 U.S. 332, 344 (1975)). Hicks precludes reliance on Baker as disposing of constitutional questions that are plainly substantial in light of the Supreme Courts current equal protection and due process jurisprudence. 422 U.S. at 344-46. II. THIS COURT SHOULD CAREFULLY EXAMINE THE ACTUAL INTENT AND EFFECT OF THE MARRIAGE BAN RATHER THAN SIMPLY DEFER TO THE LEGISLATIVE PROCESS. In an extraordinary plea for judicial abdication, the Governor contends that this Court should not engage in meaningful constitutional analysis of the marriage ban, but instead should defer the question of whether Idaho must permit lesbian and gay couples to marry to the political process. Gov. Mem. at 16-21. The Governors argument is not actually a call for judicial restraint, but instead is a doctrinally insupportable plea for this Court to refrain from discharging (or to approach with less than full vigor) its obligation to interpret and apply the Fourteenth Amendmenta duty that is the very essence of the judicial function in our federal system. In support of his argument for deference to the political process, the Governor makes the insupportable claim that the existence of any disagreement about legislative facts 1 somehow
The Governor never explains which legislative facts he contends require that the Court defer to the Idaho legislative process. As Plaintiffs pointed out in their previous brief, Idahos marriage bans were not passed after careful deliberation and study; rather, they were part of a national, reactionary wave of statutes and constitutional amendments intentionally imposing legal disabilities upon gay people and their families. See Pls. Mem. at 37-40. Indeed, Senator Sali specifically commented about House Bill 658 that there was no time to do an in depth study of
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requires that the Court defer to the Idaho legislative process. Id. That is not so. Issues of legislative fact are inevitable in a case such as this one, in which the courts will issue rulings that not only decide the rights of Plaintiffs, but also stand as legal precedent for other same-sex couples. See Fed. R. Evid. 201 Advisory to Subdivision (a) Comm. Note (Adjudicative facts are simply the facts of the particular case. Legislative facts, on the other hand, are those which have relevance to legal reasoning and the lawmaking process, whether in the formulation of a legal principle or ruling by a judge or court or in the enactment of a legislative body.) (emphasis added). As explained in a seminal law review article to which the Governor cites, see Gov. Mem. at 16, courts regularly must decide issues of legislative fact. See Kenneth Culp Davis, The Requirement of A Trial-Type Hearing, 70 Harv. L. Rev. 193, 202-03 (1956) ([I]n a judicial proceeding before a court, the process of creating law or policy which will be applicable in future cases of the same sort is rather clearly legislative, and a trial type of hearing ordinarily is not required for this part of the proceeding.); id. at 214 (noting that the Supreme Court itself frequently resolves such issues [of legislative fact] without a trial type of hearing). There thus is no merit to the Governors remarkable assertion that [r]egardless of the level of review, when parties present legitimate competing legislative facts, the courts defer to those chosen by the government decisionmaker. Gov. Mem. at 16. No level of equal protection scrutinyincluding rational basis reviewis that lenient. See Section V, infra. Indeed, such a rule would insulate every law from judicial review, a result that would effectively render unenforceable any constitutional limits on government power.
this issue and that the law was drafted because the actions of Hawaii would dictate Idahos policy if action were not taken. See Declaration of Shannon P. Minter in Support of Plaintiffs Request for Judicial Notice, Ex. A, at 4 (Dkt. 60). 6
In asking this Court simply to defer to the Idaho legislative process, the Governor cites to the Supreme Courts decision in Washington v. Glucksberg, 521 U.S. 702 (1997), rejecting a due process challenge to Washingtons prohibition of physician-assisted suicide. Gov. Mem. at 18. Contrary to the Governors suggestion, however, the Court in Glucksberg did not decide that case simply by asking whether there was any relevant legislative fact on which the parties or members of the public might disagree. Rather, the Court, after concluding that it would apply only rational basis review to the claim at issue, still considered numerous state interests and inquired whether the prohibition of physician-assisted suicide was rationally related to those interests. See, e.g., Glucksberg, 521 U.S. at 731 (identifying the states interest in protecting the integrity and ethics of the medical profession and explaining that physician assisted suicide could undermine the trust that is essential to the doctor-patient relationship). The Governor also contends that the Court should decline to exercise meaningful judicial review of Idahos marriage ban because what this case really supposedly involves are predictions of what will happen in society in the future. Gov. Mem. at 18. All laws, of course, have future consequences, and state action is not immune from meaningful constitutional review merely because the state seeks to defend it based on concerns about the future. The Governors argument ignores the urgency of this issue for same-sex couples today as well as in the future, Windsor, 133 S. Ct. at 2689, and asks the Court to look away from, rather than face directly, the real constitutional harms that Plaintiffs and their children are facing now as a result of their exclusion from marriage. Case law that the Governor cites affirms, however, that the Courts essential role is to protect constitutional rights, not simply to accept legislative predictions. See Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 666 (1994) (Kennedy, J., plurality opinion)
(That Congress predictive judgments are entitled to substantial deference does not mean . . . that they are insulated from meaningful judicial review.) (citation omitted). Finally, the Governors broad call for deference to the Idaho legislative process finds no support in the Supreme Courts decision upholding an affirmative action plan at the University of Michigan Law School in Grutter v. Bollinger, 539 U.S. 306 (2003). The Governor selectively quotes from the Courts explanation that it would defer to [t]he Law Schools educational judgment that such [sic] diversity is essential to its educational mission. Gov. Mem. at 21 (quoting Grutter, 539 U.S. at 328).2 The Court in Grutter went on to explain, following the language quoted by the Governor, that the Courts reasoning was in keeping with [the Courts] tradition of giving a degree of deference to a universitys academic decisions, within constitutionally prescribed limits because universities occupy a special niche in our constitutional tradition, in light of a constitutional dimension, grounded in the First Amendment, of educational autonomy. 539 U.S. at 329. As explained below, however, although domestic relations is an area within states legislative competency, the Supreme Court repeatedly has applied close scrutiny to marriage laws in the face of due process and equal protection challenges. Federal
The Governor also selectively quotes from Dandridge v. Williams, 397 U.S. 471, 487 (1970), a case in which the Supreme Court considered the constitutionality of a state welfare law, to suggest that this Court should not second-guess state officials. Gov. Mem. at 17. The Governor truncated the Supreme Courts reasoning, which, in its entirety, explained that the Constitution does not empower this Court to second-guess state officials charged with the difficult responsibility of allocating limited public welfare funds among the myriad of potential recipients. Dandridge, 397 U.S. at 487. Dandridge does not stand for the proposition that a court should always defer to legislative facts chosen [] by the people, Gov. Mem. at 18rather, it simply holds that a state may allocate limited public resources as it sees fit as long as that process is not discriminatory. Marriage licenses are not a limited resource and any issuance of them to same-sex couples would not reduce licenses available to other couples. See also Pls. Mem. at 28 n.8. 8
courts have appropriately been mindful that [s]tate laws defining and regulating marriage, of course, must respect the constitutional rights of persons . . . . Windsor, 133 S. Ct. at 2691. III. IDAHOS EXCLUSION OF SAME-SEX COUPLES FROM MARRIAGE VIOLATES DUE PROCESS. Contrary to the Governors arguments, gay and lesbian persons have the same fundamental right to marry as others. For nearly a century, the Supreme Court has recognized that like the right to choose an occupation, establish a household, determine ones place of residence, worship according to ones conscience, and decide whether to have childrenthe right to marry is fundamental. See Glucksberg, 521 U.S. at 720; Meyer v. State of Nebraska, 262 U.S. 390, 399 (1923); Loving v. Virginia, 388 U.S. 1, 12 (1967); Zablocki v. Redhail, 434 U.S. 374, 384 (1978). In the past, governments often violated the fundamental liberties of gay and lesbian persons by excluding them from certain jobs, barring them from associating in public, and depriving them of custody of their own children. See, e.g., Exec. Order No. 10450, 18 Fed. Reg. 2489 (Apr. 27, 1953) (barring sexual perver[ts] from employment in the federal government); Stoumen v. Reilly, 222 P.2d 678, 682 (Cal. Dist. Ct. App. 1950) (holding the state could suspend a bars liquor license because it served as a meeting place for gay men and lesbians); Roe v. Roe, 228 Va. 722, 723-724 (1985) (changing custody of a child to mother because the father was in a relationship with a man). Today, courts have recognized that gay and lesbian persons have the same fundamental liberties as others. See, e.g., Windsor, 133 S. Ct. 2675; Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 994-95 (N.D. Cal. 2010) (That the majority of California voters supported Proposition 8 is irrelevant, as fundamental rights may not be submitted to [a] vote; they depend on the outcome of no elections.) (quoting West Virginia State Bd. of Education v. Barnette, 319 U.S. 624, 638 (1943)); De Leon v. Perry, No. SA13CA00982OLG, 2014 WL 715741, at *14 (W.D. Tex. Feb. 26, 2014) (While Texas has the unquestioned authority to regulate and define marriage, 9
the State must nevertheless do so in a way that does not infringe on an individuals constitutional rights. (quoting Windsor, 133 S. Ct. at 2692-2693)). That recognition applies equally to marriage, as courts across the country are now holding.3 The Governor offers no substantive justification for excluding same-sex couples from this fundamental right. Instead, the Governor merely asserts that because marriage has consisted of opposite-sex couples in the past, the state may continue to restrict marriage to those couples. Gov. Mem. at 22-24. But as the Supreme Court has made clear, the mere antiquity of a challenged law does not demonstrate its validity even under rational basis review, much less when a fundamental right is at issue. See Heller v. Doe by Doe, 509 U.S. 312 (1993) (Ancient lineage of a legal concept does not give it immunity from attack for lacking a rational basis.); accord, Lawrence v. Texas, 539 U.S. 558 (2003). Like any fundamental right, the freedom to marry is defined by the substance of the right itself, not the identity of the persons asserting itlet alone the identity of persons who have historically been denied it. In Turner, the Supreme Court articulated the attributes of marriage that warrant constitutional protection, including the opportunity to express love and commitment, to enter into a legally recognized relationship, and, for some, to express the spiritual dimension of a relationship. 482 U.S. at 95-96. Like other same-sex couples, the Plaintiffs in this case wish to marry for these reasons, in addition, for those who have children, to
The Governor also asserts that a large majority of courts have held that states may exclude same-sex couples from marriage. Gov. Mem. at 37. Since Windsor, however, no federal court has made this holding. See, e.g., Bostic v. Rainey, No. 2:13CV395, 2014 WL 561978, at *13-20 (E.D. Va. Feb. 12, 2014). And even before Windsor, numerous courts interpreting both the federal and state constitutions concluded that the fundamental right to marry includes same-sex couples. See, e.g., Perry, 704 F. Supp. 2d at 995; In re Marriage Cases, 183 P.3d 384, 429 (Cal. 2008)); Goodridge v. Dept of Pub. Health, 798 N.E.2d 941, 968 (Mass. 2003).
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seeking additional security and stability for their children. The Governor has failed to identify any attribute of marriage that would justify excluding gay and lesbian persons from its scope. The Supreme Court and state courts have made clear that the essence of the freedom to marry is, as the California Supreme Court explained in its 1948 decision striking down laws barring interracial marriage, the freedom to join in marriage with the person of ones choice. Perez v. Lippold, 198 P.2d 17, 21 (Cal. 1948); see also Loving, 388 U.S. at 12; Roberts v. U.S. Jaycees, 468 U.S. 609, 620 (1984).4 By depriving Plaintiffs and other same-sex couples of that basic right, Idahos laws demean their dignity and autonomy, just as it would demean an individuals dignity were the government to dictate his or her choices about where to live, which occupation to pursue, or whether to have children. Moreover, barring gay and lesbian persons from marrying the person of their choiceas Idahos laws currently donot only deprives them of the right to marry, but diminishes the importance and meaning of marriage itself. Nothing in Glucksberg or other cases supports the Governors claim that the scope of a fundamental right may be restricted only to certain historically favored groups. Rather, just the opposite is true. As our appreciation for the shared humanity of particular groups has evolved, we have recognized their entitlement to the same fundamental rights enjoyed by others. That pattern has been evident throughout our nations historyfrom the extension of the full rights of
The Governor objects to Plaintiffs reliance on Loving, asserting that anti-miscegenation laws were odious measures that rested on invidious racial discrimination. Gov. Mem. at 24. The fundamental rights doctrine, however, places certain deeply personal choices beyond the scope of the States authority; it does not matter whether the governments reasons for wishing to restrict such choices are invidious or benign. Undoubtedly, the states defending the marriage restrictions at issue in Loving, Turner, Zablocki, and other cases all believed that there were valid reasons for themas did the majority of voters at the time. That did not stop the Supreme Court from invalidating them under the Constitution.
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citizenship to formerly enslaved persons, to the extension of the right to vote to women, to the extension of constitutional protection to unmarried parents and their children. As the district court in Kitchen v. Herbert, No. 2:13-CV-217, 2013 WL 6697874, at *17 (D. Utah Dec. 20, 2013), recently observed, when holding that gay and lesbian persons are included in the fundamental right to marry, it is not the Constitution that has changed, but the knowledge of what it means to be gay or lesbian. IV. IDAHOS EXCLUSION OF SAME-SEX COUPLES IS SUBJECT TO AND FAILS HEIGHTENED SCRUTINY UNDER THE EQUAL PROTECTION CLAUSE. The Governor argues that Plaintiffs equal protection claims are subject only to ordinary rational basis review. As explained below, that argument is foreclosed by both Supreme Court and Ninth Circuit precedent, which establishes that the Court must apply heightened scrutiny to Idahos marriage ban, both because it discriminates on the basis of sexual orientation and because it uses gender-based classifications and seeks to impose gender-based expectations. A. Idahos Marriage Ban Is Subject To Heightened Scrutiny Under Windsor and SmithKline And Cannot Survive Such Scrutiny.
The Governor urges the Court to disregard binding precedent and apply only rational basis scrutiny to Idahos marriage ban even though it discriminates on the basis of sexual orientation. The Governor asserts that instead of following the Ninth Circuits recent decision in SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471 (9th Cir. 2014),5 the Court should ignore that decision and instead follow older Ninth Circuit cases holding that sexual orientation classifications
No party filed a petition for rehearing en banc in SmithKline, and the time in which to do so has run. Additionally, the losing party in SmithKline has stated that it does not intend to petition the Supreme Court for a writ of certiorari. See Dan Levine, U.S. Gay Rights Ruling Wont Be Appealed, Company Says, REUTERS, Mar. 10, 2014, available at http://www.reuters.com/article/2014/03/10/usa-gayrights-appeal-idUSL2N0M723P20140310. 12
are subject only to rational basis scrutiny. See Gov. Mem. at 28-29 (citing High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563, 57174 (9th Cir. 1990)). But SmithKline held in unmistakable terms that older Ninth Circuit holdings that rational basis review applies to sexual orientation classifications are no longer good law and should not be followed: Windsor requires that we reexamine our prior precedents . . . . Under that analysis, we are required by Windsor to apply heightened scrutiny to classifications based on sexual orientation for purposes of equal protection. . . . Thus, 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. J.E.B. [v. Alabama, 511 U.S. 127, 143 (1994)]. SmithKline, 740 F.3d at 484 (emphasis added). The Ninth Circuit expressly held that [o]ur earlier cases applying rational basis review to classifications based on sexual orientation cannot be reconciled with Windsor. Id. at 483. SmithKline held that courts in this circuit must apply Windsors heightened scrutiny when considering an equal protection challenge to laws that discriminate on the basis of sexual orientation. 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. Id. The Governor erroneously contends that the careful examination of a law applied in Windsor applies only to laws whose only basis is animusnot to every classification implicating sexual orientation. Gov. Mem. at 28. That argument disregards the clear holding of SmithKline, which requires heightened scrutiny for all laws that discriminate based on sexual orientation. Indeed, in SmithKline, the Ninth Circuit used the word animus only once, in stating that [p]rejudice ... rises not from malice or hostile animus alone. 740 F.3d at 486 (quoting Bd. of Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356, 374 (2001) (Kennedy, J., concurring)). 13
The Governors argument also reverses the Supreme Courts analytical process in Windsor. The Supreme Court in Windsor did not hold, as the Governor contends, that careful consideration was required only because DOMA was based on animus or lacked a legitimate purpose. Instead, the Court in Windsor applied careful consideration in order to ascertain DOMAs actual purpose and effect, see 133 S. Ct. at 2693, and then to determine whether any justification for DOMA was sufficient to overcome[] the purpose and effect to disparage and to injure same-sex couples. Id. at 2696. Windsor thus makes clear that laws that impose legal disadvantages on same-sex couples must be carefully scrutinized to determine whether their principal purpose and effect is to impose inequality on same-sex couples. Id. at 2694. In making that determination in Windsor, the Court carefully examined the history of DOMAs enactment and its own text, id. at 2693, as well as its operation in practice, id. at 2694, and the severe harms that it imposed on same-sex couples and their families. When a law has the purpose and effect of imposing legal disabilities on samesex couples, courts may not uncritically defer to the states proffered justifications, but must determine whether any justification exists that is sufficiently strong to justify the harms imposed on same-sex couples and their children. SmithKline, 740 F.3d at 482-83.6 As with DOMA, the essence of Idahos marriage ban is to impose inequality on samesex couples and their families. Windsor, 133 S. Ct. at 2693, 2694. Both the text of the marriage
In his discussion of animus, the Governor suggests that Plaintiffs must establish that the legislature or the voters were motivated by subjective ill-will toward gay and lesbian people. See Gov. Mem. at 29. That argument misapprehends the meaning of animus as used by the Supreme Court. Animus does not refer to subjective hostility by those who enacted a law, but simply to the improper purpose of imposing disadvantages on a particular group while failing to advance a legitimate purposethat is, the improper purpose and effect of impos[ing] inequality on a group. Windsor, 133 S. Ct. at 2694.
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ban and the legislative record demonstrate that Idahos statutory and constitutional exclusions of same-sex couples were enacted for the express purpose and have the practical effect of imposing legal disadvantages on same-sex couples. That discriminatory purpose is apparent on the face of the challenged measures, which expressly single out same-sex couples for exclusion from marriage and bar any legal recognition of same-sex couples who married in other jurisdictions. Additionally, Idahos statutory and constitutional marriage bans are not simply neutral measures enacted for a legitimate purpose that incidentally have an adverse impact on same-sex couples and their families. Rather, these extraordinary measures were aimed specifically at preventing samesex couples from marrying or from having their marriages recognized. Cf. Windsor, 133 S. Ct. at 2693 (examining historical context of DOMA). The Governor also argues that this case is distinguishable from Windsor because state regulation of marriage, unlike DOMAs federal regulation of marriage, is not historically unusual. Gov. Mem. at 29-30. While state regulation of marriage in general is not unusual, the enactment of statutory and constitutional prohibitions like those at issue here, which exclude an entire class of citizens from the protections and obligations of marriage, is most certainly a [d]iscrimination[] of an unusual character. Windsor, 133 S. Ct. at 2692 (quoting Romer v. Evans, 517 U.S. 620, 633 (1996)). Indeed, the rapid enactment across the country of state statutes and constitutional amendments designed specifically to prevent an entire segment of societysame-sex couples and their childrenfrom obtaining the protections of civil marriage is a highly unusual chapter in our nations history. As discussed at length in Plaintiffs memorandum in support of their summary judgment motion, Idahos marriage ban cannot survive the heightened scrutiny required under Windsor and
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SmithKline. See Pls. Mem. at 35-40.7 Even if Defendants could offer a rational connection between the marriage ban and some hypothetical governmental interestwhich they cannotany such claimed interest is insufficient to overcome[] the purpose and effect to disparage and to injure same-sex couples and their families. Windsor, 133 S. Ct at 2696. In addition, as Plaintiffs have previously argued, heightened scrutiny is warranted based on the considerations the Supreme Court has historically applied in determining whether legislation employs a suspect or quasi-suspect classification. Pls. Mem. at 22-23. B. Idahos Marriage Ban Is Also Subject To Heightened Scrutiny Because It Discriminates On The Basis of Gender And Gender-Based Stereotypes.
As explained in Plaintiffs memorandum in support of their motion for summary judgment, Idahos marriage ban is also subject to heightened scrutiny because it facially classifies based on gender and improperly relies on an assumption that the gender of the spouses is somehow relevantan assumption that has otherwise entirely been eliminated from Idahos marriage laws. See Pls. Mem. at 23-36. Contrary to the Governors contention, Plaintiffs gender discrimination claim cannot be dismissed merely because Idaho prohibits both men and women from marrying a spouse of the same sex. Gov. Mem. at 30-31. A similar argument was made and rejected in Loving. See 388 U.S. at 8. Moreover, the Supreme Courts gender discrimination case law has focused not simply on differential treatment of the sexes, but also on the harm inflicted by governmental enforcement of gender stereotypes or expectations. The Court has recognized the real danger that government policies that professedly are based on reasonable considerations in
In the wake of the Ninth Circuits decision in SmithKline, state officials in Nevada and Oregon determined that there is no valid constitutional defense of their respective state marriage bans. See Declaration of Deborah A. Ferguson in Support of Pls. Req. for Judicial Notice In Oppn to Def. Gov. Otters Mot. for Summ. J., Ex. A at 4-6; Ex. B at 12-13.
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fact may be reflective of archaic and overbroad generalizations about gender. J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 135 (1994) (citing Schlesinger v. Bellard, 419 U.S. 498, 506-07 (1975)). When the Supreme Court in 2013 was considering whether Californias exclusion of samesex couples from marriage could be treated as a gender-based classification, Justice Kennedy stated: Its a difficult question that Ive been trying to wrestle with . . . . Tr. of Oral Argument at 13, lines 18-19, Hollingsworth v. Perry, 133 S. Ct. 2652 (2013), available at http://www.supremecourt.gov/oral_arguments/argument_transcripts/12-144_5if6.pdf. Moreover, when counsel defending Californias measure argued that the Supreme Courts summary affirmance in Baker v. Nelson controlled the case, Justice Ginsburg responded by stating: Baker v. Nelson was 1971. The Supreme Court hadnt even decided that gender-based classifications get any kind of heightened scrutiny. Id. at 12, lines 17-20 (emphasis added). The comments by Justices Kennedy and Ginsburg, while not binding, indicate the seriousness of Plaintiffs gender discrimination claim and argument that the Court must apply heightened scrutiny to Idahos marriage ban because it imposes inequality on same-sex couples on the basis of sex. 8 V. IDAHOS MARRIAGE BAN DOES NOT RATIONALLY ADVANCE ANY LEGITIMATE GOVERNMENTAL INTEREST AND THEREFORE FAILS UNDER ANY LEVEL OF SCRUTINY. For the reasons explained above and in Plaintiffs memorandum in support of their motion for summary judgment, Idahos marriage ban cannot survive the careful scrutiny applied by the
Indeed, the Ninth Circuit Judicial Council recently ruled that the OPMs denial of insurance and related benefits to the same-sex domestic partner of a judicial employee amount[ed] to discrimination on the basis of sex under the District of Oregons employment dispute resolution (EDR) plan. In re Fonberg, 736 F.3d 903 (9th Cir. Jud. Council 2013). That ruling is in line with several other Ninth Circuit EDR plan rulings in recent years in which Ninth Circuit judges have held that denial of benefits to the same-sex spouses or partners of Ninth Circuit employees constitutes discrimination on the basis of sex. See, e.g., In re Levenson, 587 F.3d 925, 929 (9th Cir. 2009) (EDR Plan decision) (Reinhardt, J.).
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Supreme Court in Windsor because the marriage bans principal purpose and effect is to impose legal disabilities on same-sex couples and their children. The ban also warrants, and fails, heightened scrutiny because it deprives Plaintiffs of fundamental rights and liberty interests and discriminates on the basis of sexual orientation and gender. Idahos marriage ban is also
unconstitutional, however, for an even more basic reason: Preventing same-sex couples from marrying does not rationally advance any legitimate governmental interest. There simply is no rational connection between any of the objectives proffered by the Governor and prohibiting samesex couples from sharing in the protections and obligations of civil marriage. A. There Is No Rational Connection Between Idahos Exclusion Of Same-Sex Couples From Marriage And Fostering A Child-Centric Marriage Culture.
The Governors argument that barring same-sex couples from marriage is rationally related to fostering a child-centric marriage cultureand, in particular, that eliminating the ban might undermine marriage and cause parents to be less committed to their childrenhas no grounding in any reasonably conceivable state of facts. As an initial matter, that argument ignores the children being raised by same-sex parents in Idaho, including the children of Plaintiffs Sharene and Lori Watson and Andrea Altmayer and Shelia Robertson. See Sharene Watsen Decl. 14; Lori Watsen Decl. 21; Altmeyer Decl. 7. These children are also worthy of the States protection, yet [the marriage ban] harms them for the same reasons that the Supreme Court found that DOMA harmed the children of same-sex couples. Kitchen, 2013 WL 6697874, at *26. Rather than furthering an interest in protecting children or encouraging parents to marry, Idahos marriage ban needlessly stigmatiz[es] and humiliat[es] children who are being raised by samesex parents. Bostic, 2014 WL 561978, at *18. In addition, even if it were permissible for the Governor to focus his concern solely on opposite-sex couples children in the future and ignore the welfare of same-sex couples children here and now, the Governor has offered no legal, factual, 18
or logical reason to believe that permitting same-sex couples to marry will affect the attitudes or conduct of other couples or society at large toward marriage and parenting. As another court explained, it defies reason to conclude that allowing same-sex couples to marry will diminish the example that married opposite-sex couples set for their unmarried counterparts. Kitchen, 2013 WL 6697874, at *25. The Governors argument that marriage today is child-centered as opposed to adultcentered also disregards that Idaho permits marriage between opposite-sex couples who are unable to procreate due to age, infertility, disability, or other circumstances. Idahos laws do not, and never have, required either ability or intent to procreate as a prerequisite for marriage, nor do they permit marriages to be annulled based on infertility. See Idaho Code 32-202 (describing persons who may marry); id. at 32-205 through 207, 209 (describing persons who may not marry); id. at 32-501 (grounds for annulment). Rational basis review does not require that a law advance a legitimate interest with razor-like precision, but it does require a rational relationship between the classification adopted and the object to be attained. Romer, 517 U.S. at 632. Assuming a state can rationally exclude citizens from marital benefits due to those citizens inability to naturally procreate, the states exclusion of only same -sex couples in this case is so grossly underinclusive that it is irrational and arbitrary. Bishop v. U.S., et al., No. 04-CV-848, 2014 WL 116013 (N.D. Okla. Jan. 14, 2014), at *30. The Governors argument also posits a false dichotomybetween the role played by marriage in protecting childrens interests and adults intereststhat is directly belied by the Supreme Courts central decisions about the freedom to marry. The Governor seeks to denigrate or cast in a suspicious light the interests of adults in choosing whether and whom to marry. Gov. Mem. at 38. The Supreme Court, however, has emphasized that those very interests are central to
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the autonomy of individuals safeguarded by the Fourteenth Amendment. The Court confirmed in Casey and Lawrence that our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education because of the respect the Constitution demands for the autonomy of the person in making these choices. Lawrence, 539 U.S. at 574 (citing Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992)). The Supreme Court repeatedly has underscored that the Constitution protects the freedom to marry in furtherance of both autonomy and family ties. Marriage is not, as the Governor would have it, a zero-sum game that pits the needs of children against the desires of adults. To the contrary, marriage benefits the health and wellbeing of both adults and children in numerous ways, as the nations leading mental health organizations have emphasized. See Brief of the Am. Psychol. Assn, the Am. Acad. of Pediatrics, and the Am. Med. Assn, et al. as Amici Curiae on the Merits in Support of Affirmance at 14-29, Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) (No. 12-144), 2013 WL 769316, at *14-30. Because both adults and children benefit from marriage, there is no rational reason to conclude that allowing a greater number of adults to marry will be anything other than beneficial for children. Indeed, it is the exclusion of same-sex couples from marriage that would seem to undermine the child-centric view, because that exclusion fences out one segment of society and tells them that getting married and having children is not a life path that is open to them. Additionally, the Governors argument needlessly belittles the important purposes of marriage that are related to the two spouses irrespective of the existence of children within the marriage. For example, as Plaintiffs Sue Latta and Traci Ehlers have begun planning for their retirement and healthcare, they have become more and more concerned with the ramifications of their marriage not being legally recognized by Idaho in areas such as taxes, inheritance, social
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security benefits, hospital visitation rights, and medical decision-making. See Latta Decl. at 16; Ehlers Decl. at 17. Marriage remains vitally important to them even though Sues children are now grown. As their story shows, marriage is not only about raising children, but about a couples commitment to share the joys and sorrows of life together, to care for one another through illness or job loss, and to remain each others partner and companion into old age, long after any children are grown. The Constitution protects all of these aspects of marriage, regardless of whether the spouses are able to have and raise children together. Cf. Turner, 482 U.S. 95-96 (enumerating the kinds of commitment a marriage entails and its non-procreative significance); see also Bostic, 2014 WL 561978, at *19 (citing Turner for these same principles). Plaintiffs do not dispute that stable marriages between men and women are indispensable to the welfare of both children and society. Gov. Mem. at 31. What the Governor ignores, however, is that stable marriages of same-sex couples are equally indispensable to the welfare of children and society. To the extent marriage is intended to promote a child-centric culture, the Governors desire to exclude those couples from marriageand his willingness to inflict serious harms on their childrendoes not rationally advance this goal. If anything, it undermines it. B. There Is No Rational Connection Between Excluding Same-Sex Couples From Marriage And Asserted Interests Relating To Procreation And Parenting.
The Governor asserts that Idahos marriage ban is justified by a claimed interest in giv[ing] special preference and recognition to families consisting of children being raised either by both biological parents or at least by two parents of opposite sex. Gov. Mem. at 38-39. But that claim fails constitutional review in the most basic way: Idaho has no legitimate interest in giving special preferences to some parents over others, and even if such a governmental objective were permissible, there is no rational link between excluding same-sex couples from marriage and encouraging the raising of children by married opposite-sex parents. 21
Although states may, through their domestic relations laws, encourage and promote family stability, marriage, and healthy childrearing, the purported interest that the Governor advances in his briefa supposed interest in giv[ing] special preference and recognition to some families with children over other families with childrenis not a legitimate governmental interest that states may pursue. Id. It is, instead, the very thing that the Equal Protection Clause prohibits. For example, although being raised in an affluent household may confer important advantages on children, the state has no legitimate interest in giving special preference and recognition to such optimal families by passing a law prohibiting poor people from marrying. Id. at 59. Such a statute would violate the most basic principle of equal protection that the law neither knows nor tolerates classes among citizens. Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting). Likewise, even if the Governor believes that only married biological parents can provide the ideal environment for raising children, the state has no legitimate interest in penalizing same-sex couples and their children through its exclusionary laws. Moreover, the Governors asserted preference contradicts Idahos domestic relations law, which generally seeks to provide stability, protection, and respect to all Idaho children, rather than to impose harms on them or a subset of them.9 Indeed, the Governor concedes that the law causes
Contrary to the Governors claims, Idaho law does not elevate biology over other ways of becoming a parent or permit differential treatment of parents based on their gender. Idaho law recognizes that the state has a compelling interest in preserving established parent-child bonds, regardless of whether a child is adopted, born through assisted reproduction, or being raised by a non-biological parent in other circumstances, such as by a mothers husband who is not the childs biological father. See Idaho Code 16-1508 (adoption creates a legal parent child relationship that is equivalent to biological parentage in all respects); Idaho Code 39-5405(1)-(2) (sperm donors are not fathers); Idaho Code 39-5405(3) (The relationship, rights and obligation between a child born as a result of artificial insemination and the mothers husband shall be the same for all legal intents and purposes as if the child had been naturally and legitimately conceived by the mother and the mothers husband, if the husband consented to the performance of artificial insemination.); Alber v. Alber, 93 Idaho 755, 760-61 (Idaho 1970) (husbands are presumed to be
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harm rather than meeting childrens needs. See e.g., Gov. Mem. at 38 (acknowledging that eliminating the marriage ban would result in more children benefitting from having married parents). The incongruity between the Governors proffered justification of promoting one preferred family arrangement and Idahos general respect for the dignity and equality of all children and all parents compels the conclusion that the marriage bans purpose is not to further any legitimate aim, but simply to disadvantage a disfavored group, even at the expense of harming children. See Romer, 517 U.S. at 635. The illegitimacy of the Governors asserted interest is also underscored by the fact that, apart from same-sex couples, Idaho does not penalize any other class of potentially non-optimal parents (or their children) by barring them from marriage. For example, persons who are addicted to alcohol or drugs, who have been convicted of abusing or molesting children, or who are incapable of biologically procreating are not barred from marriage. Moreover, even if preferring certain classes of parents over others were a legitimate objective, that goal is not rationally advanced by prohibiting same-sex couples from marrying. The exclusion of same-sex couples from civil marriage has no effect on who can be a parent, nor does it affect opposite-sex couples incentives to raise their biological (or non-biological) children within a marital relationship in any conceivable way, as numerous courts have recognized. See, e.g., De Leon, 2014 WL 715741 at *14.10
the fathers of children born during marriage); Doe v. Roe, 142 Idaho 202, 205 (2005) (Mere biology does not create a father with legal rights and responsibilities to a minor child.). The Governors suggestion that Idahos marriage ban is somehow related to its high rate of marriage or low rate of children born outside of marriage, Gov. Mem. at 44, is belied by the very data he cites. In fact, the states with the highest rates of children born outside of marriage were states that banned marriage for same-sex couples. See Births: Final Data for 2010 at 8, available at http://www.cdc.gov/nchs/data/nvsr/nvsr61/nvsr61_01.pdf (At least one half of all births were
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For example, in striking down Section 3 of the federal DOMA, the First Circuit noted that DOMA does not increase benefits to opposite-sex coupleswhose marriages may in any event be childless, unstable or bothor explain how denying benefits to same-sex couples will reinforce heterosexual marriage. Massachusetts v. U.S. Dept of Health & Human Servs., 682 F.3d 1, 14 (1st Cir. 2012). This is not merely a matter of poor fit of remedy to perceived problem, but a lack of any demonstrated connection between DOMAs treatment of same-sex couples and its asserted goal of strengthening the bonds and benefits to society of heterosexual marriage. Id. at 15 (internal citation omitted); see also Windsor v. U.S., 699 F.3d 169, 188 (2nd Cir. 2012) (DOMA does not provide any incremental reason for opposite-sex couples to engage in responsible procreation. Incentives for opposite-sex couples to marry and procreate (or not) were the same after DOMA was enacted as they were before.) (footnote omitted); Kitchen, 2013 WL 6697874, at *25; Bishop, 2014 WL 116013, at *31. Furthermore, the scientific consensus of every national health care organization charged with the welfare of children and adolescentsincluding the American Academy of Pediatrics, the American Academy of Child and Adolescent Psychiatry, the American Psychiatric Association, the American Psychological Association, the American Psychoanalytic Association, the American Sociological Association, the National Association of Social Workers, the American Medical Association, and the Child Welfare League of Americabased on a significant and well-respected
nonmarital in Louisiana, Mississippi, and New Mexico.); Births: Final Data for 2010, Table I-4, available at http://www.cdc.gov/nchs/data/nvsr/nvsr61/nvsr61_01_tables.pdf#I04 (showing that the percent of non-marital births in Louisiana, Mississippi and New Mexico in 2010 were 53.3%, 54.8% and 52.3% respectively). Moreover, it is much more likely that marriage rates and nonmarital birth rates relate to other issues entirely. See Births: Final Data for 2010 at 8, available at http://www.cdc.gov/nchs/data/nvsr/nvsr61/nvsr61_01.pdf. 24
body of current research, is that children and adolescents raised by same-sex parents are as welladjusted as children raised by opposite-sex parents. See Brief of the Am. Psychological Assn, the Am. Acad. of Pediatrics, and the Am. Med. Assn, et al., as Amici Curiae on the Merits in Support of Affirmance, United States v. Windsor, 133 S. Ct. 2675 (2013) (No. 12-307), 2013 WL 871958 at *18-34; see also Supplemental Expert Declaration of Dr. Michael E. Lamb at 22 (Supp. Lamb Decl.) ([I]t is beyond scientific dispute that children raised by gay, lesbian, and heterosexual couples are equally likely to be well-adjusted.).11 As Plaintiffs expert witness, Dr. Michael Lamb, explains, outcomes for children and adolescents depend not on the sex of the parents or the family structure, but rather on the quality of parenting and parent-child relationships, the quality of the relationships between parents or significant adults in the childrens lives, and the parents access to social and economic resources. See Supp. Lamb Decl. at 22. The articles cited by the Governor in support of his optimal parenting rationale are wholly unrelated to same-sex couples and their children. The Governor cites research concerning children raised by single parents, divorced parents, and step-parents that shows that children in such situations may suffer some disadvantages related to the stresses of divorce, remarriage, and single parenting. See Gov. Mem. at 39-43. That research does not concern parenting by samesex couples, and it has no bearing on the wellbeing of children raised by same-sex parents. See,
Plaintiffs submitted in support of their Motion for Summary Judgment the Expert Declaration of Dr. Michael E. Lamb (Dkt. 47) (Lamb Decl.). Plaintiffs rely both on that initial Declaration and on his Supplemental Declaration in opposing the Governors Motion. The Governor attempts to undermine the expert opinions of Dr. Lamba preeminent psychologist with more than forty years of experience studying childrens developmentby citing a 1975 article he published. Gov. Mem. at 40 n.32. While Dr. Lamb was among a number of researchers who speculated in the 1970s that parental gender might be important for child outcomes, the overwhelming body of research since then has disproved that hypothesis. Supp. Lamb Decl., 16.
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e.g., Supp. Lamb Decl. at 12-13. With respect to the studies by Mark Regnerus, Gov. Mem. at 42 n.37, Regnerus did not actually measure outcomes for children raised by same-sex parents and the journal that originally published his study has since published an audit noting that this fact should have precluded publication of his work. Id. 18-21; Lamb Decl. (Dkt. 47) at 36 n.6.12 C. There Is No Rational Connection Between Idahos Marriage Ban And The Asserted Interest In Accommodating Religious Freedom And Reducing The Potential For Civic Strife.
The Governor presents the constitutionally repugnant argument that Idaho has an interest in preserving the traditional definition of marriage because that definition is essential to preserving social harmony . . . while redefining marriage by judicial fiat would invite social and religious strife. Gov. Mem. at 49. The Governor argues, without evidence or support, that because the vast majority of faith communities supposedly oppose marriage for same-sex couples, Idahos laws should do so as well. Id. The Governors suggestion that the number of faith communities opposed to marriage by same-sex couples somehow justifies the states imposition of inequality, stigma, and tangible harm on those couples and their children is contrary to the very notion of constitutional limitations on majority power. The Governor recognizes as much when he clarifies that this argument does not mean that the State can invoke concerns about
The Governor also misrepresents the research of Kristen Anderson Moore. See Gov. Mem. at 39 & n.29, 41 & n.35 (quoting from Kristin Anderson Moore et al., Marriage From a Childs Perspective: How Does Family Structure Affect Children and What Can We Do About It, Child Trends Research Brief 6 (June 2002), Gov. App. at 478-85. The authors of the cited study added an introductory note, which the Governor excluded from his appendix, explicitly warning that no conclusions can be drawn from this research about the wellbeing of children raised by same-sex parents or adoptive parents. See Lamb Decl. (Dkt. 47) at 46 n.11.
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religious freedom or religion-related social strife as a basis for denying rights otherwise guaranteed by the Constitution. Id. at 53. The Governor nonetheless persists with this argument.13 As an initial matter, the Governors predictions about social tensions and conflicts, Gov. Mem. at 53, that might arise if same-sex couples are permitted to marry are completely speculative and unfounded. Seventeen (17) states and the District of Columbia presently permit same-sex couples to marry, and none has experienced anything remotely resembling the civic unrest that the Governor fears. Moreover, even if there were some factual basis for the Governors concern about keeping the peace, the Supreme Court has repeatedly held that opposition to equality or threats of violence or unrest by some citizens cannot justify depriving others of their constitutional rights. See, e.g., Palmer v. Thompson, 403 U.S. 217, 226 (1971) (Citizens may not be compelled to forgo their constitutional rights because officials fear public hostility); Cooper v. Aaron, 358 U.S. 1, 16 (1958) (explaining that constitutional rights are not to be sacrificed or yielded to the violence and disorder that might follow). Constitutional rights would be hollow indeed if courts were precluded from upholding them simply because some part of the population might be upset. Further, the Governors assertion that [b]road religious support for marriage . . . exists only because the current legal definition excludes same-sex couples, Gov. Mem. at 49, simply
The Governor attempts to distinguish Loving by arguing that objections to interracial marriage were always principally about racism, not about religion or the marriage institution. Gov. Mem. at 49. In fact, many of the most racially oppressive laws in American history, including laws regarding slavery and interracial marriage, were primarily justified by religious and moral disapproval. See Brief of Amici Curiae Anti-Defamation League, et al., Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) (No. 12-144), 2013 WL 769319, at *7-*11. Indeed, the lower court in the Loving case relied heavily on religious scripture in upholding the criminal convictions of Mildred and Richard Loving: Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix. Loving, 388 U.S. at 3.
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has no mooring in reality or relevance to civil marriage law or constitutional law. Allowing samesex couples to marry will not require any religious congregation to marry same-sex couples or otherwise alter its own beliefs or requirements concerning marriage by its members. The Governor also argues that permitting same-sex couples to marry would result in collateral infringement of religious liberties. Gov. Mem. at 50-53. Those concerns are speculative. Indeed, almost all of the incidents the Governor discusses relate to issues that have no connection to marriage or occurred in states that did not permit or recognize marriages of same-sex couples.14 For example, some of the cases involved alleged discrimination against either gay or lesbian individuals or unmarried same-sex couples.15 Such disputes simply reflect the greater visibility and acceptance of gay and lesbian people in our society and may arise regardless of whether samesex couples are permitted to marry. Moreover, even if the Governor had offered any rational reason to believe that infringements of religious freedom would occur more frequently if same-sex couples could marry, he cites no authority for the remarkable proposition that a present, ongoing violation of one group
See, e.g., Gov. Mem. at 51 n.52 (citing Bob Jones University v. United States, 461 U.S. 574 (1983)); id. at 52 n.53 (citing case from New Mexico, before the state permitted same-sex couples to marry); id. at 52 n.54 (citing incident involving public school teacher in New Jersey, before same-sex couples could marry in that state); id. at 52 n.55 (citing case involving a counseling student who refused to treat gay people in Michigan, a state that does not permit same-sex couples to marry); id. at 52 n.57 (citing a sexual orientation discrimination case under New Yorks Human Rights Law before same-sex couples were able to marry in that state).
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The Governor claims that religious social services might be forced to cease adoption and foster care services unless they agree to provide those services in a manner contrary to their doctrines and beliefs. Gov. Mem. at 51. Yet the referenced situations concerned the application of state laws prohibiting sexual orientation discrimination to publicly-funded social service agencies, including those run by religious organizations. Such laws apply regardless of whether the state recognizes marriages of same-sex couples. Similarly, Parker v. Hurley, 514 F.3d 87, 93 (1st Cir. 2008), concerned parents who objected to a schools use of books depicting the existence of gay people. Such disputes are not unique to states that permit same-sex couples to marry.
15
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of citizens constitutional freedoms may be justified by a hypothetical concern that another group of citizens rights could be violated at some point in the future. If actual infringements of religious liberty should occur, the courts are available to remedy themjust as this Court should remedy the present, ongoing constitutional harms that the marriage ban inflicts on Plaintiffs today. In sum, the marriage ban fails even the test of minimal rationality. There is no reasonably conceivable way in which excluding same-sex couples from marriage advances any permissible aim of government. Indeed, the principal justification proffered by the Governora purported interest in preferring some parents over othersis not even a legitimate governmental interest. VI. IDAHO'S REFUSAL TO RECOGNIZE THE MARRIAGES OF SAME-SEX COUPLES VALIDLY CELEBRATED IN OTHER JURISDICTIONS IS UNCONSTITUTIONAL. As Plaintiffs previously demonstrated in their Memorandum in support of their summary judgment motion, Idahos refusal to recognize the valid marriages of same-sex couples entered into in other statesincluding the marriages of the married Plaintiffsis unconstitutional. As Plaintiffs previously explained, Idahos Anti-Recognition Laws are an unusual deviation from Idahos otherwise longstanding tradition and practice of recognizing valid marriages from other states. Pls. Mem. at 48-51. As in Windsor, Idahos refusal to recognize the married Plaintiffs valid marriages infringes on both their due process and equal protection rights by unjustifiably infringing upon their protected liberty interests in their existing marriages, by burdening their exercise of the fundamental right to marry, and by discriminating based on sex and sexual orientation. See Windsor, 133 S. Ct. at 2695-96. Defendants argue that Section 2 of the federal DOMA gives Idaho license to exclude the marriages of same-sex couples from recognition. Gov. Mem. at 55-56. As Plaintiffs previously explained, see Pls. Mem. at 57-58, Congress has no power to exempt Idaho from complying with
29
the Due Process and Equal Protection Clauses of the Fourteenth Amendment. See, e.g., Saenz v. Roe, 526 U.S. 489, 508 (1999). In any event, Section 2 of the DOMA is as infected with animus as was Section 3 of DOMA and is unconstitutional. See Pls. Mem. at 57-58. Quoting a law review article and providing no explanation, the Governor argues that requiring a state to recognize same-sex couples marriages would be the most astonishingly undemocratic, counter-majoritarian political development in American history. Gov. Mem. at 56 n.61 (citation omitted). The Governors argument is incompatible with the commands of the Fourteenth Amendment. Because Idaho has adopted a general rule of respecting valid marriages from other states, it cannot exclude a particular group from that rule unless it has a justification that can withstand due process and equal protection scrutiny. The same analysis renders beside the point the Governors discussion of the Full Faith and Credit Clause. Contrary to the Governors suggestion, Plaintiffs claims would not compel [Idaho] to substitute the statutes of other states for its own statutes. Gov. Mem. at 55 n.59 (quoting Franchise Tax Bd. Of California v. Hyatt, 538 U.S. 488, 494 (2003)). Rather, as Windsor made clear, marriage confers on a couple a protected liberty interest. See 133 S. Ct. at 2695. That protected liberty interest does not disappear when the couple crosses state lines. To the extent that the Governor invokes public policy as justification for denying recognition of same-sex couples marriages, Gov. Mem. at 55 & n.59, that argument ignores, once again, that the states may not enforce public policies that violate due process or equal protection guarantees. CONCLUSION Plaintiffs respectfully request that the Court deny the Governors motion for summary judgment and grant Plaintiffs motion for summary judgment as to all claims and all Defendants.
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DATED: March 20, 2014 Respectfully submitted, _______________/s/_______________________ Deborah A. Ferguson The Law Office of Deborah A. Ferguson, PLLC 202 N. 9th Street, Suite 401 C Boise, Idaho 83702 Tel.: (208) 484-2253 d@fergusonlawmediation.com Craig Harrison Durham, ISB No. 6428 Durham Law Office, PLLC 910 W. Main, Suite 328 Boise, Idaho 83702 Tel.: (208) 345-5183 craig@chdlawoffice.com National Center for Lesbian Rights Shannon P. Minter (pro hac vice) Christopher F. Stoll (pro hac vice) 870 Market Street, Suite 370 San Francisco, California 94102 Tel.: (415) 392-6257 sminter@nclrights.org cstoll@nclrights.org Attorneys for Plaintiffs
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Case 1:13-cv-00482-CWD Document 76-1 Filed 03/20/14 Page 1 of 4
Deborah A. Ferguson, ISB No. 5333 The Law Office of Deborah A. Ferguson, PLLC 202 N. 9th Street, Suite 401 C Boise, Idaho 83702 Tel.: (208) 484-2253 d@fergusonlawmediation.com Craig Harrison Durham, ISB No. 6428 Durham Law Office, PLLC 910 W. Main, Suite 328 Boise, Idaho 83702 Tel.: (208) 345-5183 craig@chdlawoffice.com Shannon P. Minter Christopher F. Stoll National Center for Lesbian Rights 870 Market Street, Suite 370 San Francisco, California 94102 Tel.: (415) 392-6257 sminter@nclrights.org cstoll@nclrights.org Attorneys for Plaintiffs UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO SUSAN LATTA and TRACI EHLERS, et al., Plaintiffs, v. C.L. BUTCH OTTER, as Governor of the State of Idaho, in his official capacity, et al., Defendants, and STATE OF IDAHO, Defendant-Intervenor. Case No. 1:13-cv-00482-CWD PLAINTIFFS STATEMENT REGARDING MATERIAL FACTS IN RESPONSE TO DEFENDANT GOVERNOR OTTERS MOTION FOR SUMMARY JUDGMENT
Pursuant to Local Civil Rule 7.1 (c)(2), Plaintiffs submit this statement regarding material facts in response to Defendant Governor Otters Motion for Summary Judgment (Dkt. 57) and his Statement of Undisputed Material Facts (Dkt. 57-1) (Governors Statement). The majority of the material in the Governors Statement consists not of undisputed facts that are material to this dispute, but of (1) descriptions and characterizations of statutes, constitutional provisions, proposed constitutional provisions, legislative history, and case law; (2) legal argument; and (3) statements of non-expert opinion. Apart from citations to certain legislative history, election materials, and press materials, the Governors Statement contains no citation to evidence. Rather than respond point-by-point to the contents in the Governors Statement (which is not divided into numbered paragraphs), Plaintiffs state that there is no fact contained in the Governors Statement that supports his Motion for Summary Judgment. Rather, the contents of the Governors Statement support denial of his Motion and the granting of Plaintiffs Motion for Summary Judgment (Dkt. 45). DATED: March 20, 2014 Respectfully submitted, _________/s/_________ Deborah A. Ferguson
The Law Office of Deborah A. Ferguson, PLLC 202 N. 9th Street, Suite 401 C Boise, Idaho 83702 Tel.: (208) 484-2253 d@fergusonlawmediation.com Craig Harrison Durham, ISB No. 6428 Durham Law Office, PLLC 910 W. Main, Suite 328 Boise, Idaho 83702 Tel.: (208) 345-5183 craig@chdlawoffice.com National Center for Lesbian Rights Shannon P. Minter Christopher F. Stoll 870 Market Street, Suite 370 sminter@nclrights.org cstoll@nclrights.org Attorneys for Plaintiffs
CERTIFICATE OF SERVICE I HEREBY CERTIFY that on the 20th day of March, 2014, I filed the foregoing document electronically through the CM/ECF system, which caused the following parties or counsel to be served by electronic means, as more fully reflected on the Notice of Electronic Filing: Attorneys for Defendant Rich and Intervenor State of Idaho Steven Lamar Olsen steven.olsen@ag.idaho.gov Clay R. Smith clay.smith@ag.idaho.gov W. Scott Zanzig scott.zanzig@ag.idaho.gov,
Attorneys for Defendant Governor Otter Thomas C. Perry tom.perry@gov.idaho.gov Cally Ann Younger cally.younger@gov.idaho.gov
______/s/_________ Deborah A. Ferguson
Deborah A. Ferguson, ISB No. 5333 The Law Office of Deborah A. Ferguson, PLLC 202 N. 9th Street, Suite 401 C Boise, Idaho 83702 Tel.: (208) 484-2253 d@fergusonlawmediation.com Craig Harrison Durham, ISB No. 6428 Durham Law Office, PLLC 910 W. Main, Suite 328 Boise, Idaho 83702 Tel.: (208) 345-5183 craig@chdlawoffice.com Shannon P. Minter Christopher F. Stoll National Center for Lesbian Rights 870 Market Street, Suite 370 San Francisco, California 94102 Tel.: (415) 392-6257 sminter@nclrights.org cstoll@nclrights.org Attorneys for Plaintiffs UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO SUSAN LATTA and TRACI EHLERS, et al., Plaintiffs, v. C.L. BUTCH OTTER, as Governor of the State of Idaho, in his official capacity, et al., Defendants, and STATE OF IDAHO, Defendant-Intervenor. SUPPLEMENTAL EXPERT DECLARATION OF DR. MICHAEL E. LAMB Case No. 1:13-cv-00482-CWD
PRELIMINARY STATEMENT I, Michael Lamb, Ph.D., hereby declare and state as follows: 1. I am a Professor of Psychology in the Department of Psychology at the University
of Cambridge in the United Kingdom. I have actual knowledge of the matters stated in this declaration and could and would so testify if called as a witness. 2. On February 16, 2014, I submitted my expert declaration in this matter, which set
forth my relevant background and experience (my Original Declaration, Dkt. 47), and attached my curriculum vitae as Exhibit A and the bibliography of documents I reviewed and relied upon in my Original Declaration as Exhibit B. 3. My Original Declaration set forth the principal opinion that I am offering in this
case: that children and adolescents raised by same-sex parents are as likely to be well-adjusted as children raised by heterosexual parents.1 4. I have read the relevant portions of the Motion for Summary Judgment and
Memorandum in Support filed by Defendant Governor Otter, Dkt. 57-2. More specifically, the text on pages 38 through 43 of the Governors Memorandum asserts that children are best adjusted when raised by married mothers and fathers who are their biological parents, Dkt. 57-2 at 38-41; that children are disadvantaged by not having opposite-sex parents, Dkt. 57-2 at 39-41; that children conceived through assisted reproductive technology have poorer outcomes, id. at 41-42; and that recent articles undermine the conclusion that the children of lesbians and gay men have equally good outcomes as children raised by married heterosexual couples, id. at 4143. I submit this further declaration in response to those assertions, which are neither correct nor credible. I also have reviewed the materials the Governor cited in this portion of his brief and submitted in his Appendix in Support of his Motion for Summary Judgment.
All citations in this supplemental declaration which appear in shortened form refer to articles cited in the Bibliography attached as Exhibit B to my Original Declaration. Dkt. 47. All new sources are fully cited. 2
5.
My Original Declaration addressed a number of the sources cited by the Governor
in his Memorandum, explaining that they do not raise any credible concerns about the psychological adjustment of children raised by same-sex parents, and I will not repeat that testimony in full here. See Dkt. 47 at 14-15 (discussing Mark Regnerus, How different are the adult children of parents who have same-sex relationships? Findings from the New Family Structures Study, Social Science Research 41 (2012) 75270); Dkt. 47 at 15-16 (discussing Douglas W. Allen, High school graduation rates among children of same-sex households, Rev. Econ. Household (2013) 11:635-658; Dkt. 47 at 18 n.8 (discussing Loren D. Marks, Same-Sex Parenting and Childrens Outcomes: A Closer Examination of the American Psychological Associations Brief on Lesbian and Gay Parenting, 41 Soc. Sci. Research 735, 748 (2012)); Dkt. 47 at 21 n.11 (discussing W. Bradford Wilson, Why Marriage Matters: Thirty Conclusions for Social Sciences (3d ed. 2011) and Kristen Anderson Moore, et al., Marriage from a Childs Perspective: How Does Family Structure Affect Children, and What Can We Do about It, Child Trends Research Br. (June 2002)). 6. As described further below, none of the additional materials submitted by the
Governor provide empirical support for the claims he makes or call into question the conclusion stated in my Original Declaration that children and adolescents raised by same-sex parents are as likely to be well-adjusted as children raised by opposite-sex parents. None of the Governors sources provide any basis for questioning the robust research in the field that consistently shows equally positive outcomes for children of gay and heterosexual parents. A. There Is No Scientific Evidence That A Biological Linkage Between Parents And Children Affects Childrens Outcomes. There is no scientific support for the Governors assertion that children fare best if
7.
raised by biological parents. To the contrary, high quality social science research has explored and failed to findassociations between genetic linkages between children and their parents and measures of childrens adjustment and development. Instead, research has consistently found that the most important determinants of childrens adjustment and development are the quality of 3
the parent-child relationships, the quality of the relationships between the parents, and the availability of economic and social resources. Dkt. 47 at 5. 8. First, research on adopted children, who are not genetically related to the parents
who rear them, shows that the majority thrive, although some are psychologically affected by adverse experiences occurring prior to adoption (including prenatal experiences, such as prenatal exposure to drugs or alcohol).2 9. Second, children conceived through assisted reproduction also fare as well as
children raised by biological parents. Children conceived through assisted reproduction may be genetically linked to their mothers but not their fathers (e.g., sperm donation), to their fathers but not their mothers (e.g., egg donation), or to neither mothers nor fathers (e.g., embryo donation). Research has consistently shown that children conceived in these ways generally thrive and develop and adjust well3 throughout the lifespan, including adolescence4 and adulthood.5 10. In summary, well-designed, high quality research that is directly relevant to the
issue of genetic relatedness clearly shows that children may thrive psychologically whether or not they are genetically linked to the parents who rear them. The Governors memorandum ignores this body of research entirely.
See, e.g., Grotevant, van Dulmen, Dunbar, Nelson-Christinedaughter, Christensen, Fan & Miller, Antisocial Behavior of Adoptees and Nonadoptees: Predictions from Early History and Adolescent Relationships, Journal of Research on Adolescence (2006) 16:105-131; Juffer & van IJzendoorn, 2005, 2007. See, e.g., Lamb, 2012; Golombok, Murray, Jadva, Lycett, MacCallum & Rust, 2006; Golombok, Tasker & Murray, 1997; MacCallum, Golombok & Brinsden, Parenting and Child Development in Families with a Child Conceived Through Embryo Donation, Journal of Family Psychology (2007) 21:278-287; and MacCallum & Keeley, Embryo Donation Families: A Follow-Up in Middle Childhood, Journal of Family Psychology (2008) 22:799-808. See also Golombok, 2013.
4 5 3
See, e.g., MacCallum & Golombok, 2004. See, e.g., Golombok & Badger, 2010. 4
11.
The Governor cites a report issued by the advocacy organization, the Institute for
American Values, called Daddys Name is Donor. This report, which is based on an online survey, purports to show poorer child outcomes among children conceived by way of sperm and egg donation. Dkt. 57-2 at 41-42. On-line surveys of this sort do not constitute reliable scientific data. As discussed above, the research on donor-conceived children which has been published in peer-reviewed scientific journals shows that these children develop normally and that the existence of donor parents has no bearing on childrens adjustment.6 B. There Is No Scientific Evidence That Children Of Different-Sex Parents, Including Those Who Are Biologically Related To Their Children, Fare Better Than Children Of Same-Sex Parents. The Governors claim that child-rearing by married heterosexual parents is
12.
optimal for children (see, e.g., Dkt. 57-2 at 38-43) is not supported by scientific research. The sources cited by the Governor report that children raised in continuously intact households fare better on average than children raised in single-parent households, divorced households, and step-families. These conclusions are consistent with the opinions expressed in my Original Declaration regarding the benefits of stable marriages for all children, including those raised by same-sex parents. These sources do not support the conclusion that opposite-sex parents, including those who are biologically related to their children, provide superior parenting. Moreover, as I explained in my Original Declaration, the research cited by the Governor does not examine parenting by same-sex couples and therefore does not provide any information about children who are raised by same-sex parents. Dkt. 47 at 18-19. 13. Sources of the sort cited by the Governorthat is, those that examine the impact
of single parenthood, divorce and step-family life include, for example: Kristen Anderson Moore, et al., Marriage from a Childs Perspective: How Does Family Structure Affect Children, and What Can We Do about It, Child Trends Research Br. (June 2002) (Dkt. 57-2 at 39 n.29);
Golombok, 2013. 5
Bruce J. Ellis et al, Does Father Absence Place Daughters at Special Risk for Early Sexual Activity and Teenage Pregnancy?, 74 Child Dev. 801 (2003) (Dkt. 57-2 at 41 n.35); Stephanie Weiland Bowling & Ronald J. Werner-Wilson, Father-Daughter Relationships and Adolescent Female Sexuality: Paternal Qualities Associated with Responsible Sexual Behavior, 3 J. HIV/AIDS Prevention & Educ. Adolescents & Child (2003) (Dkt. 57-2 at 41 n.35); Lawrence L. Wu & Brian C. Martinson, Family Structure and the Risk of a Premarital Birth, 54 Am. Soc. Rev. 210 (1993) (Dkt. 57-2 at 42 n.37); Cynthia C. Harper and Sara S. McLanahan, Father Absence and Youth Incarceration, 14 J. Res. Adolescence 369 (2004) (Dkt. 57-2 at 43 n.39). Because these studies evaluate the impact of growing up in heterosexual single parent, divorced and step-families, no conclusions can be drawn from them about the impact of being raised by same-sex parents. Instead, such publications suggest that, all other things being equal, children and adolescents with same-sex parents, like their peers, likely would benefit if their parents could marry and solidify their family and parental ties. 14. The Governor also cites sources that are commentaries written by advocates
rather than reports of scientific research. See, e.g., Dkt. 57-2 at 40 n.31 (citing Norval D. Glen, The Struggle for Same-Sex Marriage, 41 Socy 25, 27 (2004); Dkt. 57-2 at 39 n.30 (citing Witherspoon Institute, Marriage and the Public Good: Ten Principles 18 (2008)); Dkt. 57-2 at 40 (citing W. Bradford Wilson, Why Marriage Matters: Thirty Conclusions for Social Sciences (3d ed. 2011); Dkt. 57-2 at 40 n.32 (citing Dean Byrd, Gender Complementarity and ChildRearing: Where Tradition and Science Agree, 6 J. L. & Fam. Studs 213 (2004) and A. Dean Byrd & Kristen M. Byrd, Dual-Gender Parenting: A Social Science Perspective for Optimal Child Rearing, Family Law: Balancing Interests and Pursing Priorities 382-87 (2007)); Dkt. 572 at 42 (citing Lynn D. Wardle, The Fall of Marital Stability and the Rise of Juvenile Delinquency, 10 J.L. & Fams. Studs. 83 (2007)); and Dkt. 57-2 at 43 (citing Richard G. Wilkins, Adult Sexual Desire and the Best Interests of the Child, 18 St. Thomas L. Rev. 543 (2005)). Such advocacy does not constitute reliable evidence that children of same-sex couples fare worse than children of opposite-sex parents. 6
C.
It Is Now Established Beyond Dispute That The Gender Of Parents Has No Bearing On Childrens Adjustment Or Well-Being. Contrary to the Governors claim that it is optimal for children to be raised by
15.
parents of both genders, scientific research has definitively established that, contrary to the earlier assumptions of many researchers, the parents genders have no bearing on childrens adjustment or development. 16. The Governor misleadingly cites my early research in an attempt to show that so-
called gender-differentiated parenting benefits children. Dkt. 57-2 at 40 n.32. When I began my research in the early 1970s, many social scientists, including myself, hypothesized that children should be raised in heterosexual families that include fathers in order to be welladjusted, although this theory had not been studied, much less established by empirical research. As explained in my Original Declaration, a robust body of evidence-based research (including my own) has since proven that hypothesis incorrect, and scientists in the field have long since discarded the idea that parents gender affects childrens adjustment. Dkt. 47 at 9-12. 17. Instead, as I previously testified, three categories of factors account for the
adjustment of children and adolescents: the quality of the parent-child relationship, the quality of the relationship between the parents, and the adequacy of resources to support the family. Dkt. 47 at 10-11. This has been a matter of scientific consensus for over 20 years.7
The Governor cites a book by David Popenoe, Life Without Father: Compelling New Evidence that Fatherhood and Marriage are Indispensable for the Good of Children and Society (1996), to support his claim that gender differentiated parenting is important for human development. That claim, which was widely assumed to be true many years ago, has been shown to be unfounded, and conflicts with the extensive body of empirical research described above. Additionally, Popenoe is neither a psychologist nor child development expert. It is beyond any debate among child development experts today that male and female parents can be equally competent and that the absence of a male or female parent in the home does not impair adjustment.
D.
None Of The Sources Cited By The Governor Provide A Basis To Question The Scientific Consensus That Children Of Same-Sex Parents And Children Of Opposite-Sex Parents Are Equally Well-Adjusted. The Governor cites articles by Mark Regnerus, Loren Marks, and Douglas W.
18.
Allen that purport to cast doubt on the scientific consensus that children raised by same-sex parents are equally well-adjusted. See Dkt. 57-2 at 41-42. However, as I explained in my Original Declaration, the data presented in these articles do not support the conclusions that their authors offer. See Dkt. 47 at 14-15 (explaining that Regnerus study did not actually assess children raised in families with same-sex parents); Dkt. 47 at 15-16 (explaining severe flaws in Allens study rendering any conclusions about same-sex parenting impossible); Dkt. 47 at 18 n.8 (explaining that Loren D. Marks article is a materially incomplete review of the literature that mischaracterizes the extensive research about same-sex parents published before 2005, and ignores entirely the many informative studies published since then). 19. The Governor also makes much of a subsequent piece by Mark Regnerus entitled
Parental same-sex relationships, family instability, and subsequent life outcomes for adult children: Answering critics of the New Family Structures Study with additional analyses, which responds to the widespread critiques of the deficiencies in his article, although this article actually recognizes the problems I identified with his study. I observed in my Original Declaration that most of the children in the so called lesbian mother and gay father groups spent very little time living in households headed by same-sex couples. Dkt. 47 at 14. Regnerus recognizes that this is true. He reports that, of the 85 respondents who reported mothers who had same-sex relationships, the vast majority 51 of them lived with the same-sex couple for two years or less. Dkt. 57-11, Governors Appendix, at 724. Only six respondents lived with a same-sex couple for 10 or more consecutive years. Id. at 725. Only two respondents reported living with their mother and her partner from the beginning of their lives to the age of 18. Id. Most of the lesbian mother and gay father participants were the children of heterosexual marriages that did not last and whose parents had same-sex relationships at some point in time.
This study does not tell us anything about children who grew up in families with same-sex parents. 20. Similarly, I observed in my Original Declaration that most of Regnerus so called
gay father and lesbian mother participants were in families that went through divorces and transitions to single-parent or step-family life, which are known correlates of poorer child outcomes, whereas he excluded from his heterosexual comparison group all of the families that went through divorce and family transitions. Dkt. 47 at 15. This, too, Regnerus acknowledges. Dkt. 57-11, Governors Appendix at 723-24 (acknowledging that he did not control for these differences between the two groups, and that in an ideal data world, that makes sense); id. at 724 (unlike in the intact heterosexual families category, Regnerus included in his lesbian mothers and gay fathers categories parents who were single, another known correlate of adjustment difficulties). The alternative analyses reported by Regnerus in his new article do not address these fundamental problems: He compared exclusively intact heterosexual parent families with mostly non-intact gay father and lesbian mother families and, thus, could legitimately only conclude from this study something that we have long known that family break-up is associated with poorer child outcomes. 21. Nothing in Regneruss new piece alters my original conclusion that his study did
not actually measure outcomes for children raised by same-sex parents; instead, Regnerus underscored my previously stated concerns. 22. The conclusion stated in my Original Declarationthat it is beyond scientific
dispute that children raised by gay, lesbian, and heterosexual couples are equally likely to be well-adjustedis well supported by the empirical research literature. This is because outcomes for children and adolescents depend not on the sex of the parents or the family structure, but rather on the quality of parenting and parent-child relationships, the quality of the relationships between parents or significant adults in the childrens lives, and the parents access to social and economic resources. The Governor does not cite a single reliable scientific study to the contrary, presents unsupported assertions of opinion as facts, and provides no reason to ignore the 9
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 20th day of March, 2014, I filed the foregoing document electronically through the CM/ECF system, which caused the following parties or counsel to be served by electronic means, as more fully reflected on the Notice of Electronic Filing:
Attorneys for Defendant Rich and Intervenor State of Idaho Steven Lamar Olsen steven.olsen@ag.idaho.gov Clay R. Smith clay.smith@ag.idaho.gov W. Scott Zanzig scott.zanzig@ag.idaho.gov,
Attorneys for Defendant Governor Otter Thomas C. Perry tom.perry@gov.idaho.gov Cally Ann Younger cally.younger@gov.idaho.gov
______/s/_________ Deborah A. Ferguson
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______/s/_________ Deborah A. Ferguson

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My Original Declaration addressed a number of the sources cited by the Governor

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______/s/_________ Deborah A. Ferguson

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