GREGORY BOURKE, ET AL. ) ) PLAINTIFFS ) ) CIVIL ACTION NO. v. ) ) 3:13-CV-750-JGH STEVE BESHEAR, ET AL. ) ) DEFENDANTS )
MOTION FOR SUMMARY JUDGMENT AND IMMEDIATE INJUNCTIVE RELIEF
Plaintiffs move the Court, pursuant to Fed. R. Civ. P. 56 for judgment as a matter of law and immediate injunctive relief. In support of this Motion, Plaintiffs rely on the attached Memorandum of Law.
Respectfully submitted,
/s/ Laura E. Landenwich Laura E. Landenwich Daniel J. Canon L. Joe Dunman Louis P. Winner CLAY DANIEL WALTON & ADAMS PLC 101 Meidinger Tower 462 South Fourth Street Louisville, KY 40202 (502) 561-2005 phone (502) 415-7505 - fax laura@justiceky.com dan@justiceky.com louis@justiceky.com Co-Counsel for Plaintiffs
Case 3:13-cv-00750-JGH Document 38 Filed 12/16/13 Page 1 of 2 PageID #: 330
Shannon Fauver Dawn Elliott FAUVER LAW OFFICE PLLC 1752 Frankfort Avenue Louisville, KY 40206 (502) 569-7710 Co-counsel for Plaintiffs
CERTIFICATE OF SERVICE
I hereby certify that on December 16, 2013, I electronically filed the foregoing with the clerk of the court by using the CM/ECF system, which will send a notice of electronic filing to the following:
Clay A. Barkley Brian Judy Assistant Attorney Generals Office of the Attorney General Suite 118 700 Capital Avenue Frankfort, KY 40601 Counsel for Defendant Steve Beshear and Jack Conway
/s/ Laura E. Landenwich
Case 3:13-cv-00750-JGH Document 38 Filed 12/16/13 Page 2 of 2 PageID #: 331 IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY AT LOUISVILLE
ELECTRONICALLY FILED
GREGORY BOURKE, ET AL. ) ) PLAINTIFFS ) ) CIVIL ACTION NO. v. ) ) 3:13-CV-750-JGH STEVE BESHEAR, ET AL. ) ) DEFENDANTS )
PLAINTIFFS MEMORANDUM IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT
This Court is presented with the opportunity to restore constitutional rights to Kentuckians who are the target of state-sanctioned discrimination. Moreover, this case presents the Court with an opportunity to join an increasing number of courts including those within the Sixth Circuit which have refused to end up on the wrong side of history. 1
Plaintiffs are ordinary married couples. They go to work, attend school, raise their children, go to church, pay taxes, and in most respects live as any other married couple in Kentucky. Like many married couples in the Commonwealth, Plaintiffs were wed in other jurisdictions. Their marriages were in all respects valid under the laws of the jurisdictions in which they were solemnized and registered. The federal government
! See Obergefell v. Kasich, 2013 U.S. Dist. LEXIS 102077 (S.D. Ohio July 22, 2013) (attached hereto as Exhibit 1). Case 3:13-cv-00750-JGH Document 38-1 Filed 12/16/13 Page 1 of 31 PageID #: 332 recognizes Plaintiffs' marriages, and extends certain benefits to them as a result. 2 And yet, the Commonwealth of Kentucky refuses to acknowledge the commitments made by these couples because their spouses are of the same sex. The laws challenged in this case, KRS 402.040, KRS 402.045 and Ky. Const. 233A, enable and enshrine Kentucky's ongoing discrimination against Plaintiffs. As a result, Plaintiffs have taken extraordinary measures to achieve the legal protections automatically afforded to opposite-sex couples by operation of law. Even though these measures have been taken, Plaintiffs are still deprived of critical privileges, benefits, rights and responsibilities afforded to opposite-sex couples. Perhaps more importantly, Plaintiffs' families have been humiliated and degraded by Kentucky's ongoing refusal to recognize the validity of their unions. The decision in this case, and others like it, will affect the lives of Kentuckians for generations to come. And while the issues in this case may be mired in controversy, the discrete questions of law facing this Court are not difficult. Kentucky's discriminatory laws violate numerous provisions of the U.S. Constitution, and in numerous ways. These Plaintiffs, along with their minor children, seek to have their marriages recognized and legitimized by Kentucky. This Court can look to any one of the Constitutional protections discussed below to provide a basis for temporary and permanent injunctive relief. FACTS
Plaintiffs are four same-sex couples who are legally married in other jurisdictions, and currently live in the Commonwealth of Kentucky. Plaintiffs Bourke-De Leon were married in Ontario, Canada in March, 2004. (Bourke-De Leon Affidavit, Exhibit 2).
# !""# "%&$% '"(")*+ ,*))-*&" ."/"0-12 34*-+*5+" 16 !*7"8!"9 :6;<+"2% &''()**+++$,-.-$/-0*.123.4 1,/5/.-(1673*830148194/-:(.184;161<3.403<<73214=1,1;7'84>?>#@$&'0. A3//18816 B1/10=1< !>% #?!>C$ Case 3:13-cv-00750-JGH Document 38-1 Filed 12/16/13 Page 2 of 31 PageID #: 333 Plaintiffs Franklin-Boyd were married in Stratford, Connecticut in July, 2010. (Franklin- Boyd Affidavit, Exhibit 3). Plaintiffs Johnson-Campion were married in Riverside, California in July, 2008 (Johnson-Campion Affidavit, Exhibit 4). Plaintiffs Meade- Barlowe were married in Davenport, Iowa in July, 2009. (Meade-Barlowe Affidavit, Exhibit 5). On March 11, 2004, the Kentucky Senate passed Senate Bill 245, which proposed the following amendment to the Kentucky Constitution: Only a marriage between one man and one woman shall be valid or recognized as a marriage in Kentucky. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.
The amendment was sponsored by Sen. Vernie McGaha, who gave the following justification for the bill on the Senate floor: Marriage is a divine institution designed to form a permanent union between man and woman. According to the principles that have been laid down, marriage is not merely a civil contract; the scriptures make it the most sacred relationship of life, and nothing could be more contrary to the spirit than the notion that a personal agreement ratified in a human court satisfies the obligation of this ordinance. Mr. President, Im a firm believer in the Bible. And Genesis 1, it tells us that God created man in his own image, and the image of God created he him; male and female created he them. And I love the passage in Genesis 2 where Adam says this is now a bone of my bones and flesh of my flesh. She shall be called woman because she was taken out of man. Therefore shall a man leave his father and his mother and cleave to his wife and they shall be one flesh. The first marriage, Mr. President. And in First Corinthians 7:2, if you notice the pronouns that are used in this scripture, it says, Let every man have his own wife, and let every woman have her own husband.
**** **** ****
We in the legislature, I think, have no other choice but to protect our communities from the desecration of these traditional values. We must stand strong and against arbitrary court decisions, endless lawsuits, the local officials who would disregard these laws, and we must protect our neighbors and our families and our children. Decisive action is needed and Case 3:13-cv-00750-JGH Document 38-1 Filed 12/16/13 Page 3 of 31 PageID #: 334 thats why I have sponsored Senate Bill 245, which is a constitutional amendment that defines marriage as being between one man and one woman. Once this amendment passes, no activist judge, no legislature or county clerk whether in the Commonwealth or outside of it will be able to change this fundamental fact: The sacred institution of marriage joins together a man and a woman for the stability of society and for the greater glory of God.
(Senate Chambers March 11, 2004, Exhibit 6 at 1:00:301:05:15). Sen. Gary Tapp, the bills Co-Sponsor, then declared, Mr. President when the citizens of Kentucky accept this amendment, no one, no judge, no mayor, no county clerk will be able to question their beliefs in the traditions of stable marriages and strong families. (Id. at 1:07:45). The only other senator to speak in favor of the bill, Sen. Ed Worley, described marriage as a cherished institution (Id. at 1:25:55). He bemoaned that liberal judges changed the law so that children cant say the Lords Prayer in school. (Id. at 1:27:19). Soon, he concluded, we will all be prohibited from saying the Pledge to the Legiance[sic] in public places because it has the words in God we trust. (Id. at 1:27:46). In support of the amendment, he cited to the Bibles constant reference to men and women being married. (Id. at 1:29:55). By way of example, he quoted a passage from Proverbs 21:19, Better to live in the desert than with a quarrelsome, ill- tempered wife. (Id. at 1:30:15). The Senate passed the bill, and the amendment was placed on the ballot. It was ratified on November 2, 2004, and is codified as Kentucky Constitution 233A. This discriminatory provision of the Kentucky Constitution is not all that stands between Plaintiffs and marriage equality in their home state. In addition, KRS 402.040(2) states, A marriage between members of the same sex is against Kentucky public policy. . . . KRS 402.045 declares, A marriage between members of the same sex which occurs Case 3:13-cv-00750-JGH Document 38-1 Filed 12/16/13 Page 4 of 31 PageID #: 335 in another jurisdiction shall be void in Kentucky. Finally, 28 U.S.C. 1738C, commonly known as the Defense of Marriage Act (DOMA) 2, purports to give Kentucky safe harbor for its state-sanctioned discrimination by stating that No State...shall be required to give effect to any public act, record, or judicial proceeding of any other State...respecting a relationship between persons of the same sex treated as a marriage under the laws of such other State...or a right or claim arising from such relationship. Plaintiffs have suffered a variety of harms as a result of Kentuckys refusal to recognize their marriages. They are subjected to higher income and estate taxes. They are unable to benefit from leave under the Family Medical Leave Act, or from family insurance coverage. They do not have the burden and privilege of making medical or legal decisions for the other without the creation and expense of contractual relationships. Should they desire to divorce, they are unable to do so. (See Exhibits 2-5). The Plaintiffs with minor children have the additional burden of disproportionate parental rights to those children. Same-sex couples cannot adopt children in the Commonwealth of Kentucky, and the non-adoptive spouse is thus not afforded the parental rights inherent in the parent-child relationship. (Exhibits 2 & 4). In addition to these legal and financial harms, it is well recognized that the intangible benefits of marriage form a significant underpinning to the social fabric of our society. In their amicus brief to the United States Supreme Court in Hollingsworth v. Perry, 3 the American Psychological Association, American Medical Association, American Academy of Pediatrics, and several other healthcare organizations argued that marriage provides a positive sense of identity, self-worth, and mastery. (Amicus Brief, Exhibit 7, p. 14 (citation omitted)). They argued that scientific studies show that marriage
3 133 S. Ct. 2652 (2013). Case 3:13-cv-00750-JGH Document 38-1 Filed 12/16/13 Page 5 of 31 PageID #: 336 results in greater physical and mental well-being when compared to cohabiting couples. (Id. at 15-16). With respect to the children of same-sex couples, the American Academy of Pediatrics takes the position that If a child has 2 living and capable parents who choose to create a permanent bond by way of civil marriage, it is in the best interests of their child(ren) that legal and social institutions allow and support them to do so, irrespective of their sexual orientation. (Id. at p. 29, quoting Am. Acad. Of Pediatrics, Committee of Psychosocial Aspects of Child and Family Health, Policy Statement: Promoting the Well-Being of Children Whose Parents are Gay or Lesbian.). Finally, the medical associations assert that failing to recognize same-sex couples marriages results in a stigma that devalues and delegitimizes their familial relationships. (Id. p. 34-36). ARGUMENT The regulation of marriage occupies an area that has long been regarded as a virtually exclusive province of the States. 4 However, state laws defining and regulating marriage, of course, must respect the constitutional rights of persons, 5 which brings Kentucky in conflict with the rights and freedoms guaranteed by the United States Constitution. The laws at issue in this case contravene a number of rights guaranteed to Plaintiffs by the federal Constitution. These include the rights to due process and equal protection articulated in the Fifth and Fourteenth Amendments, which protect individual life, liberty, and property from unjustified restriction by the federal and state governments and require equality for all citizens under the law. By rejecting the Plaintiffs marriages, the laws at issue here infringe the fundamental rights of marriage and travel. As such, these laws are subject to heightened judicial scrutiny, but fail under any standard of
4 Sosna v. Iowa, 419 U.S. 393, 404 (1975). 5 United States v. Windsor, 133 S. Ct. 2675, 2691 (2013), citing Loving v. Virginia, 388 U.S. 1, 87 (1967). Case 3:13-cv-00750-JGH Document 38-1 Filed 12/16/13 Page 6 of 31 PageID #: 337 review. Furthermore, the legislative history of Ky. Const. 233A unquestionably demonstrates that it was created with the express purpose of advancing a very narrow view of Christianity, thereby violating the Establishment Clause of the First Amendment. In addition, these laws violate the First Amendment's guarantee of freedom of intimate association, the full faith and credit guarantee in the U.S. Constitution, as well as the Supremacy Clause.
I. KENTUCKYS REFUSAL TO RECOGNIZE PLAINTIFFS MARRIAGES VIOLATES THE DUE PROCESS AND EQUAL PROTECTION GUARANTEES OF THE FEDERAL CONSTITUTION
Though due process and equal protection are discrete legal concepts, courts often apply similar analyses and standards of review for both. Equality of treatment and the due process right [to protect] the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests. 6 There is significant interplay between the Constitutions Amendments and the rights they protect. The Kentucky and federal laws challenged by the Plaintiffs in this case implicate both Due Process and Equal Protection. The Constitutional promise of equal protection is violated when a law creates an indiscriminate imposition of inequalities. 7 The guaranty of equal protection of the laws is a pledge of the protection of equal laws. 8 While both federal and state governments are given some discretion to enact laws and regulations based upon classifications of citizens, this discretion is not without bounds. As a baseline, there must be a rational
6 Lawrence v. Texas, 539 U.S. 558, 575 (2003). 7 Sweatt v. Painter, 339 U.S. 629, 635 (1950). 8 Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942) (internal quotations omitted). Case 3:13-cv-00750-JGH Document 38-1 Filed 12/16/13 Page 7 of 31 PageID #: 338 relationship between the disparity of treatment and some legitimate governmental purpose. 9 Where a classification implicates a fundamental right such as marriage or otherwise targets a suspect classification such as race, courts must apply a very strict form of judicial scrutiny. The Fifth Amendment to the U.S. Constitution limits the power of the federal government to regulate the lives of individuals. No person shall be ... deprived of life, liberty, or property, without due process of law... 10 This Due Process Clause also appears in the Fourteenth Amendment, which provides due process for state actions: No state shall...deprive any person of life, liberty, or property, without due process of law... 11
Because the laws at issue here infringe Plaintiffs fundamental rights to marry and to travel by denying recognition of their valid marriages, they violate the due process protections of the Fifth and Fourteenth Amendments. And since Plaintiffs are homosexuals, these laws also infringe equal protection (discussed below). These laws can withstand constitutional scrutiny only if this Court finds they are narrowly tailored to serve a compelling state interest. A. Marriage and Travel Are Fundamental Rights
The right to marry is a liberty interest for which individuals are entitled to due process under both the Fifth and Fourteenth Amendments. 12 Because [t]he freedom to marry has long been recognized as one of the vital personal rights essential to the orderly
9 Heller v. Doe, 509 U.S. 312, 320 (1993). 10 U.S. Const. amend. XIV. 11 U.S. Const. amend. XIV 1. 12 Meyer v. Nebraska, 262 U.S. 390, 399 (1923); Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639 (U.S. 1974). Case 3:13-cv-00750-JGH Document 38-1 Filed 12/16/13 Page 8 of 31 PageID #: 339 pursuit of happiness by free men, 13 the Supreme Court has declared, the decision to marry is a fundamental right. 14
Marriage as a fundamental right implicates numerous liberty interests, including the right to privacy, 15 the right to intimate choice, 16 and the right to free association. 17
Marriage involves the most intimate and personal choices a person may make in a lifetime, choices central to dignity and autonomy... 18 As such, the Constitution demands respect for the autonomy of the person in making these choices. 19 And there is no constitutional basis to deny homosexuals the autonomy in familial decisions that heterosexuals enjoy. 20 The right to marriage is of fundamental importance to all individuals. 21
Similarly, the United States Supreme Court has long recognized a fundamental constitutional right to travel. 22 The right to unfettered interstate travel occupies a fundamental concept of our Federal Union. It is a right that has been firmly established and repeatedly recognized. 23 As such, it has been zealously guarded by the judiciary for decades. The virtually unconditional personal right, guaranteed by the Constitution to us all, 24 to be free to travel throughout the length and breadth of our land uninhibited by
13 Loving v. Virginia, 388 U.S. 1, 12 (1967). 14 Turner v. Safley, 482 U.S. 78, 95 (1987). 15 Griswold v. Connecticut, 381 U.S. 479, 486 (1965). 16 Lawrence, 539 U.S. 574. 17 M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996). 18 Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 851 (1992). 19 Lawrence, 539 U.S. at 574. 20 Id. 21 Zablocki v.Redhail, 434 U.S. 374, at 384 (1978). 22 Shapiro v. Thompson, 394 U.S. 618 (1969). 23 United States v. Guest, 383 U.S. 745, 757 (1966). 24 Saenz v. Roe, 426 U.S. 489, 499 (1999)(emphasis added and quotation marks omitted). Case 3:13-cv-00750-JGH Document 38-1 Filed 12/16/13 Page 9 of 31 PageID #: 340 statutes, rules, or regulations which unreasonably burden or restrict this movement, 25
has repeatedly been recognized as a basic constitutional freedom. 26 This right is firmly embedded in our countrys jurisprudence, and is one which is essential to our federal system of government. 27
A state law implicates the right to travel when it actually deters such travel, when impeding travel is its primary objective, or when, as here, it uses any classification which serves to penalize the exercise of that right. 28 In cases where state legislation impedes the right to travel, the state must justify the law only with a compelling state interest. 29
B. The Appropriate Level of Scrutiny
1. Strict Scrutiny
Because marriage is a fundamental right, laws that affect or interfere with an individuals right to marry are subject to very close judicial consideration. Equal protection analysis requires strict scrutiny of a legislative classification...when the classification impermissibly interferes with the exercise of a fundamental right or operates to the peculiar disadvantage of a suspect class. 30 And [w]hen the government intrudes on choices concerning family living arrangements, this Court must examine carefully the importance of the governmental interests advanced and the extent to which
25 Id. at 498 (internal quotation marks omitted). 26 Memorial Hospital v. Maricopa County, 415 U.S. 250, 254 (1974). 27 Saenz, 426 U.S. at 498, 50304. 28 Attorney Gen. of New York v. Soto-Lopez, 476 U.S. 898, 903, 106 (1986)(internal quotation marks and citations omitted). 29 Maricopa County, 415 U.S. at 258; see also Shapiro, 394 U.S. at 634. 30 Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 312 (U.S. 1976), citing Rodriguez, 411 U.S. at 16. Case 3:13-cv-00750-JGH Document 38-1 Filed 12/16/13 Page 10 of 31 PageID #: 341 they are served by the challenged regulation. 31 Personal decisions about marriage and family relationships must be made without unjustified government interference. 32
Strict scrutiny also applies whenever a law discriminates on the basis of a suspect classification. Prejudice against discrete and insular minorities calls for a correspondingly more searching judicial inquiry. 33 [T]he traditional indicia of suspectness include when a class is subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process. 34 Additionally, a discrete and insular minority can be determined by the immutable characteristics which its members share. 35
Undeniably, gay men and lesbians as a group have experienced a history of purposeful unequal treatment or been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities. 36 Across the United States, particularly in recent years, laws have been enacted at both the state and federal level targeting homosexuals for unequal treatment. Some of those laws have subsequently been declared unconstitutional precisely for that reason. 37 Plaintiffs and other homosexuals are a minority of our population and are politically powerless to prevent
31 Moore v. City of East Cleveland, 431 U.S. 494, 499 (1977). 32 Carey v. Population Services International, 431 U.S. 678, 684-85 (1977). 33 United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938); see, e.g., Adarand Constructors v. Pena, 515 U.S. 200, 227 (1995) (strict scrutiny applied to a racial classification). 34 San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28 (1973). 35 Lyng v. Castillo, 477 U.S. 635, 638 (1986); see, e.g., Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (sex, like race and national origin, is an immutable characteristic.). 36 Murgia, 427 U.S. at 313; and see Lawrence v. Texas, 539 U.S. 558, 571 (2003). 37 See, e.g., Romer, 517 U.S. 620; Lawrence, 539 U.S. 558; and Windsor, 133 S. Ct. 2675. Case 3:13-cv-00750-JGH Document 38-1 Filed 12/16/13 Page 11 of 31 PageID #: 342 discrimination by the majority. 38 They have had to rely largely on litigation and the judicial systems eventual recognition of their constitutional rights to defeat discriminatory legislation enacted by majorities of voters and state legislators. Additionally, the laws at issue in this case classify people on the basis of sexual orientation. Such classifications trigger heightened scrutiny because sexual orientation is one of a persons defining characteristics and is beyond a persons control. (See Exhibit 7, pp.7-10: Homosexuality Is a Normal Expression of Human Sexuality, Is Generally Not Chosen, and Is Highly Resistant to Change.). Among medical scholars, sexual orientation is now widely recognized as immutable. Quite recently, a District Court within the Sixth Circuit declared that gays and lesbians, exhibit obvious, immutable, or distinguishing characteristics that define them as a discreet group because sexual orientation is an integral part of personal identity and cannot be changed through conscious decision or any other method. 39 And even if some individuals sexual orientation were to change over time, the state cannot produce any evidence that it would be the result of a conscious choice. 40
The laws challenged here must be subject to strict scrutiny both because they discriminate against a suspect group and because they infringe fundamental rights. Once strict scrutiny is chosen as the appropriate standard of review, the proponent of the law in
38 Bowen v. Gilliard, 483 U.S. 587, 602 (1987). 39 Bassett v. Snyder, 2013 U.S. Dist. LEXIS 93345 ( E.D. Mich. 2013), quoting Lyng, 477 U.S. at 638. (Exhibit 8). 40 Courts have even ruled that the conscious ability to change certain characteristics doesnt make them any less immutable. Zavaleta-Lopez v. AG of the United States, 360 Fed. Appx. 331, 333 (3d Cir. 2010) ([W]e focus on whether putative group members possess common, immutable characteristics such as race, gender, or a prior position, status, or condition, or characteristics that are capable of being changed but are of such fundamental importance that persons should not be required to change them, such as religious beliefs.) (Emphasis added)). Case 3:13-cv-00750-JGH Document 38-1 Filed 12/16/13 Page 12 of 31 PageID #: 343 question must prove that it is the least restrictive means of achieving some compelling state interest. 41 Or, stated somewhat differently, a challenged law must demonstrate that it is narrowly tailored to further a compelling state interest. 42
The types of compelling state interests recognized by the U.S. Supreme Court include the prohibition and regulation of drugs, 43 remedying past and present racial discrimination, 44 and protecting the interests of minor children. 45 To date, the Commonwealth of Kentucky has not identified a compelling interest for its refusal to recognize same-sex marriages lawfully performed in other states. Even if it could, a blanket prohibition on the recognition of any foreign same-sex marriage is not going to be the least restrictive means for furthering that interest. Extending all the rights and benefits of marriage to all opposite-sex couples while denying them to all same-sex couples solely upon distinctions drawn according to sexual orientation is exceptionally broad and restrictive, regardless of any possible compelling state interest for doing so. Therefore, should this honorable Court apply the appropriate standard review of strict scrutiny, each of the laws at issue here must be ruled unconstitutional under the Fifth and Fourteenth Amendments of the United States Constitution.
2. Rational Basis
Even if this Court were to apply the more lenient, rational basis level of scrutiny, the laws at issue in this case still fail to pass constitutional muster. Where fundamental rights and suspect classes are not affected by challenged laws, courts apply
41 Thomas v. Review Bd. of Ind. Employment Sec. Div., 450 U.S. 707, 718 (1981); see, e.g., Palmore v. Sidoti, 466 U.S. 429, 432 (1984). 42 See, e.g., Harper, 383 U.S. at 670; and Kramer, 395 U.S. at 632-33. 43 Employment Div. v. Smith, 494 U.S. 872, 905-906 (1990). 44 United States v. Paradise, 480 U.S. 149, 167 (1987). 45 Palmore, 466 U.S. at 433. Case 3:13-cv-00750-JGH Document 38-1 Filed 12/16/13 Page 13 of 31 PageID #: 344 the more permissive rational basis standard of review. Unlike strict scrutiny, rational basis review is deferential to legislative discretion. Even facially discriminatory classifications can be upheld against equal protection challenge if there is any reasonable conceivable state of facts that could provide a rational basis for the classification. 46 Such a classification cannot run afoul of the Equal Protection Clause if there is a rational relationship between the disparity of treatment and some legitimate governmental purpose. 47 Further, courts are compelled under rational-basis review to accept a legislatures generalizations even when there is an imperfect fit between means and ends. 48
As deferential as rational basis review may be, it is still the governments burden to articulate a legitimate governmental purpose to justify the challenged legislation or regulations. In other words, while the means may be given wide latitude, the ends must still make sense. And in this case, Kentucky cannot articulate any legitimate purpose for its blatant discrimination against the Plaintiffs, and the legislators who promulgated this legislation certainly did not. The preservation of tradition is one of the most common justifications for laws which discriminate against gay and lesbian citizens. It is true that opposite-sex marriage has been the only legally-recognized form of marriage in most U.S. states for a very long time. However, the ancient lineage of a legal concept does not give it immunity from attack for lacking a rational basis. 49 [N]either the antiquity of a practice nor the fact of steadfast legislative and judicial adherence to it through the centuries can insulate a
46 FCC v. Beach Communications, Inc., 508 U.S. 307, 313 (1993). 47 Heller v. Doe, 509 U.S. 312, 320 (1993). 48 Id. at 321. 49 Id. at 326. Case 3:13-cv-00750-JGH Document 38-1 Filed 12/16/13 Page 14 of 31 PageID #: 345 discriminatory law from constitutional attack. 50 Thus, tradition alone cannot form a rational basis for discriminatory government action. More pertinent to the matter before this Court, [a]rbitrary and invidious discrimination cannot be a legitimate purpose. 51 And the government may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational. 52 [T]he governmental objective must be a legitimate and neutral one. 53 Classifications driven by animus against a minority are particularly prone to constitutional attack because bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest. 54 The Virginia statutes in Loving rested solely upon distinctions drawn according to race, for which there was patently no legitimate overriding purpose independent of invidious racial discrimination which justifies the classification. 55
In this case, the analogy should be obvious. The Court need only substitute one minority group for another to see that the Kentucky and federal statutes at issue here rest solely upon distinctions drawn according to sexual orientation, for which there is patently no legitimate overriding purpose independent of invidious discrimination, and were motivated by animus against homosexuals. But the Court need not analogize; the question of laws which classify and exclude homosexuals or otherwise single them out for unequal treatment has been addressed by
50 Williams v. Illinois, 399 U.S. 235, 239 (1970). 51 Loving, 388 U.S. 1, 10 (1967). 52 City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 446 (1985); see, e.g., Turner v. Safley, 482 U.S. 78, 89-90 (1987). 53 Turner, 482 U.S. at 90. 54 United States Dept of Agric. v. Moreno, 413 U.S. 528, 534 (1973) (emphasis in original). 55 388 U.S. at 11. Case 3:13-cv-00750-JGH Document 38-1 Filed 12/16/13 Page 15 of 31 PageID #: 346 the Supreme Court on several occasions. This Court should note that on every occasion this issue has been presented to the high Court, no proponent has ever been able to articulate or prove a single legitimate purpose for which such laws are a reasonable means to achieve. Unable to survive even rational basis review, the Court has consistently held such laws unconstitutional and declined to even consider whether strict scrutiny is appropriate. For example, In Romer, the Supreme Court concluded that Colorados constitutional amendment to exclude homosexuals from the protection of anti-discrimination laws failed, indeed defied, even the conventional inquiry of rational basis review. 56 Having considered numerous possible justifications for Colorados law, the court dismissed all of them and concluded that it classified homosexuals not to further a proper legislative end but to make them unequal to everyone else. 57 The Court in Romer went on, quoting Moreno: [A] bare desire to harm a politically unpopular group cannot constitute a legitimate government interest. 58
In Lawrence v. Texas, the Court considered a state law which criminalized specific, private sexual behaviors common among consenting homosexual couples. 59
None of the states proposed justifications for the law convinced the Court, which even proposed some possible legitimate purposes of its own (such as the protection of minors, the prevention of coercion or injury, the regulation of public conduct, or the prohibition of prostitution) but found none of these present in the language, purpose, or application of the Texas law. 60 Applying rational basis review, the Court ruled that [t]he Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and
56 517 U.S. at 631-32. 57 Id. at 635. 58 Id. at 634. 59 539 U.S. 558 (2003). 60 Id. at 578. Case 3:13-cv-00750-JGH Document 38-1 Filed 12/16/13 Page 16 of 31 PageID #: 347 private life of the individual and was therefore unconstitutional. 61 Even in his dissent, Justice Scalia acknowledged the obvious constitutional conflict presented by laws such as those at issue here: If moral disapprobation of homosexual conduct is no legitimate state interest" for purposes of proscribing that conduct; and if ... [w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising [t]he liberty protected by the Constitution? 62
More recently, in the case of United States v. Windsor, the Supreme Court considered the constitutionality of DOMA 3, which defined marriage at the federal level as an institution exclusive to opposite-sex couples. 63 The Court considered each possible justification for the law but disregarded them all, instead finding that DOMA 3 operated only to demean those persons who are in a lawful same-sex marriage. 64 In so doing, it violate[d] basic due process and equal protection principles... 65 Relying on language from cases that applied rational basis review such as Moreno and Romer (though not mentioning the standard explicitly), the Court found the law unconstitutional. 66 Further, [w]hile the Fifth Amendment withdraws from the Government the power to degrade or demean in the way this law does, the equal
61 Id. 62 Id. at 604-05 (SCALIA, J. dissenting; citations omitted). 63 133 S. Ct. 2675 (U.S. 2013). 64 Id. at 2695. 65 Id. at 2693. 66 Id. at 2695. Case 3:13-cv-00750-JGH Document 38-1 Filed 12/16/13 Page 17 of 31 PageID #: 348 protection guarantee of the Fourteenth Amendment makes that Fifth Amendment right all the more specific and all the better understood and preserved. 67
The analysis in this case should be no different from that in Romer, Lawrence, or Windsor. Kentucky has not articulated, and cannot articulate, any basis for its laws other than: 1) the supposed antiquity of a practice, i.e., the traditional, biblical marriage envisioned by Senators McGaha and Worley; 2) a bare desire to do harm to homosexuals; or 3) an excuse which is excessively and inextricably entangled with a particular religion, as discussed below. None of these bases are permissible or rational within the meaning of Supreme Court jurisprudence.
II. SECTION 233A VIOLATES THE ESTABLISHMENT CLAUSE
The First Amendment provides that Congress shall make no law respecting an establishment of religion . . . 68 The First Amendments religion clauses both protect the individuals ability to exercise his or her own conscience, and also guard against the civic divisiveness that follows when the government weighs in on one side of religious debate[.] 69
The touchstone for our analysis is the principle that the First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion. 70
Section 233A of the Kentucky Constitution violates these principles. There has been substantial scholarly debate over the analytical framework for assessing Establishment Clause cases since a conflicting pair of 2005 cases challenging
67 Id. 68 Like all other amendments contained in the Bill of Rights, the First Amendment is made applicable to the states through the Fourteenth Amendment. Santa Fe Independent School Dist. v. Doe, 530 U.S. 290 (2000). 69 McCreary Co. Ky. v. ACLU, 545 U.S. 844, 876 (2005). 70 Id. at 860 (quoting Epperson v. Arkansas, 393 U.S. 97 (1968)). Case 3:13-cv-00750-JGH Document 38-1 Filed 12/16/13 Page 18 of 31 PageID #: 349 Ten Commandments displays, ACLU v. McCreary County, Ky. 71 and Van Orden v. Perry. 72
73
Any conflict in these two cases, however, is not implicated in this particular challenge. The Court in McCreary Co. declined an invitation to abandon the Establishment Clause test outlined in Lemon v. Kurtsman. 74 Although the Van Orden plurality declined to apply the Lemon test, it did not abandon the test. Instead, its holding was that passive government actions did not require the Lemon analysis. 75
Under Lemon, the first requirement to pass constitutional muster under the Establishment Clause is that the government action must have a genuine secular purpose. Second, the primary effect of the legislation must neither advance nor inhibit religion. Third, the act must not foster an excessive government entanglement with religion. 76 On at least five occasions (two of which involve Kentucky legislation), our highest Court has found an impermissible religious purpose is enough to invalidate challenged legislation under Lemon. 77 Indeed, the Court in McCreary Co. thoroughly rejected the governments request to remove purpose from the Establishment Clause analysis, calling purpose a staple of statutory interpretation . . . [.] 78
This clear pronouncement alleviates any need to parse the many cases dealing with a legislature that has articulated a secular purpose in order to conceal a religious
71 545 U.S. 844 (2005). 72 545 U.S. 677 (2005). 73 When weighting the precedential value of these two cases, it should be noted that Van Orden was a plurality decision, while McCreary Co. had a majority. 74 403 U.S. 602 (1971). 75 See Van Orden, 454 U.S. 844. 76 Lemon, 403 U.S. at 612-613. 77 Stone v. Graham, 449 U.S. 39, 41, 66 L. Ed. 2d 199, 101 S. Ct. 192 (1980) (per curiam); Wallace v. Jaffree, 472 U.S. 38, 56-61, 86 L. Ed. 2d 29, 105 S. Ct. 2479 (1985); Edwards v. Aguillard, 482 U.S. 578, 586-593, 96 L. Ed. 2d 510, 107 S. Ct. 2573 (1987); Santa Fe, 530 U.S., at 308-309, 147 L. Ed. 2d 295, 120 S. Ct. 2266; McCreary Co. Ky v. ACLU, 545 U.S. 844 (2005). 78 545 U.S. at 861. Case 3:13-cv-00750-JGH Document 38-1 Filed 12/16/13 Page 19 of 31 PageID #: 350 motive. That is not the case here. It may be that other states enacting marriage restrictions between same-sex couples expressed a secular desire to promote a narrow view of stable family structure. That cannot be said for Kentuckys constitutional amendment. The three senators who spoke in favor of the amendment each offered particularized Biblical, Judeo-Christian justifications for the bill. Indeed, the bills sponsor identified marriage as an institution designed to promote the greater glory of God. In Edwards v. Aguillard, the Court used a bill sponsors public comments as a basis for discerning the impermissible religious purpose of a bill requiring creationism be taught in public schools. 79 There is no need for conjecture when it comes to the purpose underlying Section 233A. The only argument offered in favor of the bill was the furtherance of the religious beliefs of the majority in the legislature. The Court in McCreary Co. acknowledged the permissibility of Sunday closing laws because of the minimal advancement of religion and the historical distance between the religious motive of Sunday closing laws and the practical, secular purpose of a day off. 80 But, the Court went on to say, if the government justified its decision with a stated desire for all Americans to honor Christ, the divisive thrust of the official action would be inescapable. 81 It may be that Christian marriages are viewed by Christians as furthering Gods divine plan. However, marriage is not simply a religious institution in this country. The state long ago determined that certain burdens and benefits granted and enforced by the state would accompany this traditionally religious relationship. Since the state has determined to grant married couples a secular social status, the institution itself cannot be said to be an inherently religious one. When the government acts with the purpose of
79 482 U.S. 578, 586-588 (1987). 80 545 U.S. at 861. 81 Id. Case 3:13-cv-00750-JGH Document 38-1 Filed 12/16/13 Page 20 of 31 PageID #: 351 favoring religious preferences, it sends a clear message that the religious adherents are a favored political class, and outsiders are not full members of the political community. 82
Since the stated purpose of the bill is to further the religious beliefs of the majority, the amendment must be invalidated.
III. THE FIRST AMENDMENT'S GUARANTEE OF FREEDOM OF ASSOCIATION INVALIDATES AND PROHIBITS ENFORCEMENT OF THE LAWS AT ISSUE IN THIS CASE
Roberts v. United States Jaycees, 83 explicitly recognizes that the right to marry and to enter into intimate relationships may be protected not only by the Fifth and Fourteenth amendments, but also by the First Amendment's guarantee of freedom of association. The right to intimate association primarily protects the right to marry and other familial relationships, or, in the words of the Supreme Court, "those that attend the creation and sustenance of a familymarriage, childbirth, the raising and education of children, and cohabitation with one's relatives." 84
Courts that have considered the First Amendment issue have concluded that the same level of scrutiny applied under a Due Process analysis should also apply to the First Amendment. 85 Therefore, Plaintiff again urges the Court to apply the strict scrutiny standard advocated above, but in any event recognize that the laws fail even rational basis
82 Santa Fe Independent School Dist. v. Doe, 530 U.S. 290 (2000) (quoting Lynch v. Donnelly, 465 U.S. 668, 688 (1984)(OConnor, J., concurring)). 83 468 U.S. 609, 617-19 (1984). 84 Roberts, 468 U.S. at 619 (Internal citations omitted). 85 Cross v. Balt. City Police Dep't, 213 Md. App. 294, 308 (Md. Ct. Spec. App. 2013)(citing Windsor); Wolford v. Angelone, 38 F. Supp. 2d 452 (W.D. Va. 1999); Parks v. City of Warner Robins, 43 F.3d 609, 615 (11th Cir. 1995). Case 3:13-cv-00750-JGH Document 38-1 Filed 12/16/13 Page 21 of 31 PageID #: 352 review. 86 [A] regulation cannot be sustained where the logical connection between the regulation and the asserted goal is so remote as to render the policy arbitrary or irrational. 87
Of particular interest is the analysis set forth by the Michigan District Court in Briggs v. North Muskegon Police Dep't. 88 Decades before Romer, Lawrence, and Windsor, the court identified bedrock constitutional principles that operate with no less force today. Briggs involved the privacy and association interests of non-married couples. The Court expressed suspicion of any attempt to regulate choices concerning family living arrangements. 89
As Justice Powell stated in Moore, extending constitutional protection beyond the traditional family, "unless we close our eyes to the basic reasons why certain rights associated with the family have been accorded shelter under the Fourteenth Amendment's Due Process Clause, we cannot avoid applying the force and rationale of these precedents to the family choice involved in this case." 431 U.S. at 501. 90
The Court went on to apply strict scrutiny to the statute, and rejected the states justification: This Court rejects the notion that an infringement of an important constitutionally protected right is justified simply because of general community disapproval of the protected conduct. The very purpose of constitutional protection of individual liberties is to prevent such
86 See, e.g., Via v. Taylor, 224 F. Supp. 2d 753 (D. Del. 2002) (applying both intermediate and rational basis scrutiny and concluding that the state's infringement upon a prison guard's right to marry a former inmate could withstand neither). 87 Id. at 764, citing Turner v. Safley, 482 U.S. 78 (U.S. 1987). See also Wolford, 38 F. Supp. 2d at 463 ("[W]here a policy does not order individuals not to marry, nor . . . directly and substantially interfere with the right to marry, the plaintiff has failed to show that the regulation infringes on either the right to marry or the First Amendment right of intimate association.") (Internal quotations omitted)). 88 563 F. Supp. 585 (W.D. Mich. 1983), affirmed by the Sixth Circuit, 746 F.2d 1475 (6th Cir. 1984), cert. denied 473 U.S. 909 (1985). 89 Id. at 588 (quoting Moore v. City of East Cleveland, 431 U.S. 494, 499 (1977)). 90 Id. at 589. Case 3:13-cv-00750-JGH Document 38-1 Filed 12/16/13 Page 22 of 31 PageID #: 353 majoritarian coercion. 91
On the basis of these longstanding, long-recognized constitutional principles, the Briggs court found that a public employee's right to freedom of association protected him from discipline based upon an intimate relationship, even though he was unmarried. Even if one does not take into account the concept of evolving standards of decency that mark the progress of a maturing society, which has been a central idea in the Supreme Court's jurisprudence, 92 there is ample support in case law that is now thirty years old suggesting that even a non-traditional relationship cannot be impeded by the state without adequate justification. The obstinate refusal to recognize Plaintiffs' lawful marriages directly and substantially interferes with Plaintiffs' right to intimately associate with whomever they choose. 93 The state can offer no justification for its intrusion. IV. THE PROVISIONS OF KENTUCKY LAW AND SECTION 2 OF DOMA VIOLATE THE FULL FAITH AND CREDIT CLAUSE The Full Faith and Credit Clause of the federal Constitution states: Full Faith and Credit shall be given in each State to the public Acts, Records, and Judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be provided, and the Effect thereof. 94
Pursuant to this Clause, Congress enacted 28 U.S.C. 1738 which states, in pertinent part: The records and judicial proceedings of any court of any such State, Territory or Possession, or copies thereof . . . shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken.
91 Id. at 590. 92 See, e.g., Trop v. Dulles, 356 U.S. 86, 101 (1958). 93 Wolford, 38 F. Supp. 2d at 463 94 U.S. Const. art. IV, 1. Case 3:13-cv-00750-JGH Document 38-1 Filed 12/16/13 Page 23 of 31 PageID #: 354
Further, Article IV, 2 provides: The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states. 95
The animating purpose of the full faith and credit command, was to make [the several states] integral parts of a single nation throughout which a remedy upon a just obligation might be demanded as of right, irrespective of the state of its origin. 96 In effect, the Full Faith and Credit Clause imposes a constitutional rule of decision on state courts; that is, a rule by which courts ... are to be guided when a question arises in the progress of a pending suit as to the faith and credit to be given by the court to the public acts, records, and judicial proceedings of a State other than that in which the court is sitting. 97 The rule of decision is that the forum state shall give full faith and credit to those acts, records, and proceedings of the sister state. Few U.S. Supreme Court decisions address the Full Faith and Credit Clause. It is therefore useful to reexamine the original intent and actual text of the constitutional provision. James Madison's early draft read: Full faith shall be given in each State to the acts of the Legislatures, and to the records and judicial proceedings of the Courts and Magistrates of every other State. 98 And another version was proposed: Whensoever the act of any State, whether legislative [,] executive[,] or judiciary[,] shall be attested and exemplified under the seal thereof, such attestation and exemplification shall be deemed in other State[s] as full proof of the existence of that act -- and its operation shall be
95 U.S. Const. art. IV, 1-2. 96 Baker by Thomas v. General Motors Corp., 522 U.S. 222, 232 (1998); see also Estin v. Estin, 334 US 541, 546 (1948) (the Full Faith and Credit Clause substituted a command for the earlier principles of comity and thus basically altered the status of the States as independent sovereigns). 97 Thompson v. Thompson, 484 U.S. 174, 182-183 (1988). 98 The Records of the Federal Convention of 1787 Vol.4 Art.4 Sec.l Doc.4 (Max Farrand ed., Yale University Press 1937). Case 3:13-cv-00750-JGH Document 38-1 Filed 12/16/13 Page 24 of 31 PageID #: 355 binding in every other State. 99 Thus, the Full Faith and Credit Clause was originally intended to be quite expansive in its requirement that each state honor the laws and actions of other states. At the Philadelphia Convention, a draft was submitted based on Madison's version, which read: Full faith and credit ought to be given in each state to the public acts, records, and judicial proceedings, of every other state; and the legislature shall, by general laws, prescribe the manner in which such acts, records, and proceedings, shall be proved, and the effect which judgments, obtained in one state, shall have in another. 100
Gouverneur Morris proposed amending this draft, to replace all the wording after effect with thereof. 101 There was concern that this might authorize Congress to modify the effect of legislative acts. Critically, support for Morris's amendment was offered only with the understanding that Congress's power was limited to prescribing the effect of judgments. 102 The provision was further amended to change ought to to shall, in the first clause, making full faith and credit mandatory; and shall was replaced with may in the second clause-making Congress's ability to prescribe merely permissive. 103 In other words, the Founders' intent was still to require each state to give full faith and credit to the operative effect of the laws particularly the legislation of other states, and to diminish Congress's ability to alter this obligation.
99 Id. 100 James Madison, Debates on the Adoption of the Federal Constitution 503-504 (J.B. Lippincott & Co. 1861) (1787), available at http://bit.ly/pH8R6J. (The creation of the links to the secondary sources cited herein, and much of the argument in this section, are to be credited to able counsel for the Petitioner in In re Marriage of J.B. & H.B., 326 S.W.3d 654 (Tex. App. Dallas 2010) (petition for review granted by the Texas Supreme Court, In re Marriage of J.B., 2013 Tex. LEXIS 608 (Tex., Aug. 23, 2013))). 101 Id. 102 Id. 103 Id. see U.S. Const. art. IV, 1. Case 3:13-cv-00750-JGH Document 38-1 Filed 12/16/13 Page 25 of 31 PageID #: 356 Thus, by parsing the intent of the Founders and the plain language of the Constitution, a number of conclusions relevant to the instant case may be reached. First, a state legislature cannot pass a law with the express purpose of ignoring the laws and records of a sister state. By allowing the Commonwealth to give no recognition whatsoever to Plaintiffs' out-of-state marriages, KRS 405.040(2), KRS 405.045, and Ky. Const. 233A violate the Full Faith and Credit Clause. Moreover, insofar as these provisions deny access to Kentucky courts for divorce or other proceeding premised upon a valid marriage, they violate the Privileges and Immunities Clause as well. Refusing access to the benefits enjoyed by other lawfully married couples, including divorce, creates conflict and confusion between the states and violates Full Faith and Credit by discriminating against the laws of other states under the guise of merely affecting the remedy. 104
Additionally, it must be concluded that DOMA's limitation on a state's obligation to give full faith and credit to a marriage legally created in another state should be invalidated. Section 2 of DOMA (28 U.S.C. 1738C) purports to enable states to escape their obligations under Full Faith and Credit when it comes to same-sex marriage. But the plain text of the enforcement provision of the Constitution itself states that Congress may only prescribe (a) the manner in which the acts, records, and proceedings of other states shall be proved, which plainly refers to evidentiary matters, and (b) the effect thereof. 105 DOMA appears to have nothing to say about (a) and instead focuses on (b), purporting to relieve the states of any obligation to give effect to an act, record, or
104 See Broderick v. Rosner, 294 U.S. 629, 642-643 (1935). 105 U.S. Const. art. IV, 1. Case 3:13-cv-00750-JGH Document 38-1 Filed 12/16/13 Page 26 of 31 PageID #: 357 proceeding that creates or recognizes a same-sex marriage. 106 Thus, on its face, DOMA would allow states to give no effect whatsoever to the marriage laws and records of a sister state. Such action flies in the face of both the plain language and the original intent of the Full Faith and Credit Clause (to say nothing of the plain language of 28 U.S.C. 1738). Section 2 of DOMA, like the Kentucky provisions considered herein, must be declared unconstitutional.
V. THE SUPREMACY CLAUSE BARS KENTUCKY FROM INTERPRETING LAWS AFFECTING SAME-SEX MARRIAGE IN A MANNER CONTRARY TO THE DECISIONS OF THE U.S. SUPREME COURT
The U.S. Constitution, art. VI, Cl 2 states: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. As such, [t]he Constitution of the United States and all laws enacted pursuant to the powers conferred by it on the Congress are the supreme law of the land (U. S. Const., art. VI, sec. 2) to the same extent as though expressly written into every state law. 107 State constitutions and amendments thereto are no less subject to the applicable prohibitions and limitations of the Federal Constitution. 108 The proper interpretation of the U.S. Constitution is, of course, set forth
106 28 U.S.C. 1738C. 107 People ex rel. Happell v. Sischo, 23 Cal. 2d 478, 491 (Cal. 1943) (citing Hauenstein v. Lynham, 100 U.S. 483, 490 (1880); Florida v. Mellon, 273 U.S. 12, 17 (1927).) 108 See, e.g., Harbert v County Court, 39 S.E.2d 177 (W.Va. 1946); Gray v Moss, 156 So. 262 (Fla. 1934); Gray v Winthrop, 156 So. 270 (Fla. 1934). Case 3:13-cv-00750-JGH Document 38-1 Filed 12/16/13 Page 27 of 31 PageID #: 358 by the United States Supreme Court. The decisions of the nation's high court are thus conclusive and binding on state courts. 109
With these basic principles in mind, the Supreme Court's opinion in Windsor sets forth the constitutional standard by which laws which hinder same-sex marriage should be evaluated. Justice Kennedy writes: The power the Constitution grants it also restrains. And though Congress has great authority to design laws to fit its own conception of sound national policy, it cannot deny the liberty protected by the Due Process Clause of the Fifth Amendment. What has been explained to this point should more than suffice to establish that the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage. This requires the Court to hold, as it now does, that DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution. The liberty protected by the Fifth Amendments Due Process Clause contains within it the prohibition against denying to any person the equal protection of the laws. . . . While the Fifth Amendment itself withdraws from Government the power to degrade or demean in the way this law does, the equal protection guarantee of the Fourteenth Amendment makes that Fifth Amendment right all the more specific and all the better understood and preserved. 110
There is much back and forth between the majority and the dissents in Windsor about whether the opinion is about federalism, due process, equal protection, or something else. For these purposes, it is important to note that Justice Kennedy clearly articulates two separate constitutional grounds for the majority opinion (i.e., the Fifth and Fourteenth amendments), and that these constitutional grounds are implicated by the government's infringement upon individual rights.
109 See Thompson v. Atlantic C. L. R. Co., 38 SE2d 774 (Ga. 1946), aff'd 332 U.S. 168 (1947); Walker v. Gilman, 171 P2d 797 (Wash. 1946); Chicago, R. I. & P. R. Co. v S. L. Robinson & Co., 298 SW 873 (Ark. 1927); Weber Showcase & Fixture Co. v. Co-Ed Shop, 56 P.2d 667 (Ariz. 1936); Pennsylvania Rubber Co. v. Brown, 143 A. 703 (N.H. 1928); Lawyers' Coop. Publishing Co. v Bauer, 244 NW 327 (S.D. 1932). !!? Windsor, 133 S. Ct. at 2695 (2013) (internal citations omitted). Case 3:13-cv-00750-JGH Document 38-1 Filed 12/16/13 Page 28 of 31 PageID #: 359 Finally, it is worth pointing out that the handful of lower-court opinions that have analyzed Windsor have interpreted its holding as one of basic individual rights under the Constitution. 111 This conclusion is shared by other district courts within the Sixth Circuit. 112 And finally, legal scholars agree with this view as well. 113 For this reason, it matters little whether Windsor is characterized as a federalism case, an equal protection case, or a substantive due process case. The obvious point of the decision is that those individual rights are protected by the Federal Constitution, and therefore cannot be circumvented by any statute or state constitution. Quite simply, regardless of the proper amendment or analysis to be applied, Windsor stands for the proposition that a lawful same-sex marriage must be recognized by the government. It is beyond cavil that the Supreme Court is the final arbiter of the scope of such individual rights under the U.S. Constitution. Therefore, a state may not impose its own interpretation of the Constitution to exclude recognition of same-sex marriage without ignoring the holding in Windsor, and thereby violating the Supremacy Clause. Nonetheless, this is precisely what Kentucky continues to do by enforcing its discriminatory statutes and Ky. Const. 233A. The principal purpose and necessary
111 See, e.g., Jenkins v. Miller, 2013 U.S. Dist. LEXIS 152846, 6-78 (D. Vt. Oct. 24, 2013); Cross v. Balt. City Police Dep't, 213 Md. App. 294, 308-309 (Md. Ct. Spec. App. 2013). 112 See Obergefell v. Kasich, 2013 U.S. Dist. LEXIS 102077 (S.D. Ohio July 22, 2013) (Exhibit 1) (Under Supreme Court jurisprudence, states are free to determine conditions for valid marriages, but these restrictions must be supported by legitimate state purposes because they infringe on important liberty interests around marriage and intimate relations.). 113 See, e.g., Douglas NeJaime, Windsor's Right to Marry, 123 YALE L.J. ONLINE 219 (2013), http://yalelawjournal.org/2013/9/15/nejaime.html (Reading Windsor as a right- to-marry case has important implications for fundamental rights jurisprudence. The view of marriage that Justice Kennedy embraces suggests that the fundamental right to marry as presently understood safeguards a right that applies with equal force to same-sex couples.). Case 3:13-cv-00750-JGH Document 38-1 Filed 12/16/13 Page 29 of 31 PageID #: 360 effect of Kentucky's laws, no less than DOMA, is to demean those persons who are in a lawful same-sex marriage. All plaintiffs in this case (save the minor children) have entered into lawful same-sex marriages. Because of the Supremacy Clause, Kentucky is not allowed to tell these plaintiffs that the scope of their rights as married persons is anything less than what the U.S. Constitution provides. For now, Windsor is the final word as to what the Constitution provides, and clearly prohibits Kentucky's enforcement of its discriminatory laws.
CONCLUSION Plaintiffs are entitled to immediate and permanent injunctive relief. Kentuckys discriminatory laws violate multiple Constitutional protections, any one of which can serve as a basis for the Court granting Plaintiffs Motion.
Respectfully submitted,
/s/ Laura E. Landenwich Laura E. Landenwich Daniel J. Canon L. Joe Dunman Louis P. Winner CLAY DANIELWALTON & ADAMS PLC 101 Meidinger Tower 462 South Fourth Street Louisville, KY 40202 (502) 561-2005 phone (502) 415-7505 - fax laura@justiceky.com dan@justiceky.com Case 3:13-cv-00750-JGH Document 38-1 Filed 12/16/13 Page 30 of 31 PageID #: 361 louis@justiceky.com Co-Counsel for Plaintiffs
and
Shannon Fauver Dawn Elliott FAUVER LAW OFFICE PLLC 1752 Frankfort Avenue Louisville, KY 40206 (502) 569-7710 Co-counsel for Plaintiffs
CERTIFICATE OF SERVICE
I hereby certify that on December 16, 2013 I electronically filed the foregoing with the clerk of the court by using the CM/ECF system, which will send a notice of electronic filing to the following:
Clay A. Barkley Brian Judy Assistant Attorney Generals Office of the Attorney General Suite 118 700 Capital Avenue Frankfort, KY 40601 Counsel for Defendant Steve Beshear and Jack Conway
/s/ Laura E. Landenwich
Case 3:13-cv-00750-JGH Document 38-1 Filed 12/16/13 Page 31 of 31 PageID #: 362
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION
JAMES OBERGEFELL, et al. : Case No. 1:13-cv-501 : Plaintiffs, : : Judge Timothy S. Black vs. : : JOHN KASICH, et al. : : Defendants. :
ORDER GRANTING PLAINTIFFS MOTION FOR A TEMPORARY RESTRAINING ORDER
This is not a complicated case. The issue is whether the State of Ohio can discriminate against same sex marriages lawfully solemnized out of state, when Ohio law has historically and unambiguously provided that the validity of a marriage is determined by whether it complies with the law of the jurisdiction where it was celebrated. Throughout Ohios history, Ohio law has been clear: a marriage solemnized outside of Ohio is valid in Ohio if it is valid where solemnized. Thus, for example, under Ohio law, out-of-state marriages between first cousins are recognized by Ohio, even though Ohio law does not authorize marriages between first cousins. Likewise, under Ohio law, out of state marriages of minors are recognized by Ohio, even though Ohio law does not authorize marriages of minors. How then can Ohio, especially given the historical status of Ohio law, single out same sex marriages as ones it will not recognize? The short answer is that Ohio cannot ... Case: l:l3-cv-0050l-TSB Doc #: l3 Filed: 07/22/l3 Page: l of l5 PAGElD #: 9l Case 3:13-cv-00750-JGH Document 38-2 Filed 12/16/13 Page 1 of 15 PageID #: 363 2
at least not under the circumstances here. By treating lawful same sex marriages differently than it treats lawful opposite sex marriages (e.g., marriages of first cousins and marriages of minors), Ohio law, as applied to these Plaintiffs, likely violates the United States Constitution which guarantees that "No State shall make or enforce any law which shall ... deny to any person within its jurisdiction equal protection of the laws." The end result here and now is that the local Ohio Registrar of death certificates is hereby ORDERED not to accept for recording a death certificate for John Arthur that does not record Mr. Arthurs status at death as "married" and James Obergefell as his "surviving spouse." I. AGREED FACTS AND CIRCUMSTANCES Less than a month ago, on June 26, 2013, the United States Supreme Court issued its historic decision in United States v. Windsor, __ U.S. __, 133 S.Ct. 2675 (2013). The Supreme Court held that the federal Defense of Marriage Act (DOMA), which denied recognition to same-sex marriages for purposes of federal law, was unconstitutional, as it denied fundamental fairness and equal protection of the law to gay citizens. While the holding in Windsor is ostensibly limited to a finding that the federal government cannot refuse to recognize state laws authorizing same sex marriage, the issue whether States can refuse to recognize out-of-state same sex marriages is now surely headed to the fore. Indeed, just as Justice Scalia predicted in his animated dissent, by virtue of the present lawsuit, the state-law shoe has now dropped in Ohio. Windsor, 133 S.Ct. at 77-78. Case: l:l3-cv-0050l-TSB Doc #: l3 Filed: 07/22/l3 Page: 2 of l5 PAGElD #: 92 Case 3:13-cv-00750-JGH Document 38-2 Filed 12/16/13 Page 2 of 15 PageID #: 364 3
Plaintiffs James Obergefell and John Arthur are male Cincinnati residents who have been living together in a committed and intimate relationship for more than twenty years, and they were very recently legally married in the state of Maryland pursuant to the laws of Maryland recognizing same sex marriage. Mr. Arthur is currently a hospice patient. He is dying of amyotrophic lateral sclerosis (ALS). ALS is a progressive disease that has caused Mr. Arthur severe and worsening muscle deterioration, has no known cure, and is fatal. On July 11, 2013, Plaintiffs traveled to Maryland in a special jet equipped with medical equipment and a medical staff necessary to serve Mr. Arthurs needs, whereupon Plaintiffs were married in the jet as it sat on the tarmac in Anne Arundel County, Maryland. They returned to Cincinnati that same day. Plaintiffs marriage is legally recognized in Maryland and by the federal government by virtue of the very recent and historic decision of the United States Supreme Court in United States v. Windsor, __ U.S. __, 133 S.Ct. 2675 (2013). Plaintiffs marriage is not recognized in Ohio, as legal recognition of same-sex marriages is prohibited by Ohio law enacted in 2004. See Ohio Rev. Code. 3101.01(C )(2)&(3) and Ohio Constitution Art. XV, 11. Mr. Arthur is certain to die soon. Consistent with Ohio law, his death record will list his marital status at time of death as unmarried and will not record Mr. Obergefell as the surviving spouse.
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II. PLAINTIFFS MOTION Plaintiffs seek an order of this Court declaring unconstitutional the Ohio laws forbidding recognition of legal same sex marriages from other states and requiring the Registrar of Ohio death certificates to record John Arthur as "married" and to record James Obergefell as his "surviving spouse" at the time of Mr. Arthurs death, which is imminent. III. STANDARD OF REVIEW In determining whether to grant injunctive relief, this Court must weigh four factors: (1) whether the moving party has shown a strong likelihood of success on the merits; (2) whether the moving party will suffer irreparable harm if the injunction is not issued; (3) whether the issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuing the injunction. Overstreet v. Lexington-Fayette Urban County Govt, 305 F.3d 566, 573 (6th Cir. 2002). These four considerations are factors to be balanced, not prerequisites that must be met. McPherson v. Michigan High Sch. Athletic Assn, Inc., 119 F.3d 453, 459 (6th Cir. 1997), and there is no rigid and comprehensive test for determining the appropriateness of preliminary injunctive relief. Tate v. Frey, 735 F.2d 986, 990 (6th Cir. 1984). Plaintiffs bear the burden of demonstrating their entitlement to a preliminary injunction, and an injunction is an extraordinary remedy which should be granted only if the movant carries his or her burden of proving that the circumstances clearly demand it. Case: l:l3-cv-0050l-TSB Doc #: l3 Filed: 07/22/l3 Page: 4 of l5 PAGElD #: 94 Case 3:13-cv-00750-JGH Document 38-2 Filed 12/16/13 Page 4 of 15 PageID #: 366 5
Overstreet, 305 F.3d at 513. In the Sixth Circuit, [t]he standard for issuing a temporary restraining order is logically the same as for a preliminary injunction with emphasis, however, on irreparable harm[.] Reid v. Hood, No. 1:10 CV 2842, 2011 U.S. Dist. LEXIS 7631, at *2 (N.D. Ohio Jan 26, 2011) (citing Motor Vehicle Bd. of Calif. v. Fox, 434 U.S. 1345, 1347 n.2 (1977)). Moreover, [a]lthough no one factor is controlling, a finding that there is simply no likelihood of success on the merits is usually fatal. Gonzales v. Natl Bd. of Med. Examrs, 225 F.3d 620, 625 (6th Cir. 2000). Even if the court is not certain that a plaintiff is likely to succeed on the merits, a preliminary injunction is still appropriate where the plaintiff shows serious questions going to the merits and irreparable harm which decidedly outweighs any potential harm to the defendant or if the merits present a sufficiently serious question to justify further investigation. In re DeLorean Motor Co., 755 F.2d 1223, 1229-30 (6th Cir. 1985) (quoting Friendship Materials, Inc. v. Michigan Brick, Inc., 679 F.2d 100, 105 (6th Cir. 1982)). IV. ANALYSIS The Fourteenth Amendment to the Constitution of the United States provides that No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. U.S. Const. Amend. XIV.
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Plaintiffs, a same-sex couple, are legally married in Maryland. They reside in Ohio where their marriage is not recognized as valid. They are treated differently than they would be if they were in a comparable opposite-sex marriage. By treating lawful same sex marriages differently than it treats lawful opposite sex marriages (e.g., marriages of first cousins and marriages of minors), Plaintiffs assert that the Ohio laws barring recognition of out-of-state same sex marriages, enacted in 2004, violate equal protection. Although the law has long recognized that marriage and domestic relations are matters generally left to the states, see Ex parte Burrus, 136 U.S. 586, 593-94 (1890), the restrictions imposed on marriage by states, however, must nonetheless comply with the Constitution. Loving v. Virginia, 388 U.S. 1, 12 (1967) (statute limiting marriage to same-race couples violated equal protection and due process); Zablocki v. Redhail, 434 U.S. 374, 383 (1978) (statute restricting from marriage persons owing child support violated equal protection). In Windsor, the Supreme Court again applied the principle of equal protection to a statute restricting marriage when it reviewed the constitutionality of the federal Defense of Marriage Act (DOMA), which denied recognition to same-sex marriages for purposes of federal law. This included marriages from the twelve states and District of Columbia in which same-sex couples could legally marry. The Supreme Court held that the federal law was unconstitutional because it violated equal protection and due process principles guaranteed by the Fifth Amendment. Windsor, 133 S. Ct. at 2675. Case: l:l3-cv-0050l-TSB Doc #: l3 Filed: 07/22/l3 Page: 6 of l5 PAGElD #: 96 Case 3:13-cv-00750-JGH Document 38-2 Filed 12/16/13 Page 6 of 15 PageID #: 368 7
In reality, the decision of the United States Supreme Court in Windsor was not unprecedented as the Supreme Court relied upon its equal protection analysis from an earlier case, where, in 1996, the Court held that an amendment to a state constitution, ostensibly just prohibiting any special protections for gay people, in truth violated the Equal Protection Clause, under even a rational basis analysis. Romer v. Evans, 517 U.S. 620 (1996). In Romer, the Supreme Court struck down Colorados Amendment 2 because, the Court held, [w]e cannot say that Amendment 2 is directed to any identifiable legitimate purpose or discrete objective. It is a status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests; it is a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit. Id. at 635. The Supreme Court deemed this class legislation ... obnoxious to the prohibitions of the Fourteenth Amendment. Id. (quoting Civil Rights Cases, 109 U.S. 3, 24 (1883)). As the Supreme Court in Romer held so succinctly: [Colorado law] classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to its laws. Amendment 2 violates the Equal Protection Clause[.] 517 U.S. at 635-36. As the Supreme Court explained in striking down DOMA, [t]he avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the Case: l:l3-cv-0050l-TSB Doc #: l3 Filed: 07/22/l3 Page: 7 of l5 PAGElD #: 97 Case 3:13-cv-00750-JGH Document 38-2 Filed 12/16/13 Page 7 of 15 PageID #: 369 8
unquestioned authority of the States. Windsor, 133 S. Ct. at 2693. Similarly, in Windsor, the Supreme Court cited U. S. Dept. of Agriculture v. Moreno, 413 U.S. 528 (1973), for the proposition that a legislative desire to harm a politically unpopular group of people cannot justify disparate treatment of that group. Windsor, 133 S. Ct. at 2693. In Moreno, a federal statute prohibiting households containing unrelated persons from qualifying for food stamps was held to be in violation of the Equal Protection Clause under a rational basis analysis. The legislative purpose of the statute was to prohibit hippies from taking advantage of food stamps. The Supreme Court held that the classification here is wholly without any rational basis. Moreno, 413 U.S. at 538. Likewise, in Windsor, the Supreme Court held that the purpose of the federal DOMA was to impose inequality, not for other reasons like governmental efficiency. 133 S. Ct. at 2694. Under Supreme Court jurisprudence, states are free to determine conditions for valid marriages, but these restrictions must be supported by legitimate state purposes because they infringe on important liberty interests around marriage and intimate relations. In derogation of law, the Ohio scheme has unjustifiably created two tiers of couples: (1) opposite-sex married couples legally married in other states; and (2) same-sex married couples legally married in other states. This lack of equal protection of law is fatal.
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As a threshold matter, it is absolutely clear that under Ohio law, from the founding of the State through at least 2004, the validity of an opposite-sex marriage is to be determined by whether it complies with the law of the jurisdiction where it was celebrated. That is, a marriage solemnized outside of Ohio is valid in Ohio if it is valid where solemnized. Thus the leading compendium of Ohio law states: Generally, a marriage solemnized outside of Ohio is valid in Ohio if it is valid where solemnized. Thus, the validity of a common-law marriage is determined by the law of the state where it was consummated, and that of a solemnized marriage by the law of the state where it was contracted. Likewise, a marriage created in a foreign nation is valid according to that nation's laws. [] The fact that the parties to a marriage left the state to marry in order to evade Ohio's marriage laws is immaterial to the marriages validity in Ohio. See 45 Ohio Jur. 3d Family Law 11. Longstanding Ohio law has been clear: a marriage solemnized outside of Ohio is valid in Ohio if it is valid where solemnized. This legal approach is firmly rooted in the longstanding legal principle of lex loci contractus -- i.e., the law of the place of the contracting controls. Ohio has adopted this legal approach from its inception as a State. Thus, for example, under Ohio law, as declared by the Supreme Court of Ohio in 1958, out-of-state marriages between first cousins are recognized by Ohio, even though Ohio law does not authorize marriages between first cousins. Mazzolini v. Mazzolini, 155 N.E.2d 206, 208 (Ohio Sup. Ct. 1958) (marriage of first cousins was legal in Mass- achusetts and therefore is legal in Ohio regardless of the Ohio statute to the contrary). Case: l:l3-cv-0050l-TSB Doc #: l3 Filed: 07/22/l3 Page: 9 of l5 PAGElD #: 99 Case 3:13-cv-00750-JGH Document 38-2 Filed 12/16/13 Page 9 of 15 PageID #: 371 10
Likewise, under Ohio law, out-of-state marriages of minors are recognized by Ohio, even though Ohio law does not authorize marriages of minors. See Hardin v. Davis, 16 Ohio Supp. 19, at *22 (Com. Pl. Hamilton Co. May 18, 1945) (But, although first cousins cannot marry in Ohio, it has been held that if they go to another state where such marriages are allowed, marry, and return to Ohio, the marriage is legal in Ohio); see also Slovenian Mut. Ben. Assn v. Knafelj, 173 N.E. 630, 631 (Ohio App. 1930) (It is true that, under the laws of Ohio, if she were his first cousin he could not marry her; but they could go to the state of Michigan, or the state of Georgia, and perhaps many other states in the United States, and intermarry, and then come right back into Ohio and the marriage would be legal); see also Peefer v. State, 182 N.E. 117, 121 (Ohio App. 1931) (where underage couples leave the state to marry in a state in which their marriage is valid and return to Ohio, the marriage cannot be set aside based on Ohios law against marriage of underage people); see also Courtright v. Courtright, 1891 Ohio Misc. LEXIS 161, at *7, affd without opinion, 53 Ohio 685 (Ohio 1895) (marriage between persons considered underage in Ohio married in a state where their marriage is legal cannot be set aside, either because it was not contracted in accordance with the law of this state, or because the parties went out of the state for the purpose of evading the laws of this state). Quintessentially, Plaintiffs have established a substantial likelihood that they will prevail at trial on their claim that by treating lawful same sex marriages differently than it treats lawful opposite sex marriages (e.g., marriages of first cousins and marriages of Case: l:l3-cv-0050l-TSB Doc #: l3 Filed: 07/22/l3 Page: l0 of l5 PAGElD #: l00 Case 3:13-cv-00750-JGH Document 38-2 Filed 12/16/13 Page 10 of 15 PageID #: 372 11
minors), Ohio law, as applied here, violates the United States Constitution which guarantees that "No State shall make or enforce any law which shall ... deny to any person within its jurisdiction equal protection of the laws." Moreover, as the United States Supreme Court found in Windsor, there is no legitimate state purpose served by refusing to recognize same-sex marriages celebrated in states where they are legal. Instead, as in Windsor, and at least on this early record here, the very purpose of the Ohio provisions, enacted in 2004, is to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States. Windsor, 133 S.Ct. at 2639. The purpose served by treating same-sex married couples differently than opposite-sex married couples is the same improper purpose that failed in Windsor and in Romer: to impose inequality and to make gay citizens unequal under the law. See Windsor, 133 S.Ct. at 2694; see Romer, 517 U.S. at 635-36. It is beyond cavil that it is constitutionally prohibited to single out and disadvantage an unpopular group. Even if there were proffered some attendant governmental purpose to discriminate against gay couples, other than to effect pure animus, it is difficult to imagine how it could outweigh the severe burden imposed by the ban imposed on same-sex couples legally married in other states. Families deserve the highest level of protection under the First Amendment right of association:
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Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.
Zablocki v. Redhail, 434 U.S. 374, 384, (1978) (citing Griswold v. Connecticut, 381 U.S. 479, 486 (1965)). Even if the classification of same-sex couples legally married in other states is reviewed under the least demanding rational basis test, this Court on this record cannot find a rational basis for the Ohio provisions discriminating against lawful, out-of- state same sex marriages that is not related to the impermissible expression of disapproval of same-sex married couples. Consequently, Plaintiffs have demonstrated a strong likelihood of success on the merits. Moreover, denying Plaintiffs their associational rights under the circumstances presented here imposes irreparable harm. Constitutional violations are routinely recognized as triggering irreparable harm unless they are promptly remedied. See, e.g., Elrod v. Burns, 427 U.S. 347, 373 (1976) (loss of constitutional freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury). As stated, rights associated with marriage are fundamental. Zablocki, 434 U.S. at 374. Thus, this Court has routinely concluded that Plaintiffs will suffer irreparable harm if the Court does not issue the injunction because of the threatened infringement of the Plaintiffs' fundamental rights. See, e.g., Equal. Found. of Greater Cincinnati, Inc. v. City of Cincinnati, 838 F. Supp. 1235, 1242-43 (S.D. Ohio 1993) revd and vacated, 54 F.3d 261 (6th Cir. 1995) Case: l:l3-cv-0050l-TSB Doc #: l3 Filed: 07/22/l3 Page: l2 of l5 PAGElD #: l02 Case 3:13-cv-00750-JGH Document 38-2 Filed 12/16/13 Page 12 of 15 PageID #: 374 13
cert. granted, judgment vacated, 518 U.S. 1001 (1996). In fact, when an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary. 11A Fed. Prac. & Proc. Civ. 2948.1 (2d ed.). 1
In addition to the alleged denial of Plaintiffs constitutional rights, the Court must also consider the fact that Mr. Arthur is in hospice care and death is imminent. Without a temporary restraining order, the official record of Mr. Arthurs death, and the last official document recording his existence on earth, will incorrectly classify him as unmarried, despite his legal marriage to Mr. Obergefell. The death certificate will also incorrectly fail to record Mr. Obergefell as the surviving spouse, which status he lawfully enjoys. Furthermore, Mr. Arthur wants to be buried in his family plot at Spring Grove Cemetery. He also wants Mr. Obergefell to be buried next to him someday. The family plot directive limits those who may be interred in the plot to descendants and married spouses. Thus, without a temporary restraining order, Mr. Arthurs burial may be delayed or his
1 See, e.g., Overstreet, 305 F.3d at 578 (6th Cir. 2002) (a plaintiff can demonstrate that a denial of an injunction will cause irreparable harm if the claim is based upon a violation of plaintiffs constitutional rights); ACLU of KY v. McCreary County, Kentucky, 354 F.3d 438, 445 (6th Cir. 2003) (if it is found that a constitutional right is being threatened or impaired, a finding of irreparable injury is mandated); Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998) (recognizing that the loss of First Amendment rights, for even a minimal period of time, constitutes irreparable harm) (citations omitted); Council of Alternative Political Parties v. Hooks, 121 F.3d 876 (3rd Cir. 1997) (denial of preliminary injunctive relief was irreparable harm to plaintiffs voting and associational rights); Covino v. Patrissi, 967 F.2d 73, 77 (2d Cir. 1992) (holding that plaintiffs may establish irreparable harm based on an alleged violation of their Fourth Amendment rights); McDonell v. Hunter, 746 F.2d 785, 787 (8th Cir. 1984) (finding that a violation of privacy constitutes an irreparable harm); Mitchell v. Cuomo, 748 F.2d 804, 806 (2d Cir. 1984) (holding allegation of violation of Eighth Amendment rights sufficient showing of irreparable harm); Doe v. Mundy, 514 F.2d 1179 (7th Cir 1975) (denial of constitutional privacy right was irreparable harm); Beerheide v. Zavaras, 997 F.Supp. 1405 (D.C. Colo. 1998) (irreparable harm satisfied by allegation of deprivation of free exercise of religion). Case: l:l3-cv-0050l-TSB Doc #: l3 Filed: 07/22/l3 Page: l3 of l5 PAGElD #: l03 Case 3:13-cv-00750-JGH Document 38-2 Filed 12/16/13 Page 13 of 15 PageID #: 375 14
remains may have to be exhumed when this case is finally decided. See Yankton Sioux Tribe v. U.S. Army Corps of Engineers, 209 F. Supp. 2d 1008, 1022 (D.S.D. 2002) (disruption of human remains can be irreparable harm). Finally, the uncertainty around this issue during Mr. Arthurs final illness is the cause of extreme emotional hardship to the couple. Dying with an incorrect death certificate that prohibits Mr. Arthur from being buried with dignity constitutes irreparable harm. Furthermore, Mr. Arthurs harm is irreparable because his injury is present now, while he is alive. A later decision allowing an amendment to the death certificate cannot remediate the harm to Mr. Arthur, as he will have passed away. Moreover, there is absolutely no evidence that the State of Ohio or its citizens will be harmed by the issuance of an order temporarily restraining the enforcement of these provisions against the Plaintiffs in this case. No one beyond Plaintiffs themselves will be affected by such a limited order at all. Without an injunction, however, the harm to Plaintiffs is severe. Plaintiffs are not currently accorded the same dignity and recognition as similarly situated opposite-sex couples. Moreover, upon Mr. Arthurs death, Plaintiffs legally valid marriage will be incorrectly recorded in Ohio as not existing. Balanced against this severe and irreparable harm to Plaintiffs is the truth that there is no evidence in the record that the issuance of a preliminary injunction would cause substantial harm to the public. And, as a final consideration, the public interest is promoted by the robust enforcement of constitutional rights. Am. Freedom Def. Initiative v. Suburban 15 Case: l:l3-cv-0050l-TSB Doc #: l3 Filed: 07/22/l3 Page: l4 of l5 PAGElD #: l04 Case 3:13-cv-00750-JGH Document 38-2 Filed 12/16/13 Page 14 of 15 PageID #: 376 15
Mobility for Reg. Transp., 698 F.3d 885, 896 (6th Cir. 2012). Weighing all factors applicable to analyzing whether injunctive relief should issue, the Court finds that each factor supports the granting of a temporary restraining order. V. CONCLUSION This Court finds that Plaintiffs have established by clear and convincing evidence their entitlement to injunctive relief. Accordingly, Plaintiffs motion for a temporary restraining order (Doc. 3) is GRANTED, and a temporary restraining order shall issue by separate order, directing, inter alia, that the local Ohio Registrar of death certificates is hereby ORDERED not to accept for recording a death certificate for John Arthur which does not record his status as "married" and/or does not record James Obergefell as Mr. Arthurs "surviving spouse at the time of Mr. Obergefells death, which is imminent. IT IS SO ORDERED. Date: July 22, 2013 /s/ Timothy S. Black Timothy S. Black United States District Judge Case: l:l3-cv-0050l-TSB Doc #: l3 Filed: 07/22/l3 Page: l5 of l5 PAGElD #: l05 Case 3:13-cv-00750-JGH Document 38-2 Filed 12/16/13 Page 15 of 15 PageID #: 377 Case 3:13-cv-00750-JGH Document 38-3 Filed 12/16/13 Page 1 of 5 PageID #: 378 Case 3:13-cv-00750-JGH Document 38-3 Filed 12/16/13 Page 2 of 5 PageID #: 379 Case 3:13-cv-00750-JGH Document 38-3 Filed 12/16/13 Page 3 of 5 PageID #: 380 Case 3:13-cv-00750-JGH Document 38-3 Filed 12/16/13 Page 4 of 5 PageID #: 381 Case 3:13-cv-00750-JGH Document 38-3 Filed 12/16/13 Page 5 of 5 PageID #: 382 Case 3:13-cv-00750-JGH Document 38-4 Filed 12/16/13 Page 1 of 6 PageID #: 383 Case 3:13-cv-00750-JGH Document 38-4 Filed 12/16/13 Page 2 of 6 PageID #: 384 Case 3:13-cv-00750-JGH Document 38-4 Filed 12/16/13 Page 3 of 6 PageID #: 385 Case 3:13-cv-00750-JGH Document 38-4 Filed 12/16/13 Page 4 of 6 PageID #: 386 Case 3:13-cv-00750-JGH Document 38-4 Filed 12/16/13 Page 5 of 6 PageID #: 387 Case 3:13-cv-00750-JGH Document 38-4 Filed 12/16/13 Page 6 of 6 PageID #: 388 Case 3:13-cv-00750-JGH Document 38-5 Filed 12/16/13 Page 1 of 7 PageID #: 389 Case 3:13-cv-00750-JGH Document 38-5 Filed 12/16/13 Page 2 of 7 PageID #: 390 Case 3:13-cv-00750-JGH Document 38-5 Filed 12/16/13 Page 3 of 7 PageID #: 391 Case 3:13-cv-00750-JGH Document 38-5 Filed 12/16/13 Page 4 of 7 PageID #: 392 Case 3:13-cv-00750-JGH Document 38-5 Filed 12/16/13 Page 5 of 7 PageID #: 393 Case 3:13-cv-00750-JGH Document 38-5 Filed 12/16/13 Page 6 of 7 PageID #: 394 Case 3:13-cv-00750-JGH Document 38-5 Filed 12/16/13 Page 7 of 7 PageID #: 395 Case 3:13-cv-00750-JGH Document 38-6 Filed 12/16/13 Page 1 of 5 PageID #: 396 Case 3:13-cv-00750-JGH Document 38-6 Filed 12/16/13 Page 2 of 5 PageID #: 397 Case 3:13-cv-00750-JGH Document 38-6 Filed 12/16/13 Page 3 of 5 PageID #: 398 Case 3:13-cv-00750-JGH Document 38-6 Filed 12/16/13 Page 4 of 5 PageID #: 399 Case 3:13-cv-00750-JGH Document 38-6 Filed 12/16/13 Page 5 of 5 PageID #: 400
EXHIBIT 6
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Video footage of Kentucky State Senate proceedings, March 11, 2004 filed with this Court on DVD.
Case 3:13-cv-00750-JGH Document 38-7 Filed 12/16/13 Page 1 of 1 PageID #: 401
No. 12-144 In The Supreme Court of the United States DENNIS HOLLINGSWORTH, ET AL., Petitioners, v. KRISTIN M. PERRY, ET AL., Respondents.
On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit
BRIEF OF THE AMERICAN PSYCHOLOGICAL ASSOCIATION, THE AMERICAN MEDICAL ASSOCIATION, THE AMERICAN ACADEMY OF PEDIATRICS, THE CALIFORNIA MEDICAL ASSOCIATION, THE AMERICAN PSYCHIATRIC ASSOCIATION, THE AMERICAN PSYCHOANALYTIC ASSOCIATION, THE AMERICAN ASSOCIATION FOR MARRIAGE AND FAMILY THERAPY, THE NATIONAL ASSOCIATION OF SOCIAL WORKERS AND ITS CALIFORNIA CHAPTER, AND THE CALIFORNIA PSYCHOLOGICAL ASSOCIATION AS AMICI CURIAE ON THE MERITS IN SUPPORT OF AFFIRMANCE NATHALIE F.P. GILFOYLE AMERICAN PSYCHOLOGICAL ASSOCIATION 750 First Street, N.E. Washington, DC 20002
PAUL M. SMITH Counsel of Record JENNER & BLOCK LLP 1099 New York Ave., N.W. Washington, DC 20001 (202) 639-6000 PSmith@jenner.com WILLIAM F. SHEEHAN ANDREW HUDSON GOODWIN | PROCTER LLP 901 New York Avenue, N.W. Washington, D.C. 20001 Counsel for Amici Curiae Case 3:13-cv-00750-JGH Document 38-8 Filed 12/16/13 Page 1 of 62 PageID #: 402
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TABLE OF CONTENTS TABLE OF AUTHORITIES .................................... iii INTEREST OF AMICI CURIAE ............................. 1 INTRODUCTION AND SUMMARY ....................... 4 ARGUMENT ............................................................ 5 I. The Scientific Evidence Presented in This Brief. .................................................. 5 II. Homosexuality Is a Normal Expression of Human Sexuality, Is Generally Not Chosen, and Is Highly Resistant to Change .......................... 7 III. Sexual Orientation and Relationships ............................................... 11 A. Gay Men and Lesbian Women Form Stable, Committed Relationships That Are Equivalent to Heterosexual Relationships in Essential Respects. ....................... 11 B. The Institution of Marriage Offers Social, Psychological, and Health Benefits That Are Denied to Same-Sex Couples. ............................................. 14 IV. The Children of Same-Sex Couples ............ 18 A. Many Same-Sex Couples Are Raising Children. ....................... 18 B. The Factors That Affect the Adjustment of Children Are Not Dependent on Parental Case 3:13-cv-00750-JGH Document 38-8 Filed 12/16/13 Page 2 of 62 PageID #: 403
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Gender or Sexual Orientation ........................................ 18 C. There Is No Scientific Basis for Concluding That Gay and Lesbian Parents Are Any Less Fit or Capable Than Heterosexual Parents, or That Their Children Are Any Less Psychologically Healthy and Well Adjusted. ............. 22 V. Challenges to the Evidence on Same-Sex Parents by Other Amici Are Unfounded ............................................. 31 A. The Methodological Criticisms Fail to Recognize the Cumulative Nature of Scientific Research ............................ 31 B. The Regnerus Study Does Not Provide Evidence That Parental Sexual Orientation Affects Child Development Outcomes ........................................... 33 VI. Denying the Status of Marriage to Same-Sex Couples Stigmatizes Them. ........................................................... 34 CONCLUSION ....................................................... 37 Case 3:13-cv-00750-JGH Document 38-8 Filed 12/16/13 Page 3 of 62 PageID #: 404
Heckler v. Mathews, 465 U.S. 728 (1984) ............................................................. 36
Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012) ....................... 4, 36
OTHER AUTHORITIES:
J.M. Adams & W.H. Jones, The Conceptualization of Marital Commitment: An Integrative Analysis, 72 J. Personality & Soc. Psychol. 1177 (1997) ..................................... 17
Am. Acad. of Pediatrics, Committee on Psychosocial Aspects of Child and Family Health, Policy Statement: Promoting the Well-Being of Children Whose Parents are Gay or Lesbian, 131 Pediatrics (forthcoming 2013) ........................................ 29
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Am Assn for Marriage & Fam. Therapy, AAMFT Position on Couples and Families (2005), available at http://www. aamft.org/imis15/Content/About_A AMFT/Position_On_Couples.aspx ................ 3
Am. Assn for Marriage & Fam. Therapy, Reparative/Conversion Therapy (2009), available at http://www.aamft.org/iMIS15/AAM FT/MFT_Resources/Content/Resou rces/Position_On_Couples.aspx .................... 10
Am. Med. Assn, Policy H-60.940, Partner Co-Adoption, available at http://www.ama- assn.org/ama/pub/about-ama/our- people/member-groups- sections/glbt-advisory- committee/ama-policy-regarding- sexual-orientation.page ................................ 30-31
Am. Med. Assn, Policy H-65.973, Health Care Disparities in Same- Sex Partner Households, available at http://www.ama- assn.org/ama/pub/about-ama/our- people/member-groups- sections/glbt-advisory- committee/ama-policy-regarding- sexual-orientation.page ................................ 35
Case 3:13-cv-00750-JGH Document 38-8 Filed 12/16/13 Page 5 of 62 PageID #: 406
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Am. Med. Assn, Policy H-160.991, Health Care Needs of the Homosexual Population, available at http://www.ama- assn.org/ama/pub/about-ama/our- people/member-groups- sections/glbt-advisory- committee/ama-policy-regarding- sexual-orientation.page ................................ 10
Am. Psychiatric Assn, Position Statement: Homosexuality and Civil Rights (1973), in 131 Am. J. Psychiatry 497 (1974) ................................... 8
Am. Psychiatric Assn, Position Statement: Psychiatric Treatment and Sexual Orientation (1998), available at http://www.psych.org/Departments /EDU/Library/APAOfficialDocume ntsandRelated/PositionStatements /199820.aspx .................................................. 10
Am. Psychiatric Assn, Position Statement: Support of Legal Recognition of Same-Sex Civil Marriage (2005), available at http://www.psych.org/Departments /EDU/Library/APAOfficialDocume ntsandRelated/PositionStatements /200502.aspx. ................................................. 2, 30
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Am. Psychoanalytic Assn, Position Statement: Attempts to Change Sexual Orientation, Gender Identity, or Gender Expression (2012), available at http://www.apsa.org/about_apsaa/p osition_statements/attempts_to_ change_sexual_orientation.aspx .................. 10
Am. Psychoanalytic Assn, Position Statement: Parenting (2012), available at http://www.apsa.org/about_apsaa/p osition_statements/parenting.aspx .............. 30
Am. Psychol. Assn, Minutes of the Annual Meeting of the Council of Representatives, 30 Am. Psychologist 620 (1975) ................................ 8
Am. Psychol. Assn, Report of the American Psychological Association Task Force on Appropriate Therapeutic Responses to Sexual Orientation (2009), available at http://www.apa.org/pi/lgbt/resource s/sexual-orientation.aspx .............................. 10
Am. Psychol. Assn, Resolution on Appropriate Affirmative Responses to Sexual Orientation Distress and Change Efforts (2009), available at http://www.apa.org/pi/lgbt/resource s/sexual-orientation.aspx .............................. 10 Case 3:13-cv-00750-JGH Document 38-8 Filed 12/16/13 Page 7 of 62 PageID #: 408
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Am. Psychol. Assn, Resolution on Marriage Equality For Same-Sex Couples (2011), available at http://www.apa.org/about/governan ce/council/policy/same-sex.pdf ...................... 1
Am. Psychol. Assn, Resolution on Sexual Orientation, Parents, and Children (2004), available at http://www.apa.org/about/governan ce/council/policy/parenting.pdf ..................... 29
P.R. Amato, Children of Divorce in the 1990s: An Update of the Amato and Keith (1991) Meta-Analysis, 15 J. Fam. Psychol. 355 (2001) ..................... 21, 28
N. Anderssen et al., Outcomes for Children with Lesbian or Gay Parents: A Review of Studies from 1978 to 2000, 43 Scand. J. Psychol. 335 (2002) ...................................................... 23
M.V.L. Badgett, Money, Myths, and Change: The Economic Lives of Lesbians and Gay Men (2001) ...................... 36
K.F. Balsam et al., Three-Year Follow- Up of Same-Sex Couples Who Had Civil Unions in Vermont, Same- Sex Couples Not in Civil Unions, and Heterosexual Married Couples, 44 Developmental Psychol. 102 (2008) ....................................... 13-14
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P. Berger & H. Kellner, Marriage and the Construction of Reality: An Exercise In the Microsociology of Knowledge, 12 Diogenes 1 (1964) ................. 14
T.J. Biblarz & J. Stacey, How Does the Gender of Parents Matter?, 72 J. Marriage & Fam. 3 (2010) ........................ 23, 25
H. Bos & T.G.M. Sandfort, Childrens Gender Identity in Lesbian and Heterosexual Two-Parent Families, 62 Sex Roles 114 (2010) ................ 23, 26
S.L. Brown, The Effect of Union Type on Psychological Well-Being: Depression Among Cohabitors Versus Marrieds, 41 J. Health & Soc. Behav. 241 (2000) .................................. 16
R.P.D. Burton, Global Integrative Meaning as a Mediating Factor in the Relationship Between Social Roles and Psychological Distress, 39 J. Health & Soc. Behav. 201 (1998) ............................................................. 14
R.W. Chan et al., Psychosocial Adjustment Among Children Conceived Via Donor Insemination By Lesbian and Heterosexual Mothers, 69 Child Dev. 443 (1998) ............... 21, 22
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S.D. Cochran et al., Prevalence of Mental Disorders, Psychological Distress, and Mental Services Use Among Lesbian, Gay, and Bisexual Adults in the United States, 71 J. Consulting & Clinical Psychol. 53 (2003) ............................................................. 12
Consequences of Growing Up Poor (G.J. Duncan & J. Brooks-Gunn eds., 1997) ...................................................... 22
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E.M. Cummings et al., Childrens Responses to Everyday Marital Conflict Tactics in the Home, 74 Child Dev. 1918 (2003) ................................. 21
E.M. Cummings et al., Everyday Marital Conflict and Child Aggression, 32 J. Abnormal Child Psychol. 191 (2004) ....................................... 21
A.R. DAugelli et al., Lesbian and Gay Youths Aspirations for Marriage and Raising Children, 1 J. LGBT Issues Counseling 77 (2007) ......................... 12
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A.R. DAugelli, Sexual Orientation, in 7 Am. Psychol. Assn, Encyclopedia of Psychology 260 (A.E. Kazdin ed., 2000) .............................................................. 7
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S. Erich et al., A Comparative Analysis of Adoptive Family Functioning with Gay, Lesbian, and Heterosexual Parents and Their Children, 1 J. GLBT Fam. Stud. 43 (2005)................... 24
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R.H. Farr et al., Parenting and Child Development in Adoptive Families: Does Parental Sexual Orientation Matter?, 14 Applied Developmental Sci. 164 (2010) ................ 23, 24, 27
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M. Fulcher et al., Individual Differences in Gender Development: Associations with Parental Sexual Orientation, Attitudes, and Division of Labor, 58 Sex Roles 330 (2008) ................................ 27
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E. Goffman, Stigma: Notes on the Management of Spoiled Identity (1963) ............................................................. 35
A.E. Goldberg et al., Gender-Typed Play Behavior in Early Childhood: Adopted Children with Lesbian, Gay, and Heterosexual Parents, 67 Sex Roles 503 (2012) ..................................... 27
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W.R. Gove et al., The Effect of Marriage on the Well-Being of Adults: A Theoretical Analysis, 11 J. Fam. Issues 4, 16 (1990) ........................... 14, 15
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G. Herek et al., Demographic, Psychological, and Social Characteristics of Self-Identified Lesbian, Gay, and Bisexual Adults in a US Probability Sample, 7 Sexuality Res. & Soc. Policy 176 (2010) .......................................................... 9, 11, 12
G. Herek et al., Internalized Stigma Among Sexual Minority Adults: Insights From a Social Psychological Perspective, 56 J. Counseling Psychol. 32 (2009) ...................... 9
G.M. Herek, Bad Science in the Service of Stigma: A Critique of the Cameron Groups Survey Studies, in Stigma and Sexual Orientation: Understanding Prejudice Against Lesbians, Gay Men, and Bisexuals 223 (G.M. Herek ed., 1998) ........................... 28
G.M. Herek, Hate Crimes and Stigma- Related Experiences Among Sexual Minority Adults in the United States: Prevalence Estimates from a National Probability Sample, 24 J. Interpersonal Violence 54 (2009) ................. 35-36
G.M. Herek, Homosexuality, in 2 The Corsini Encyclopedia of Psychology 774-76 (I.B. Weiner & W.E. Craighead eds., 4th ed. 2010). ...................... 7
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G.M. Herek et al., Psychological Sequelae of Hate-Crime Victimization Among Lesbian, Gay, and Bisexual Adults, 67 J. Consulting & Clinical Psychol. 945 (1999) ............................................................. 36
E. Hooker, The Adjustment of the Male Overt Homosexual, 21 J. Projective Techs. 18 (1957) ........................... 8
M.E. Hotvedt & J.B. Mandel, Children of Lesbian Mothers, in Homosexuality: Social, Psychological, and Biological Issues 275 (W. Paul et al. eds., 1982) .............................................................. 27
Institute of Medicine, The Health of Lesbian, Gay, Bisexual, and Transgender People: Building a Foundation for Better Understanding (2011) ................................... 7, 25
N.J. Johnson et al., Marital Status and Mortality: The National Longitudinal Mortality Study, 10 Annals Epidemiology 224 (2000) .................. 15
J.K. Kiecolt-Glaser & T.L. Newton, Marriage and Health: His and Hers, 127 Psychol. Bull. 472 (2001) ............. 16
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L.A. Kurdek, Are Gay and Lesbian Cohabiting Couples Really Different from Heterosexual Married Couples?, 66 J. Marriage & Fam. 880 (2004)......................................... 13
L.A. Kurdek, Change in Relationship Quality for Partners from Lesbian, Gay Male, and Heterosexual Couples, 22 J. Fam. Psychol. 701 (2008) ............................................................. 13, 14
L.A. Kurdek, Relationship Outcomes and Their Predictors: Longitudinal Evidence from Heterosexual Married, Gay Cohabiting, and Lesbian Cohabiting Couples, 60 J. Marriage & Fam. 553 (1998) ........................ 17-18
L.A. Kurdek, What Do We Know About Gay and Lesbian Couples?, 14 Current Directions Psychol. Sci. 251 (2005) ...................................................... 13
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M.E. Lamb & C. Lewis, The Role of Parent-Child Relationships in Child Development, in Developmental Science: An Advanced Textbook 429-68 (M.H. Bornstein & M.E. Lamb eds., 5th ed. 2005) ........................................................ 19, 20
G. Levinger, Marital Cohesiveness and Dissolution: An Integrative Review, 27 J. Marriage & Fam. 19 (1965) ............................................................. 17
B.G. Link & J.C. Phelan, Conceptualizing Stigma, 27 Ann. Rev. Soc. 363 (2001) ...................................... 35
L. Marks, Same-Sex Parenting and Childrens Outcomes: A Closer Examination of the American Psychological Associations Brief on Lesbian and Gay Parenting, 41 Soc. Sci. Res. 735 (2012) ............................... 32-33
S. McLanahan & G. Sandefur, Growing Up With a Single Parent: What Hurts, What Helps (1994) .................. 21
T.C. Mills et al., Health-Related Characteristics of Men Who Have Sex with Men: A Comparison of Those Living in Gay Ghettos with Those Living Elsewhere, 91 Am. J. Pub. Health 980 (2001) ..................... 12
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J.E. Murray, Marital Protection and Marital Selection: Evidence from a Historical-Prospective Sample of American Men, 37 Demography 511 (2000) ...................................................... 15
Natl Assn of Soc. Workers, Policy Statement: Family Planning and Reproductive Choice, in Social Work Speaks 129 (9th ed. 2012) ................... 30
Natl Assn of Soc. Workers, Policy Statement: Lesbian, Gay, and Bisexual Issues, in Social Work Speaks 193 (4th ed. 1997) ............................. 30
Natl Assn of Soc. Workers, Position Statement: Reparative and Conversion Therapies for Lesbians and Gay Men (2000), available at http://www.naswdc.org/diversity/lg b/reparative.asp ............................................ 10
Neighborhood Poverty: Context and Consequences for Children (J. Brooks-Gunn et al. eds., 1997) ................ 22
C.J. Patterson, Children of Lesbian and Gay Parents: Psychology, Law, and Policy, 64 Am. Psychologist 727 (2009) ...................................................... 23
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C.J. Patterson, Family Lives of Lesbian and Gay Adults, in Handbook of Marriage and the Family 659 (G.W. Peterson & K.R. Bush eds., 3d ed. 2013) ...................... 23, 26, 27, 28
C.J. Patterson, Family Relationships of Lesbians and Gay Men, 62 J. Marriage & Fam. 1052 (2000) ............. 23
C.J. Patterson, Gay Fathers, in The Role of the Father in Child Development 397 (M.E. Lamb ed., 4th ed. 2004) .................................................. 24
C.J. Patterson, Lesbian and Gay Parents and Their Children: A Social Science Perspective, in Contemporary Perspectives on Lesbian, Gay, and Bisexual Identities, Nebraska Symposium on Motivation 141 (D.A. Hope ed., 2009) .................................... 22
C.J. Patterson, & P.D. Hastings, Socialization in the Context of Family Diversity, in Handbook of Socialization: Theory and Research 328-51 (J.E. Grusec & P.D. Hastings eds., 2007) ................................ 19, 20, 22
L.A. Peplau & A.W. Fingerhut, The Close Relationships of Lesbians and Gay Men, 58 Ann. Rev. Psychol. 405 (2007) ....................................... 12, 13 Case 3:13-cv-00750-JGH Document 38-8 Filed 12/16/13 Page 20 of 62 PageID #: 421
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L.A. Peplau & K.P. Beals, The Family Lives of Lesbians and Gay Men, in Handbook of Family Communication 233 (A.L. Vangelisti ed., 2004) ..................................... 14
L.A. Peplau & N. Ghavami, Gay, Lesbian, and Bisexual Relationships, in Enclyclopedia of Human Relationships (H.T. Reis & S. Sprecher eds., 2009) .............................................................. 12, 13
E.C. Perrin & Comm. on Psychosocial Aspects of Child & Fam. Health, Technical Report: Coparent or Second-Parent Adoption by Same- Sex Parents, 109 Pediatrics 341 (2002) ............................................................. 23, 26
D. Potter, Same-Sex Parent Families and Childrens Academic Achievement, 74 J. Marriage & Fam. 556 (2012) ........................................... passim
D. Previti & P.R. Amato, Why Stay Married? Rewards, Barriers, and Marital Stability, 65 J. Marriage & Fam. 561 (2003) ............................................ 17
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M. Regnerus, How Different are the Adult Children of Parents Who Have Same-Sex Relationships? Findings from the New Family Structures Study, 41 Soc. Sci. Res. 752 (2012) ...................................................... 33
B.F. Riess, Psychological Tests in Homosexuality, in Homosexual Behavior: A Modern Reappraisal 296 (J. Marmor ed., 1980) ............................. 8
I. Rivers et al., Victimization, Social Support, and Psychosocial Functioning Among Children of Same-Sex and Opposite-Sex Couples in the United Kingdom, 44 Developmental Psychol. 127 (2008) ............. 23-24
G.I. Roisman et al., Adult Romantic Relationships as Contexts for Human Development: A Multimethod Comparison of Same- Sex Couples with Opposite-Sex Dating, Engaged, and Married Dyads, 44 Developmental Psychol. 91 (2008) ........................................................ 13
M.J. Rosenfeld, Nontraditional Families and Childhood Progress through School, 47 Demography 755 (2010) ...................................................... passim
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C.E. Ross et al., The Impact of the Family on Health: The Decade in Review, 52 J. Marriage & Fam. 1059 (1990) .................................................... 15
C.E. Ross, Reconceptualizing Marital Status as a Continuum of Social Attachment, 57 J. Marriage & Fam. 129 (1995) ............................................ 15-16
S. Stack & J.R. Eshleman, Marital Status and Happiness: A 17- Nation Study, 60 J. Marriage & Fam. 527 (1998) ............................................ 14
Same-Sex Unmarried Partner or Spouse Households by Sex of Householder by Presence of Own Children: 2010 Census and 2010 American Community Survey, available at http://www.census.gov/hhes/sames ex/files/supp-table-AFF.xls. .......................... 13, 18
S. Sarantakos, Children in Three Contexts: Family, Education, and Social Development, 21 Child. Australia 23 (1996) ....................................... 28
D.E. Sherkat, The Editorial Process and Politicized Scholarship: Monday Morning Editorial Quarterbacking and a Call for Scientific Vigilance, 41 Soc. Sci. Res. 1346 (2012) ............................................ 34 Case 3:13-cv-00750-JGH Document 38-8 Filed 12/16/13 Page 23 of 62 PageID #: 424
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R.W. Simon, Revisiting the Relationships Among Gender, Marital Status, and Mental Health, 107 Am. J. Soc. 1065 (2002) ............................................................. 15
J. Stacey & T.J. Biblarz, (How) Does the Sexual Orientation of Parents Matter?, 66 Am. Soc. Rev. 159 (2001) ............................................................. 22, 24
E.L. Sutfin et al., How Lesbian and Heterosexual Parents Convey Attitudes about Gender to their Children: The Role of Gendered Environments, 58 Sex Roles 501 (2008) ............................................................. 25, 27
C.J. Telingator & C.J. Patterson, Children and Adolescents of Lesbian and Gay Parents, 47 J. Am. Acad. Child & Adolescent Psychiatry 1364 (2008) ................................. 22
The Family Context of Parenting in Childrens Adaptation to Elementary School (P.A. Cowan et al. eds., 2005) ................................................. 21
J.L. Wainright et al., Psychosocial Adjustment, School Outcomes, and Romantic Relationships of Adolescents With Same-Sex Parents, 75 Child Dev. 1886 (2009) ........ 22, 25, 32
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J.L. Wainright & C.J. Patterson, Delinquency, Victimization, and Substance Use Among Adolescents With Female Same-Sex Parents, 20 J. Fam. Psychol. 526 (2006) ............... 24, 31, 32
L.K. White & A. Booth, Divorce Over the Life Course: The Role of Marital Happiness, 12 J. Fam. Issues 5 (1991) ............................................... 17
K. Williams, Has the Future of Marriage Arrived? A Contemporary Examination of Gender, Marriage, and Psychological Well-Being, 44 J. Health & Soc. Behav. 470 (2003) .................. 16
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INTEREST OF AMICI CURIAE 1
The American Psychological Association, the worlds largest professional association of psychologists, is a scientific and educational organization dedicated to increasing and disseminating psychological knowledge. The Association has adopted multiple research-based policy statements supporting the rights of gay and lesbian people, including a 2011 policy statement supporting full marriage equality and recognizing that according gay and lesbian people only a civil union status perpetuates the stigma historically attached to homosexuality, and reinforces prejudice against lesbian, gay, and bisexual people. Am. Psychol. Assn, Resolution on Marriage Equality For Same-Sex Couples (2011), available at http://www. apa.org/about/policy/same-sex.pdf. The American Medical Association (AMA) is the largest professional association of physicians, residents, and medical students in the United States, substantially all of whom are represented in the AMAs policy making process. The objectives of the AMA are to promote the science and art of medicine and the betterment of public health. Its policies regarding gay and lesbian issues promote those objectives. The American Academy of Pediatrics (AAP) is the largest professional association of pediatricians in
1 No partys counsel authored this brief in whole or in part, and no party or a partys counsel nor any other person other than the Amici contributed money that was intended to fund preparing or submitting the brief. Case 3:13-cv-00750-JGH Document 38-8 Filed 12/16/13 Page 26 of 62 PageID #: 427
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the world, with over 62,000 members. Through education, research, advocacy, and the provision of expert advice, AAP seeks the optimal physical, mental, and social health and well-being for infants, children, adolescents, and young adults. The AAP supports marriage equality for all capable and consenting couples, including those who are of the same gender. The American Psychiatric Association is the Nations largest organization of physicians specializing in psychiatry. It joins this brief for the reasons expressed in its 2005 position statement, Support of Legal Recognition of Same-Sex Civil Marriage, available at http://www.psych.org/ Departments /EDU/Library/APAOfficialDocumentsan dRelated/PositionStatements/200502.aspx (In the interest of maintaining and promoting mental health, the American Psychiatric Association supports the legal recognition of same-sex marriage with all rights, benefits, and responsibilities conferred by civil marriage, and opposes restrictions to those same rights, benefits, and responsibilities.). The American Psychoanalytic Association is the oldest and largest national psychoanalytic membership organization, with more than 3,500 members and associates. It believes that marriage is a basic human right and that same gender couples should be able to share equally in the rights and responsibilities of civil marriage. The California Medical Association (CMA) is a non- profit association of approximately 37,000 California physicians working to promote the science and art of medicine, the care and well-being of patients, the protection of public health, and the betterment of the Case 3:13-cv-00750-JGH Document 38-8 Filed 12/16/13 Page 27 of 62 PageID #: 428
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medical profession. The CMA recognizes that denying civil marriage contributes to poorer health outcomes for gay and lesbian individuals, couples and their families. The American Association for Marriage and Family Therapy (AAMFT), founded in 1942, is a national professional association representing the field of marriage and family therapy and the professional interests of over 50,000 marriage and family therapists in the United States. AAMFT joins this brief for the reasons expressed in its 2005 Position on Couples and Families. Am Assn for Marriage & Fam. Therapy, AAMFT Position on Couples and Families (2005), available at http://www. aamft.org/imis15/Content/About_AAMFT/Position_O n_Couples.aspx. The National Association of Social Workers (NASW) is the largest association of professional social workers in the world, with nearly 140,000 members. NASW develops policy statements on issues of importance to the social work profession and, consistent with those statements, NASW and the NASW California Chapter (also an Amicus herein) support full social and legal acceptance of lesbian, gay, and bisexual people. With more than 2500 members, the California Psychological Association seeks to advance the science and practice of psychology as a means of promoting human welfare by supporting excellence in education, training, research, advocacy, and service. All parties have consented to the filing of this brief. Case 3:13-cv-00750-JGH Document 38-8 Filed 12/16/13 Page 28 of 62 PageID #: 429
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INTRODUCTION AND SUMMARY As the Ninth Circuit noted, Proposition 8 had one effect, to strip[] same-sex couples of the right to obtain and use the designation of marriage. Perry v. Brown, 671 F.3d 1052, 1063 (9th Cir. 2012). By so doing, the initiative withholds from gay men and lesbian women an important symbol of state legitimization and societal recognition. Id. Some proponents of the initiative claim that this exclusion merely reflects meaningful differences between same-sex and heterosexual relationships, or between the parenting abilities of same-sex and heterosexual couples. The scientific research does not justify those claims. Rather, scientific evidence strongly supports the conclusion that homosexuality is a normal expression of human sexuality; that most gay, lesbian, and bisexual adults do not experience their sexual orientation as a choice; that gay and lesbian people form stable, committed relationships that are equivalent to heterosexual relationships in essential respects; and that same-sex couples are no less fit than heterosexual parents to raise children and their children are no less psychologically healthy and well- adjusted than children of heterosexual parents. In short, the claim that official recognition of marriage for same-sex couples undermines the institution of marriage and harms their children is inconsistent with the scientific evidence. The body of research presented below demonstrates that the discrimination effected by Proposition 8 unfairly stigmatizes same-sex couples. The research also contravenes the stereotype-based rationales that some advance to support Proposition 8 and that the Case 3:13-cv-00750-JGH Document 38-8 Filed 12/16/13 Page 29 of 62 PageID #: 430
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Equal Protection Clause of the Fourteenth Amendment was designed to prohibit. ARGUMENT I. The Scientific Evidence Presented in This Brief. Representing the leading associations of psychological, psychiatric, medical, and social work professionals, Amici have sought in this brief to present an accurate and responsible summary of the current state of scientific and professional knowledge concerning sexual orientation and families relevant to this case. In drawing conclusions, Amici rely on the best empirical research available, focusing on general patterns rather than any single study. Before citing a study herein, Amici have critically evaluated its methodology, including the reliability and validity of the measures and tests it employed, and the quality of its data-collection procedures and statistical analyses. Scientific research is a cumulative process and no empirical study is perfect in its design and execution. Even well-executed studies may be limited in their implications and the generalizability of their findings. 2 Accordingly, Amici base their conclusions
2 For example, to confidently describe the prevalence or frequency with which a phenomenon occurs in the population at large, it is necessary to collect data from a probability or representative sample. A probability sample consists of individuals selected from the study population through a process that gives each member of the population a calculable chance of being included. Nonprobability samples do not give all members of the study population a chance of being
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as much as possible on general patterns rather than any single study. All scientific studies can be constructively criticized, and scientists continually try to identify ways to improve and refine their own work and that of their colleagues. Thus, many studies cited herein discuss their limitations and provide suggestions for further research. This is consistent with the scientific method and does not impeach the overall conclusions. Most of the studies and literature reviews cited herein have been peer-reviewed and published in reputable academic journals. In addition, other academic books, book chapters, and technical reports, which typically are not subject to the same peer-review standards as journal articles, are included when they report research employing rigorous methods, are authored by well-established
includedsuch as, for example, a study of voters that relies on volunteers who phone in to a telephone number advertised in a newspaper. Case studies and nonprobability samples can be used to document the existence of a phenomenon in the study population. For studies of groups that constitute a relatively small proportion of the population, obtaining a probability sample can be extremely expensive or otherwise not feasible. Consequently, researchers studying such groups may rely on nonprobability samples. If they wish to compare members of the smaller group with members of the majority group (e.g., lesbian mothers with heterosexual mothers), they may recruit nonprobability samples of both groups that are matched on relevant characteristics (e.g., educational level, age, income). Regardless of the sampling method used, greater confidence can be placed in findings that have been replicated by others using different samples. Case 3:13-cv-00750-JGH Document 38-8 Filed 12/16/13 Page 31 of 62 PageID #: 432
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researchers, and accurately reflect professional consensus about the current state of knowledge. Amici have made a good faith effort to include all relevant studies and have not excluded any study because of its findings. II. Homosexuality Is a Normal Expression of Human Sexuality, Is Generally Not Chosen, and Is Highly Resistant to Change. Sexual orientation refers to an enduring disposition to experience sexual, affectional, and/or romantic attractions to one or both sexes. It also encompasses an individuals sense of personal and social identity based on those attractions, on behaviors expressing those attractions, and on membership in a community of others who share those attractions and behaviors. 3 Although sexual orientation ranges along a continuum from exclusively heterosexual to exclusively homosexual, it is usually discussed in three categories: heterosexual (having sexual and romantic attraction primarily or exclusively to members of the other sex), homosexual (having sexual and romantic attraction primarily or exclusively to members of ones own sex), and bisexual (having a significant degree of sexual and romantic attraction to both sexes).
3 See A.R. DAugelli, Sexual Orientation, in 7 Am. Psychol. Assn, Encyclopedia of Psychology 260 (A.E. Kazdin ed., 2000); G.M. Herek, Homosexuality, in 2 The Corsini Encyclopedia of Psychology 774-76 (I.B. Weiner & W.E. Craighead eds., 4th ed. 2010); Institute of Medicine, The Health of Lesbian, Gay, Bisexual, and Transgender People: Building a Foundation for Better Understanding (2011). Case 3:13-cv-00750-JGH Document 38-8 Filed 12/16/13 Page 32 of 62 PageID #: 433
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Although homosexuality was classified as a mental disorder when the American Psychiatric Association published the first Diagnostic and Statistical Manual of Mental Disorders in 1952, only five years later a study sponsored by the National Institute of Mental Health found no evidence to support the classification. 4 On the basis of that study and others demonstrating that the original classification reflected social stigma rather than science, 5 the American Psychiatric Association declassified homosexuality as a mental disorder in 1973. In 1974, the American Psychological Association adopted a policy reflecting the same conclusion. For decades, then, the consensus of mental health professionals and researchers has been that homosexuality and bisexuality are normal expressions of human sexuality and pose no inherent obstacle to leading a happy, healthy, and productive life, and that gay and lesbian people function well in the full array of social institutions and interpersonal relationships. 6
4 E. Hooker, The Adjustment of the Male Overt Homosexual, 21 J. Projective Techs. 18 (1957). 5 B.F. Riess, Psychological Tests in Homosexuality, in Homosexual Behavior: A Modern Reappraisal 296 (J. Marmor ed., 1980); J.C. Gonsiorek, The Empirical Basis for the Demise of the Illness Model of Homosexuality, in Homosexuality: Research Implications for Public Policy 115 (J.C. Gonsiorek & J.D. Weinrich eds., 1991). 6 See, e.g., Am. Psychiatric Assn, Position Statement: Homosexuality and Civil Rights (1973), in 131 Am. J. Psychiatry 497 (1974); Am. Psychol. Assn, Minutes of the Annual Meeting of the Council of Representatives, 30 Am. Psychologist 620, 633 (1975). Case 3:13-cv-00750-JGH Document 38-8 Filed 12/16/13 Page 33 of 62 PageID #: 434
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Most gay men and lesbians do not experience their sexual orientation as resulting from a voluntary choice. In a U.S. national probability sample of 662 self-identified lesbian, gay, and bisexual adults, 88% of gay men and 68% of lesbians reported feeling they had no choice at all about their sexual orientation, while another 7% of gay men and 15% of lesbians reported only a small amount of choice. Only 5% of gay men and 16% of lesbians felt they had a fair amount or a great deal of choice. 7
Several amici supporting Proposition 8 challenge the conclusion that for most people sexual orientation is not a matter of choice, but they offer no credible scientific support for their position. 8
Moreover, although some groups and individuals have offered clinical interventions that purport to change sexual orientation from homosexual to heterosexualsometimes called conversion therapies these interventions have not been shown to be effective or safe. A review of the scientific literature by an American Psychological Association task force concluded that sexual orientation change
7 G. Herek et al., Demographic, Psychological, and Social Characteristics of Self-Identified Lesbian, Gay, and Bisexual Adults in a US Probability Sample, 7 Sexuality Res. & Soc. Poly 176 (2010). See also G. Herek et al., Internalized Stigma Among Sexual Minority Adults: Insights From a Social Psychological Perspective, 56 J. Counseling Psychol. 32 (2009). 8 See Amicus Br. of Liberty Counsel, at 35; Amicus Br. of Parents and Friends of Ex-Gays and Gays, passim; Amicus Br. of Family Research Council, at 27-28; Amicus Br. of Dr. Paul McHugh, at 14-28. Case 3:13-cv-00750-JGH Document 38-8 Filed 12/16/13 Page 34 of 62 PageID #: 435
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efforts are unlikely to succeed and indeed can be harmful. 9
All major national mental health organizations including Amicihave adopted policy statements cautioning the profession and the public about treatments that purport to change sexual orientation. 10
9 Am. Psychol. Assn, Report of the American Psychological Association Task Force on Appropriate Therapeutic Responses to Sexual Orientation (2009); see also Am. Psychol. Assn, Resolution on Appropriate Affirmative Responses to Sexual Orientation Distress and Change Efforts (2009), both available at http://www.apa.org/pi/lgbt/resources/sexual-orientation.aspx. 10 See Am. Psychol. Assn, Resolution, supra note 9; Am. Psychiatric Assn, Position Statement: Psychiatric Treatment and Sexual Orientation (1998), available at http://www. psych.org/Departments/EDU/Library/APAOfficialDocuments andRelated/PositionStatements/199820.aspx; Am. Assn for Marriage & Fam. Therapy, Reparative/Conversion Therapy (2009), available at http://www.aamft.org/iMIS15/AAMFT/ MFT_Resources/Content/Resources/Position_On_Couples.aspx; Am. Med. Assn, Policy H-160.991, Health Care Needs of the Homosexual Population, available at http://www.ama- assn.org/ama/pub/about-ama/our-people/member-groups- sections/glbt-advisory-committee/ama-policy-regarding-sexual- orientation.page; Natl Assn of Soc. Workers, Position Statement: Reparative and Conversion Therapies for Lesbians and Gay Men (2000), available at http://www.naswdc. org/diversity/lgb/ reparative.asp; Am. Psychoanalytic Assn, Position Statement: Attempts to Change Sexual Orientation, Gender Identity, or Gender Expression (2012), available at http://www.apsa.org/about_apsaa/position_statements/attempts _to_change_sexual_orientation.aspx; B.L. Frankowski, Sexual Orientation and Adolescents, 113 Pediatrics 1827 (2004). Case 3:13-cv-00750-JGH Document 38-8 Filed 12/16/13 Page 35 of 62 PageID #: 436
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III. Sexual Orientation and Relationships. Sexual orientation is commonly discussed as a characteristic of the individual, like biological sex or age. This perspective is incomplete because sexual orientation necessarily involves relationships with other people. Sexual acts and romantic attractions are categorized as homosexual or heterosexual according to the biological sex of the individuals involved in them, relative to each other. Indeed, it is only by acting with another personor desiring to actthat individuals express their heterosexuality, homosexuality, or bisexuality. Thus, sexual orientation is integrally linked to the intimate personal relationships that human beings form with others to meet their deeply felt needs for love, attachment, and intimacy. Ones sexual orientation defines the universe of persons with whom one is likely to find the satisfying and fulfilling relationships that, for many individuals, comprise an essential component of personal identity. A. Gay Men and Lesbian Women Form Stable, Committed Relationships That Are Equivalent to Heterosexual Relationships in Essential Respects. Like heterosexuals, most gay and lesbian people want to form stable, long-lasting relationships, 11 and
11 In a 2005 U.S. national probability sample of 662 self- identified lesbian, gay, and bisexual adults, of those who were currently in a relationship, 78% of the gay men and 87% of the lesbian women said they would marry their partner if it was legal, and, of those not currently in a relationship, 34% of gay men and 46% of lesbian women said that they would like to marry someday. Herek et al., Demographic, supra note 7. See
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many of them do: numerous studies using nonprobability samples of gay and lesbian people have found that the vast majority of participants have been in a committed relationship at some point in their lives, that large proportions are currently in such a relationship (40-70% of gay men and 45-80% of lesbian women), and that many of those couples have been together 10 or more years. 12 Survey data from probability samples support these findings. 13
Data from the 2010 US Census show that same-sex
also Henry J. Kaiser Fam. Found., Inside-OUT: A Report on the Experiences of Lesbians, Gays and Bisexuals in America and the Publics Views on Issues and Policies Related to Sexual Orientation 31 (2001), available at http://www.kff.org /kaiserpolls/upload/New-Surveys-on-Experiences-of-Lesbians- Gays-and-Bisexuals-and-the-Public-s-Views-Related-to-Sexual- Orientation-Report.pdf; A.R. DAugelli et al., Lesbian and Gay Youths Aspirations for Marriage and Raising Children, 1 J. LGBT Issues Counseling 77 (2007). 12 See A.W. Fingerhut & L.A. Peplau, Same-Sex Romantic Relationships, in Handbook of Psychology and Sexual Orientation 165 (C.J. Patterson & A.R. DAugelli eds., 2013); L.A. Peplau & A.W. Fingerhut, The Close Relationships of Lesbians and Gay Men, 58 Ann. Rev. Psychol. 405 (2007); L.A. Peplau & N. Ghavami, Gay, Lesbian, and Bisexual Relationships, in Enclyclopedia of Human Relationships (H.T. Reis & S. Sprecher eds., 2009). 13 Herek et al., Demographic, supra note 7; T.C. Mills et al., Health-Related Characteristics of Men Who Have Sex with Men: A Comparison of Those Living in Gay Ghettos with Those Living Elsewhere, 91 Am. J. Pub. Health 980, 982 (Table 1) (2001); S.D. Cochran et al., Prevalence of Mental Disorders, Psychological Distress, and Mental Services Use Among Lesbian, Gay, and Bisexual Adults in the United States, 71 J. Consulting & Clinical Psychol. 53, 56 (2003); Henry J. Kaiser Fam. Found., supra note 11. Case 3:13-cv-00750-JGH Document 38-8 Filed 12/16/13 Page 37 of 62 PageID #: 438
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couples headed more than 600,000 US households and more than 90,000 in California. 14
Empirical research demonstrates that the psychological and social aspects of committed relationships between same-sex partners largely resemble those of heterosexual partnerships. Like heterosexual couples, same-sex couples form deep emotional attachments and commitments. Heterosexual and same-sex couples alike face similar issues concerning intimacy, love, equity, loyalty, and stability, and they go through similar processes to address those issues. 15 Empirical research also shows that gay and lesbian couples have levels of relationship satisfaction similar to or higher than those of heterosexual couples. 16
14 Same-Sex Unmarried Partner or Spouse Households by Sex of Householder by Presence of Own Children: 2010 Census and 2010 American Community Survey, available at http://www. census.gov/hhes/samesex/files/supp-table-AFF.xls. 15 L.A. Kurdek, Change in Relationship Quality for Partners from Lesbian, Gay Male, and Heterosexual Couples, 22 J. Fam. Psychol. 701 (2008); L.A. Kurdek, Are Gay and Lesbian Cohabiting Couples Really Different from Heterosexual Married Couples?, 66 J. Marriage & Fam. 880 (2004); G.I. Roisman et al., Adult Romantic Relationships as Contexts for Human Development: A Multimethod Comparison of Same-Sex Couples with Opposite-Sex Dating, Engaged, and Married Dyads, 44 Developmental Psychol. 91 (2008); see generally L.A. Kurdek, What Do We Know About Gay and Lesbian Couples?, 14 Current Directions Psychol. Sci. 251 (2005); Peplau & Fingerhut, supra note 12; Peplau & Ghavami, supra note 12. 16 K.F. Balsam et al., Three-Year Follow-Up of Same-Sex Couples Who Had Civil Unions in Vermont, Same-Sex Couples Not in Civil Unions, and Heterosexual Married Couples, 44
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B. The Institution of Marriage Offers Social, Psychological, and Health Benefits That Are Denied to Same-Sex Couples. Marriage as a social institution has a profound effect on the lives of the individuals who inhabit it. The sociologist Emile Durkheim observed that marriage helps to protect the individual from anomy, or social disruption and breakdowns of norms. 17 Twentieth-century sociologists advised that marriage creates order 18 and provides a strong positive sense of identity, self-worth, and mastery. 19
Empirical research demonstrates that marriage has distinct benefits that extend beyond the material necessities of life. 20 These intangible elements of the marital relationship have important implications for
Developmental Psychol. 102 (2008); Kurdek, Change in Relationship Quality, supra note 15; L.A. Peplau & K.P. Beals, The Family Lives of Lesbians and Gay Men, in Handbook of Family Communication 233, 236 (A.L. Vangelisti ed., 2004). 17 E. Durkheim, Suicide: A Study in Sociology 259 (J.A. Spaulding & G. Simpson trans., Glencoe, Ill.: Free Press 1951) (original work published 1897). 18 P. Berger & H. Kellner, Marriage and the Construction of Reality: An Exercise In the Microsociology of Knowledge, 12 Diogenes 1 (1964). 19 W.R. Gove et al., The Effect of Marriage on the Well-Being of Adults: A Theoretical Analysis, 11 J. Fam. Issues 4, 16 (1990). 20 See S. Stack & J.R. Eshleman, Marital Status and Happiness: A 17-Nation Study, 60 J. Marriage & Fam. 527 (1998); R.P.D. Burton, Global Integrative Meaning as a Mediating Factor in the Relationship Between Social Roles and Psychological Distress, 39 J. Health & Soc. Behav. 201 (1998); Gove et al., supra note 19, at 5. Case 3:13-cv-00750-JGH Document 38-8 Filed 12/16/13 Page 39 of 62 PageID #: 440
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the physical and psychological health of married individuals and for the relationship itself. Because marriage rights have been granted to same-sex couples only recently and only in a few jurisdictions, no empirical studies have yet been published that compare married same-sex couples to unmarried same-sex couples, or those in civil unions. Based on their scientific and clinical expertise, Amici believe it is appropriate to extrapolate from the empirical research literature for heterosexual coupleswith qualifications as necessaryto anticipate the likely effects of marriage for same-sex couples. 21
Married men and women generally experience better physical and mental health than their unmarried counterparts. 22 These health benefits do
21 Researchers recognize that comparisons between married and unmarried heterosexual couples are complicated by the possibility that observed differences might be due to self- selection. After extensive study, however, researchers have concluded that benefits associated with marriage result largely from the institution itself rather than self-selection. See, e.g., Gove et al., supra note 19, at 10; J.E. Murray, Marital Protection and Marital Selection: Evidence from a Historical- Prospective Sample of American Men, 37 Demography 511 (2000). It is reasonable to expect that same-sex couples who choose to marry, like their heterosexual counterparts, will benefit from the institution of marriage itself. 22 See N.J. Johnson et al., Marital Status and Mortality: The National Longitudinal Mortality Study, 10 Annals Epidemiology 224 (2000); C.E. Ross et al., The Impact of the Family on Health: The Decade in Review, 52 J. Marriage & Fam. 1059 (1990); R.W. Simon, Revisiting the Relationships Among Gender, Marital Status, and Mental Health, 107 Am. J. Soc. 1065 (2002). Case 3:13-cv-00750-JGH Document 38-8 Filed 12/16/13 Page 40 of 62 PageID #: 441
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not appear to result simply from being in an intimate relationship, for most studies have found that married heterosexual individuals generally manifest greater well-being than those of comparable cohabiting couples. 23 Of course, marital status alone does not guarantee greater health or happiness. People who are unhappy in marriage often manifest lower levels of well-being than the unmarried, and marital discord and dissatisfaction is often associated with negative health effects. 24
Nevertheless, satisfied married couples consistently manifest higher levels of happiness, psychological well-being, and physical health than the unmarried. Being married also is a source of stability and commitment. Marital commitment is a function not only of attractive forces (i.e., rewarding features of the partner or relationship) but also of external forces that serve as constraints on dissolving the relationship. Barriers to terminating a marriage
23 See supra note 20; see also S.L. Brown, The Effect of Union Type on Psychological Well-Being: Depression Among Cohabitors Versus Marrieds, 41 J. Health & Soc. Behav. 241 (2000). But see, e.g., C.E. Ross, Reconceptualizing Marital Status as a Continuum of Social Attachment, 57 J. Marriage & Fam. 129 (1995) (failing to detect significant differences in depression between married heterosexuals and comparable cohabiting heterosexual couples). 24 See W.R. Gove et al., Does Marriage Have Positive Effects on the Psychological Well-Being of the Individual?, 24 J. Health & Soc. Behav. 122 (1983); K. Williams, Has the Future of Marriage Arrived? A Contemporary Examination of Gender, Marriage, and Psychological Well-Being, 44 J. Health & Soc. Behav. 470 (2003); J.K. Kiecolt-Glaser & T.L. Newton, Marriage and Health: His and Hers, 127 Psychol. Bull. 472 (2001). Case 3:13-cv-00750-JGH Document 38-8 Filed 12/16/13 Page 41 of 62 PageID #: 442
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include feelings of obligation to ones family members; moral and religious values; legal restrictions; financial concerns; and the anticipated disapproval of others. 25 In the absence of adequate rewards, the existence of barriers alone is not sufficient to sustain a marriage in the long term. Perceiving ones intimate relationship primarily in terms of rewards, rather than barriers to dissolution, is likely to be associated with greater relationship satisfaction. 26 Nonetheless, perceived barriers are negatively correlated with divorce and thus the presence of barriers may increase partners motivation to seek solutions for problems, rather than rushing to dissolve a salvageable relationship. 27
Lacking access to legal marriage, the primary motivation for same-sex couples to remain together derives mainly from the rewards associated with the relationship rather than from formal barriers to separation. 28 Given this fact, and the legal and
25 See G. Levinger, Marital Cohesiveness and Dissolution: An Integrative Review, 27 J. Marriage & Fam. 19 (1965); J.M. Adams & W.H. Jones, The Conceptualization of Marital Commitment: An Integrative Analysis, 72 J. Personality & Soc. Psychol. 1177 (1997). 26 See, e.g., D. Previti & P.R. Amato, Why Stay Married? Rewards, Barriers, and Marital Stability, 65 J. Marriage & Fam. 561 (2003). 27 See T.B. Heaton & S.L. Albrecht, Stable Unhappy Marriages, 53 J. Marriage & Fam. 747 (1991); L.K. White & A. Booth, Divorce Over the Life Course: The Role of Marital Happiness, 12 J. Fam. Issues 5 (1991). 28 L.A. Kurdek, Relationship Outcomes and Their Predictors: Longitudinal Evidence from Heterosexual Married, Gay
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prejudicial obstacles that same-sex partners face, the prevalence and durability of same-sex relationships are striking. IV. The Children of Same-Sex Couples. A. Many Same-Sex Couples Are Raising Children. The 2010 Census reported 111,033 households headed by same-sex couples with their own children under 18 years. Among the more than 90,000 California household heads who reported cohabiting with a same-sex partner, 15,698 had their own children under 18 living at home. 29 The number of same-sex couple households reported by the Census is not an estimate of the total number of gay and lesbian parents. 30
B. The Factors That Affect the Adjustment of Children Are Not Dependent on Parental Gender or Sexual Orientation. Hundreds of studies over the past 30 years have elucidated the factors that are associated with healthy adjustment among children and
Cohabiting, and Lesbian Cohabiting Couples, 60 J. Marriage & Fam. 553 (1998). 29 2010 Census and 2010 American Community Survey, supra note 14. 30 The Census does not directly assess participants sexual orientation. Thus, the Census data only include gay and lesbian parents who were co-habiting with a same sex partner and who were willing to report their relationship status to the Census. 2010 Census and 2010 American Community Survey, supra note 14. Case 3:13-cv-00750-JGH Document 38-8 Filed 12/16/13 Page 43 of 62 PageID #: 444
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adolescentsi.e., the influences that allow children and adolescents to function well in their daily lives. 31
The three most important are (1) the qualities of parent-child relationships, (2) the qualities of relationships among significant adults (e.g., parents) in childrens or adolescents lives, and (3) available economic and other resources. As one noted authority in developmental psychology explained: Many studies have shown that adjustment is largely affected by differences in the quality of parenting and parent-child relationships, the quality of the relationships between the parents, and the richness of the economic and social resources available to the family; more recent research signals the importance of congenital differences as well. Dimensions of family structure including such factors as divorce, single parenthood, and the parents sexual orientation and biological relatedness between parents and children are of little or no predictive importance once the process variables are taken into account,
31 S. Golombok, Parenting: What Really Counts? (2000); M.E. Lamb & C. Lewis, The Role of Parent-Child Relationships in Child Development, in Developmental Science: An Advanced Textbook 429-68 (M.H. Bornstein & M.E. Lamb eds., 5th ed. 2005); C.J. Patterson, & P.D. Hastings, Socialization in the Context of Family Diversity, in Handbook of Socialization: Theory and Research 328-51 (J.E. Grusec & P.D. Hastings eds., 2007). Case 3:13-cv-00750-JGH Document 38-8 Filed 12/16/13 Page 44 of 62 PageID #: 445
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because the same factors explain child adjustment regardless of family structure. 32
In short, many years of research have shown that, when parent-child and parent-adolescent relationships are characterized by warmth, love and affection, emotional commitment, reliability, and consistency, as well as by appropriate guidance and limit-setting, children and adolescents are likely to show more positive adjustment than when these qualities are absent. Children whose parents provide loving guidance in the context of secure home environments are more likely to flourish, regardless of their parents sexual orientation. 33
Research also shows that the quality of relationships among significant adults in a childs life is associated with adjustment. When parental relationships are characterized by love, warmth, cooperation, security, and mutual support, children are more likely to show positive adjustment. In contrast, when parental relationships are conflict- ridden and acrimonious, adjustment is likely to be less favorable. Family instability, household disruption, and parental divorce are often associated with poorer adjustment and problems that can last
32 M.E. Lamb, Mothers, Fathers, Families, and Circumstances: Factors Affecting Childrens Adjustment, 16 Applied Developmental Sci. 98 (2012). 33 Lamb & Lewis, supra note 31; Patterson & Hastings, supra note 31. Case 3:13-cv-00750-JGH Document 38-8 Filed 12/16/13 Page 45 of 62 PageID #: 446
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into adulthood. 34 These correlations are just as true for children reared by same-sex couples as for children reared by heterosexual couples. 35
Research with children reared by heterosexual parents indicates that they do better with two parenting figures than with one. 36 This finding, however, has not been tested directly with children reared by same-sex couples versus a single lesbian, gay, or bisexual parent. Finally, researchers acknowledge the association between child adjustment and access to economic and other resources. Children with access to sufficient economic resources are likely to live in safer neighborhoods, breathe cleaner air, and eat more nutritious food. They are also more likely to have opportunities to participate in positive after-
34 See, e.g., P.R. Amato, Children of Divorce in the 1990s: An Update of the Amato and Keith (1991) Meta-Analysis, 15 J. Fam. Psychol. 355 (2001). 35 The Family Context of Parenting in Childrens Adaptation to Elementary School (P.A. Cowan et al. eds., 2005); R.W. Chan et al., Psychosocial Adjustment Among Children Conceived Via Donor Insemination By Lesbian and Heterosexual Mothers, 69 Child Dev. 443 (1998); E.M. Cummings et al., Childrens Responses to Everyday Marital Conflict Tactics in the Home, 74 Child Dev. 1918 (2003); E.M. Cummings et al., Everyday Marital Conflict and Child Aggression, 32 J. Abnormal Child Psychol. 191 (2004); Golombok, supra note 31; D. Potter, Same- Sex Parent Families and Childrens Academic Achievement, 74 J. Marriage & Fam. 556 (2012); M.J. Rosenfeld, Nontraditional Families and Childhood Progress Through School, 47 Demography 755 (2010). 36 See, e.g., S. McLanahan & G. Sandefur, Growing Up With a Single Parent: What Hurts, What Helps 39 (1994). Case 3:13-cv-00750-JGH Document 38-8 Filed 12/16/13 Page 46 of 62 PageID #: 447
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school activities and hence to have access to social and emotional resources from teammates, coaches, youth leaders, and others. These children are more likely to show positive adjustment, regardless of their parents sexual orientation. 37
In short, the very same factors that are linked to positive development of children with heterosexual parents are also linked to positive development of children with lesbian and gay parents. 38
C. There Is No Scientific Basis for Concluding That Gay and Lesbian Parents Are Any Less Fit or Capable Than Heterosexual Parents, or That Their Children Are Any Less Psychologically Healthy and Well Adjusted. Assertions that heterosexual couples are better parents than same-sex couples, or that the children of lesbian or gay parents fare worse than children of heterosexual parents, are not supported by the
37 Neighborhood Poverty: Context and Consequences for Children (J. Brooks-Gunn et al. eds., 1997); Consequences of Growing Up Poor (G.J. Duncan & J. Brooks-Gunn eds., 1997); Patterson & Hastings, supra note 31; Potter, supra note 35; Rosenfeld, supra note 35. 38 See Chan et al., supra note 35; C.J. Patterson, Lesbian and Gay Parents and Their Children: A Social Science Perspective, in Contemporary Perspectives on Lesbian, Gay, and Bisexual Identities, Nebraska Symposium on Motivation 141 (D.A. Hope ed., 2009); J. Stacey & T.J. Biblarz, (How) Does the Sexual Orientation of Parents Matter?, 66 Am. Soc. Rev. 159 (2001); C.J. Telingator & C.J. Patterson, Children and Adolescents of Lesbian and Gay Parents, 47 J. Am. Acad. Child & Adolescent Psychiatry 1364 (2008); J.L. Wainright et al., Psychosocial Adjustment, School Outcomes, and Romantic Relationships of Adolescents With Same-Sex Parents, 75 Child Dev. 1886 (2004). Case 3:13-cv-00750-JGH Document 38-8 Filed 12/16/13 Page 47 of 62 PageID #: 448
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cumulative scientific research in this area. 39 Rather, the vast majority of scientific studies that have directly compared gay and lesbian parents with heterosexual parents has consistently shown that the former are as fit and capable parents as the latter and that their children are as psychologically healthy and well adjusted. More research has focused on lesbian mothers than on gay fathers, 40 but the
39 The research on gay, lesbian, and bisexual parents includes dozens of empirical studies. Their findings are summarized in reviews of empirical literature published in respected, peer- reviewed journals and academic books. Recent reviews include T.J. Biblarz & J. Stacey, How Does the Gender of Parents Matter?, 72 J. Marriage & Fam. 3 (2010); A.E. Goldberg, Lesbian and Gay Parents and Their Children: Research on the Family Life Cycle (2010); C.J. Patterson, Family Lives of Lesbian and Gay Adults, in Handbook of Marriage and the Family 659, 668-71 (G.W. Peterson & K.R. Bush eds., 3d ed. 2013); C.J. Patterson, Children of Lesbian and Gay Parents: Psychology, Law, and Policy, 64 Am. Psychologist 727 (2009). For earlier reviews, see, e.g., Stacey & Biblarz, supra note 38; E.C. Perrin & Comm. on Psychosocial Aspects of Child & Fam. Health, Technical Report: Coparent or Second-Parent Adoption by Same-Sex Parents, 109 Pediatrics 341 (2002); C.J. Patterson, Family Relationships of Lesbians and Gay Men, 62 J. Marriage & Fam. 1052 (2000); N. Anderssen et al., Outcomes for Children with Lesbian or Gay Parents: A Review of Studies from 1978 to 2000, 43 Scand. J. Psychol. 335 (2002). 40 See, e.g., H. Bos & T.G.M. Sandfort, Childrens Gender Identity in Lesbian and Heterosexual Two-Parent Families, 62 Sex Roles 114 (2010); R.H. Farr et al., Parenting and Child Development in Adoptive Families: Does Parental Sexual Orientation Matter?, 14 Applied Developmental Sci. 164, 176 (2010); S. Golombok et al., Children with Lesbian Parents: A Community Study, 39 Developmental Psychol. 20 (2003); I. Rivers et al., Victimization, Social Support, and Psychosocial Functioning Among Children of Same-Sex and Opposite-Sex Couples in the United Kingdom, 44 Developmental Psychol.
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published studies that have included gay fathers also find that they are as fit and able parents as heterosexual fathers. 41
A 2001 comprehensive survey of peer-reviewed scientific studies concluded that the evidence from empirical research shows that parental sexual orientation per se has no measurable effect on the quality of parent-child relationships or on childrens mental health or social adjustment. 42 A more recent review by the same authors noted the ubiquitous findings of no differences in comparisons of the families of heterosexual couples to those of lesbian or gay couples, but focused on the relatively small number of differences that have been reported, concluding that overall the differences were positive for the families of same-sex couples at least as often
127 (2008); J.L. Wainright & C.J. Patterson, Delinquency, Victimization, and Substance Use Among Adolescents With Female Same-Sex Parents, 20 J. Fam. Psychol. 526 (2006). 41 Farr et al., supra note 40, at 176; see also S. Erich et al., Gay and Lesbian Adoptive Families: An Exploratory Study of Family Functioning, Adoptive Childs Behavior, and Familial Support Networks, 9 J. Fam. Soc. Work 17 (2005); S. Erich et al., A Comparative Analysis of Adoptive Family Functioning with Gay, Lesbian, and Heterosexual Parents and Their Children, 1 J. GLBT Fam. Stud. 43 (2005). For a review of earlier research, see C.J. Patterson, Gay Fathers, in The Role of the Father in Child Development 397, 413 (M.E. Lamb ed., 4th ed. 2004). 42 Stacey & Biblarz, supra note 38, at 176. Case 3:13-cv-00750-JGH Document 38-8 Filed 12/16/13 Page 49 of 62 PageID #: 450
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as they were for the families of heterosexual couples. 43
These conclusions are bolstered by three recent studies using national probability (i.e., representative) samples. One used data from the National Longitudinal Study of Adolescent Health to compare adolescents parented by a female couple with adolescents parented by a heterosexual couple. The researchers found no differences between the two groups of adolescents on measures of a large number of key variables, including psychosocial adjustment, school outcomes, substance use, delinquency, victimization experiences, and relationships with peers. 44
Another study used data from the Early Childhood Longitudinal Study Kindergarten cohort (ECLS-K) to compare the academic achievement of children growing up in various family structures. When the effects of significant family transitions (e.g., related
43 Biblarz & Stacey, supra note 39, at 13; see also E.L. Sutfin et al., How Lesbian and Heterosexual Parents Convey Attitudes about Gender to their Children: The Role of Gendered Environments, 58 Sex Roles 501 (2008) (finding that the children of lesbian mothers were more tolerant of other children engaging in behaviors that violate traditional gender norms). Similarly, a recent report by the National Academy of Sciences Institute of Medicine concluded that [s]tudies show that [the children of lesbian and gay parents] are well adjusted and developmentally similar to the children of different-sex parents. Institute of Medicine, supra note 3, at 234. 44 J.L. Wainright & C.J. Patterson, Peer Relations Among Adolescents With Female Same-Sex Parents, 44 Developmental Psychol. 117 (2008); Wainright & Patterson, supra note 40; Wainright et al., supra note 38. Case 3:13-cv-00750-JGH Document 38-8 Filed 12/16/13 Page 50 of 62 PageID #: 451
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to parental divorce, separation, or death) were taken into account, children in same-sex family structures showed slightly higher achievement levels than children living with their biological mother and father (although this difference was not statistically significant). 45
In the third study, US Census data were used to compare educational outcomes among children residing in homes with various types of family structure. When differences in household income and parental educational levels (SES) were statistically controlled, the differences in school progress between children of married heterosexual couples and same-sex cohabiting couples were not statistically significant. As the studys author concluded, [t]he analysis in this article, the first to use large-sample nationally representative data, shows that children raised by same-sex couples have no fundamental deficits in making normal progress through school. 46
Studies also show that children with gay or lesbian parents do not differ from the children of heterosexual parents in their gender identity (ones psychological sense of being male or female). 47
45 Potter, supra note 35. Data about parents sexual orientation were not collected in the study. Consequently, parental sexual orientation and relationship were inferred from a series of questions about the household composition and caretakers. 46 Rosenfeld, supra note 35. 47 E.g., Bos & Sandfort, supra note 40. For literature reviews, see Goldberg, supra note 39; Patterson, Family Lives, supra note 39; Perrin & Comm., supra note 39, at 342. Case 3:13-cv-00750-JGH Document 38-8 Filed 12/16/13 Page 51 of 62 PageID #: 452
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Similarly, although some studies have found that children of lesbian mothers or children raised in same-sex parent families were more accepting of gender nonconformity in others 48 and less gender- stereotyped or more flexible in their patterns of gender-role behaviors (e.g., during play 49 ) than those of children in heterosexual parent families, most published studies have found no reliable differences between the children of lesbian and heterosexual mothers in social gender role conformity (adherence to cultural norms defining feminine and masculine behavior). 50 A recent study also found that adoptive children of gay fathers showed typical gender role development, as did those of lesbian mothers and those of heterosexual mothers and fathers. 51
The available evidence also suggests that parental sexual orientation has no effect on child sexual
48 Sutfin et al., supra note 43; M. Fulcher et al., Individual Differences in Gender Development: Associations with Parental Sexual Orientation, Attitudes, and Division of Labor, 58 Sex Roles 330 (2008). 49 A.E. Goldberg et al., Gender-Typed Play Behavior in Early Childhood: Adopted Children with Lesbian, Gay, and Heterosexual Parents, 67 Sex Roles 503 (2012); R. Green et al., Lesbian Mothers and Their Children: A Comparison with Solo Parent Heterosexual Mothers and Their Children, 15 Archives Sexual Behav. 167 (1986). An earlier paper (M.E. Hotvedt & J.B. Mandel, Children of Lesbian Mothers, in Homosexuality: Social, Psychological, and Biological Issues 275 (W. Paul et al. eds., 1982)) reported data from the same study. 50 Farr et al., supra note 40. For reviews of the literature, see Goldberg, supra note 39; Patterson, Family Lives, supra note 39. 51 See Farr et al., supra note 40. Case 3:13-cv-00750-JGH Document 38-8 Filed 12/16/13 Page 52 of 62 PageID #: 453
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orientation 52 and that the vast majority of gay and lesbian adults were raised by heterosexual parents and the vast majority of children raised by gay and lesbian parents grow up to be heterosexual. 53
Amici emphasize that the abilities of gay and lesbian persons as parents and the positive outcomes for their children are not areas where credible scientific researchers disagree. 54 Thus, after careful scrutiny of decades of research, the American Psychological Association concluded in 2004 that (a) there is no scientific evidence that parenting effectiveness is related to parental sexual
52 Golombok et al., supra note 40; S. Golombok & F. Tasker, Do Parents Influence the Sexual Orientation of Their Children? Findings from a Longitudinal Study of Lesbian Families, 32 Developmental Psychol. 3 (1996). 53 Goldberg, supra note 39; Patterson, Family Lives, supra note 39. 54 One unreplicated 1996 Australian study purports to show deficits in lesbian and gay parents and their children. See S. Sarantakos, Children in Three Contexts: Family, Education and Social Development, 21 Child. Australia 23 (1996). But the anomalous Sarantakos results are likely the result of multiple methodological problems, especially confounding the effects of parental sexual orientation with the effects of parental divorce, which is known to correlate with poor adjustment and academic performance. See, e.g., Amato, supra note 34. Some commentators have cited publications by Paul Cameron, but his work has been repeatedly discredited for bias and inaccuracy. See G.M. Herek, Bad Science in the Service of Stigma: A Critique of the Cameron Groups Survey Studies, in Stigma and Sexual Orientation: Understanding Prejudice Against Lesbians, Gay Men, and Bisexuals 223 (G.M. Herek ed., 1998); Baker v. Wade, 106 F.R.D. 526, 536 (N.D. Tex. 1985) (ruling that Cameron made misrepresentations to the court). Case 3:13-cv-00750-JGH Document 38-8 Filed 12/16/13 Page 53 of 62 PageID #: 454
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orientation: Lesbian and gay parents are as likely as heterosexual parents to provide supportive and healthy environments for their children and (b) that research has shown that the adjustment, development, and psychological well-being of children are unrelated to parental sexual orientation and that the children of lesbian and gay parents are as likely as those of heterosexual parents to flourish. Am. Psychol. Assn, Resolution on Sexual Orientation, Parents, and Children (2004), available at http://www.apa.org/about/governance/council/ policy /parenting.pdf. Similarly, the American Academy of Pediatrics has recently adopted a policy statement which states: Scientific evidence affirms that children have similar developmental and emotional needs, and receive similar parenting, whether they are raised by parents of the same or different genders. If a child has 2 living and capable parents who choose to create a permanent bond by way of civil marriage, it is in the best interests of their child(ren) that legal and social institutions allow and support them to do so, irrespective of their sexual orientation. Am. Acad. of Pediatrics, Committee on Psychosocial Aspects of Child and Family Health, Policy Statement: Promoting the Well-Being of Children Whose Parents are Gay or Lesbian, 131 Pediatrics (forthcoming 2013). NASW has similarly determined that [t]he most striking feature of the research on lesbian mothers, gay fathers, and their children is the absence of pathological findings. The second most striking feature is how similar the groups of gay and lesbian parents and their children are to heterosexual Case 3:13-cv-00750-JGH Document 38-8 Filed 12/16/13 Page 54 of 62 PageID #: 455
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parents and their children that were included in the studies. Natl Assn of Soc. Workers, Policy Statement: Lesbian, Gay, and Bisexual Issues, in Social Work Speaks 193, 194 (4th ed. 1997). See also Natl Assn of Soc. Workers, Policy Statement: Family Planning and Reproductive Choice, in Social Work Speaks 129, 132 (9th ed. 2012). The American Psychoanalytic Association has likewise determined that [t]here is no credible evidence that shows that a parents sexual orientation or gender identity will adversely affect the development of the child. Am. Psychoanalytic Assn, Position Statement: Parenting (2012), available at http://www.apsa.org/about_apsaa/ position_statements/parenting.aspx. In adopting an official Position Statement in support of legal recognition of same-sex civil marriage, the American Psychiatric Association observed that no research has shown that the children raised by lesbians and gay men are less well adjusted than those reared within heterosexual relationships. Am. Psychiatric Assn, Position Statement: Support of Legal Recognition of Same- Sex Civil Marriage (2005), available at http://www.psych.org/Departments/EDU/ Library/APAOfficialDocumentsandRelated/PositionS tatements/200502.aspx. Finally, the American Medical Association likewise has adopted a policy supporting legislative and other reforms to allow adoption by same sex partners. 55
55 See Am. Med. Assn, Policy H-60.940, Partner Co-Adoption, available at http://www.ama-assn.org/ama/pub/about-ama/our-
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V. Challenges to the Evidence on Same-Sex Parents by Other Amici Are Unfounded. A. The Methodological Criticisms Fail to Recognize the Cumulative Nature of Scientific Research. Scientific research is a cumulative process. Empirical studies inevitably have limitations. Simply because a particular studys methodology has imperfections or its results warrant qualifications does not mean that the entire study should be dismissed. Rather, it should be evaluated within the context of the cumulative relevant research, recognizing that some studies strengths can offset other studies corresponding limitations. Amici who challenge all empirical findings in this area because some studies used small nonprobability samples 56 ignore the fact that many findings from those studies have been replicated in national probability samples. 57 They also fail to acknowledge that studies with nonprobability samples can answer
people/member-groups-sections/glbt-advisory-committee/ama- policy-regarding-sexual-orientation.page. 56 E.g., Amicus Br. of Social Science Professors, at 13-21. 57 Wainright & Patterson, Delinquency, supra note 40 (finding no differences due to parent sexual orientation between 44 adolescents raised by same-sex couples and 44 by heterosexual couples, all drawn from a national representative sample); Wainright & Patterson, Peer Relations, supra note 44 (same); Potter, supra note 35; Rosenfeld, supra note 35 (using US Census data). Case 3:13-cv-00750-JGH Document 38-8 Filed 12/16/13 Page 56 of 62 PageID #: 457
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important scientific questions, especially when they include appropriate comparison groups. 58
Moreover, amici do not claim the studies are invalid, only that their implications are limited to children raised by highly educated and affluent middle to upper class white women. 59 Even in those studies that are so limited, appropriate comparison across sexual orientation groups can test the claim that sexual orientation affects parenting, and the recent research on national probability samples reinforces these studies. Amici herein do not claim that all same-sex couples will be equally effective in raising children, 60 but rather that sexual orientation is irrelevant to parenting outcomes. 61
58 See supra note 2. One amicus disparages nearly all previous studies because they failed to include a married biological family control group. Amicus Br. of Social Science Professors, at 25. But many studies have appropriately included such a group, and their findings are largely consistent with the overall patterns described herein. See, e.g., Potter, supra note 35; Rosenfeld, supra note 35; Wainright & Patterson, Peer Relations, supra note 44; Wainright & Patterson, Delinquency, supra note 40; Wainright et al., supra note 38. Moreover, the correct comparison group depends on the nature of the study. For example, comparing children of married heterosexual couples to children of single lesbian mothers would conflate parent sexual orientation with number of parents. The appropriate comparison group in such studies is the children of single heterosexual mothers. 59 E.g., Amicus Br. of Social Science Professors, at 20. 60 E.g., factors such as access to economic resources affect child development outcomes (note 26 above). 61 Several amici criticizing studies cited here rely on L. Marks, Same-Sex Parenting and Childrens Outcomes: A Closer
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B. The Regnerus Study Does Not Provide Evidence That Parental Sexual Orientation Affects Child Development Outcomes. Several amici base their challenge on a recent study (the Regnerus study) that compared child development outcomes across a range of family types, including two types that were characterized as lesbian mother and gay father families. 62 But the studys design precludes any meaningful conclusions because of its overbroad definition of children raised by gay or lesbian parents and its conflation of family instability with any potential effects of parental sexual orientation. The methodological flaws in the study are examined in greater detail in the Brief of The American Psychological Association et al. filed on March 1, 2013 in United States v. Windsor, et al., No. 12-307, at pages 29 to 34. Those flaws led an independent auditor appointed by the journal that published the study to describe it as a non-scientific study and conclude it should not have been
Examination of the American Psychological Associations Brief on Lesbian and Gay Parenting, 41 Soc. Sci. Res. 735 (2012). Marks opined that studies cited in an APA 2005 pamphlet (not a brief) allow no conclusions regarding lesbian and gay parenting. This wholesale rejection of an entire body of research fails to recognize the realities of the nature of scientific knowledge as discussed above. Moreover, Amicis conclusions drawn from those earlier studies are borne out by the research subsequent to 2005. 62 M. Regnerus, How Different are the Adult Children of Parents Who Have Same-Sex Relationships? Findings from the New Family Structures Study, 41 Soc. Sci. Res. 752 (2012). Case 3:13-cv-00750-JGH Document 38-8 Filed 12/16/13 Page 58 of 62 PageID #: 459
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published. 63 Moreover, over 200 scientists, clinicians, and academics signed a letter to the journal's editorial board commenting on the studys scientific deficiencies. 64
VI. Denying the Status of Marriage to Same-Sex Couples Stigmatizes Them. The foregoing shows that the beliefs about gay men and lesbian women advanced to support Proposition 8about their capacity for committed, long lasting relationships, and their ability to raise healthy well- adjusted childrenare contradicted by the scientific evidence and instead reflect an unreasoned antipathy towards an identifiable minority. In depriving gay men and lesbian women of membership in an important social institution, Proposition 8 conveys the states judgment that committed intimate relationships between people of the same sex are inferior to heterosexual relationships. This is the essence of stigma. A stigmatized condition or status is negatively valued by society, defines a persons social identity,
63
D.E. Sherkat, The Editorial Process and Politicized Scholarship: Monday Morning Editorial Quarterbacking and a Call for Scientific Vigilance, 41 Soc. Sci. Res. 1346 (2012). 64 G.J. Gates et al., Letter to the editors and advisory editors of Social Science Research, 41 Soc. Sci. Res. 1350, 1351 (2012) (noting that the study could not actually directly examine the impact of having a gay or lesbian parent because of the unusual method of defining those groups, and that it fails to distinguish family structure and family instability, and concluding that [t]he methodologies used in this paper and the interpretation of the findings are inappropriate). Case 3:13-cv-00750-JGH Document 38-8 Filed 12/16/13 Page 59 of 62 PageID #: 460
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and thus disadvantages that person. 65 A classic work in this area characterized stigma as an undesired differentness. 66 It can be manifested both in social institutions, such as the law, and in individual behaviors. Laws that accord majority and minority groups differing status highlight the perceived differentness of the minority and thereby tend to legitimize prejudicial attitudes and individual acts against the disfavored group, including ostracism, harassment, discrimination, and violence. Large numbers of lesbian, gay, and bisexual people experience such acts of prejudice because of their sexual orientation. 67
65 See E. Goffman, Stigma: Notes on the Management of Spoiled Identity (1963); B.G. Link & J.C. Phelan, Conceptualizing Stigma, 27 Ann. Rev. Soc. 363 (2001); J. Crocker et al., Social Stigma, in 2 The Handbook of Social Psychology 504 (D.T. Gilbert et al. eds., 4th ed. 1998); Am. Med. Assn, Policy H- 65.973, Health Care Disparities in Same-Sex Partner Households, available at http://www.ama-assn.org/ama/pub/ about-ama/our-people/member-groups-sections/glbt-advisory- committee/ama-policy-regarding-sexual-orientation.page (recognizing that exclusion from civil marriage contributes to health care disparities affecting same-sex households). 66 Goffman, supra note 65, at 5. 67 A national survey of a representative sample of gay, lesbian, and bisexual adults found that 21% of them had been the target of a physical assault or property crime since age 18 because of their sexual orientation. Thirty-eight percent of gay men had been the target of assault or property crime because of their sexual orientation. Eighteen percent of gay men and 16% of lesbians reported they had experienced discrimination in housing or employment. G.M. Herek, Hate Crimes and Stigma- Related Experiences Among Sexual Minority Adults in the United States: Prevalence Estimates from a National
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Proposition 8 is an instance of institutional stigma. It conveys the governments judgment that, in the realm of intimate relationships, a legally united same-sex couple is inherently less deserving of societys full recognition than are heterosexual couples. As the Ninth Circuit correctly recognized, Proposition 8 lessen[s] the status and human dignity of gays and lesbians in California. Perry, 671 F.3d at 1063. By devaluing and delegitimizing the relationships that constitute the very core of a homosexual orientation, Proposition 8 compounds and perpetuates the stigma historically attached to homosexuality. This Court has repeatedly recognized the unconstitutional nature of stigmatizing legislation based on stereotypic classifications. See Heckler v. Mathews, 465 U.S. 728, 739-40 (1984) ([A]s we have repeatedly emphasized, discrimination itself, by perpetuating archaic and stereotypic notions or by stigmatizing members of the disfavored group as innately inferior and therefore as less worthy participants in the political community* * * can cause serious non- economic injuries to those persons who are personally denied equal treatment solely because of their membership in a disfavored group.) (footnote and citations omitted).
Probability Sample, 24 J. Interpersonal Violence 54 (2009); see also G.M. Herek et al., Psychological Sequelae of Hate-Crime Victimization Among Lesbian, Gay, and Bisexual Adults, 67 J. Consulting & Clinical Psychol. 945, 948 (1999); M.V.L. Badgett, Money, Myths, and Change: The Economic Lives of Lesbians and Gay Men (2001). Case 3:13-cv-00750-JGH Document 38-8 Filed 12/16/13 Page 61 of 62 PageID #: 462
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CONCLUSION The judgment below should be affirmed. Respectfully submitted,
NATHALIE F.P. GILFOYLE AMERICAN PSYCHOLOGICAL ASSOCIATION 750 First Street, N.E. Washington, DC 20002 (202) 336-6186 PAUL M. SMITH Counsel of Record JENNER & BLOCK LLP 1099 New York Avenue, NW Washington, DC 20001 (202) 639-6000 PSmith@jenner.com
WILLIAM F. SHEEHAN ANDREW HUDSON GOODWIN | PROCTER LLP 901 New York Avenue, NW Washington, D.C. 20001 (202) 346-4000
Counsel for Amici Curiae
February 28, 2013 Case 3:13-cv-00750-JGH Document 38-8 Filed 12/16/13 Page 62 of 62 PageID #: 463 THERESA BASSETT, CAROL KENNEDY, PETER WAYS, JOE BREAKEY, JOLINDA JACH, BARBARA RAMBER, DOAK BLOSS, GERARDO ASCHERI, MICHELLE JOHNSON, and DENISE MILLER, Plaintiffs, v. GOVERNOR RICHARD SNYDER, Defendant. Case Number 12-10038 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION 2013 U.S. Dist. LEXIS 93345 June 28, 2013, Decided June 28, 2013, Filed COUNSEL: [*1] For Theresa Bassett, Carol Kennedy, Peter Ways, Joe Breakey, Jolinda Jach, Barbara Ramber, Doak Bloss, Gerardo Ascheri, Plaintiffs: Amanda C. Goad, American Civil Liberties Union Foundation, New York, NY; Amy E. Crawford, Bradley H. Weidenhammer - NOT SWORN, Donna M. Welch, Kirkland & Ellis LLP, Chicago, IL; Jay Kaplan, American Civil Liberties of Michigan, Detroit, MI; John A. Knight, American Civil Liberties Union Foundation, LGBT & AIDS Project, Chicago, IL; Michael J. Steinberg, American Civil Liberties Union Fund of Michigan, Detroit, MI. For Michelle Johnson, Denise Miller, Plaintiffs: Amanda C. Goad, American Civil Liberties Union Foundation, New York, NY; Amy E. Crawford, Bradley H. Weidenhammer - NOT SWORN, Donna M. Welch, Kirkland & Ellis LLP, Chicago, IL; Jay Kaplan, American Civil Liberties of Michigan, Detroit, MI; Michael J. Steinberg, American Civil Liberties Union Fund of Michigan, Detroit, MI. For Governor Richard Snyder, Defendant: Margaret A. Nelson, Michigan Department of Attorney General, Public Employment, Elections and Tort, Lansing, MI; Mark E. Donnelly, Michigan Department of Attorney General, Tort Defense Division, Lansing, MI. For Louis Padnos Iron and Metal [*2] Company, Cengage Learning Holdings II, L.P. Amicus: Andrea E. Hayden, Pepper Hamilton, Southfield, MI. JUDGES: Honorable DAVID M. LAWSON, United States District Judge. OPINION BY: DAVID M. LAWSON OPINION OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS AND GRANTING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION The plaintiffs in this case are five same-sex couples who allege that Michigan Public Act 297 (2011) is unconstitutional because it violates their rights under the Equal Protection and Due Process Clauses. Public Act 297 prohibits public employers from providing medical and other fringe benefits to any person cohabitating with a public employee unless that person is legally married to the employee, or is a legal dependent, or eligible to Page 1 Case 3:13-cv-00750-JGH Document 38-9 Filed 12/16/13 Page 1 of 22 PageID #: 464 inherit under the State's intestacy laws. The plaintiffs allege that the primary purpose of the law is to prohibit public employers from furnishing benefits to the same-sex partners of their employees, and therefore the Act denies their right to equal protection because it contains a discriminatory classification on the basis of sex and sexual orientation and is not rationally related to a legitimate state interest. The plaintiffs also argue [*3] that the act impermissibly burdens their fundamental right to intimate association and therefore violates their substantive due process rights. Many of the plaintiffs who are in relationships with public employees but not so employed themselves have lost their medical benefits, and the rest will do so shortly. They have moved for a preliminary injunction to prevent enforcement of the law. The defendant -- Michigan's Governor -- opposes the preliminary injunction and has filed a motion to dismiss, arguing that the Court should abstain from exercising jurisdiction, the plaintiffs lack standing, the plaintiffs' claims are not ripe, and the plaintiffs have failed to plead either an equal protection or a substantive due process claim upon which relief can be granted. The Court heard oral argument on both motions on August 7, 2012. Thereafter, the Court allowed the parties to file supplemental briefs concerning the scope of the remedies available. The Court now finds that the plaintiffs have standing to assert their constitutional claims, the claims are ripe, and abstention is not appropriate. The Court also finds that the plaintiffs have not stated a viable substantive due process claim. The [*4] equal protection claim is another matter. The plaintiffs argue that although Public Act 297 does not mention same-sex unions or describe same-sex partner benefits by name, the intended purpose of the law is to discriminate against same-sex couples on the basis of their sexual orientation without actually saying so. The defendant contends that the Act has no such purpose; instead, the intention behind passage of the law was to save money by restricting the scope of public employee benefits. The Court finds that the plaintiffs have stated a plausible claim that the law violates the Equal Protection Clause when the rational basis for the benefits limitations is fairly analyzed, and they have shown a likelihood of succeeding on that claim. The other relevant factors plainly militate in favor of a preliminary injunction barring enforcement of the law. Therefore, the Court will grant in part and deny in part the defendant's motion to dismiss, and grant the plaintiffs' motion for a preliminary injunction. I. A. The plaintiffs in this case are five same-sex couples who have lived together in long-term relationships, residing in various Michigan communities. One domestic partner of each of the [*5] couples works for a public employer, such as a county, city, or school district. Those public employers provide fringe benefits, such as medical coverage, and historically have extended coverage to the domestic partners of the plaintiff-couples under the various collective bargaining agreements between the governmental units and their employees. Each of the public-employee plaintiffs is a skilled employee whose job duties are equivalent to the duties of their heterosexual colleagues. They each have enjoyed a long-term, committed, and financially interdependent relationship with their respective domestic partner and would marry if Michigan law permitted same-sex couples to marry. According to the complaint, before 2004, a number of Michigan public employers voluntarily provided health insurance benefits to same-sex domestic partners. In 2004, the Michigan constitution was amended to include article I, section 25, which states: "To secure and preserve the benefits of marriage for our society and for future generations of children, the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose." Mich. Const. Art. 1, 25 [*6] [hereinafter "the marriage amendment"]. In 2005, then-Michigan attorney general Michael Cox issued an opinion on the City of Kalamazoo's domestic partner benefits allowance. Cox opined that although the provision of benefits to same-sex domestic partners was not itself unlawful, state and local governments could not provide those benefits on the basis of a relationship "characterized by reference to the attributes of a marriage." Constitutionality of City Providing Same-Sex Domestic Partnership Benefits, Mich. Att'y Gen. Op. 7171 (Mar. 16, 2005), available at http://www.ag.state.mi.us/opinion/datafi les/2000s/op10247.htm (last visited May 31, 2013). In 2006, a union group, various public employees, and their domestic partners filed a lawsuit seeking a declaratory ruling that the marriage amendment did not prohibit public employers from offering benefits to Page 2 2013 U.S. Dist. LEXIS 93345, *2 Case 3:13-cv-00750-JGH Document 38-9 Filed 12/16/13 Page 2 of 22 PageID #: 465 same-sex domestic partners. The Michigan Court of Appeals found that the plans instituted by government agencies offering same-sex domestic partner benefits established eligibility criteria similar to marriage. National Pride At Work, Inc. v. Governor of Michigan, 274 Mich. App. 147, 164, 732 N.W.2d 139, 151 (2007). The court held [*7] that extending benefits to same-sex domestic partners on that basis violated the marriage amendment's ban on recognizing a "similar union," but that "[t]he amendment as written does not preclude the extension of employment benefits to unmarried partners on a basis unrelated to recognition of their agreed-upon relationship." Id. at 165, 172, 732 N.W.2d at 151, 155. The Michigan Supreme Court affirmed the court of appeals' decision. National Pride At Work, Inc. v. Governor of Michigan, 481 Mich. 56, 748 N.W.2d 524 (2008). The court reasoned that the requirements of the benefit plans at issue that partners be of a certain sex -- the same sex as their partner -- and not be closely related by blood were so similar to the requirements for marriage as to constitute a "similar union" that could not be recognized by public employers. Id. at 86-87, 748 N.W.2d at 543. As a result of those holdings, some public employers, including the publicly-employed plaintiffs' employers, revised their employee benefits plans. The City of Kalamazoo, the Ann Arbor Public Schools, and Ingham County all adopted benefit plans that permit employees to designate a person with whom he or she lives and, with the exception [*8] of the City of Kalamazoo, shares finances as an "Other Qualified Adult" (OQA), entitled to receive benefits. Those plans also require that the OQA not be eligible to inherit from the employee, be related to the employee by blood in a degree of closeness that would prohibit marriage in Michigan, and not otherwise be eligible for benefits from the public employer. The OQA could be of either sex. Other public employers that do not have employees involved in this suit but provide a similar program include the City of Ann Arbor, Washtenaw and Eaton Counties, the school districts of Birmingham and Farmington, and Kalamazoo Valley and Lansing Community Colleges. In January 2011, the Michigan Civil Service Commission, which is granted plenary power to regulate compensation for state employees by the Michigan constitution, announced that it had decided to extend health care benefits to certain adult co-residents of state employees. Some state legislators issued press releases condemning that decision, characterizing it as an extension of health benefits to same-sex partners of state employees. On June 16, 2011, Representatives David Agema and Peter Lund, among others, introduced House Bill No. [*9] 4770, the Public Employee Domestic Partner Benefit Restriction Act. HB-4770, As Passed House, September 15, 2011, available at http://www.legislature.mi.gov/documents/ 2011-2012/billengrossed/House/htm/2011-H EBH-4770.htm (last visited May 31, 2013). The Bill passed both houses of the Michigan Legislature and was signed by the defendant on December 22, 2011. It became effective on the same date. The governor's signing statement states that the law does not extend to university employees or state employees under civil service. The Act reads, in relevant part: Sec. 3. (1) A public employer shall not provide medical benefits or other fringe benefits for an individual currently residing in the same residence as a public employee, if the individual is not 1 or more of the following: (a) Married to the employee. (b) A dependent of the employee, as defined in the internal revenue code of 1986. (c) Otherwise eligible to inherit from the employee under the laws of intestate succession in this state. (2) A provision in a contract entered into after the effective date of this act that conflicts with the requirements of this act is void. Sec. 4. If a collective bargaining agreement or other contract that [*10] is inconsistent with section 3 is in effect for a public employee on the effective date of this act, section 3 does not apply to that group of employees until the collective bargaining agreement or other contract Page 3 2013 U.S. Dist. LEXIS 93345, *6 Case 3:13-cv-00750-JGH Document 38-9 Filed 12/16/13 Page 3 of 22 PageID #: 466 expires or is amended, extended, or renewed. 2011 Mich. Pub. Acts 297; Mich. Comp. Laws 15.583-.584. B. According to the complaint and the affidavits filed in support of the motion for preliminary injunction, the five same-sex couples who are the plaintiffs in this case have been involved in longstanding, committed relationships. Theresa Bassett and Carol Kennedy celebrated their twenty-sixth anniversary in November 2012. They had a commitment ceremony in Michigan in 1990, registered as domestic partners in Ann Arbor the same year, and were legally married in California in 2008. They are raising six children between the ages of six and twenty. Bassett is a middle school teacher at Slauson Middle School in Ann Arbor with duties similar to heterosexual teachers; Kennedy is self-employed and runs a day care from the couple's home. Kennedy does not have access to an employer-provided health care plan; she is currently covered under Bassett's insurance as an "Other Eligible Adult." Peter [*11] Ways and Joe Breaky have been partners for twenty-one years. They held a commitment ceremony in 1998 and affirm that they would marry if Michigan law permitted it. The couple is raising a nine-year-old daughter. Ways has worked as a teacher in the Ann Arbor Public Schools for eleven years and has duties similar to heterosexual teachers; Breaky is a social worker who operates his private practice from the couple's home. Breaky does not have access to employer-provided health care; he is currently covered under Ways's insurance as an "Other Eligible Adult." JoLinda Jach and Barbara Ramber have been partners for seventeen years. They held a commitment ceremony in 1997 and aver that they would marry if Michigan law permitted it. The couple is raising two children. Jach has worked as a systems analyst for the City of Kalamazoo for twenty-four years and has duties similar to heterosexual senior systems analysts; Ramber works part-time in the food service division of Kalamazoo Public Schools. Ramber does not have access to health insurance as a part-time employee, and she lost coverage under Jach's insurance on December 31, 2012. Doak Bloss and Gerardo Ascheri have been partners for eighteen [*12] years and state that they would marry if Michigan law permitted it. Bloss is the Health Equity and Social Justice Coordinator for Ingham County and has responsibilities similar to the heterosexual Environmental Justice Coordinator for the county; Ascheri teaches piano from the couple's home. Ascheri does not have access to employer-provided health insurance; he lost coverage under Bloss's insurance on December 31, 2012. Denise Miller and Michelle Johnson have been partners for eight years. They held a commitment ceremony in 2004. Miller teaches at Kalamazoo Valley Community College and has duties similar to heterosexual teachers; Johnson is the Executive Director of a nonprofit organization. Johnson does not have access to employer-provided health insurance. She was previously covered by Miller's plan but lost her benefits after Public Act 297 passed. C. The plaintiffs filed their initial complaint on January 5, 2012. The complaint contained three counts: an equal protection claim based on sexual orientation and sex, a substantive due process claim, and a "claim" for declaratory and injunctive relief. The plaintiffs filed an amended complaint on February 17, 2012 with the same claims [*13] and additional plaintiffs. The defendant did not file an answer to the amended complaint initially; instead, the defendant filed a motion to dismiss, followed a few days later by an amended motion to dismiss. The defendant filed an answer to the amended complaint on March 22, 2012. The plaintiffs filed a motion for a preliminary injunction, which the defendant opposes. The motion and response are supported by factual affidavits. The Court held a hearing at which some of the plaintiffs testified on August 7, 2012. Both parties filed supplemental briefs addressing appropriate remedies on August 21, 2012. II. The motion to dismiss and the motion for preliminary injunction raise many overlapping legal issues. The motion to dismiss, however, includes a challenge to subject matter jurisdiction, which, of course, the Court must address at the outset. Page 4 2013 U.S. Dist. LEXIS 93345, *10 Case 3:13-cv-00750-JGH Document 38-9 Filed 12/16/13 Page 4 of 22 PageID #: 467 A. The defendant contends that the plaintiffs lack standing to assert their claims, and therefore the Court does not have subject matter jurisdiction over a live controversy. Standing is required in order to confer subject matter jurisdiction upon federal courts under Article III of the Constitution. It is "the [*14] threshold question in every federal case." Warth v. Seldin, 422 U.S. 490, 498, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975). The Supreme Court has stated that the standing requirement "limits federal court jurisdiction to actual controversies so that the judicial process is not transformed into 'a vehicle for the vindication of the value interests of concerned bystanders.'" Coal Operators & Assocs., Inc. v. Babbitt, 291 F.3d 912, 915-16 (6th Cir. 2002) (quoting Valley Forge Christian College v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 473, 102 S. Ct. 752, 70 L. Ed. 2d 700 (1982)). There are three constitutional requirements for standing. See Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 180-81, 120 S. Ct. 693, 145 L. Ed. 2d 610 (2000); City of Cleveland v. Ohio, 508 F.3d 827, 835 (6th Cir. 2007). "To establish Article III standing, a litigant must show (1) an injury in fact; (2) a causal connection between the injury and the conduct complained of; and (3) that the injury will likely be redressed by a favorable decision." Barnes v. City of Cincinnati, 401 F.3d 729, 739 (6th Cir. 2005) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992)). In addition, a plaintiff must also satisfy three prudential standing requirements. [*15] See City of Cleveland, 508 F.3d at 835. First, a plaintiff must "assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties." Warth, 422 U.S. at 499 (citations omitted). Second, "a plaintiff's claim must be more than a 'generalized grievance' that is pervasively shared by a large class of citizens." Coal Operators, 291 F.3d at 916 (quoting Valley Forge, 454 U.S. at 474-75). Third, in statutory cases, the plaintiff's claim must fall within the "zone of interests" regulated by the statute in question. Ibid. "These additional restrictions enforce the principle that, 'as a prudential matter, the plaintiff must be a proper proponent, and the action a proper vehicle, to vindicate the rights asserted.'" Ibid. (quoting Pestrak v. Ohio Elections Comm'n, 926 F.2d 573, 576 (6th Cir. 1991)). The defendant argues that the plaintiffs do not satisfy the constitutional standing requirements because, except for plaintiffs Miller and Johnson, none of them have lost medical benefits and they have not pleaded facts establishing an injury that is concrete, objective, and palpable. The defendant also contends that the plaintiffs cannot [*16] show a causal relationship between Public Act 297 and any harm they have suffered. Because the plaintiffs cannot show an injury or causation, the defendant reasons, they also cannot demonstrate that a favorable decision is likely to redress their injury. The defendant argues that the plaintiffs cannot satisfy the prudential requirement because they are attempting to assert claims on behalf of their respective partners. The Court will discuss each of these arguments. 1. It is the plaintiffs' obligation to allege an injury that he or she has suffered that is "(a) concrete and particularized and (b) actual or imminent, as opposed to conjectural or hypothetical." Ailor v. City of Maynardville, 368 F.3d 587, 596 (6th Cir. 2004). "At the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss, [the Court] 'presumes that general allegations embrace those specific facts that are necessary to support the claim.'" Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992) (quoting Lujan v. National Wildlife Federation, 497 U.S. 871, 889, 110 S. Ct. 3177, 111 L. Ed. 2d 695 (1990)). In Lujan v. Defenders of Wildlife, the Supreme Court explained that such an [*17] injury, if it had not already occurred, must be "imminent," that is, likely to occur immediately. Id. at 564. The plaintiffs among them have shown both actual and imminent injuries. Carol Kennedy has alleged that she does not have access to an employer-provided health care plan except through her partner, Theresa Bassett. She will lose her health insurance when Bassett's union contract with the Ann Arbor Public Schools ends if Public Act 297 remains in effect. Kennedy has a family history of breast cancer and finding replacement insurance will be expensive. Likewise, Joe Breaky does not have access to employer-provided health care, and he will lose insurance when Peter Ways's contract with Ann Arbor Public Schools expires if Public Act 297 remains in effect. Breaky says that replacement insurance for him will cost between $8,000 and $10,000 per year. Barbara Page 5 2013 U.S. Dist. LEXIS 93345, *13 Case 3:13-cv-00750-JGH Document 38-9 Filed 12/16/13 Page 5 of 22 PageID #: 468 Ramber does not have access to health insurance as a part-time employee. She lost health care coverage through her partner, JoLinda Jach, on December 31, 2012 because of Public Act 297. Ramber has serious problems with her left eye that require daily medication and has been diagnosed with rheumatoid arthritis and gastroesophageal [*18] reflux disease, which requires medication and may require a series of endoscopy procedures; alternative health coverage would be difficult to obtain and purchasing coverage from her employer would cost more than half of Ramber's monthly take-home pay. Gerardo Ascheri does not have access to employer-provided health insurance; he lost his health care coverage through Doak Bloss on December 31, 2012 because of Public Act 297. Ascheri alleges that he has high blood pressure and high cholesterol, for which he takes medication. Michelle Johnson previously was covered by Denise Miller's health care plan, but she lost her benefits after Public Act 297 passed. Johnson has non-malignant uterine fibroid tumors that may require surgery, fibrous breast tissue that requires yearly monitoring, and a family history of aneurysm that requires that she have regular scans. In addition to establishing a present actual injury, the plaintiffs have shown imminent injury -- "that the threatened injury is certainly impending." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190, 120 S. Ct. 693, 145 L. Ed. 2d 610 (2000) (internal quotation omitted). Although some of the plaintiffs have not yet lost their health care [*19] coverage, that fate is inevitable, as illustrated by some of the co-plaintiffs. As the Sixth Circuit has noted, "[i]mminence is a function of probability," and the relevant inquiry is whether a future injury is likely to occur, not when it will occur. Thomas More Law Center v. Obama, 651 F.3d 529, 536 (6th Cir. 2011), abrogated with respect to other principles by National Federation of Independent Business v. Sebelius, U.S. , 132 S. Ct. 2566, 183 L. Ed. 2d 450 (2012). In Thomas More Law Center, the Sixth Circuit considered a challenge to the standing of plaintiffs seeking to overturn the Affordable Care Act. In that case, the Court determined that the plaintiffs had alleged an imminent future injury because they would be required to purchase health care coverage as of the effective date of the Act, which was three and a half years after the complaint was filed. Id. at 538. A similar rationale applies here. The plaintiffs have alleged that they will lose health coverage when their partners' contracts expire or are renegotiated; Public Act 297 states as much. "The Act itself proves they will [lose health coverage] when the time comes," ibid., that is, when the publicly-employed partners' contracts [*20] expire or are renegotiated. As to the publicly-employed partner plaintiffs, the complaint alleges that family health insurance coverage is part of the compensation extended to public employees, including the publicly-employed plaintiffs, and that the publicly-employed plaintiffs have lost or will lose family health insurance coverage for their domestic partners. Am. Compl. 1, 2, 9. A reduction in compensation is sufficient to establish an injury for the purpose of standing. See Williams v. Boeing Co., 517 F.3d 1120, 1127 (9th Cir. 2008) (finding allegations that discrimination had led to reduced pay for African-Americans sufficient to establish an injury for standing purposes); American Federation of Government Employees, Local 2119 v. Cohen, 171 F.3d 460, 466 (7th Cir. 1999) (finding that a loss of job benefits, including lower pay and retirement benefits, was a concrete and particularized injury for constitutional standing purposes). The plaintiffs have plausibly alleged that they are the "objects" of Public Act 297, which prohibits local governments from offering them domestic partner health insurance, and that they have suffered a concrete and particularized injury. 2. The defendant's [*21] argument that the plaintiffs cannot show a causal relationship is based on the notion that they have not pleaded facts suggesting that their impending loss of benefits is related to Public Act 297. The defendant points out, for instance, that the plaintiffs cannot say when they might lose benefits, and that they could lose benefits because the publicly-employed partners lose their jobs or the partners separate. The first argument has no traction. The plaintiffs' complaint alleges that Public Act 297 prohibits local governments from providing the domestic partner benefits that the plaintiffs have obtained, that under the terms of the Act coverage is terminated when the contracts or collective bargaining agreements in place when the Act took effect expire, and that the non-publicly employed plaintiffs will lose their benefits if the Act remains effective. Am. Compl. 9, 82. It is difficult to imagine what other facts the plaintiffs might plead to demonstrate that the termination of their benefits is Page 6 2013 U.S. Dist. LEXIS 93345, *17 Case 3:13-cv-00750-JGH Document 38-9 Filed 12/16/13 Page 6 of 22 PageID #: 469 related to the enforcement of Public Act 297. The defendant's argument that the plaintiffs have not pleaded facts demonstrating that Public Act 297 is related to the termination of their [*22] benefits is perplexing, as it is admittedly the purpose of the Act to terminate the benefits that the plaintiffs currently receive. Moreover, the amended complaint alleges that one plaintiff has lost benefits; the plaintiffs have presented affidavits from two other plaintiffs stating that they would lose their benefits on December 31, 2012, which date has passed. As for the second argument, although it is certainly possible that the plaintiff couples could separate or the publicly-employed plaintiffs could lose their jobs before losing health insurance benefits, those anything-can-happen scenarios do not undermine the alleged causal relationship between the defendant's conduct and the harm alleged. In Thomas More Law Center, the Sixth Circuit considered arguments that the plaintiffs did not have standing to challenge the Affordable Care Act's mandatory insurance provision, which does not come into effect until 2014, because the plaintiffs might die, their incomes might fall, or "a disaster could befall them" that would make them eligible for a hardship exception. Thomas More Law Center, 651 F.3d at 537. The Sixth Circuit, noting that the Supreme Court has allowed plaintiffs to challenge [*23] laws prior to their effective dates, found that these events were "hardly probable and not the kind of future developments that enter into the imminence inquiry." Ibid. Similarly, here, it is "hardly probable" that the plaintiffs will end their long-term relationships or lose their jobs before losing benefits -- especially those plaintiffs who have already lost benefits. The defendant has presented no reason to believe that those contingencies are likely to occur; the invocation of remote possibilities is insufficient to strip the plaintiffs of standing. 3. Finally, the defendant argues that, to the extent that any individual plaintiff has standing, that plaintiff cannot assert claims on behalf of his or her partner. The defendant argues that the plaintiffs do not meet the prudential standing requirement that plaintiffs must assert their own legal rights and interests, rather than the rights of third parties. Those general propositions certainly are true, but the authorities the defendant cites to apply them to the plaintiffs in this case are readily distinguished. The defendant mainly relies on Kowalski v. Tesmer, 543 U.S. 125, 125 S. Ct. 564, 160 L. Ed. 2d 519 (2004), in which the Supreme Court held that attorneys could [*24] not bring claims on behalf of hypothetical future clients who might be denied appellate counsel. Id. at 134. The Court held that the lawyers did not satisfy the first prudential standing requirement because, unlike the plaintiffs here, they explicitly sought to enforce the rights of third parties. In other cases in which this concern has been implicated, the plaintiffs have either explicitly sought to assert the rights of third parties or identified injuries that were not caused by the alleged violation. See Boland v. Holder, 682 F.3d 531, 536-37 (6th Cir. 2012) (finding that attorney could not advance a claim based on the rights of hypothetical future defendants to a fair trial); Smith v. Jefferson Cnty Bd. of Sch. Comm'rs, 641 F.3d 197, 208-09 (6th Cir. 2011) (en banc) (finding that teachers could not assert students' rights under the Establishment Clause, that the plaintiffs' injuries were not caused by the Establishment Clause violation, but that plaintiffs had municipal taxpayer standing to challenge the violation); Alliance for Children, Inc. v. City of Detroit Public Schools, 475 F. Supp. 2d 655, 662-63 (E.D. Mich. 2007) (finding that a corporation providing supplemental educational [*25] services could not assert rights of students). Here, in contrast, the plaintiffs are asserting their own Fourteenth Amendment rights to equal protection and due process, and the injuries they have identified are directly tied to the alleged violation of these rights by Public Act 297. They are asserting a violation of their own rights. The plaintiffs have standing to bring the claims set forth in the amended complaint. B. The defendant also argues that the plaintiffs' claims are not ripe, reprising his standing argument that the plaintiffs' claims based on Public Act 297 depend on the cessation of benefits, and because no concrete injury occurs before that time, any claimed injury is speculative or uncertain. The same result obtains. See Thomas More Law Center, 651 F.3d at 537 (observing that "where the only Article III question concerns the imminence of the plaintiffs' injury, standing analysis parallels ripeness analysis" (citing Duke Power Co. v. Carolina Envtl. Study Grp., Inc., 438 U.S. 59, 81, 98 S. Ct. 2620, 57 L. Ed. 2d 595 (1978))). "Indeed if a defendant's 'ripeness arguments concern only' the 'requirement that the injury be imminent rather than conjectural or hypothetical' then Page 7 2013 U.S. Dist. LEXIS 93345, *21 Case 3:13-cv-00750-JGH Document 38-9 Filed 12/16/13 Page 7 of 22 PageID #: 470 'it follows that our analysis [*26] of [the defendant's] standing challenge applies equally and interchangeably to its ripeness challenge.'" Id. at 537-38 (quoting Brooklyn Legal Servs. Corp. v. Legal Servs. Corp., 462 F.3d 219, 225 (2d Cir. 2006)). In this case, the plaintiffs whose benefits have not been terminated already will lose them when the publicly-employed plaintiffs' contracts expire or are renegotiated. See Thomas More Law Center, 651 F.3d at 538 (stating that plaintiffs had standing in part because "the plaintiffs need not do anything to become subject to the Act"). The defendant's ripeness argument, like his standing argument, fails. The claims in the amended complaint are ripe for adjudication. C. The defendant believes that the Court should abstain from exercising jurisdiction over the plaintiffs' claims under the rule in Burford v. Sun Oil Co., 319 U.S. 315, 63 S. Ct. 1098, 87 L. Ed. 1424 (1943), insisting that a decision in this case would enmesh the federal court in difficult questions of state law and disrupt a coherent state policy. The Court disagrees. Abstention is "an extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it." Answers in Genesis of Ky., Inc. v. Creation Ministries Int'l., Ltd., 556 F.3d 459, 467 (6th Cir. 2009) [*27] (quoting Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 813, 96 S. Ct. 1236, 47 L. Ed. 2d 483 (1976)). As the Supreme Court taught in Burford, abstention may be appropriate in some cases as a matter of comity, especially in cases where equitable relief is sought. See Ada-Cascade Watch Co., Inc. v. Cascade Resource Recovery, Inc., 720 F.2d 897, 903 (6th Cir. 1983). And the Court later explained that the purpose of Burford abstention is to "protect[] complex state administrative processes from undue federal interference." New Orleans Public Serv., Inc. [NOPSI] v. Council of City of New Orleans, 491 U.S. 350, 362, 109 S. Ct. 2506, 105 L. Ed. 2d 298 (1989). But Burford abstention is appropriate only if (1) timely and adequate state court review is available and (2) the case involves difficult questions of state law or federal court resolution disrupts state efforts to establish a comprehensive policy. Id. at 361. The "adequate state review" must be centralized in a forum with special competence in the particular subject matter. Ada-Cascade Watch, 720 F.2d at 903. When faced with a request to abstain under Burford, a district court must "weigh the federal interests in retaining jurisdiction over the dispute against the state's interests [*28] in independent action to uniformly address a matter of state concern, and . . . abstain when the balance tips in favor of the latter." Webb v. B.C. Rogers Poultry, Inc., 174 F.3d 697, 700 (5th Cir. 1999). That balance "only rarely favors abstention." Id. (quoting Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 728, 116 S. Ct. 1712, 135 L. Ed. 2d 1 (1996)). Abstention is not required merely because a "potential for conflict with state regulatory law or policy" exists; instead, it is appropriate only where there is "undue federal interference" with "complex state administrative processes." NOPSI, 491 U.S. at 362 (internal quotes omitted). For several reasons, Burford abstention is manifestly improper in this case. First, acting on the plaintiffs' Fourteenth Amendment claims would in no way interfere with "complex state administrative processes." NOPSI, 491 U.S. at 362. The defendant does not even address this requirement in his brief and does not identify any state administrative agency with particular competence over the subject matter. See Rouse v. DaimlerChrysler Corp., 300 F.3d 711, 716 (6th Cir. 2002) (finding Buford abstention inapplicable where there was "no state administrative agency involved in the dispute"); [*29] see also Saginaw Housing Comm'n v. Bannum, Inc., 576 F.3d 620, 626-27 (6th Cir. 2009). Second, the plaintiffs have presented only federal law questions and do not raise any questions of state law, let alone any "difficult questions of state law." NOPSI, 491 U.S. at 361 (quoting Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 814, 96 S. Ct. 1236, 47 L. Ed. 2d 483 (1976)). Where plaintiffs raise federal constitutional claims, Burford abstention is discouraged. Habich v. City of Dearborn, 331 F.3d 524, 533 (6th Cir. 2003) (stating that "the case against Burford is even stronger" where the question is "whether a state action violated constitutional limits"). Third, the defendant has identified no "policy problems of substantial public import whose importance transcends the result in the case at bar." NOPSI, 491 U.S. at 361 (quoting Colorado River Water Conservation Dist., 424 U.S. at 814). The only policy issue that the defendant has identified is the desire to save money. But a desire to save money cannot possibly be sufficiently Page 8 2013 U.S. Dist. LEXIS 93345, *25 Case 3:13-cv-00750-JGH Document 38-9 Filed 12/16/13 Page 8 of 22 PageID #: 471 important to require the Court to abstain from deciding the constitutional issues raised by the plaintiffs. If it were, states could effectively insulate themselves from [*30] constitutional review by the federal courts of virtually any law by citing budgetary concerns. The defendant also argues that the plaintiffs are seeking to use a decision of this Court as a "sword . . . to impose limitations on Michigan's marriage amendment . . . [and] to impact the broader public by requiring all public employers to provide domestic partner benefits." Def.'s Am. Mot. to Dismiss at 9. Accepting that argument requires the Court to speculate as to the plaintiffs' future litigation strategy, which serves no useful purpose here. It is enough to observe that nothing in the present complaint challenges Michigan's marriage amendment or suggests that all public employers are required to provide domestic partner benefits. Although it is true that domestic relations law generally is a matter of state concern, the plaintiffs' suit does not seek to overturn any aspect of Michigan's domestic relations law. See Rouse, 300 F.3d at 716 (finding that abstention was inappropriate where plaintiff brought suit to determine whether a domestic relations order created obligations under ERISA). Fourth, federal review in this case would not be significantly "disruptive of state efforts to establish [*31] a coherent policy with respect to a matter of substantial public concern." Colorado River, 424 U.S at 814. It is true that a finding that invalidates Public Act 297 could result in local governments addressing domestic partner benefits inconsistently, as they did before Public Act 297 was enacted. However, Burford does not concern itself with that sort of disruption. See NOPSI, 491 U.S. at 362-63. "[T]here is . . . no doctrine requiring abstention merely because resolution of a federal question may result in the overturning of a state policy." Id. at 363 (quoting Zablocki v. Redhail, 434 U.S. 374, 380 n.5, 98 S. Ct. 673, 54 L. Ed. 2d 618 (1978)). The plaintiffs are requesting that this Court determine whether Public Act 297 violates the Constitution, an inquiry that does not "unduly intrude into the processes of state government or undermine the State's ability to maintain desired uniformity." Ibid. Abstention from adjudicating these questions is not appropriate. III. The defendant argues, correctly the Court believes, that the plaintiffs have not pleaded a substantive due process violation in their amended complaint. The defendant insists that the plaintiff's due process claim fails because there is no fundamental [*32] right to public-employer-provided health insurance for domestic partners of public employees and the failure to provide such health insurance does not burden the plaintiffs' fundamental right to form and sustain intimate family relationships. The right to substantive due process prohibits the government from infringing on "fundamental rights" without sufficient justification. Washington v. Glucksberg, 521 U.S. 702, 720, 117 S. Ct. 2258, 117 S. Ct. 2302, 138 L. Ed. 2d 772 (1997). "To state a cognizable substantive due process claim, the plaintiff must allege 'conduct intended to injure in some way unjustifiable by any government interest' and that is 'conscience-shocking' in nature." Mitchell v. McNeil, 487 F.3d 374, 377 (6th Cir. 2007) (quoting County of Sacramento v. Lewis, 523 U.S. 833, 849, 118 S. Ct. 1708, 140 L. Ed. 2d 1043 (1998)). "What seems to be required is an intentional infliction of injury . . . or some other governmental action that is 'arbitrary in the constitutional sense.'" Stemler v. City of Florence, 126 F.3d 856, 869 (6th Cir. 1997) (quoting Lewellen v. Metro. Gov't of Nashville & Davidson County, 34 F.3d 345, 351 (6th Cir. 1994)). However, substantive due process protects only against state action that is not otherwise proscribed by the plain text of [*33] other constitutional amendments. See Ciminillo v. Streicher, 434 F.3d 461, 465 (6th Cir. 2006) (reasoning that "[a]lleged conduct that does not implicate a constitutional right protected by another amendment will be analyzed under the substantive due process component of the Fourteenth Amendment"). Where a plaintiff has recourse to an "explicit textual source of constitutional protection," Graham v. Connor, 490 U.S. 386, 395, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989), a more general claim of substantive due process is not available. See Lewis, 523 U.S. at 842. It is certainly the case that there is no fundamental right to public-employer-provided health insurance for the domestic partners of public employees. As the defendant notes, there is no fundamental right to public employment; accordingly, there cannot be a fundamental right to fringe benefits granted as compensation for public employees. See Board of Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972). No substantive due process violation can be predicated on the denial of such benefits. The defendant also accurately states that although a property interest in a benefit may Page 9 2013 U.S. Dist. LEXIS 93345, *29 Case 3:13-cv-00750-JGH Document 38-9 Filed 12/16/13 Page 9 of 22 PageID #: 472 give rise to a procedural due process claim, the plaintiffs have not pleaded such a claim in their [*34] complaint. Ibid. However, the plaintiffs respond that their substantive due process claim is not focused on that fundamental right; instead, they contend that Public Act 297 impermissibly burdens their fundamental right to intimate association. "The Constitution protects . . . [the] freedom of intimate association, a privacy interest derived from the Due Process Clause of the Fourteenth Amendment but also related to the First Amendment." Anderson v. City of LaVergne, 371 F.3d 879, 881 (6th Cir. 2004) (citing Roberts v. United States Jaycees, 468 U.S. 609, 617-18, 104 S. Ct. 3244, 82 L. Ed. 2d 462 (1984)). What qualifies as protected "intimate association" is very broad, and certainly covers the plaintiffs' relationships. As the Sixth Circuit has explained, "the right to 'intimate association' is not limited to familial relationships but includes relationships characterized by 'relative smallness, a high degree of selectivity in decisions to begin and maintain the affiliation, and seclusion from others in critical aspects of the relationship.'" Beecham v. Henderson County, Tennessee, 422 F.3d 372, 375 (6th Cir. 2005) (quoting Roberts, 468 U.S. at 620). "Intimate associations" have been found in dating relationships, Anderson, 371 F.3d at 881-82, [*35] and personal friendships, Akers v. McGinnis, 352 F.3d 1030, 1039-40 (6th Cir. 2003). The state must offer heightened justification for laws interfering with intimate associations. "A 'direct and substantial interference' with intimate associations is subject to strict scrutiny, while lesser interferences are subject to rational basis review." Anderson, 371 F.3d at 882 (quoting Akers, 352 F.3d at 1035). There can be no doubt that the plaintiffs' relationships, which are long-term, committed partnerships, certainly fall into the category of intimate associations protected by the Due Process Clause. Beecham, 422 F.3d at 376. The defendant does not contest that point, recognizing that the plaintiffs have a "fundamental right to form and sustain intimate family relationships." Def.'s Mot. to Dismiss at 17. But the defendant argues that Public Act 297 does not impermissibly burden that fundamental right. The Court agrees. First, Public Act 297 does not present a direct and substantial interference with the plaintiffs' right to intimate family relationships because it does not prohibit the plaintiffs from forming those relationships or criminalize them. See Lawrence v. Texas, 539 U.S. 558, 578, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003) [*36] (finding that a Texas statute criminalizing consensual sodomy violated the right to intimate association under the Due Process Clause). The plaintiffs argue that governmental action need not require the dissolution of the plaintiffs' relationship in order to burden their constitutional rights. They cite Adkins v. Bd. of Educ. of Magoffin Cnty., 982 F.2d 952, 956 (6th Cir. 1993), in which the Sixth Circuit held that "it is not necessary that the governmental act require the abandonment or dissolution of a marriage relationship as the price for retaining public employment. The right of association is violated if the action constitutes an undue intrusion by the state into the marriage relationship." Ibid. (internal quotation omitted). They also argue that once a local government has freely chosen to offer partner benefits to unmarried employees, the State cannot withhold those benefits based on the plaintiffs' exercise of their fundamental right to intimate association and family integrity. Perry v. Sindermann, 408 U.S. 593, 597, 92 S. Ct. 2694, 33 L. Ed. 2d 570 (1972). However, Public Act 297 does not interfere with the plaintiffs' ability to form intimate relationships. They were in committed relationships before the [*37] public employers extended the medical benefits, and there is no reason to believe that the plaintiffs' relationships are likely to dissolve now that those benefits have been withdrawn. Put simply, although Public Act 297 may create a financial and psychological burden on the plaintiffs, it does not place a constitutionally impermissible burden on their relationships as such. See Collins v. Brewer, 727 F. Supp. 2d 797, 808 (D. Ariz. 2010). The plaintiffs' citation to Adkins does not help their case. That case and the cases following it involved plaintiffs who were terminated from public employment because of their marriages. Adkins, 982 F.2d at 954; Gaspers v. Ohio Dept. of Youth Services, 648 F.3d 400, 413 (6th Cir. 2011); Souwards v. Loudon Cnty., Tenn., 203 F.3d 426, 432 (6th Cir. 2000). In those cases, the Sixth Circuit found that the plaintiffs' fundamental right to marry would be burdened if the plaintiffs' allegations were proven, because had the plaintiffs not been married, they would not have lost their jobs. Adkins, 982 F.2d at 956; Gaspers, 648 F.3d at 413-14; Souwards, 203 F.3d at Page 10 2013 U.S. Dist. LEXIS 93345, *33 Case 3:13-cv-00750-JGH Document 38-9 Filed 12/16/13 Page 10 of 22 PageID #: 473 433. In contrast, here, the plaintiffs' committed relationships can hardly be said to have caused [*38] their loss of benefits -- the plaintiffs would not have been extended other qualified adult benefits in the first place had the plaintiffs not been involved in their relationships, and were the plaintiffs no longer to be in their relationships, they would not have been permitted to retain those benefits. The plaintiffs' citation to Perry is also inapposite for a similar reason: in that case, a plaintiff was terminated, allegedly in retaliation for exercising his First Amendment rights. No similar retaliation is involved here. Perry, 408 U.S. at 597-98. Second, as the defendant argues, the state does not have an obligation to affirmatively assist the plaintiffs in pursuing their liberty interest in intimate association, and therefore the failure to do so does not constitute interference with that interest. Ysursa v. Pocatello Educ. Ass'n, 555 U.S. 353, 358, 129 S. Ct. 1093, 172 L. Ed. 2d 770 (2009) (holding that "a legislature's decision not to subsidize the exercise of a fundamental right does not infringe the right" (internal quotation marks omitted)). Although Ysursa is a First Amendment case, the principle is not limited to the First Amendment context. See Regan v. Taxation with Representation of Washington, 461 U.S. 540, 549, 103 S. Ct. 1997, 76 L. Ed. 2d 129 (1983) [*39] (citing cases involving First Amendment claims and claims involving failure to subsidize abortions); see also Collins, 727 F. Supp. 2d at 808. The plaintiffs argue that Ysursa is inapposite because it is premised in part on the fact that the state's ban on payroll deductions applied to all organizations regardless of viewpoint. However, that argument is better addressed to the plaintiffs' equal protection claim, discussed below. The plaintiffs have failed to plead a substantive due process claim upon which relief can be granted. The Court will grant the defendant's motion to dismiss that claim. IV. The plaintiffs allege in their amended complaint that Public Act 297 violates the Equal Protection Clause because it denies them employment benefits that their public employers confer on similarly-situated spouses and blood relatives. The defendant argues that the plaintiffs have failed to state an equal protection claim for three reasons. First, the defendant argues that the plaintiffs are not similarly situated to married couples. Second, the defendant argues that Public Act 297 is rationally related to the state's interest in reducing government costs and therefore that the plaintiffs' claim [*40] must be dismissed. Third, the defendant argues that the plaintiffs have failed to establish that Public Act 297 is based on discriminatory animus. Before addressing these arguments, the Court first must determine the appropriate standard of review to apply to the plaintiffs' equal protection claim. A. The plaintiffs present two arguments for heightened scrutiny of Public Act 297 under the Equal Protection Clause of the Fourteenth Amendment. First, the plaintiffs argue that gays and lesbians are a suspect or quasi-suspect class that is entitled to heightened scrutiny. Second, the plaintiffs argue that Public Act 297 discriminates on the basis of sex and therefore intermediate scrutiny applies. Based on current Sixth Circuit law, the plaintiffs swim upstream with these arguments. The cultural views of same-sex relationships -- indeed, same-sex marriage -- are evolving rapidly, see United States v. Windsor, U.S. , 133 S. Ct. 2675, 186 L. Ed. 2d 808, 2013 U.S. LEXIS 4921, 2013 WL 3196928, at *11 (June 26, 2013) (observing that "New York, in common with, as of this writing, 11 other States and the District of Columbia, decided that same-sex couples should have the right to marry and so live with pride in themselves and their union and in a [*41] status of equality with all other married persons"), trending toward acceptance of the plaintiffs' position. However, current Sixth Circuit law stands as an obstacle to both of the grounds the plaintiffs offer as a rationale for examining the state law against a standard other than its rational basis. See Davis v. Prison Health Services, 679 F.3d 433, 438 (6th Cir. 2012) (stating that "this court has not recognized sexual orientation as a suspect classification" and applying rational basis review); Scarbrough v. Morgan County Bd. of Educ., 470 F.3d 250, 261 (6th Cir. 2006) (stating that "homosexuality is not a suspect class in this circuit"). Both sides accept the general proposition that the Equal Protection Clause of the Fourteenth Amendment "'prohibits discrimination by government which either burdens a fundamental right, targets a suspect class, or intentionally treats one differently than others similarly situated without any rational basis for the difference.'" Bench Billboard Co. v. City of Cincinnati, 675 F.3d 974, 986 (6th Cir. 2012) (quoting TriHealth, Inc. v. Bd. of Page 11 2013 U.S. Dist. LEXIS 93345, *37 Case 3:13-cv-00750-JGH Document 38-9 Filed 12/16/13 Page 11 of 22 PageID #: 474 Comm'rs, 430 F.3d 783, 788 (6th Cir. 2005)). This analysis begins with defining an "identifiable group." Engquist v. Oregon Dep't of Agric., 553 U.S. 591, 601, 128 S. Ct. 2146, 170 L. Ed. 2d 975 (2008) [*42] (stating that typical plaintiffs "generally allege that they have been arbitrarily classified as members of an 'identifiable group'" (quoting Pers. Adm'r of Mass. v. Feeney, 442 U.S. 256, 279, 99 S. Ct. 2282, 60 L. Ed. 2d 870 (1979))). "When the identifiable group has been recognized as a suspect or quasi-suspect class, courts examine the classification under a heightened level of scrutiny." Davis, 679 F.3d at 438 (citing Regents of Univ. of California v. Bakke, 438 U.S. 265, 290-91, 98 S. Ct. 2733, 57 L. Ed. 2d 750 (1978) (opinion of Powell, J.) (treating race as a suspect classification)); Craig v. Boren, 429 U.S. 190, 197, 97 S. Ct. 451, 50 L. Ed. 2d 397 (1976) (treating gender as a quasi-suspect classification)). But "[w]hen the identifiable group has not been recognized as a suspect or quasi-suspect class, courts examine the classification under rational basis review." Ibid. (citing Massachusetts Bd. of Ret. v. Murgia, 427 U.S. 307, 312, 96 S. Ct. 2562, 49 L. Ed. 2d 520 (1976) (addressing discrimination based on age)). 1. In determining whether a class is suspect or quasi-suspect, courts examine whether the class historically has been subjected to discrimination, whether members of the group "exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group," and whether the group [*43] is "a minority or politically powerless." Lyng v. Castillo, 477 U.S. 635, 638, 106 S. Ct. 2727, 91 L. Ed. 2d 527 (1986). Courts also consider whether the characteristic that defines the class "bears [any] relation to ability to perform or contribute to society." City of Cleburne, Texas v. Cleburne Living Center, 473 U.S. 432, 441, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985) (quoting Frontiero v. Richardson, 411 U.S. 677, 686, 93 S. Ct. 1764, 36 L. Ed. 2d 583 (1973) (plurality opinion)). Gays and lesbians as a group would seem to satisfy each of these factors. First, gays and lesbians have suffered, and continue to suffer, widespread discrimination, not only in the private sector, but also by all levels of government. The State of Michigan has constitutionalized discrimination against gays and lesbians in its marriage amendment. Mich. Const. Art. 1 25. In addition, the State of Michigan provides no protection against harassment or employment discrimination on the basis of sexual orientation. Barbour v. Dep't of Soc. Services, 198 Mich. App. 183, 185, 497 N.W.2d 216, 217-18 (1993)). The plaintiffs have presented evidence that gay men and lesbians face discrimination in Michigan, that crimes targeting gays and lesbians constituted 14% of all reported hate crimes in Michigan in 2010, and that [*44] gays and lesbians have a 27% chance of experiencing discrimination in obtaining housing in Michigan. Pls.' Mot. for Prelim. Inj. Ex. Q at 2-4, Ex. R, Ex. S at 9. Second, gays and lesbians "exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group." Lyng, 477 U.S. at 638. Homosexual persons constitute a discrete, socially visible group defined by the distinguishing characteristic of their sexual orientation. Kerrigan v. Comm'r of Pub. Health, 289 Conn. 135, 175, 957 A.2d 407, 432 (2008). Further, the great weight of medical and scientific authority demonstrates that sexual orientation is an immutable characteristic. Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 966 (N.D. Cal. 2010) ("No credible evidence supports a finding that an individual may, through conscious decision, therapeutic intervention or any other method, change his or her sexual orientation."); Golinski v. Office of Personnel Management, 824 F. Supp. 2d 968, 986 (N.D. Cal. 2012) ("[T]he consensus in the scientific community is that sexual orientation is an immutable characteristic"). Even if sexual orientation were not immutable, sexual orientation is an integral part of personal [*45] identity. Kerrigan, 289 Conn. at 185-86, 957 A.2d at 438. Third, gays and lesbians constitute a minority that lacks significant political power. There can be no dispute that gays and lesbians constitute a minority of the population in the United States. The fact that gays and lesbians lack significant political power in Michigan is amply demonstrated by the fact that there are no laws prohibiting discrimination on the basis of sexual orientation and that a voter referendum recently resulted in the enactment of a constitutional amendment that bars all recognition of same-sex marriage. On a national level, gays and lesbians make up only a tiny minority of state lawmakers; thirty states have passed constitutional amendments barring same sex marriage; and federal law -- until June 26, 2013 -- barred the recognition of same-sex marriage. See Golinski, 824 F. Supp. 2d at 988; 1 U.S.C. 7; Crary, David, Associated Press, Gay Page 12 2013 U.S. Dist. LEXIS 93345, *41 Case 3:13-cv-00750-JGH Document 38-9 Filed 12/16/13 Page 12 of 22 PageID #: 475 Legislators Having Impact in Marriage Debates, available at www.huffingtonpost.com/2011/03/06/gay-le gislators-having-im_n_832117.html (last visited June 27, 2013) ("Of America's 7,382 state legislators, only 85 are openly gay or lesbian."). Fourth, there can be no doubt [*46] that one's sexual orientation bears no relationship to one's ability to perform or contribute to society. Numerous courts have so found, and the defendant has not attempted to argue otherwise. See Golinski, 824 F. Supp. 2d at 986; Kerrigan, 289 Conn. at 181, 957 A.2d at 435; Varnum v. Brien, 763 N.W.2d 862, 890-92 (Iowa 2009) (collecting cases). The Sixth Circuit's pronouncements on the question are worthy of reexamination. The latest case, Davis v. Prison Health Services, relies on Scarbrough v. Morgan County as the authority for the idea that sexual orientation is not a recognized suspect classification. Davis, 679 F.3d at 438. Scarbrough, in turn, cited Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati, 128 F.3d 289, 292-94 (6th Cir. 1997), for its holding that "homosexuality is not a suspect class in this circuit." Scarbrough, 470 F.3d at 261. And the Equality Foundation court based its holding squarely on Bowers v. Hardwick, 478 U.S. 186, 106 S. Ct. 2841, 92 L. Ed. 2d 140 (1986). Equality Foundation, 128 F.3d at 292-93. Bowers, of course, was overruled by Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003). The tarnished provenance of Davis and the cases upon which it relies provides ample reasons to revisit [*47] the question of whether sexual orientation is a suspect classification under equal protection jurisprudence. At present, however, that is not the law of the circuit, and it cannot govern the decision here. 2. The plaintiffs also argue that intermediate scrutiny applies because Public Act 297 discriminates on the basis of the plaintiffs' sex in relation to that of their partners. The plaintiffs have not cited any case adopting that rational in the context of a federal equal protection claim. The cases that the plaintiffs cite are distinguishable. In In re Levenson, 560 F.3d 1145 (9th Cir. 2009), the court suggested that denying benefits to a federal employee's same-sex spouse was a violation of the benefit plan's bar on sex discrimination because the benefits would not have been denied had the couple been of opposite sexes. Id. at 1147. That pronouncement was dictum, however, because the court ultimately found that because the plan also prohibited discrimination on the basis of sexual orientation, it was not necessary to determine whether the plaintiff had experienced sex or sexual orientation discrimination in order to find a violation of the benefits plan. Ibid. In Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44 (1993), [*48] the Hawaii Supreme Court found that the state's civil marriage laws, which barred same-sex marriage, regulated access to marriage on the basis of sex. Baehr, 74 Haw. at 572, 852 P.2d at 64. That case, however, was decided on the basis of the Hawaiian constitution, which the court distinguished from the United States Constitution. Id. at 562, 852 P.2d at 59-60. Further, the rationale for considering sex a quasi-suspect classification does not support extending heightened scrutiny based on sexual orientation. In finding that classifications based upon sex are inherently suspect, the Supreme Court relied on the history and pervasiveness of discrimination against women and women's relative lack of political power. Frontiero, 411 U.S. at 684-86. Sex is considered a quasi-suspect classification, in large part, because "[r]ather than resting on meaningful considerations, statutes distributing benefits and burdens between the sexes in different ways very likely reflect outmoded notions of the relative capabilities of men and women." City of Cleburne, 473 U.S. at 441. This stereotyping concern does not come into play when the relevant classification is based on one's sex compared to the sex [*49] of one's partner. Sixth Circuit precedents require that the standard against which Public Act 297 must be measured in the plaintiffs' equal protection challenge is rational basis review. B. Generally speaking, "[l]aws that do not involve suspect classifications and do not implicate fundamental rights or liberty interests . . . will be upheld if they are 'rationally related to a legitimate state interest.'" Moore v. Detroit Sch. Reform Bd., 293 F.3d 352, 368 (6th Cir. 2002) (quoting Seal v. Morgan, 229 F.3d 567, 575 (6th Cir. 2000)). "On rational basis review, a classification bears a strong presumption of validity and a legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data." Alexander v. Merit Sys. Prot. Bd. 165 F.3d 474, 484 (6th Cir. 1999) (internal quotation marks and citation omitted). In the words of the Supreme Court, Page 13 2013 U.S. Dist. LEXIS 93345, *45 Case 3:13-cv-00750-JGH Document 38-9 Filed 12/16/13 Page 13 of 22 PageID #: 476 the classification "must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification." FCC v. Beach Commc'ns, Inc., 508 U.S. 307, 313, 113 S. Ct. 2096, 124 L. Ed. 2d 211 (1993). The State may make classifications, provided [*50] they are "not unreasonable, arbitrary or capricious." Molina-Crespo v. U.S. Merit Sys. Prot. Bd., 547 F.3d 651, 659 (6th Cir. 2008) (quoting Gilday v. Bd. of Elections of Hamilton Cnty., Ohio 472 F.2d 214, 217 (6th Cir. 1972)). A plaintiff may also show that a government action lacks a rational basis "by demonstrating that the challenged government action was motivated by animus or ill-will." Scarbrough, 470 F.3d at 261 (quoting Warren v. City of Athens, 411 F.3d 697, 711 (6th Cir. 2005)). In United States v. Windsor, the Supreme Court held that the Defense of Marriage Act (DOMA) violated equal protection guarantees found in the Fifth Amendment. In invalidating the law, the Court held that "[t]he Constitution's guarantee of equality 'must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot' justify disparate treatment of that group." Windsor, 2013 U.S. LEXIS 4921, 2013 WL 3196928, at *14 (quoting Department of Agriculture v. Moreno, 413 U.S. 528, 534-35, 93 S. Ct. 2821, 37 L. Ed. 2d 782 (1973)). Similarly, the Sixth Circuit repeatedly has held that "'the desire to effectuate one's animus against homosexuals can never be a legitimate governmental purpose, [and] a state action based on that [*51] animus alone violates the Equal Protection Clause.'" Davis, 679 F.3d at 438 (quoting Stemler v. City of Florence, 126 F.3d 856, 873-74 (6th Cir. 1997)). The defendant offer three reasons why the plaintiffs have not pleaded a valid equal protection claim. 1. The defendant's first argument posits that the plaintiffs have not identified a valid comparitor class because they are not similarly situated to married couples, who are eligible for benefits under Public Act 297. In support of this argument, the defendant cites United States v. Green, 654 F.3d 637, 651 (6th Cir. 2011), but that case is inapposite. As Green makes clear, the "similarly-situated" requirement applies to "class-of-one" equal protection claims, in which a plaintiff does not assert that he or she is a member of a class. Ibid.; see also Paeth v. Worth Tp., 705 F. Supp. 2d 753, 768 (E.D. Mich. 2010). However, the plaintiffs in this case are not asserting a class-of-one claim. Instead, the plaintiffs are asserting a class-based sexual orientation claim. The Sixth Circuit has held that "[a] claim alleging discrimination on the basis of sexual orientation . . . should not be characterized as a class-of-one claim," but rather [*52] as a "traditional, class-based discrimination claim." Davis, 679 F.3d at 441-42. Because the plaintiffs' claims must be characterized as a "traditional, class-based discrimination claim," the similarly-situated requirement simply does not apply. Moreover, Public Act 297 creates a classification based on sexual orientation. Although the act does not use the term "sexual orientation," it both explicitly incorporates statutes that draw classifications based on sexual orientation and renders access to benefits legally impossible only for gay and lesbian couples. The Act incorporates the definitions in the Michigan marriage amendment and the intestacy statute. Both of those laws distinguish between opposite-sex couples, who are permitted to marry and can inherit under intestacy, and same-sex couples, who cannot. In Johnson v. New York, 49 F.3d 75 (2d Cir. 1995), and Erie Cnty. Retirees Ass'n v. Cnty. of Erie, Pa., 220 F.3d 193 (3d Cir. 2000), the Second and Third Circuits found that employment policies facially discriminated on the basis of age, even where the policies themselves did not mention age, because they incorporated other policies with explicit age restrictions. Johnson, 49 F.3d at 79; [*53] Erie, 220 F.3d at 211. The same can be said for Public Act 297 concerning sexual orientation. The defendant's attempt to distinguish those cases by noting that they dealt with federal antidiscrimination statutes rather than the Equal Protection Clause is unpersuasive. He has not presented any argument as to why the basic reasoning undergirding those decisions does not apply in the constitutional context. The defendant also asserts that unlike the policies at issue in those cases, the marriage amendment and intestacy statute are not facially discriminatory. That assertion cannot be reconciled with the text of the marriage amendment, which specifically defines marriage to exclude same-sex couples. That provision obviously distinguishes between opposite-sex couples, who may marry, and same-sex couples, who may not. And although it is true, as the defendant argues, that Michigan's intestacy statutes do not prevent gay and Page 14 2013 U.S. Dist. LEXIS 93345, *49 Case 3:13-cv-00750-JGH Document 38-9 Filed 12/16/13 Page 14 of 22 PageID #: 477 lesbian persons from inheriting, they do prevent gay and lesbian persons from inheriting from their partners, as only spouses, descendants, and paternal and maternal relatives are covered by intestacy. See Mich. Comp. Laws 700.2102, .2103. Several courts have found that [*54] statutes restricting benefits on the basis of marriage intentionally classify on the basis of sexual orientation where gays and lesbians cannot legally marry. Dragovich v. United States Dep't of the Treasury, 848 F. Supp. 2d 1091, 1100 (N.D. Cal. 2012); Collins v. Brewer, 727 F. Supp. 2d 797, 803 (D. Ariz. 2010), aff'd sub nom Diaz v. Brewer, 656 F.3d 1008 (9th Cir. 2011); Alaska Civil Liberties Union v. State, 122 P.3d 781, 788 (Alaska 2005); Bedford v. N.H. Cmty. Technical Coll. Sys., Nos. 04-E-229, 04-E-230, 2006 N.H. Super. LEXIS 6, 2006 WL 1217283, at *6 (N.H. Super. Ct. May 3, 2006). The Arizona law invalidated in Collins is illustrative. Arizona does not recognize same-sex marriage, but Arizona state law permitted spouses and domestic partners of state employees to obtain heath insurance benefits. In 2009, Arizona passed a law limiting state employee health insurance benefits to the employee's spouse and children. The Collins court reasoned that in contrast to unmarried heterosexual employees, who could marry to take advantage of state health care benefits, unmarried homosexual employees effectively were barred completely from obtaining benefits. Similarly, Public Act 297 makes health benefits available [*55] only "on terms that are a legal impossibility for gay and lesbian couples." Collins, 727 F. Supp. 2d at 803. The defendant responds that because under Michigan constitutional law, the benefits previously provided to the plaintiffs were not furnished on the basis of a relationship similar to marriage, Public Act 297 cannot implicate same-sex or opposite-sex relationships. That argument misses the mark. The question is not whether the benefit schemes of the local governments that employed the plaintiff turned on the nature of the plaintiff's relationship. The question is whether, in permitting benefits to be extended only to married couples while barring same-sex couples from marrying, Public Act 297 creates a classification on the basis of sexual orientation. The details of local government benefit schemes prior to the enactment of Public Act 297 have no relevance to that question. The defendant also argues that the plaintiffs' position would require state and local governments to provide benefits on the basis of a relationship similar to marriage in contravention of Michigan's constitution. That, too, is incorrect. Invalidation of Public Act 297 causes the statutory landscape simply [*56] to revert to its pre-Public Act 297 condition. As the defendant himself recognizes, those benefit schemes did not depend on the existence of a marriage-like relationship. Therefore, it is not only possible for local governments to provide domestic partner benefits in a manner consistent with the Michigan constitution (and for some local governments to choose not to do so), it is eminently likely that is precisely what would occur. Next, the defendant argues that because domestic relations is an area of traditional state concern, the Court should not interfere. But the national government may enact and interpret laws "that bear on marital rights." Windsor, 2013 U.S. LEXIS 4921, 2013 WL 3196928, at *13 (citing Hillman v. Maretta, 569 U.S. , 133 S. Ct. 1943, 186 L. Ed. 2d 43 (2013); Ridgway v. Ridgway, 454 U.S. 46, 102 S. Ct. 49, 70 L. Ed. 2d 39 (1981); and Wissner v. Wissner, 338 U.S. 655, 70 S. Ct. 398, 94 L. Ed. 424 (1950)). Moreover, domestic relations laws are not insulated from federal constitutional scrutiny merely because they are the traditional province of the states. See Loving v. Virginia, 388 U.S. 1, 7, 87 S. Ct. 1817, 18 L. Ed. 2d 1010 (1967) (observing that the State of Virginia could not argue "that its powers to regulate marriage are unlimited notwithstanding the commands of the Fourteenth Amendment"). [*57] And the injunction the plaintiffs seek affects only Public Act 297, which is not a part of Michigan's domestic relations law. The defendant also suggests that federal law, including the Defense of Marriage Act, has less influence in Michigan because Michigan does not recognize same-sex marriage. That argument is ill-founded, as this case does not involve the Defense of Marriage Act or any other federal statute and there is no law supporting the suggestion that federal constitutional requirements apply with less force in states that do not recognize same-sex marriage. Finally, the defendant argues that the Court should reject the plaintiffs' arguments based on the canon of constitutional avoidance. "If a statute is susceptible of 'two . . . plausible constructions,' one of which 'would raise a multitude of constitutional problems, the other should prevail.'" United States v. Erpenbeck, 682 F.3d 472, 475 (6th Cir. 2012) (quoting Clark v. Martinez, 543 U.S. 371, 380-81, 125 S. Ct. 716, 160 L. Ed. 2d 734 Page 15 2013 U.S. Dist. LEXIS 93345, *53 Case 3:13-cv-00750-JGH Document 38-9 Filed 12/16/13 Page 15 of 22 PageID #: 478 (2005)). However, the defendant has not suggested any viable interpretation of Public Act 297 that would permit the Court to avoid a constitutional decision. Moreover, to the extent that the defendant is suggesting that [*58] the Court must avoid interpreting or ruling on Public Act 297 to avoid creating a substantial conflict with Michigan's constitution, the argument is inapposite. No state constitutional issues have been presented. The unavoidable conclusion is that Public Act 297 contains a discriminatory classification on the basis of sexual orientation. 2. The State may discriminate among non-suspect classes if has a rational basis to do so. Moore v. Detroit Sch. Reform Bd., 293 F.3d 352, 368 (6th Cir. 2002) (stating that "[l]aws that do not involve suspect classifications and do not implicate fundamental rights or liberty interests . . . will be upheld if they are 'rationally related to a legitimate state interest'" (quoting Seal v. Morgan, 229 F.3d 567, 575 (6th Cir. 2000))). "On rational basis review, a classification bears a strong presumption of validity and a legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data." Alexander v. Merit Sys. Prot. Bd. 165 F.3d 474, 484 (6th Cir. 1999) (internal quotation marks and citation omitted). The State need "only [show] that the regulation bear[s] some rational relation to [*59] a legitimate state interest." Craigmiles v. Giles, 312 F.3d 220, 223 (6th Cir. 2002) (citing Romer v. Evans, 517 U.S. 620, 632, 116 S. Ct. 1620, 134 L. Ed. 2d 855 (1996)). The defendant presents two state interests that he argues Public Act 297 advances. First, the defendant argues that Public Act 297 promotes the policy goal of furthering "traditional marriage." But the defendant himself has written off serious consideration of that argument, stating that "it strains credulity to believe that a couple would marry simply to obtain health benefits, or would acquiesce to participation in a relationship they might not otherwise choose in order to qualify for the benefit." Def.'s Am. Mot. to Dismiss at 24. Nor has the defendant presented any argument how Public Act 297 actually furthers "traditional marriage." Assuming that the state has a legitimate interest in furthering "traditional marriage," Public Act 297 is not rationally related to that policy goal. The second argument is that Public Act 297 is rationally related to the State's legitimate interest in reducing the costs of employee benefits that municipalities must pay, and therefore no equal protection violation can be derived from the amended complaint. However, the [*60] plaintiffs have pleaded facts that plausibly demonstrate that cannot be true. The amended complaint alleges that Public Act 297 will result in only negligible cost savings to the state, which will be offset by a loss of tax revenue and increased healthcare costs, including increased use of publicly-funded health care. Am. Compl. 86, 90, 93, 94. Similar allegations have been found to be sufficient to survive a motion to dismiss. Collins, 727 F. Supp. 2d at 805. The plaintiffs also contend that the cost justification is a sham, and they have offered evidence that establishes a likelihood of success on that point. First, the plaintiffs have presented evidence that the State did not have any accurate information about the costs savings that would result from Public Act 297. Similar evidence has been found sufficient both to survive a motion to dismiss and to demonstrate a likelihood of success on the merits of a nearly identical equal protection claim. Collins, 727 F. Supp. 2d at 811-12. In affirming that decision, the Ninth Circuit highlighted the fact that the district court was provided with an expert analysis of the law on the state's finances but did not have any evidence as to the [*61] number of same-sex domestic partners participating in the health plan or as to the costs of such participation. Diaz, 656 F.3d at 1013. In this case, there were several legislative analyses that analyzed the fiscal impact of the bill, but each discussed the potential cost savings that would result from no longer providing other eligible adult benefits to State employees; none analyze the fiscal impact in terms of local government employees, to which Public Act 297 is directed. Def.'s Mot. to Dismiss Ex. 1A-D. Early estimates by the Office of the State Employer placed the potential yearly cost savings (based on coverage of state employees only) at $8 million, but that figure is suspect. It later was revised downwards by the Senate Fiscal Agency to $893,000. Def.'s Mot. to Dismiss Ex. 1A, 1B. Second, there is evidence that the type of benefits furnished by local governments will not impact the amount of funding that the state provides those governments. In Michigan, state funds are allocated to local governments on the basis of formulas set by the Page 16 2013 U.S. Dist. LEXIS 93345, *57 Case 3:13-cv-00750-JGH Document 38-9 Filed 12/16/13 Page 16 of 22 PageID #: 479 Michigan constitution and by statute. Mich. Const. Art. IX, sec. 30 (1963); Mich. Comp. Laws 18.1115(5), 18.1349. Local receive funds based [*62] on a formula that depends heavily on population; school districts receive funds on a per-pupil basis. Mich. Const. Art. IX, sec. 10 (1963); Mich. Comp. Laws 141.913, 141.911; Pl.'s Mot. for Prelim. Inj. Ex. M. Although local governments are generally unrestricted in the use of state funds, the state legislature has placed limitations on how much local entities can pay for employee health insurance benefits. Mich. Comp. Laws 141.917, 15.561 et seq.. Local governments must either keep their health insurance benefits payments under a hard cap set by a formula in the statute or pay 80% or less of the total costs of the medical benefits they offer; failure to do so results in a reduction in state funds. Mich. Comp. Laws 15.563, .564, .569. However, local governments may exempt themselves from the Act by a two-thirds vote of their governing bodies. Mich. Comp. Laws 15.568. In responses to interrogatories, the defendant admitted that the amount of funding Michigan provides to local government units does not depend on whether the unit provides benefits to other insured adults or on the number of individuals to whom the units provide insurance. Pls.' Mot. for Leave to File [dkt. [*63] #47] Ex. 3.C. The plaintiff also has offered evidence that in 2010, the City of Kalamazoo spent approximately 15% of its budget on benefits for its employees; the estimated cost of providing insurance for one domestic partner in 2012 was $6,104.76. Pl.'s Mot. for Prelim. Inj. Ex. O at 5, 7; Pls.' Mot. for Prelim. Inj. Ex. V-1, Collard Aff. at 13. Ann Arbor Public Schools spent 9.84% of its 2009 general fund budget on employee health care benefits. Pls.' Mot. for Prelim. Inj. Ex. N. Approximately 1.2% of Ann Arbor Public Schools' heath insurance costs in the 2011-2012 plan year, or $204,336, were due to coverage of other eligible adults. Pls.' Mot. for Prelim. Inj. Ex. V-2, Comsa Aff. at 11. In Ingham county, the total projected cost for providing other eligible adult benefits in 2012 is $16,157, or .002% of total expenditures on health care. Pls.' Mot. for Leave to File [dkt. #47] Ex. 1, Lannoye Aff. at 13. Officials from the City of Kalamazoo, the Ann Arbor Public Schools, Ingham County, and Kalamazoo Valley Community College have stated that any cost savings resulting from Public Act 297 would remain with their local government unit. Pls.' Mot. for Prelim. Inj. Ex. V-1, Collard [*64] Aff. at 26, Ex. V-2, Comsa Aff. at 23, Pls.' Mot. for Leave [dkt. #47] Ex. 1, Lannoye Aff. at 28, Ex. 2.A, Schlack Dep. at 36. Third, the plaintiffs have offered evidence that cost savings to local governments will be de minimus, and that the failure to provide such benefits actually may impose additional costs on local governments. For instance, of the 194 employees of the City of Kalamazoo eligible, six added an OQA to their plan. Pl.s' Mot. for Prelim. Inj. Ex. V-1, Collard Aff. at 6. Of approximately 1,800 full-time Ann Arbor Public Schools employees, thirty-three employees enrolled OQAs. Pl.'s Mot. for Prelim. Inj. Ex.V-2, Cosma Aff. at 2, 5. Of the 832 Ingham County employees eligible to participate, three had enrolled OQAs as on January 1, 2012. Pl.'s Mot. for Leave [dkt. #47] Ex. 1, Lannoye Aff. at 7. Only one individual signed up for household member benefits at Kalamazoo Valley Community College. Pl.'s Mot. for Leave [dkt. #47] Ex. 2.A, Schlack Dep. at 41. The plaintiffs have presented an affidavit from an economist, Dr. M.V. Lee Badgett at the University of Massachusetts, predicting the economic and fiscal effects of Public Act 297. He states that between .3% [*65] and 1.5% of employees eligible to enroll an OQA actually did so and that the resulting increase in health care costs ranged from .3% to .7%. Pl.'s Mot. for Prelim. Inj. Ex. U, Badgett Aff. 15. He also states that the administrative costs associated with providing other qualifying adult benefits are small, one-time costs. Id. 10-12. The increases in health care costs are small and proportionate. Id. 15-16. Dr. Badgett predicts that any state savings resulting from Public Act 297 will be small, and observes that some of those benefits are paid out of local funds. Id. 17-23. He also averred that the State will lose revenue from offsetting income tax payments, not all qualified adults will be prevented from receiving benefits under the act, and eliminating insurance coverage for other qualified adults could lead to additional costs to Medicaid and other government-sponsored health programs and to an increase in uncompensated care. Id. 17-22. Finally, Dr. Badgett posits that Public Act 297 could increase employment costs to local governments by preventing them from competing effectively with other employers for the best-qualified employees. Id. 24. The defendant argues that [*66] the plaintiffs' evidence does not demonstrate a likelihood of success on the merits, because to determine that the economic benefits of the Act are too minimal to demonstrate that its classifications are rationally related to a legitimate state interest would be to engage in judicial line-drawing that oversteps highly deferential rational basis review. The Page 17 2013 U.S. Dist. LEXIS 93345, *61 Case 3:13-cv-00750-JGH Document 38-9 Filed 12/16/13 Page 17 of 22 PageID #: 480 Court disagrees. Aside from saying so, the defendant has offered little to support its cost-savings rationale. The weakness of the defendant's proffered explanations indicates that Public Act 297 was nothing more than an attempt to bar same-sex couples from receiving partner benefits from public employers. The defendant's justifications "come close to striking [the Court] with 'the force of a five-week-old, unrefrigerated dead fish.'" Craigmiles, 312 F.3d at 225 (quoting United States v. Searan, 259 F.3d 434, 447 (6th Cir.2001)). That evidence does not satisfy rational basis review. Ibid. Moreover, although "a state has a valid interest in preserving the fiscal integrity of its programs" and "may legitimately attempt to limit its expenditures . . . a state may not accomplish such a purpose by invidious distinctions between classes [*67] of its citizens." Shapiro v. Thompson, 394 U.S. 618, 634, 89 S. Ct. 1322, 22 L. Ed. 2d 600 (1969), overruled in part on other grounds by Edelman v. Jordan, 415 U.S. 651, 94 S. Ct. 1347, 39 L. Ed. 2d 662 (1974). "[R]ational basis review is not a rubber stamp of all legislative action, as discrimination that can only be viewed as arbitrary and irrational will violate the Equal Protection Clause." Hadix v. Johnson, 230 F.3d 840, 843 (6th Cir. 2000). The Supreme Court has held that although "a State has a valid interest in preserving the fiscal integrity of its programs," the State may not attempt to "limit its expenditures . . . by invidious distinctions between classes of its citizens." Graham v. Richardson , 403 U.S. 365, 374, 91 S. Ct. 1848, 29 L. Ed. 2d 534 (1971) (quoting Shapiro, 394 U.S. at 633). Legislation curtailing benefits that is aimed at an unpopular group calls for closer examination. U.S. Dept. of Agriculture v. Moreno, 413 U.S. 528, 534, 93 S. Ct. 2821, 37 L. Ed. 2d 782 (1973) (stating that "a bare . . . desire to harm a politically unpopular group" is not a legitimate state interest). And although the Sixth Circuit has not addressed the issue, the First and Ninth Circuits have held that cost savings alone are insufficient to justify an otherwise discriminatory statute. Massachusetts v. United States Dep't of Health and Human Servs., 682 F.3d 1, 11, 14 (1st Cir. 2012); [*68] Diaz, 656 F.3d at 1013-14. The plaintiffs have shown that the defendant's justifications for the discrimination wrought by Public Act 297 are so insubstantial that animus against same-sex couples remains as the only genuine justification. 3. A plaintiff may also show that a government action lacks a rational basis "by demonstrating that the challenged government action was motivated by animus or ill-will." Scarbrough, 470 F.3d at 261. The Sixth Circuit repeatedly has held that "'the desire to effectuate one's animus against homosexuals can never be a legitimate governmental purpose, [and] a state action based on that animus alone violates the Equal Protection Clause.'" Davis, 679 F.3d at 438 (quoting Stemler v. City of Florence, 126 F.3d 856, 873-74 (6th Cir. 1997)). The defendant argues that the plaintiffs have failed to establish that Public Act 297 is based on discriminatory animus. The record suggests otherwise. The historical background and legislative history of the Act demonstrate that it was motivated by animus against gay men and lesbians. The history of debate over domestic partner benefits illustrates the tension between some local governments' desire to provide benefits to [*69] same-sex couples in a manner consistent with the Michigan constitution and a desire by opponents of same-sex benefits to block them. Local governments began to offer the other-eligible-adult benefit in their present form -- that is, open to partners who are of either the same or opposite sex -- after the Michigan Supreme Court held that conditioning benefits on the sex of the employee's partner violated the Michigan constitution. See National Pride at Work, Inc. v. Granholm, 481 Mich. 56, 71-75, 748 N.W.2d 524, 535-37 (2008). It is therefore apparent that eligible adult benefits represent local governments' attempt to provide health insurance benefits to same-sex couples on a basis that is consistent with the Michigan constitution. Public Act 297 seeks to block further attempts by local governments to provide benefits to same-sex couples in a manner consistent with the Michigan constitution by setting up requirements that same-sex couples cannot meet. That history demonstrates a concerted attempt to block same-sex partners from accessing benefits that is consistent with a desire to effectuate animus against gay men and lesbians. The plaintiffs fortify their position with statements from [*70] the sponsors of the legislation suggesting that Public Act 297 targets same-sex partners and was motivated by animus. Representative Peter Lund, a sponsor of Public Act 297, stated in reaction to the Michigan Civil Service Commission's decision to offer other eligible adult benefits that "[i]t is an absolute abomination to hear a state agency has the gall to make such a costly and polarizing political move while people and their government are pinching pennies just to make Page 18 2013 U.S. Dist. LEXIS 93345, *66 Case 3:13-cv-00750-JGH Document 38-9 Filed 12/16/13 Page 18 of 22 PageID #: 481 ends meet . . . this [is a] clearly political move that shifts people's hard earned dollars into the pockets of same-sex partners." Pls.' Mot. for Prelim. Inj. Ex. G-2. The lead sponsor of the act, Representative David Agema, stated that "[t]he people of this state, the Attorney General and the Michigan Supreme Court have all decided in recent years that marriage is between one man and one woman and to extend health benefits to unions that do not fall into that category is disrespectful to the people. For a state organization such as the CSC to blithely ignore these mandates is reprehensible." Pls.' Mot. for Prelim. Inj. Ex. G-1. After the Michigan legislature attempted, and failed, to overturn the commission's decision [*71] in March and April 2011, further press releases were issued by Republican lawmakers. See Pls.' Mot. for Prelim. Inj. Ex. G-4, Press Release by Representative Ken Yonker ("This is a strike in the face to the people of Michigan. . . . To disregard what the people have decided at the ballot box, and to disregard the boundaries of marriage makes a mockery of the moral fabric that has made America what it is today. . . . This was the worst thing to happen since we've been here and it's disgusting."); Ex. G-5, Press Release by Representative Tom Hooker ("I think Michigan residents have made it pretty clear time and again what they want with regard to benefits for unmarried and same sex partners . . . For the Democrats to uphold the CSC decision today goes exactly contrary to what the people in this state have voted for, and even what our state Supreme Court has said on the issue and I'm shocked."). Citing Isle Royale Boaters Assoc. v. Norton, 330 F.3d 777, 784 (6th Cir. 2003), the defendant argues that statements by Michigan's legislators are not a reliable indication of their true motivation. However true that caution might be, the defendant's argument on this point is not quite correct. [*72] In Isle Royale, the Sixth Circuit observed that it is "wary of relying on individual legislator's statements" to divine legislative intent and declined to rely on them in that case. Isle Royale Boaters Assoc. 330 F.3d at 784-85. This is not precisely the same thing as stating that statements of legislators are insufficient as a matter of law to support a finding of discriminatory animus. The former is a question of statutory construction; the second is a question of legislative purpose. Instead, the Court takes guidance from the Supreme Court's decision invalidating DOMA, which determined legislative purpose by looking to the "history of . . . enactment" and the statute's "own text." Windsor, 2013 U.S. LEXIS 4921, 2013 WL 3196928, at *15 ("The history of DOMA's enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its essence."). Looking to the history and text of Public Act 297, it is hard to argue with a straight face that the primary purpose -- indeed, perhaps the sole purpose -- of the statute is other than to deny [*73] health benefits to the same-sex partners of public employees. But that "can never be a legitimate governmental purpose." Davis, 679 F.3d at 438 (quoting Stemler, 126 F.3d at 873-74). The plaintiffs have stated a viable and likely successful equal protection claim. They have provided strong evidence that the discriminatory classification established by Public Act 297 is not rationally related to a legitimate governmental purpose. V. When deciding a motion for preliminary injunction under Federal Rule of Civil Procedure 65, the Court must consider four factors: (1) the likelihood of the party's success on the merits of the claim; (2) whether the injunction will save the party from irreparable injury; (3) the probability that granting the injunction will substantially harm others; and (4) whether the public interest will be served by the injunction. Summit County Democratic Central and Executive Committee v. Blackwell, 388 F.3d 547, 550 (6th Cir. 2004). "[T]he four factors are not prerequisites to be met, but rather must be balanced as part of a decision to grant or deny injunctive relief." Performance Unlimited v. Questar Publishers, Inc., 52 F.3d 1373, 1381 (6th Cir. 1995). The Court need [*74] not make specific findings regarding each of the four factors if fewer factors are dispositive of the issue. See Six Clinics Holding Corp., II v. Cafcomp Sys., Inc., 119 F.3d 393, 399 (6th Cir. 1997). "Although no one factor is controlling, a finding that there is simply no likelihood of success on the merits is usually fatal." Gonzales v. Nat'l Bd. of Med. Exam'rs, 225 F.3d 620, 625 (6th Cir. 2000). The plaintiff has the burden of proof, and that burden is the same irrespective of whether the relief sought is mandatory or prohibitive. United Food & Commercial Workers Union, Local 1099 v. Southwest Ohio Regional Transit Auth., 163 F.3d 341, 348 (6th Cir. 1998). Page 19 2013 U.S. Dist. LEXIS 93345, *70 Case 3:13-cv-00750-JGH Document 38-9 Filed 12/16/13 Page 19 of 22 PageID #: 482 A. For the reasons stated above, the Court finds that the plaintiffs have demonstrated a likelihood of success on the merits of their equal protection claim. B. The second factor also favors the plaintiffs. The plaintiffs probably will be able to prove that Public Act 297 denies them the equal protection of the laws. "[W]hen reviewing a motion for a preliminary injunction, if it is found that a constitutional right is being threatened or impaired, a finding of irreparable injury is mandated." Bonnell v. Lorenzo, 241 F.3d 800, 809 (6th Cir. 2001) [*75] (citing Elrod v. Burns, 427 U.S. 347, 373, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976)). Moreover, the potential risk to the plaintiffs' health resulting from the loss of medical insurance qualifies as irreparable harm. Although a plaintiff's harm is not irreparable if it is fully compensable by money damages, Basicomputer Corp. v. Scott, 973 F.2d 507, 511 (6th Cir. 1992), the plaintiffs have presented facts suggesting that plaintiffs Ramber and Ascheri have chronic conditions that could lead to serious complications if left untreated and that these plaintiffs are unable to afford insurance coverage that would permit them to continue treatment. Plaintiff Ramber has serious problems with her left eye that require daily medication and has been diagnosed with rheumatoid arthritis and gastroesophageal reflux disease, which requires medication and may require a series of endoscopy procedures; alternative health coverage would be difficult to obtain and purchasing coverage from her employer would cost more than half of Ramber's monthly take-home pay. Pls.' Mot. for Prelim. Inj. Ex. T-5, Jach Dec. 9, 11; Ex. T-6, Ramber Dec. 7, 9; Amend. Ex. [Dkt. #70]. Plaintiffs Ascheri and Johnson also have conditions that require regular [*76] medication or monitoring, and plaintiff Johnson has stated that she and her partner cannot afford replacement insurance. Pls.' Mot. for Prelim. Inj. Ex. T-7, Bloss Dec. 8; Ex. T-8, Ascheri Dec. 7; Ex. T-9, Miller Dec. 8-10; Ex. T-10, Johnson Dec. 7-9. The potential medical consequences and the financial uncertainty caused by Public Act 297 are sufficient to demonstrate irreparable harm. Schalk v. Teledyne, Inc., 751 F. Supp. 1261, 1268 (W.D. Mich. 1990). This factor favors granting the preliminary injunction. C. The balance of equities clearly favors the plaintiffs. Because "there is a likelihood that [the statute] will be found unconstitutional . . ., [it is] questionable whether [the state] has any 'valid' interest in enforcing" it. Planned Parenthood Assoc. of Cincinnati, Inc. v. City of Cincinatti, 822 F.2d 1390, 1400 (6th Cir. 1982). Meanwhile, Public Act 297 places significant financial, emotional, and medical burdens on the plaintiffs that outweigh any slight increase in cost to the State. Schalk, 751 F. Supp. at 1268 ("I am unconvinced that this harm [increased monthly costs] outweighs that of a retiree forced to go without medical care, or forced to choose between [*77] the basic necessities of life in order to pay his or her medical deductibles and co-pays or life insurance."). D. The public interest also favors granting an injunction. The public has an interest in ensuring that only constitutional laws are enforced. Planned Parenthood, 822 F.2d at 1400. In addition, the public has an interest "in the preservation of a healthy population." Schalk, 751 F. Supp. at 1268. That interest is furthered when public employers are permitted to extend health insurance benefits and harmed when individuals are abruptly terminated from health insurance coverage. As the plaintiffs observe, the public interest is also served by giving local authorities the autonomy to structure their benefit plans to attract and retain the most qualified possible workforce. VI. There remains a question as to the scope of the remedy at this stage of the proceedings. The defendant has raised two concerns over breadth of an injunction, the first of which need not detain the Court. The defendant appears to be concerned that the Court might issue an injunction ordering local governments to provide benefits to other eligible adults. But the Court does not read either the plaintiffs' amended [*78] complaint or their motion for a preliminary injunction to request such relief. Instead, the plaintiffs seek a declaration that the Act violates the Fourteenth Amendment and preliminary and permanent injunctions enjoining the defendant from enforcing the Act. The defendant appears to be laboring under a misapprehension as to the relief requested by the plaintiffs; the plaintiffs do not seek to require local governments to provide benefits, instead, they seek to enjoin the state from prohibiting public employers from Page 20 2013 U.S. Dist. LEXIS 93345, *74 Case 3:13-cv-00750-JGH Document 38-9 Filed 12/16/13 Page 20 of 22 PageID #: 483 offering benefits. The significant difference between these two propositions seems to have escaped the defendant, which in turn renders the defendant's argument slightly confused. Indeed, the parties appear to agree on the main point: if the Court finds that the statute is facially unconstitutional, the Court may issue a judgment so stating and enter a permanent injunction barring the defendant from enforcing the statute. The second question is whether preliminary injunctive relief should be confined to the plaintiffs in this case. The defendant argues that a preliminary injunction should benefit only the named plaintiffs because enjoining enforcement of the statute itself [*79] would effectively grant the relief sought in the complaint and would involve enjoining third parties. The defendant relies mainly on Sharpe v. Cureton, 319 F.3d 259 (6th Cir. 2003). In that case, the named plaintiffs were firefighters who proved at trial that the mayor of Knoxville unlawfully discriminated against them for supporting an opponent in a political election. The trial court permanently enjoined the mayor not only from discriminating against the plaintiffs, but also against any city employee. The court of appeals held that the scope of the injunction was too broad and "unnecessary to provide the named plaintiffs the relief to which they [were] entitled as prevailing parties." Id. at 273. The court explained that "[w]hile district courts are not categorically prohibited from granting injunctive relief benefitting an entire class in an individual suit, such broad relief is rarely justified because injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs." Ibid. (emphasis in original); see also Warshak v. United States, 532 F.3d 521, 531 (6th Cir. 2008) (citing Sharpe for this principle). Washington v. Reno, 35 F.3d 1093 (6th Cir. 1994), [*80] suggests that the test for determining whether to apply class-wide relief in a case involving individual plaintiffs is the same regardless of whether the injunction is preliminary or permanent. That case involved the federal Bureau of Prisons' use of the proceeds of the Commissary Fund, a trust of which federal inmates are the sole beneficiaries, to install and operate a direct dial system in place of a collect call system. The plaintiffs were individual federal prison inmates. The district court issued a preliminary injunction enjoining, among other things, the use of proceeds from the Commissary Fund to pay for the implementation of a direct dial system. The injunction was nationwide in scope rather than limited to the individual plaintiffs. The Sixth Circuit acknowledged that "'injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.'" Id. at 1103 (citing Califano v. Yamasaki, 442 U.S. 682, 702 (1979)), 99 S. Ct. 2545, 61 L. Ed. 2d 176. Nevertheless, the court upheld a nationwide injunction because it found that "the appropriate relief to be granted to the plaintiffs on their Commissary Fund claim necessarily implicate[d] nationwide relief." Id. at 1104. [*81] The court reasoned that "[t]he named plaintiffs' gains in obtaining an injunction prohibiting further invasions of the trust for the primary purpose of installing security equipment would be illusory indeed if the defendants were banned from funding security measures through the Commissary Fund at the Lexington facility only, but could finance those same measures at other institutions through invasions of Fund accounts." Ibid. The Court believes that it is necessary to enjoin the wholesale enforcement of the Act in order to provide complete relief to the plaintiffs. The nature of the relief sought does not impact any conduct by the defendant directed specifically toward the plaintiffs. Rather, the plaintiffs seek to prevent the defendant from interfering with their employers' voluntary action. Public Act 297 itself bars public employers from paying partner benefits; it is not enforced against the individual plaintiffs. An injunction, therefore, will necessarily bar the defendant from enforcing the Act against public employers, rather than against the individual plaintiffs. These circumstances parallel those in Bresgal v. Brock, 843 F.2d 1163 (9th Cir. 1987), where the district court [*82] imposed an injunction directing the Secretary of Labor to integrate forestry workers into its enforcement of the Migrant and Seasonal Agricultural Workers Protection Act. That Act required registration of labor contractors with the Department of Labor and disclosure of employment conditions to workers; it also imposed health and safety standards. Bresgal, 843 F.2d at 1165, 1169. The Secretary appealed, arguing that the injunction was overbroad, would affect more than the named plaintiffs, and would "require the national adoption of the court's interpretation of the Act." Id. at 1169. The court observed that "[c]lass-wide relief may be appropriate even in an individual action." Id. at 1171 (citations omitted). It was appropriate in that case, the court held, because "it is labor contractors," not the individual plaintiffs, "who are Page 21 2013 U.S. Dist. LEXIS 93345, *78 Case 3:13-cv-00750-JGH Document 38-9 Filed 12/16/13 Page 21 of 22 PageID #: 484 most directly affected by the injunction against the Secretary." Ibid. Because the plaintiffs' harm was the result of the statute's effect on third-party conduct, it was impractical to attempt to isolate only those contractors who dealt with the plaintiffs and limit the injunction's application. The court held that the district court properly ordered what [*83] turned out to be nationwide relief. Ibid. The plaintiffs here are similarly situated to the plaintiffs in Bresgal. To provide effective relief, the injunction must prohibit the defendant from enforcing Public Act 297, which applies to public employers. An injunction applicable only to the named plaintiffs would be impractical and difficult to enforce. The injunction will not mandate any public employer to do anything; it simply returns the employer-employee relationship to its status before Public Act 297 was enacted. VII. The Court concludes that the plaintiffs have standing to bring their challenge to the state statute, their claims are ripe, and abstention is not appropriate. The Court also finds that the plaintiffs have not stated a claim for which relief can be granted based on the deprivation of their right to substantive due process. However, they have stated a viable claim based on the Equal Protection Clause on which they are likely to succeed. Other factors favor issuance of a preliminary injunction. Accordingly, it is ORDERED that the defendant's motion to dismiss and amended motion to dismiss [dkt. # 15, 18] are GRANTED IN PART AND DENIED IN PART. It is further ORDERED that [*84] the Second Claim for Relief in the amended complaint is DISMISSED WITH PREJUDICE. It is further ORDERED that the plaintiffs' motion for preliminary injunction [dkt #18] is GRANTED. It is further ORDERED that the defendant, his officers, agents, servants, employees, and attorneys, and all those in active concert and participation with him who receive actual notice of this order are RESTRAINED AND ENJOINED from enforcing Michigan Public Act 297 (2011) during the pendency of this action or until further order of the Court. The Court finds that no security is required because no costs or damages that could result from the defendant being wrongfully enjoined have been shown. /s/ David M. Lawson DAVID M. LAWSON United States District Judge Dated: June 28, 2013 Page 22 2013 U.S. Dist. LEXIS 93345, *82 Case 3:13-cv-00750-JGH Document 38-9 Filed 12/16/13 Page 22 of 22 PageID #: 485 IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY AT LOUISVILLE
ELECTRONICALLY FILED
GREGORY BOURKE, ET AL. ) ) PLAINTIFFS ) ) CIVIL ACTION NO. v. ) ) 3:13-CV-750-JGH STEVE BESHEAR, ET AL. ) ) DEFENDANTS )
ORDER
****************
Motions having been made, and this Court being otherwise sufficient advised,
The Court finds that Plaintiffs have and will suffer immediate and reparable harm caused by Kentucky Constitution, Section 233A; Ky. Rev. Stat. 402.040(2); Ky. Rev. Stat. 402.045; and 28 U.S.C. 1738C 2 (2000). Wherefore, IT IS HEREBY ORDERED that the Plaintiffs Motion for Summary Judgment and Immediate and Permanent Injunctive Relief is GRANTED.
Case 3:13-cv-00750-JGH Document 38-10 Filed 12/16/13 Page 1 of 1 PageID #: 486