3:14-cv-00089 #33

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HAMBY ET AL. V. PARNELL ET AL.

CASE NO. 3:14-cv-
NOTICE OF ERRATA AND FILING OF CORRECTED REPLY
Heather Gardner AK Bar #0111079
Caitlin Shortell AK Bar #0405027
Allison Mendel AK Bar #8310136

Counsel for Plaintiffs

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

MATTHEW HAMBY and CHRISTOPHER
SHELDEN, a married couple, CHRISTINA
LABORDE and SUSAN TOW, a married
couple, SEAN EGAN and DAVID
ROBINSON, a married couple, TRACEY
WIESE and KATRINA CORTEZ, a married
couple, and COURTNEY LAMB and
STEPHANIE PEARSON, unmarried
persons,

Plaintiffs,

vs.

SEAN C. PARNELL, in his official capacity
as Governor of Alaska, MICHAEL
GERAGHTY, in his official capacity as
Attorney General of the State of Alaska,
WILLIAM J. STREUR, in his official
capacity as Commissioner of the State of
Alaska, Department of Health and Social
Services, and PHILLIP MITCHELL, in his
official capacity as State Registrar and
Licensing Officer, Alaska Bureau of Vital
Statistics,

Defendants.

)
)
)
Case No. 3:14-cv-00089 TMB


Plaintiffs, through counsel, hereby give notice of errata and correction of the
Reply to Defendants Response to Motion for Summary Judgment filed on October 3,
Case 3:14-cv-00089-TMB Document 33 Filed 10/03/14 Page 1 of 2

-2-

HAMBY ET AL. V. PARNELL ET AL.
CASE NO. 3:14-cv-
2014 at Doc. 32. A corrected version of the reply is attached to this Notice. Counsel is
unable to make corrections to the tables filed at Doc. 32 simultaneous to this Notice, but
will file such necessary corrections as soon as possible. Counsel believes that any table
corrections will be minimal since the corrections primarily addressed typographic errors
and inadvertent deletions. Therefore, counsel respectfully requests the Court and parties
accept the corrected Reply as attached.
DATED this 3
rd
day of October, 2014 at Seattle, Washington.

By: ____________/s/_______________
Heather Gardner #0111079
645 G Street, Suite 100-752
Anchorage, AK 99501
Telephone: (907) 375-8776

Caitlin Shortell #0405027
310 K Street Suite 200
Anchorage, AK 99501
Telephone: (907) 272-8181

Allison Mendel #8310136
Mendel & Associates, Inc.
1215 W 8th Ave
Anchorage, AK 99501
(907) 279-5001

Case 3:14-cv-00089-TMB Document 33 Filed 10/03/14 Page 2 of 2

Hamby, et al v. Parnell, et al
Case No. 3:14-cv-00089-TMB Page 1 of 25

INTRODUCTION

It is a promise of the Constitution that there is a realm of personal liberty
which the government may not enter. Planned Parenthood v. Casey,
505 U.S. 833, 847 (1992).

Defendants Opposition fails to state any basis for denial of Plaintiffs
motion for summary judgment. Defendants admit there are no material issues of fact in
dispute in this case.
1
These facts include: 1) that state law forbids two of the Plaintiffs
from marrying in Alaska, 2) that the married Plaintiffs are legal strangers to each other
because Alaska law voids their valid out-of-state marriages, and 3) that Alaskas refusal
to recognize their valid out-of-state marriages creates and results in a host of obstacles
and difficulties in obtaining the multitude of legal benefits and responsibilities that flow
to married couples automatically upon marriage. Alaska places none of these roadblocks
before heterosexual couples who seek to make one of the most intimate and personal
choices a person may make in a lifetime.
2

Yet despite the absence of any genuine dispute about the facts of this case,
and despite an ever-growing body of legal precedent that binds this Court to reach the
opposite conclusion, Defendants argue that Plaintiffs do not state a claim of violation of
the federal Constitution and claim that they, not Plaintiffs, are entitled to judgment on the

1
Def. Opp. at 12 at doc. 31.
2
Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833, 851 (1992).
Case 3:14-cv-00089-TMB Document 33-1 Filed 10/03/14 Page 1 of 25


pleadings or in the alternative, to summary judgment.
3
To support this position,
Defendants offer the same arguments that have already been rejected by virtually every
court nationwide that has considered the question of marriage equality nationwide.
Defendants urge this Court not only to ignore the overwhelming body of jurisprudence
that has found no merit in these arguments, but to adopt positions that disingenuously
misstate and disregard precedent binding on this Court. Because the Defendants fail to
assert a single meritorious argument supporting the constitutionality of Alaskas law
barring same-sex couples from marrying or having their valid out of state marriages
recognized, Defendants demand for judgment under Rule 12(c) fails.
4
Because these
laws fail under the applicable levels of scrutiny prescribed by the Supreme Court and the
Ninth Circuit, and thus clearly violate the equal protection and due process rights of
Plaintiffs under Windsor and both its ancestors and its progeny, the Court should GRANT
Plaintiffs Motion for Summary Judgment and enter judgment for Plaintiffs.
I. STRICT OR HEIGHTENED SCRUTINY APPLIES TO
PLAINTIFFS CLAIMS.
A. Strict Scrutiny Applies to Due Process and Equal Protection
Claims Implicating the Fundamental Right to Marry.
Defendants argue that rational basis review should apply to Plaintiffs Due
Process and Equal Protection claims because there is no constitutional fundamental right

3
4
Fed. R. Civ. P. 12(c).


to same-sex marriage.
5
Contrary to Defendants claims, this case does not implicate a
new right. Because the right to marry, and to remain married, is fundamental and due
to all individuals, strict scrutiny applies to Alaskas marriage bans.
Courts apply strict scrutiny to laws that infringe on fundamental rights.
When a fundamental right is recognized, due process forbids the infringement of that
right at all, no matter what process is provided, unless the infringement is narrowly
tailored to serve a compelling state interest.
6

As explained in Plaintiffs Motion and the Amici Curiae Brief, the right to
marry is well established as a fundamental right.
7
Marriage is among certain
fundamental rights of personhood. These rights center on the most significant decisions
of a lifetimewhom to marry, whether to have children, and how to raise and educate
children.
8
Marriage is thus among the rights sheltered by the Fourteenth Amendment
against the States unwarranted usurpation, disregard, or disrespect.
9

5
6
Witt v. Dept of Air Force, 527 F.3d 806, 817 (9th Cir. 2008) (quoting Reno v. Flores,
507 U.S. 292, 301-02 (1993)).
7
Pl. Mot. at 11-16, at doc. 20; Amici Curiae Brief at 5-10 at doc. 18.
8
Latta v. Otter, ___F.Supp.2d___, 2014 WL 1909999, *10 (D. Idaho 2014) (citing
Lawrence v. Texas, 539 U.S. 558, 574 (2003)).
9
M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996) (quoting Boddie v. Connecticut, 401 U.S.
371, 276 (1971)).


Contrary to Defendants argument, this right to marry is not defined in
reference to those permitted to exercise that right.
10
Importantly, the Supreme Court, in
Lawrence v. Texas, affirmed that individuals do not forfeit this fundamental right by
virtue of their sexual orientation: [o]ur laws and tradition afford constitutional protection
to personal decisions relating to marriage, procreation, contraception, family
relationships, child rearing, and education. Persons in a homosexual relationship may
seek autonomy for these purposes, just as heterosexual persons do.
11
And in United
States v. Windsor, the Supreme Court struck down the man-woman definition of marriage
in federal law because it comprised unconstitutional interference with the dignity of
same-sex marriages.
12
Windsor thus makes clear that marriage is not inherently defined
by the sex of the spouses and that the fundamental right to marry is not limited to
opposite-sex couples; it is due to all individuals. Because the right to marry is a
fundamental right subject to strict scrutiny, any government intrusion on this right for any
person must serve a compelling governmental interest and be narrowly tailored to achieve
that interest.
13

10
Loving v. Virginia, 388 U.S. 1, 12 (1967) (upholding the fundamental right to marry,
not a new right to interracial marriage), Turner v. Safley, 482 U.S. 78, 96 (1987)
(upholding right to marry, not the right of prisoners to marry) Zablocki v. Redhail, 434
U.S. 374, 384 (1978) (upholding the right to marry, not the right of people owing child
support to marry).
11
Lawrence, 559 U.S. at 574.
12
United States v. Windsor, __U.S.__, 133 S.Ct. 2675, 2693 (2013).
13
Reno, 507 U.S. at 301-302.


The Fourth and Tenth Circuits recently reviewed Supreme Court
precedent and applied strict scrutiny to state laws excluding same-sex couples from
marriage or marriage recognition, based on the fundamental right to marry. These
opinions are well-reasoned and persuasive, and deserve to be followed. In Kitchen v.
Herbert, the Tenth Circuit affirmed the District Courts order striking down Utahs
marriage ban: we cannot conclude that the fundamental liberty interest in this case is
limited to the right to marry a person of the opposite sex. [T]he Supreme Court has
traditionally described the right to marry in broad terms independent of the persons
exercising it.
14
And in Bostic v. Schaeffer, the Fourth Circuit, noting that over the
decades, the Supreme Court has demonstrated that the right to marry is an expansive
liberty interest that may stretch to accommodate changing societal norms, applied strict
scrutiny to find Virginias marriage bans violated both the Due Process and Equal
Protection Clauses as an impermissible infringement on the fundamental right to marry.
15

Defendants urge this Court to ignore the Supreme Courts broad definition
of this fundamental right and replace it with a narrowly constructed definition by parsing
from the fundamental right enjoyed by all citizens a new, separate, and unprotected
category of same-sex marriage.
16
Defendants argue that Plaintiffs ask this Court to
create a new right that has never existed, ignoring the fundamental right described in

14
Kitchen v. Herbert, 755 F.3d 1193, 1209 (10th Cir. 2014).
15
Bostic v. Schaeffer, 760 F.3d 352, 376-77 (4th Cir. 2014).
16
Def. Opp. at 11-13 at doc. 31.


Loving v. Virginia almost half a century ago, and upheld by the Supreme Court ever
since.
17

Defendants attempt to frame the question presented here as analogous to
that presented in Washington v. Glucksberg.
18
In Glucksberg, the Court was asked to
create a new and distinct fundamental rightthe right to assisted suicide.
19
The issue in
this case, by contrast, involves a long-recognized fundamental rightthe right to marry.
Thus, the issue is not whether there is a constitutional right to same-sex marriage, but
whether excluding people from a fundamental right that belongs to all individuals
violates due process.
The difference between recognizing a new fundamental right and
protecting a fundamental right is illustrated by the Supreme Courts reasoning in
Griswold v. Connecticut and Eisenstadt v. Baird. In Griswold, the Court held that a
married couple has a right to obtain contraceptives.
20
Seven years later, in Eisenstadt,
when confronted with the question whether unmarried individuals have a right to
purchase contraceptives, the Court did not define the question as a new, separate right of
unmarried people to contraceptives. Instead, it held that the right to contraceptives and
reproductive privacy covered all citizens, married or unmarried.
21
The Court in

17
Loving, 388 U.S. at 12; see also Turner, 482 U.S. at 95, Zablocki, 434 U.S. at 384.
18
Def. Opp. at 11-13 at doc. 31; 521 U.S. 702 (1997).
19
Glucksberg, 521 U.S. at 737.
20
Griswold v. Connecticut, 381 U.S. 479, 486 (1965).
21
Eisenstadt v. Baird, 405 U.S. 438, 454-55 (1972).


Glucksberg cited both Eisenstadt and Griswold as cases that properly recognized this
substantive due process right.
22
Glucksberg therefore refutes Defendants proposed
narrow construction of the fundamental right to marry as excluding same-sex couples,
thus requiring this Court to find a new and separate due process right before applying
strict scrutiny to Plaintiffs claims.
Defendants approach is not a novel argument; it has been tried by
similarly-situated Defendants nationwide and has been broadly rejected by circuit and
district courts.
23
In Latta v. Otter, the Idaho District Court explained that the new
right argument attempts to narrowly parse a right that the Supreme Court has framed in
remarkably broad terms. Even in cases with vastly different facts, the Supreme
Court has upheld the right to marry, as opposed to a sub-right tied to the facts of the
case.
24
The Latta court explained:
[T]he Supreme Court has long recognized an
unembellished right to marry. [T]he right transcends
ones race, confinement to prison, or ability to support
children. Lawrence unequivocally cements marriage as
among the constitutionally protected liberties shared by
homosexual and heterosexual persons alike. The teaching
of these cases is that the fundamental right to marry cannot
be narrowed in the manner Defendants urge. Idahos
marriage laws render the Plaintiff couples legal strangers,
stripping them of the choice to marry or remain married in
the state they call home. Therefore, Idahos marriage laws

22
Glucksberg, 521 U.S. at 720.
23
See, e.g., Bostic, 760 F.3d at 376-77.
24
Latta, ___F.Supp.2d___, 2014 WL 1909999 at *12.


impermissibly infringe on Plaintiffs fundamental right to
marry.
25

Alaskas marriage laws are not substantially different from the Idaho laws
struck down in Latta, and the same analysis applies. By excluding Plaintiffs from
marrying or having their out-of-state marriages recognized, Defendants infringe upon
Plaintiffs fundamental right to marry. Defendants argument that the Supreme Court has
never found a fundamental right to same-sex marriage under the Due Process Clause is
simply incorrect, because the Supreme Court has found that all individuals have a
fundamental right to marry.
26
It is also true that the Supreme Court has not separately
delineated a fundamental right for left-handed people or brunettes to marry. Such parsing
is not necessary: fundamental rights are defined by the constitutional interest at stake and
the conduct affected, not by the nature of the person exercising that right.
27
Because the
right to marry, and to remain married to, the person of ones choice, is fundamental and
due to all individuals, this Court should apply strict scrutiny to Alaskas marriage laws
that deny Plaintiffs this fundamental right.
B. This Court is Bound by SmithKline to Apply Heightened
Scrutiny to Alaskas Marriage Bans in its Equal Protection
Analysis.

25
Id. at *13.
26
Zablocki, 434 U.S. at 384.
27
Id.


Defendants argue that this Court should subject Alaskas marriage bans to
rational basis review.
28
This is based on a profound misstatement of the Ninth Circuits
holding in SmithKline Beecham v. Abbott Laboratories.
29
As set forth below, because the
cornerstone of Defendants opposition is a fundamentally incorrect interpretation both of
the holding in SmithKline and of its effect on this case, each and every subsequent
argument of Defendants fails as a matter of law.
Specifically, Defendants argue that 1) SmithKline is only about jury
selection; 2) the Ninth Circuit was wrong to interpret Windsor as adopting a heightened-
scrutiny standard of review for classifications based upon sexual orientation and that
Windsor supports a rational basis review of Alaskas marriage bans; and 3) because the
Ninth Circuit was wrong to interpret Windsor as applying heightened scrutiny to
classifications based upon sexual orientation, this Court should ignore the SmithKline
decision and apply a rational basis review to laws that exclude a discrete group from a
fundamental right.
30
Each of these arguments is fundamentally wrong.

28
29
740 F.3d 471 (9th Cir. 2014).
30
Defendants also contend that Baker v. Nelson controls this case. Def. Opp. at 10, at
doc. 31. Since Windsor was decided, nearly every federal court to consider the issue has
ruled that Baker does not control. Bostic, 760 F.3d at 373. See also Baskin v. Bogan,
___F.3d___, 2014 WL 4359059, *14 (7th Cir., Sept. 4, 2014). But see Merritt v. Att'y
Gen., No. 13-005-BAJ-SCR, 2013 WL 6044329, *1 (M.D. La. Nov. 14, 2013) (adopting
magistrate judges recommendation to dismiss pro se complaint without considering
whether doctrinal developments had undermined Baker).


SmithKline unequivocally holds that heightened scrutiny applies to equal
protection claims involving sexual orientation. Defendants need read no further than the
third paragraph of the opinion in SmithKline to find its holding. Judge Reinhardt, writing
for the unanimous panel, disposed of Defendants position regarding the level of scrutiny
in two sentences in the introduction:
We must first decide whether classifications based on
sexual orientation are subject to a standard higher than
rational basis review. We hold that such classifications are
subject to heightened scrutiny.
31

To dispel any lingering hint of ambiguity, the SmithKline court further
clarified the basis for its application of heightened scrutiny to equal protection claims in
light of both Windsor and Witt v. Dept of Air Force,
32
without limiting it to the context
of the juror selection process. It explained that although Windsor did not expressly
announce the level of scrutiny it applied, the Ninth Circuit had confronted the same
issue in Witt in light of the Supreme Courts decision in Lawrence. Just as the Ninth
Circuit in Witt determined the applicable standard by considering what the Court
actually did, rather than by dissecting isolated pieces of texts, in SmithKline, it analyzed

31
SmithKline, 740 F.3d at 474. Defendants attempt to cabin SmithKline as a jury-
selection case is futile: juror selection Batson-claims are based on the Equal Protection
Clause of the Constitution. See id. at 479.
32
527 F.3d 806 (9th Cir. 2008).


Windsor to conclude that heightened scrutiny applies to equal protection claims.
33

Applying the Witt test, the Ninth Circuit held:
Windsor review is not rational basis review. In its words
and its deed, Windsor established a level of scrutiny for
classifications based on sexual orientation that is
unquestionably higher than rational basis review. In other
words, Windsor requires that heightened scrutiny be
applied to equal protection claims involving sexual
orientation.
34

Since the Ninth Circuits holding that heightened scrutiny applies to equal
protection claims involving sexual orientation could hardly be more clear, Defendants
reading of SmithKline as supporting rational basis review of such classifications is
remarkably disingenuous.
35
The Ninth Circuit view is plain: both Windsor and Lawrence
v. Texas require the application of a higher level of scrutiny to such classifications. The
Defendants may disagree with the Ninth Circuits analysis of Windsor, but this Court is
bound by the ruling. Heightened scrutiny applies to Alaskas marriage bans.
36

Under such heightened review, the burden of justification is demanding
and it rests entirely on the State.
37
Heightened scrutiny is designed to ensure that

33
Witt, 527 F.3d at 816.
34
SmithKline, 740 F.3d at 481 (emphasis added). See also Baskin, ___F.3d___, 2014
WL 4359059, *38-39 (7th Cir., Sept. 4, 2014).
35
Def. Opp. at 23, at doc 31.
36
See also Baskin, ___F.3d___, 2014 WL 4359059, *3, 6, 38 (applying a form of
heightened scrutiny to Indiana and Wisconsin marriage bans because they discriminate
along suspect lines).
37
United States v. Virginia, 518 U.S. 515, 533 (1996).


discriminatory laws do not create or perpetuate the legal, social, and economic
inferiority of the affected class.
38
Defendants fail to meet their burden to show that
compelling or important state interests are served by laws that single out same-sex
couples for the purpose of excluding them from marriage. Because Defendants cannot
show that these laws survive heightened scrutiny, this Court must grant Plaintiffs Motion
for Summary Judgment.
C. Heightened Scrutiny Applies Because Alaska Discriminates on
the Basis of Gender.
Defendants contend that, because Alaskas laws apply equally to both
men and women, the laws do not discriminate based on gender.
39
But Loving
establishes that equal application does not immunize a discriminatory statute, no matter
what the motive is behind the statutes enactment.
40

D. This Court Should Apply Strict Scrutiny to Plaintiffs Claims
and Must Apply Heightened Scrutiny to Plaintiffs Equal
Protection Claims.
This Court should apply strict scrutiny to Plaintiffs Due Process and
Equal Protection claims because Alaskas laws infringe upon their fundamental right to
marry. Under this standard, Defendants have the burden to demonstrate a compelling
state interest and that the law is narrowly tailored to achieve that compelling interest.
41

38
Id. at 533-34.
39
Def. Opp. at 26, at doc. 31.
40
See Pl. Mot. at 31-34, at doc. 20; Loving, 388 U.S. at 8.
41
Reno, 507 U.S. at 301-302.


This Court must apply heightened scrutiny to Plaintiffs equal protection claims based on
sexual orientation and gender discrimination.
42
Under heightened scrutiny, Defendants
must show that the discriminatory laws are substantially related to the achievement of an
important governmental interest.
43

Under either level of scrutiny, Defendants have the burden of establishing
a causal link between the challenged law and any alleged interest. But Defendants do not
even argue that the marriage laws serve a compelling state interest, let alone establish any
causal link.
44
Defendants merely assert, unsupported by facts, that the State of Alaska
has important interests that are served by excluding same sex-couples from marriage.
In fact, Defendants arguments, reviewed under any standard, merely serve to underscore
that the marriage laws do not serve any legitimate governmental interest.
II. DEFENDANTS PURPORTED INTERESTS DO NOT SURVIVE
ANY LEVEL OF SCRUTINY AND ARE FACTUALLY FLAWED.
Defendants purported justifications for excluding same-sex couples from
marriage in Alaska are all rooted in principles of federalism and voters rights. Neither of
these interests support denying Plaintiffs their constitutional rights to Due Process and

42
See SmithKline, 740 F.3d 471, Virginia, 518 U.S. at 532-33.
43
See Hibbs v. Dept of Human Resources, 273 F.3d 844, 855 (9th Cir. 2001).
44
When ordered by the Alaska Superior Court to name a compelling interest served by
the states refusal to issue a marriage license to a same sex couple, the state dodged the
order by placing a constitutional amendment on a statewide ballot to remove the matter
from the courts review. Brause v. Bureau of Vital Statistics, 1998 WL 88743 (Alaska
Super. 1998) (3AN-95-06562 CI). Nearly two decades later, the state has yet to offer any
compelling interest that is served by excluding same sex couples from marriage.


Equal Protection. Defendants make no attempt to demonstrate that their alleged interests
satisfy heightened or strict scrutiny. Because Defendants proceed from the assumption
that the Court will apply a rational-basis standard, They do not attempt to establish a
nexus between their asserted interests and Alaskas marriage bans. The bans therefore do
not pass constitutional muster.
A. Federalism Alone is not a Compelling or Important State
Interest.
Throughout their Opposition, Defendants rely on principles of federalism
to support the constitutionality of Alaskas marriage bans.
45
They invoke Alaskas
sovereign right and mischaracterize Windsor as stand[ing] for the proposition that the
definition of marriage is an issue for the states and the will of the voters .
46
But
contrary to the dissent quoted by Defendants, Windsor explicitly rejected federalism as
the basis for its decision: it is unnecessary to decide whether [DOMA] is a violation of
the Constitution because it disrupts the federal balance.
47
The Court instead based its
decision that section 3 of DOMA is unconstitutional on the Fifth Amendment. It held
that excluding same-sex couples lawfully married in a State from federal recognition
resulted in injury and indignity [that was] a deprivation of an essential part of the liberty
protected by the Fifth Amendment.
48

45
Def. Opp. at 3, 6-9, 18-20, at doc. 31.
46
Def. Opp. at 7, 18, at doc. 31.
47
Windsor, 133 S.Ct. at 2692.
48
Id.


Windsor warns that State laws defining and regulating marriage must
respect the constitutional rights of persons.
49
Indeed, as noted by the Fourth Circuit,
Windsor is actually detrimental to [Defendants] position.
50
States are not the sole
intended beneficiaries of federalism;
52
federalism is also an essential check on state
power.
53
Alaska cannot infringe on individuals constitutional rights in the name of
federalism.
54
Further, Defendants do not demonstrate how excluding same-sex couples
from marriage in Alaska serves to promote federalism.
B. The Democratic Process Cannot Justify the Infringement of
Constitutional Rights.
Defendants claim that Windsor and Schuette v. Coalition to Defend
Affirmative Action
55
support their contention that Alaskas voters have the right to
deprive same-sex couples of their right to marry.
56
All of the more specific interests
they allege in their motion are grounded on this right of voters.
57
Citing Schuette and
Windsor, the State first claims that it has a critical interest in [p]ermitting Alaskas
residents to retain the traditional definition of marriage because this support[s] the

49
Id. at 2691.
50
Bostic, 760 F.3d at 378.
52
Bond v. United States, 131 S.Ct. 2355, 2364 (2011).
53
Latta, ___F.Supp.2d___, 2014 WL 1909999 at *26.
54
See Bostic, 760 F.3d at *11378 (rejecting federalism as State interest in excluding
same-sex couples from marriage).
55
134 S.Ct. 1623 (2014).
56
Def. Opp. at 8-9, 18-20, at doc. 31.
57
Id. at 18.


democratic form of government.
58
Defendants next assert the voters interests in acting
cautiously in maintaining the traditional definition of marriage.
59
As a third
justification, Defendants contend that it is legitimate for voters to believe that children
need one male and one female parent and that excluding same-sex couples from marriage
will encourage biological male-female parents to remain together to raise their natural-
born children.
60
Notably, Defendants do not offer factual support for these interests; they
merely speculate that voters might have these interests.
But the Supreme Court has never held that a laws democratic enactment
constitutes even a rational basis for its existence, and has rejected democratically-enacted
laws for failure to pass even deferential review. For example, a democratically-enacted
statute establishing a scheme for payment of Alaska Permanent Fund Dividends was
struck down by the Supreme Court because it was not rationally related to any legitimate
state interest.
61
On matters involving conflict between individual rights and social
consensus, the Supreme Court comes down on the side of the individual: A citizens
constitutional rights can hardly be infringed simply because a majority of the people
choose that it be.
62
As the Seventh Circuit recently remarked, [m]inorities trampled on
by the democratic process have recourse to the courts; the recourse is called

58
Id. at 18-19.
59
Id. at 20.
60
Id.
61
Zobel v. Williams, 457 U.S. 55, 65 (1982).
62
Lucas v. Forty-Fourth Gen. Assembly of Colo., 377 U.S. 736-37 (1964).


constitutional law.
63
And as the Utah district court noted: fundamental rights may not
be submitted to a vote; they depend on the outcome of no elections.
64

Defendants reliance on Schuette to support their position that Alaskas
voters can deprive Plaintiffs of their constitutional rights is misplaced.
65
In Schuette, the
Supreme Court examined an amendment to the Michigan Constitution that forbade the
use of racial preference in Michigans public education institutions, and found that it
was not unconstitutional.
66
A racial preference is itself a form of unequal treatment.
Schuette does not stand for the proposition that voters have the right to discriminate. It
holds that voters of a state have the right to tell that state not to discriminate. This is
clearly not the issue here.
Defendants argument that the right of the people to govern and
permitting Alaskas residents to decide whether to retain the traditional definition of
marriage serve the important governmental interests of supporting the democratic form
of government is tautological. Moreover, a States interest in the democratic process is
not advanced by excluding same-sex couples from marriage or by refusing to recognize
same-sex couples extra-jurisdictional marriages. Discrimination must be justified by

63
Baskin v. Bogan, ___F.3d___, 2014 WL 4359059, *37 (7th Cir., Sept. 4, 2014).
64
Kitchen v. Herbert, 961 F.Supp.2d 1181, 1196 (quoting W.Va. Bd. of Educ. v. Barnette,
319 U.S. 624, 638 (1943)).
65
Def. Opp. at 8-10, 18, at doc. 31.
66
Schuette, 134 S.Ct. at 1630, 1638.


more than a desire to discriminate. Alaskas marriage laws do not survive heightened
scrutiny.
C. Defendants claim relating to Alaskas and Alaskans power to
define marriage is factually flawed.
Defendants claim that the marriage laws define marriage, so as to fall
within the states traditional sphere of sovereignty, and as such should be free of the
review of the federal courts. Indeed, Defendants warn in their opening paragraph that
democracy is at risk unless the voters and their elected representatives decide
important matters of public policy.
67
Presumably, Defendants include among these
important matters of public policy the exclusion of same-sex couples from marriage. But
adding language to exclude same-sex couples from marrying, as the legislature did in
1995, did not in fact serve to clarify the definition of marriage or affirm traditional
marriage in any way. Alaska statutes purport to define marriage, but for the purposes of
the statute, the defining characteristic of marriage is as a contractual matter involving the
issuance of a license. The requirements for marriage in Alaska are described in AS
25.05.011:
Sec. 25.05.011. Civil contract.
(a) Marriage is a civil contract entered into by one man and one
woman that requires both a license and solemnization. The man and the
woman must each be at least one of the following:
(1) 18 years of age or older and otherwise capable;

67
Def. Opp. at 2, doc. 31.


(2) qualified for a license under AS 25.05.171; or
(3) a member of the armed forces of the United States while on
active duty.
(b) A person may not be joined in marriage in this state until a
license has been obtained for that purpose as provided in this chapter. A
marriage performed in this state is not valid without solemnization as
provided in this chapter.
Marriage, as defined by the State of Alaska, is thus not a tradition of the ages, but a
contract subject to a licensing process. A person seeking to marry must take specific
steps in the order specified by the government. Under AS 25.05.071, the only person
who can issue a marriage license is the registrar, a position currently occupied by
Defendant Mitchell, or his designee. Only after obtaining a license may a person proceed
to solemnize the marriage. In fact, a person who solemnizes a marriage without the
license is subject to criminal penalties under AS 25.05.361. The sequential process of
obtaining the license and then submitting to the solemnization creates the civil contract.
If the license is not obtained or the solemnization is not performed, the contract does not
come into existence, and the couple is not married, regardless of their relationship to each
other, and they cannot claim the protections, benefits, and responsibilities that come with
marriage.
In other words, the contract produced by the license and the solemnization
defines marriage, and that definition remains unchanged, since the process before and
after the 1995 amendment was the same. All the 1995 revisions and the 1998 amendment
did was to codify the exclusion of same-sex couples from marriage. Whatever the


proponents justifications for these laws may have been, they do not define marriage.
68

The State of Alaska, its legislators, and its voters are not empowered to enact laws that
infringe upon citizens fundamental rights. This includes the right to marry. Defendants
have failed to state any basis for this Court to allow Alaskas marriage laws to stand.
III. PLAINTIFFS ARE HARMED BY ALASKAS MARRIAGE BANS.
Defendants claim that Alaskas marriage laws do not deny same-sex
couples equal protection, citing Alaska Supreme Court cases ACLU v. State, State v.
Schmidt, and Harris v. Millenium Hotel.
69
As explained below, this is disingenuous.
A. The Text of AS 25.05.013 and Alaska Supreme Court precedent
demonstrate Plaintiffs unequal treatment.
The Alaska Legislature created AS 25.05.013 in 1995 for the sole purpose
of voiding the valid marriages of same sex couples and excluding them from benefits that
accrue to married Alaskans:
Sec. 25.05.013. Same-sex marriages.
(a) A marriage entered into by persons of the same sex, either
under common law or under statute, that is recognized by another state
or foreign jurisdiction is void in this state, and contractual rights
granted by virtue of the marriage, including its termination, are
unenforceable in this state.

68
Defendants argue that Alaskas marriage bans are not unconstitutional because of
animus. Def. Opp. at 23, at doc. 31. In light of the level of scrutiny applicable here, this
claim is irrelevant.
69
122 P.3d 781 (Alaska 2005); 323 P.3d 647 (Alaska 2014); 330 P.3d 330 (Alaska 2014);


(b) A same-sex relationship may not be recognized by the state as being
entitled to the benefits of marriage.
It is disingenuous to argue that a law that on its face serves no purpose
except to exclude same-sex couples (including valid marriages) from the benefits of
marriage does not deny the people in such relationships equal protection or the right to
receive the benefits of marriage.
70
The State also does not acknowledge its own position
in the cases it cites, in which it argued that the purpose of AS 25.05.013 was to exclude
same-sex couples from the benefits married couples receive automatically.
71

Defendants claim that state provided health benefits are provided to
committed same-sex couples on the same basis as for married couples.
72
Not only is
this factually untrue, it also illustrates how differently same-sex couples are treated from
married couples even in instances where the Alaska Supreme Court has held that Alaska
must treat them equally.
73
Because the State does not recognize the valid marriages of
same-sex couples, the process by which such a couple may demonstrate its
commitment is burdensome. In order to satisfy the Division of Retirement and
Benefits of the couples commitment, a state employee who seeks to provide family
health benefits to his same-sex partner must produce a number of private documents
including, but not limited to, the couples wills, powers of attorney, life insurance
policies, and bank statements, and he must be prepared to answer questions presented by

70
71
See Schmidt, 323 P.3d at 656-57; see also Harris, 330 P.3d at 333.
72
Def. Opp. at 21.
73
See ACLU, 122 P.3d at 784.


the divisions employees.
74
One document that does not prove the commitment of a
same-sex couple, according to the State of Alaskas policies, is a valid marriage license
from a state that recognizes their marriage and allowed them to marry.
75
All a
heterosexual employee must produce, by contrast, is a marriage license. This, according
to Defendants, is an adequate accommodation by the state for excluding same-sex
couples from marriage.
Defendants argument unintentionally exposes the fundamental dishonesty
of the Defendants position. They argue that no harm accrues to Plaintiffs by being
denied the right to marry or be married in the eyes of their home state, and that Plaintiffs
receive the same benefits as couples whose marriages are sanctioned by the State of
Alaska. In essence, Defendants argue there is no difference between being married in the
State of Alaska and being unmarried in the State of Alaska.
76
If this were in fact true,
then there was never any legitimate reason to exclude Plaintiffs from marriage in the first
place. But Defendants also argue that there is in fact a value in marriage by itself that
merits, in their view, excluding same-sex couples from its protection. By defending the
marriage laws, Defendants concede the value of marriage: that certain benefits accrue to
married people that are not available to unmarried people, that married people are treated

74
http://doa.alaska.gov/drb/pdf/forms/ben068.pdf
75
Id.
76
See Baskin v. Bogan, ___F.3d___, 2014 WL 4359059, *35-6 (7th Cir., Sept. 4, 2014)
(rejecting Wisconsins claim that its recognition of same-sex domestic partnerships
somehow diminishes the harm to same-sex couples suffer from being excluded from
marriage).


differently, and that the State views them as having attained a status that is different from
that of unmarried people.
B. Plaintiffs cannot access the benefits of marriage without
marriage because these benefits are exclusive to married
couples.
Defendants claim that Plaintiffs have the same access to the benefits of
marriage, without being able to marry.
77
But under Alaska law, such benefits are
exclusive to married couples. Alaska Statute 25.05.013(b) specifically voids the extra-
jurisdictional marriages by persons of the same sex for purposes of Alaska law and
provides that contractual rights granted by virtue of the marriage, including its
termination, are unenforceable in this state. These include the right to hold property by
tenancy in the entirety;
78
the right to attain the age of majority through marriage;
79
the
right to be named as a natural parent when a child is born a spouse through medical
fertilization;
80
the right to divorce;
81
the right to priority as a legal guardian for a spouse;
and the right to have a spouse determine the means of disposal of ones remains.
82
The
Supreme Court recognized the importance of marriage within States in Windsor:
marriage is the foundation of the States broader authority to regulate the protection

77
78
AS 34.14.140
79
AS 25.20.020.
80
AS 25.20.045.
81
AS 25.24.010 et. seq.
82
AS 13.75.020.


of offspring, property interests, and the enforcement of marital responsibilities.
83

Clearly, marriage confers a host of benefits, rights, and responsibilities. The States
claim that same-sex couples who are unable to marry do not suffer unequal treatment
under the law is baseless.
CONCLUSION
Defendants have offered no explanation, no justification, and no
compelling governmental interest that is advanced by excluding same-sex couples from
exercising their fundamental right to marry. Defendants have articulated no important
governmental interest served by denying Plaintiffs the equal protection they are entitled
to under the Fourteenth Amendment to the United States Constitution. Defendants
justifications for Alaskas marriage laws serve only to underscore that no legitimate
government interest is served by these laws. But mere legitimacy is not the scope of the
Defendants burden. Because Defendants cannot articulate either a compelling interest in
denying Plaintiffs fundamental right to marry, or an important interest in excluding
same-sex couples from marriage, the Alaska marriage laws must be held unconstitutional
under the Fourteenth Amendment to the U.S. Constitution.
//
//

83
Windsor, 133 S.Ct. at 2691. See also Baskin, ___F.3d___, 2014 WL 4359059, *10-11
(The harm to homosexuals of being denied the right to marry is considerable.).


Plaintiffs respectfully ask this Court to GRANT Plaintiffs Motion for
Summary Judgment, declare Alaskas marriage laws unconstitutional, and permanently
enjoin Defendants as requested in the Motion.
By:
____________/s/____________
Allison Mendel #8310136
Mendel & Associates, Inc.
1215 W 8th Ave
Anchorage, AK 99501
(907) 279-5001

Heather Gardner #0111079
1425 Broadway #463
Seattle, Washington 98122
Telephone: (907) 375-8776

Caitlin Shortell #0405027
310 K Street Suite 200
Anchorage, AK 99501
Telephone: (907) 272-8181


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