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May 2, 2014: The second group of Colorado plaintiffs to file a legal challenge to the same sex marriage ban in Colorado, filed this summary judgment brief explaining why the law is unconstitutional, and why the plaintiffs should be permitted to marry, or have their marriages recognized in the State of Colorado. This case was eventually consolidated with the Adams County Case No. 13CV32572
Оригинальное название
McDaniel-Miccio v. Colorado, Case No. 14CV30731, Plaintiffs’ Brief in Support of Summary Judgment re same sex marriage ban in Colorado is unconstitutional
May 2, 2014: The second group of Colorado plaintiffs to file a legal challenge to the same sex marriage ban in Colorado, filed this summary judgment brief explaining why the law is unconstitutional, and why the plaintiffs should be permitted to marry, or have their marriages recognized in the State of Colorado. This case was eventually consolidated with the Adams County Case No. 13CV32572
May 2, 2014: The second group of Colorado plaintiffs to file a legal challenge to the same sex marriage ban in Colorado, filed this summary judgment brief explaining why the law is unconstitutional, and why the plaintiffs should be permitted to marry, or have their marriages recognized in the State of Colorado. This case was eventually consolidated with the Adams County Case No. 13CV32572
COLORADO 1437 Bannock Street Denver, Colorado 80202
Plaintiffs: G. Kristian McDaniel-Miccio and Nan McDaniel-Miccio, Sandra Abbott and Amy Smart, Wendy Alfredsen and Michelle Alfredsen, Kevin Bemis and Kyle Bemis, Tommy Craig and Joshua Wells, James Davis and Christopher Massey, Sara Knickerbocker and Jessica Ryann Peyton, Jodi Lupien and Kathleen Porter, and Tracey MacDermott and Heather Shockey
Defendants: State of Colorado; John W. Hickenlooper, Jr., in his official capacity as Governor for the state of Colorado; Debra Johnson, in her official capacity as Clerk and Recorder for the City and County of Denver.
COURT USE ONLY Attorneys for Plaintiffs: John M. McHugh, #45456; jmchugh@rplaw.com Amy R. Gray, #40814; agray@rplaw.com Michael Kotlarczyk, # 43250; mkotlarczyk@rplaw.com Tess Hand-Bender, #42681; thandbender@rplaw.com Jason M. Lynch, #39130; jlynch@rplaw.com REILLY POZNER LLP 1900 Sixteenth Street, Suite 1700 Denver, Colorado 80202 Phone: (303) 893-6100; Fax: (303) 893-6110 Marcus Lock, #33048; mlock@lawoftherockies.com LAW OF THE ROCKIES 525 North Main St. Gunnison, Colorado 81230 Phone: (970) 641-1903; Fax: (970) 641-1943 Ann Gushurst, #29187; ann@ggfamilylaw.com GUTTERMAN GRIFFITHS PC 10375 Park Meadows Blvd., Suite 520 Littleton, Colorado 80124 Phone: (303) 858-8090; Fax: (303) 858-8181 Case No. 14-CV-30731
Division/Courtroom: 376 BRIEF IN SUPPORT OF PLAINTIFFS MOTION FOR SUMMARY JUDGMENT i
TABLE OF CONTENTS INTRODUCTION ............................................................................................................................. 1 STATEMENT OF MATERIAL AND UNDISPUTED FACTS ....................................................... 3 ARGUMENT ..................................................................................................................................... 5 I. The Marriage Bans Harm Same-Sex Couples and Their Children ........................................ 5 A. The Marriage Bans Harm the Plaintiffs and Other Same-Sex Couples ..................... 5 B. The Marriage Bans Harm Children............................................................................ 7 II. The Supreme Courts Decision in Windsor Renders Colorados Marriage Bans Unconstitutional ..................................................................................................................... 8 A. Colorados Marriage Bans Are Unconstitutional Under Windsor Because They Are Based on Prejudice .................................................................................... 8 B. The Recognition Ban is Invalid under Windsor because Colorado Dramatically Altered Its Inter-State Relationships to Discriminate Against Same-Sex Couples ................................................................................................... 11 C. Since Windsor, Court Have Unanimously Found Marriage Bans Unconstitutional ....................................................................................................... 12 III. Colorados Marriage Bans Deny Plaintiffs Equal Protection of the Laws .......................... 14 A. Colorados Marriage Bans Fail Under Heightened Scrutiny ................................... 15 1. Colorados Marriage Bans Discriminate on the Basis of Sexual Orientation and Are Subject to Heightened Scrutiny .................................. 15 2. Colorados Celebration Ban Discriminates on the Basis of Gender and is Subject to Heightened Scrutiny ................................................................ 20 3. The State Cannot Meet its Burden of Showing an Important Purpose Justifying the Marriage Ban ......................................................................... 20 B. Colorados Marriage Bans Fail Under Rational Basis Review ............................... 21 1. No Rational Connection Exists Between the Marriage Ban and Any Conceivable Justification ............................................................................. 22 IV. The Marriage Bans Violate Plaintiffs Due Process Rights ................................................. 27 ii
A. Colorados Celebration Ban Denies Plaintiffs Their Fundamental Right to Marry........................................................................................................................ 28 1. Marriage Is a Fundamental Right to Marry the Person of Your Choosing .. 29 2. Plaintiffs Seek Nothing More than Access to the Same Right Already Held by Opposite-Sex Couples in Colorado ................................................ 30 B. Colorados Recognition Ban Denies Plaintiffs Their Right to Remain Married ..................................................................................................................... 33 C. The Recognition Ban Denies Same-Sex Couples their Fundamental Right to Travel ....................................................................................................................... 34 D. Colorados Marriage Bans Are Not Necessary to Effectuate a Compelling State Interest............................................................................................................. 35 V. Colorados Civil Union Law Is Inadequate And Fails to Cure the Constitutional Infirmities of the Marriage Bans .......................................................................................... 36 A. Civil Unions Are A Separate, Second-Class Institution .......................................... 36 B. Civil Unions Do Not Confer the Same Benefits and Protections as Marriage ........ 39 1. Plaintiffs Do Not Receive the Same Benefits and Protections of State Law ..................................................................................................... 39 2. Plaintiffs Do Not Receive the Same Benefits and Protections of Federal Law ................................................................................................. 41 C. Even If Civil Unions Were Equal, Which They Are Not, Such Separate Status Is Not Permissible ......................................................................................... 42 CONCLUSION ................................................................................................................................ 44
iii
TABLE OF AUTHORITIES
Cases Appling v. Doyle, 826 N.W.2d 666 (Wis. App. 2012) ..................................................................... 42 Att'y Gen. of N.Y. v. Soto-Lopez, 476 U.S. 898 (1986) .................................................................... 34 Baehr v. Lewin, 852 P.2d 44 ............................................................................................................ 32 Baehr v. Miike, 1996 WL 694235, aff'd 950 P.2d 1234 (Haw. 1997) ............................................. 14 Baker v. State, 744 A.2d 864 (Vt. 1999) .......................................................................................... 39 Baskin v. Bogan, --F.2d--, 2014 WL 1568884 (S.D. Ind. April 18, 2014) ...................................... 12 Ben-Shalom v. Marsh, 881 F.2d 454(7th Cir. 1989), ....................................................................... 16 Bishop v. United States ex rel. Holder, 17, 1252 (N.D. Okla. 2014) .................................. 13, 21, 23 Boddie v. Connecticut, 401 U.S. 371 (1971) ................................................................................... 28 Bostic v. Rainey, 970 F. Supp. 2d 456 (E.D. Va. 2014)............................................................ passim Bourke v. Beshar, -- F. Supp. 2d -- , 2014 WL 556729 (W.D. Ky. Feb. 12, 2014) ................... 13, 21 Bowen v. Gilliard, 483 U.S. 587 (1987) ..................................................................................... 16, 17 Brown v. Bd. of Ed. of Topeka, Shawnee Cnty., Kan., 347 U.S. 483 (1954) ............................. 42, 43 City of Florence v. Pepper, 145 P.3d 654 (Colo. 2006) .................................................................. 22 Clark v. Jeter, 486 U.S. 456 (1988) ................................................................................................. 15 Cleburne, 473 U.S. at 440 .................................................................................................... 19, 21, 23 Cleveland Board of Ed. v. LaFleur, 414 U.S. 632 (1974) ............................................................... 28 Craig v. Boren, 429 U.S. 190 (1976) ............................................................................................... 20 De Leon v. Perry, --- F. Supp. 2d ---, 2014 WL 715741 (W.D. Tex. Feb. 26, 2014) ............. passim DeBoer v. Snyder, -- F. Supp. 2d -- , 2014 WL 1100794 (E.D. Mich. Mar. 21, 2014) ............ passim Dunn v. Blumstein, 405 U.S. 330 (1972) ............................................................................. 28, 34, 35 iv
Engquist v. Oregon Dep't of Agric., 553 U.S. 591 (2008) ............................................................... 14 Evans v. Romer, 882 P.2d 1335(Colo. 1994) ( .......................................................................... 28, 36 Frontiero v. Richardson, 411 U.S. 677 (1973) .......................................................................... 17, 20 Gallegos v. Phipps, 779 P.2d 856 (Colo. 1989)............................................................................... 22 Garden State Equality v. Dow, 82 A.3d 336 (N.J. 2013) .................................................... 13, 37, 41 Gill v. Office of Personnel Mgmt., 699 F. Supp. 2d 374 (D. Mass. 2010) ......................................... 8 Golinski v. United States Office of Personnel Mgmt., 824 F. Supp. 2d 968 (N.D. Cal. 2012) . passim Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941 (Mass. 2003) ................................................. 30 Griego v. Oliver, 316 P.3d 865 (N.M. 2013) ............................................................................ passim Griswold v. Connecticut, 381 U.S. 479 (1965) ................................................................................ 28 Harman v. Forssenius, 380 U.S. 528 (1965) ................................................................................... 34 HealthONE v. Rodriguez ex rel. Rodriguez, 50 P.3d 879 (Colo. 2002) .......................................... 22 Heller v. Doe, 509 U.S. 312 (1993) ................................................................................................. 22 Heninger v. Charnes, 200 Colo. 194 (1980) .................................................................................... 34 Henry v. Himes, -- F. Supp. 2d --, 2014 WL 1418395 (S.D. Ohio April 14, 2014) ................. passim Hernandez-Montiel v. INS, 225 F.3d 1084 (9th Cir. 2000) ............................................................. 18 Higgs v. W. Landscaping & Sprinkler Sys., Inc., 804 P.2d 161 (Colo. 1991) ................................. 21 High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563(9th Cir. 1990), ............... 16 Hodgson v. Minnesota, 497 U.S 417 (1990) .................................................................................... 29 Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) ........................................................................ 13, 14 In re Balas, 449 B.R. 567 (Bankr. C.D. Cal. 2011) ................................................................... 15, 17 In re Marriage Cases, 183 P.3d 384 (Cal. 2008)...................................................................... passim In re Parental Responsibilities of A.R.L., 318 P.3d 581 (Colo. App. 2013) ...................................... 8 Indus. Claim Appeals Office of State of Colo. v. Romero, 912 P.2d 62 (Colo. 1996) ..................... 22 v
Jones v. Helms, 452 U.S. 412 (1981) ............................................................................................... 34 Karouni v. Gonzales, 399 F. 3d 1163 (9th Cir. 2005) ..................................................................... 18 Kerrigan v. Comm'r of Pub. Health, 957 A.2d 407 (Conn. 2008) ............................................ passim Kitchen v. Herbert, 961 F. Supp. 2d 1181 (D. Utah 2013) ....................................................... passim Lawrence v. Texas, 539 U.S. 558 (2003) ....................................................................... 18, 29, 23, 33 Lee v. Orr, -- F. Supp. 2d --, 2014 WL 683680 (N.D. Ill. Feb. 21, 2014) ....................................... 13 Lewis v. Harris, 908 A.2d 196 (N.J. 2006) ...................................................................................... 39 Loving v. Virginia, 388 U.S. 1 (1967)....................................................................................... passim Massachusetts v. U.S. Dep't. of Health and Human Servs., 682 F.3d 1 (1st Cir. 2012) ............ 23, 26 Meyer v. Nebraska, 262 U.S. 390 (1923) ........................................................................................ 29 Miss. Univ. for Women v. Hogan, 458 U.S. 718 (1982) .................................................................. 20 Naim v. Naim, 87 S.E.2d 749 (Va. 1955) ........................................................................................ 31 Obergerfell v. Wymyslo, 962 F. Supp. 2d 968 (S.D. Ohio 2013) ............................................. passim Payne v. Payne, 214 P.2d 495 (Colo. 1950) .................................................................................... 11 Pederson v. Office of Personnel Mgmt., 881 F. Supp. 2d 294 (D. Conn. 2012).................. 15, 17, 19 Pepper v. Indus. Claim Appeals Office of State, 131 P.3d 1137 (Colo. App. 2005) ....................... 22 Perez v. Sharp, 198 P.2d 17 (Cal. 1948) .......................................................................................... 32 Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012) ......................................................................... 13, 37 Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010) ............................................ passim Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992) ....................................................... 28 Plessy v. Ferguson, 163 U.S. 537 (1896) .............................................................................. 1, 14, 42 Plyler v. Doe, 457 U.S. 202 (1982).................................................................................................. 28 Roberts v. U.S. Jaycees, 468 U.S. 609 (1984) ........................................................................... 29, 33 Robertson v. City & County of Denver, 874 P.2d 325 (Colo. 1994) ............................................... 35 vi
Rodriguez v. Schutt, 914 P.2d 921 (Colo. 1996) .............................................................................. 21 Romer v. Evans, 517 U.S. 620 (1996)........................................................................................ 10, 21 SECSYS, LLC v. Vigil, 666 F.3d 678 (10th Cir. 2012) .................................................................... 14 Senate, 802 N.E.2d 565 (Mass. 2004) ....................................................................................... 38, 42 Sevcik v. Sandoval, 911 F. Supp. 2d 996 (D. Nev. 2012) .......................................................... 19, 39 Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942) ....................................................... 29 Smithkline Beecham Corp. v. Abbott Labs., 740 F.3d 471 (9th Cir. 2014) ................................. 8, 16 Sweatt v. Painter, 339 U.S. 629 (1950) ........................................................................................... 43 Tanco v. Haslam, -- F. Supp. 2d -- , 2014 WL 997525 (M.D. Tenn. Mar. 14, 2014) ............... 13, 21 Thomas v. Gonzales, 409 F.3d 1177 (9th Cir. 2005) ....................................................................... 18 Tuan Anh Nguyen v. I.N.S., 533 U.S. 53 (2001) .............................................................................. 20 Turner v. Safley, 482 U.S. 78 (1987) ......................................................................................... 28, 31 United States v. Virginia, 518 U.S. 515 (1996) ......................................................................... 20, 43 United States v. Windsor, 133 S.Ct. 2675 (2013) ..................................................................... passim Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009) ............................................................ 14, 15, 17, 25 W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) ............................................................ 27 Watkins v. U.S. Army, 875 F.2d 699 (9th Cir. 1989) ....................................................................... 17 Williams v. North Carolina, 317 U.S. 287 (1942) ........................................................................... 33 Windsor v. United States, 699 F.3d 169(2d Cir. 2012), ....................................................... 15, 16, 17 Zablocki v. Redhail, 434 U.S. 374 ....................................................................................... 28, 29, 31 Statutes 17 U.S.C. 101 ............................................................................................................................ 6, 41 38 U.S.C. 103(c) ....................................................................................................................... 6, 41 42 U.S.C. 416(h)(1)(A)(i) ......................................................................................................... 6, 41 vii
INTRODUCTION The Constitution of the United States neither knows nor tolerates classes among citizens. Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting). Colorado law, however creates two classes of citizens: those free to marry the person they love and those denied that fundamental right. In 2013, Colorado enacted the Colorado Civil Union Act, creating a separate- and-unequal marriage-like institution for same-sex couples. Far from curing the ills of Colorados marriage bans, the Act multiplied the disparate classes of couples in Colorado by creating a new legal relationship status. In addition, the Act reaffirmed the States insistence on denying a class of its citizens equal protection of the laws and the fundamental right to marry. Colorado bans same-sex marriages in two ways. First, Colorado law prevents county clerks from issuing marriage licenses to same sex couples (the Celebration Ban). Second, Colorado refuses to recognize same-sex marriages legally entered in other jurisdictions (the Recognition Ban) (collectively the Marriage Bans). The Marriage Bans actively harm same- sex couples and their children both psychologically and financially. The Marriage Bans stigmatize and humiliate same-sex couples and their children by deeming their relationships and families unworthy of the same respect and status offered to opposite-sex couples. Same-sex couples are also denied access to federal and state benefits, including the right to file tax returns as a married couple, which can cost a couple thousands of dollars. Further, same-sex couples incur significant expenses to execute legal documents that ensure they are protected in times of sickness, that their children are cared for, and that their wishes are carried out after their deaths, protections unambiguously provided to opposite-sex married couples. The Supreme Courts recent ruling in United States v. Windsor renders Colorados Marriage Bans unconstitutional. Like the federal Defense of Marriage Act (DOMA), Colorados 2
Marriage Bans were enacted solely for the purpose of harming same sex couples and in enacting them, Colorado dramatically altered its laws governing the recognition of marriages performed in other states in order to target and exclude same-sex couples. Since Windsor, every court to evaluate marriage bans like Colorados has found them unconstitutional, including decisions in eleven federal cases and two state supreme court cases. The Marriage Bans also violate the Equal Protection Clause because they discriminate against same sex couples on the basis of their sexual orientation and gender. Because they single out committed gay and lesbian couples for inferior treatment, the Marriage Bans must be evaluated under heightened scrutiny requiring the State to justify the discrimination with a legitimate and important purpose. Even if heightened scrutiny did not apply, the Bans must still be struck down because they are not rationally related to a legitimate governmental end. Similarly, the Marriage Bans violate the Due Process Clause by infringing on same-sex couples rights to marry, to remain married, and to travel. Because the Marriage Bans are not necessary to effectuate a compelling state interest, they are an unconstitutional infringements on these rights. Colorado cannot cure these constitutional deficiencies by offering same-sex couples a second-class and unequal skim-milk alternative. While the Civil Union Act is an attempt to make civil unions equal to marriage, there remain considerable and substantial differences between the two designations. There is no question that civil marriage is a widely recognized and respected social and legal institution for two adults who have committed to building a life together. Civil unions, on the other hand, do not have the same societal recognition or status. Not surprisingly, every court that has analyzed whether marriage equivalents such as civil unions are equal in social status to marriage has found that they are not. Nor do civil unions confer to same- 3
sex couples the same benefits and protections that are available to opposite-sex couples through marriage. Colorado forbids couples in a civil union who are not married in another state from filing their state tax returns jointly. These same couples are also denied the benefits and protections of over 1,000 federal laws simply because Colorado withholds the word marriage from their relationship. Even same-sex couples who are legally married in another state lose certain federal benefits by living in Colorado. The United States Constitution does not permit Colorado to withhold from same-sex couples the dignity, rights, and benefits associated with marriage. Colorados attempt to substitute a relationship status that implies inferiority in civil society cannot remedy the constitutional infirmity inherent in Colorados denial of fundamental rights to a class of its citizens. With marriage, as with public education, separate is inherently unequal. STATEMENT OF MATERIAL AND UNDISPUTED FACTS 1
The material facts necessary for resolution of this dispute are simple and not disputed. The State of Colorado has enacted ordinances and policies that extend protections and benefits based upon, or otherwise recognize, marital status for opposite-sex couples. SSF 15. In 2000, the Colorado legislature amended the Uniform Marriage Act to provide, in relevant parts: (1) . . . [A] marriage is valid in this state if: (b) It is only between one man and one woman. (2) Notwithstanding the provision of section 14-2-112, any marriage contracted within or outside this state that does not satisfy paragraph (b) of subsection (1) of this section shall not be recognized as valid in this state. C.R.S 14-2-104. Relying on this provision, Colorado does not recognize same-sex marriages. SSF 15. Despite already statutorily banning same-sex marriages, Colorado amended its Constitution in 2006 to provide: Only a union of one man and one woman shall be valid or
1 The parties complete Statement of Stipulated Facts (the SSF) is attached as Appendix A. The Plaintiffs complete Statement of Undisputed Facts (the SUF) is attached as Appendix B. 4
recognized as a marriage in this state. Colo. Const. art. II, 31 (Amendment 43). As a result of these statutory and constitutional amendments, [t]he State of Colorado does not recognize same-sex marriages, including legal marriages performed in other states and countries. SSF 10, 15. Defendant Governor Hickenlooper is responsible for upholding and ensuring compliance with these laws. See id. 19. Defendant Debra Johnson, as Clerk and Recorder of the City and County of Denver, is charged with the duty of issuing marriage licenses upon receipt of a completed marriage application, payment of the applicable fee, and verification that the marriage is not prohibited by law. Id. 2. Plaintiffs Tracey MacDermott and Heather Shockey, Wendy and Michelle Alfredsen, Tommy Craig and Joshua Wells, Jodi Lupien and Kathleen Porter, and Christopher Massey and James Davis (the Unmarried Plaintiffs) are in committed same-sex relationships, reside in Colorado and desire to enter into marriages that are recognized as valid under Colorado law. Id. 1. The Unmarried Plaintiffs meet all of the statutory requirements for marriage except that they are same-sex couples. Id. 3. They each completed and signed applications for marriage licenses and are able to pay the applicable fee. Id. 1. The Unmarried Plaintiffs appeared at the Denver Office of the Clerk and Recorder to apply for marriage licenses, but the authorized deputy declined to issue them marriage licenses because they are same-sex couples. Id. 6-7. Plaintiffs Amy Smart and Sandra Abbott, Kevin and Kyle Bemis, Kris and Nan McDaniel- Miccio, and Sara Knickerbocker and Ryann Peyton (the Married Plaintiffs) are also in committed same-sex relationships and reside in Colorado. The Married Plaintiffs were legally married in another state and desire to have their marriages recognized as valid under Colorado law. Id. 8. The State of Colorado does not recognize these marriages, or any same-sex marriages 5
performed in other states and countries. Id. 10. By operation of law, the state of Colorado deems the Married Plaintiffs to be in civil unions. Id. 9. ARGUMENT I. The Marriage Bans Harm Same-Sex Couples and Their Children A. The Marriage Bans Harm the Plaintiffs and Other Same-Sex Couples The harms experienced by same-sex couples in Colorado as a result of their inability to marry or have their marriages recognized cannot be disputed. To apply the Supreme Courts reasoning in Windsor, Colorados Marriage Bans tell[] those couples, and all the world, that their otherwise valid [relationships] are unworthy of [state] recognition. This places same-sex couples in an unstable position of being in a second-tier [relationship]. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects. See United States v. Windsor, 133 S.Ct. 2675, 2694 (2013). The Plaintiffs inability to be legally married in Colorado denies them certain rights and benefits that validly married opposite-sex couples enjoy. For instance, those couples that are not married in another state, including couples in a Colorado civil union, cannot enjoy the over 1,100 federal rights implicated by marital status, including the ability to file joint federal tax returns, spousal eligibility for immigration purposes, and federal employee benefits. See SUF 86. Those couples in a Colorado civil union but not legally married in another state cannot jointly file their Colorado state tax returns. SUF 87. The Plaintiffs have incurred significant expenses to ensure protections automatically granted to opposite-sex married couples, e.g., execution of legal documents that ensure they are protected in times of sickness, that their children are cared for, and that their wishes are carried out after their deaths. See SUF 18a-c, 27c-e, 31a, 34c-d, 38, 41b-c, 58a-d, 62-64, 65b, 70a, 79a-d. When they leave the state of Colorado, the Plaintiffs are careful to 6
take extra precautions to ensure that their relationships are honored and protected, precautions that couples lawfully married in their home state do not have to undertake. See SUF 18a, 27c-d, 31, 34d, 41b, 58a-c, 65b, 70d, 79a-d. Colorados Marriage Bans also bar Plaintiffs from receiving certain federal protections that are available only to couples whose marriages are legally recognized by their home state. For example, a same-sex spouse in Colorado cannot take time off work to care for a sick spouse under the Family Medical Leave Act. See SUF 63, 65b; 29 C.F.R. 825.122(b). They also do not have the rights of a widow or widower under the Copyright Act. 17 U.S.C. 101 (defining widow and widower by the law of domicile at the time of the spouses death). A same-sex spouse in Colorado may be denied access to a spouses social security benefits. 42 U.S.C. 416(h)(1)(A)(i). At least one veteran of the United States Army was denied benefits by the United States Department of Veterans Affairs because her Iowa same-sex marriage is not recognized as a marriage in Colorado. 38 U.S.C. 103(c) (In determining whether or not a person is or was the spouse of a veteran, their marriage shall be proven as valid for the purposes of all laws administered by the Secretary according to the law of the place where the parties resided at the time of the marriage or the law of the place where the parties resided when the right to benefits accrued.). But the harm that the Plaintiffs experience goes far beyond financial damage and the loss of particular legal rights. Plaintiffs are considered inferior and unworthy under Colorado law as well. Plaintiffs feel this stigmatization and humiliation on a daily basis. See SUF 27a, 41a, 51, 65a, 70c, 74, 83. All of the Plaintiffs have been denied the joy of celebrating their legal marriages in the state that they call home. See SUF 9-10. They face constant uncertainty as to how the State will treat their relationships with each other and with their children. See SUF 82-83. Although 7
Colorado offers these couples something more than it did a year ago, civil unions are not the same legal relationship as marriage under Colorado law. See SUF 11; C.R.S. 14-15-103(1), (4) (separately defining civil union and marriage). Civil unions are not equal to marriages in social recognition, tradition, or status. See SUF 1, 4, 5; infra V.A. Those Plaintiff couples in civil unions struggle to explain to colleagues, friends, and family what that legal status means. See SUF 20, 34a-b, 41a, 65a. As the Supreme Court held in Windsor, marriage, and only marriage, confers a dignity and status of immense import. See 133 S.Ct. at 2692. B. The Marriage Bans Harm Children In addition to harming the Plaintiffs themselves, the Marriage Bans cause significant damage to the Plaintiffs and other same-sex couples children. See De Leon v. Perry, --- F. Supp. 2d ---, 2014 WL 715741, at *14 (W.D. Tex. Feb. 26, 2014) (Texas marriage ban causes needless stigmatization and humiliation for children being raised by the loving same-sex couples being targeted). Marriage bans like Colorados humiliate tens of thousands of children now being raised by same-sex couples. See Windsor, 133 S.Ct. at 2694. [N]eedlessly stigmatizing and humiliating children who are being raised by the loving couples targeted by [a states] Marriage Laws betrays the states interest in the welfare of its children because it results in needlessly depriving the thousands of children being raised by same-sex couples . . . the protection, the stability, the recognition and the legitimacy that marriage conveys. Bostic v. Rainey, 970 F. Supp. 2d 456 (E.D. Va. 2014). The only effect [marriage bans] have on childrens well-being is harming the children of same-sex couples who are denied the protection and stability of having parents who are legally married. Obergerfell v. Wymyslo, 962 F. Supp. 2d 968, 994-95 (S.D. Ohio 2013). Denying same-sex couples the right to marry also prevents children of same-sex couples from enjoying the immeasurable advantages that flow from the assurance of a stable 8
family structure when afforded equal recognition under federal law. Gill v. Office of Personnel Mgmt., 699 F. Supp. 2d 374, 389 (D. Mass. 2010) (citation, quotation omitted). Colorado courts have recognized the same. See In re Parental Responsibilities of A.R.L., 318 P.3d 581, 587 (Colo. App. 2013) (The prerogative of a child to claim the love and support of two parents does not evaporate simply because the parents are the same sex. It applies to all children, regardless of whether they were conceived during a heterosexual or same-sex relationship.). The experience of Plaintiffs children is no different. They are members of families that are manifestly different in the eyes of the law than the families of their peers. See SUF 83. The Plaintiffs who are parents have struggled and will struggle to explain to their children why they cannot be married like other moms and dadswhy they have been relegated to a second status instead. See SUF 85. They legitimately worry that their inability to be married in Colorado not only confuses and humiliates their children, but exposes them to shame and ridicule and may permanently affect the hearts and minds of their children as they become adults. See SUF __. II. The Supreme Courts Decision in Windsor Renders Colorados Marriage Bans Unconstitutional A. Colorados Marriage Bans Are Unconstitutional Under Windsor Because They Are Based on Prejudice The Constitutional legitimacy of Colorados Marriage Bans is resolved by the Supreme Courts recent decision in Windsor. As the Ninth Circuit explained, Windsor refuses to tolerate the imposition of a second-class status on gays and lesbians. Smithkline Beecham Corp. v. Abbott Labs., 740 F.3d 471, 482 (9th Cir. 2014). In Windsor, the Supreme Court considered the constitutionality of a Federal recognition ban, and concluded that the ban injure[d], stigma[tized], demean[ed], and degrade[d] same sex couples, treating their relationships as second-class, second-tier, and unworthy of [] recognition. 133 S. Ct. at 2692-94, 2695-96. 9
DOMA could not withstand Constitutional scrutiny because it instructed not only government officials but indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. Id. at 2696. Holding that this discrimination[] of an unusual character . . . require[d] careful consideration, the Court found that the State could demonstrate no legitimate purpose that could overcome the discriminatory purpose and effect of the Federal marriage ban and, accordingly, struck it down. Id. at 2692, 2696. Application of Windsor to Colorados Marriage Bans requires the same result. In assessing the validity of DOMA, the Court began by examining the laws design, purpose, and effect. Id. at 2689. The design, purpose, and effect of the Marriage Bans is identical to DOMAsthey are designed to deprive same sex couples full protection and benefit of the law and of social recognition, their purpose is to treat those relationships as second-class, second-tier, and unworthy of [] recognition, and their effect is to injure, stigmatize, demean, and degrade same sex couples. See id. at 2692-96. Voters considering Amendment 43 were told the Amendment was necessary to avoid court rulings that expand marriage beyond one man and one woman in Colorado, and were advised of the list of benefits and rights accorded married couples that would be denied to same sex couples. See McHugh Decl. Ex. 13: Colo. Leg. Council, Colo. Blue Book, Amend. 43: Marriage 13 (2006) (the Amendment 43 Blue Book). This Constitutional amendment was also adopted even though the legislature had already enacted a statutory provision with the identical effect. This historic fact evidences a clear intent to ensure that gay and lesbian Coloradans be preemptively denied rights they may have already had under the Constitution, and might formally be granted by the Colorado courts. See Kitchen v. Herbert, 10
961 F. Supp. 2d 1181, 1215 (D. Utah 2013) (noting that similar historical context for Utah marriage ban suggested discrimination of an unusual character). The State has all but admitted that the sole purpose and effect of the Celebration Ban is to withhold the word marriage, and its attendant dignity and status of immense import, Windsor, 133 S. Ct. at 2692, 2693, and access to federal benefits available to married couples, from same- sex couples only. In its Answer, the State asserted as an affirmative defense that Colorados Civil Union Act provides same-sex couples, including same-sex couples who were married out-of-state, the opportunity to obtain the benefits, protections, and responsibilities afforded by Colorado law to opposite-sex couples. States Ans. at 12 (emphasis added). While the States assertion is wrong, see infra at VI, its belief nonetheless confirms that the only purpose of the Celebration Ban is to withhold the word marriage from same-sex couples and impose inequality, not for other reasons like governmental efficiency. Windsor, 133 S. Ct. at 2694. The effectiveness of Colorados Marriage Bans in carrying out their intent to harm same sex couples and deprive them of various rights accorded to heterosexual couples is demonstrated by the injuries to the Plaintiffs in this case. See supra I. Like DOMA, the Bans avowed purpose and practical effect [is] to impose a disadvantage, a separate status, and so a stigma upon all who [desire to] enter into same-sex marriages . . . . Windsor, 133 S. Ct. at 2693. Because the Bans principal purpose is to impose inequality, it cannot withstand Constitutional scrutiny. Id. at 2694; see also Romer v. Evans, 517 U.S. 620, 632 (1996) (striking down Colorado Constitutional amendment where it had the peculiar property of imposing a broad and undifferentiated disability on a single named group, an exceptional and . . . invalid form of legislation.). 11
B. The Recognition Ban is Invalid under Windsor because Colorado Dramatically Altered Its Inter-State Relationships to Discriminate Against Same-Sex Couples Opposite-sex couples who are married in California, Connecticut, Delaware, Hawaii, Illinois (Cook County), Iowa, Maine, Maryland, Massachusetts, Michigan, New Hampshire, New Jersey, New Mexico, New York, Rhode Island, Utah, Vermont, Washington, Washington, D.C., Argentina, Belgium, Brazil, Canada, Denmark, England, France, Iceland, Mexico City, the Mexican states of Yucatan, Quintana Roo, Oaxaca, Colima, Chihuahua, Jalisco, and Guanajuato, the Netherlands, Norway, Portugal, Spain, South Africa, Sweden, or Wales have those marriages treated as valid marriages by the state of Colorado. See Payne v. Payne, 214 P.2d 495, 497 (Colo. 1950) ([W]e have repeatedly held that a marriage contracted in a jurisdiction other than Colorado, which was valid under the laws of the jurisdiction in which it was performed, is a valid marriage.). Under the Recognition Ban, however, same-sex couples legally married in the exact same states and countries have their marital status dissolved and replaced with civil unions upon entry to Colorado. C.R.S. 14-15-116. By operation of law alone, Colorado strips them of certain legal rights and protections as well as the dignity and status of immense import conferred upon them by marriage. See Windsor, 133 S. Ct. at 2692. Instead, Colorado forces them into a separate and unequal relationship status called civil unions. Like DOMA, Colorados Recognition Ban represents a significant departure from its history and reliance on the determination of other states and countries that marriages performed there are valid. Except for same-sex marriages, Colorado recognizes that a marriage contracted in a jurisdiction other than Colorado, which was valid under the laws of the jurisdiction in which it was performed, is a valid marriage. Payne, 214 P.2d at 497. Except for same-sex couples, Colorado recognizes foreign marriages even when Colorado law would have banned the 12
marriage because, for example, the parties were too young or the marriage violated Colorados prior anti-miscegenation law. Instead, the State strips married same-sex couples of their marital status and forces them into the separate and unequal institution of a civil union. See C.R.S. 14- 15-116. By doing so, it deprives couples married in other states but living in Colorado certain federal rights, including rights as a spouse under the Family Medical Leave Act and rights as a widow or widower under the Copyright Act. 17 U.S.C. 101; 29 C.F.R. 825.122(b). The Supreme Court described the federal governments similar departure from its historical recognition as valid any marriage that was valid in the state in which it was performed as strong evidence of a law having the purpose and effect of disapproval of that class. Windsor, 133 S. Ct. at 2693. As with DOMA, the Recognition Bans interference with the equal dignity of same-sex marriages, a dignity conferred by [a] State[] in the exercise of [its] sovereign power, was more than an incidental effect . . . . It was its essence. Id. Like DOMA, Colorados Recognition Ban uses a state defined class . . . to impose restrictions and disabilities. Id. at 2692. The Recognition Ban contrives to deprive some couples married under the laws of [another] State, but not other couples, of both rights and responsibilities. Id. at 2694. Accordingly, the Recognition Ban is unconstitutional. C. Since Windsor, Court Have Unanimously Found Marriage Bans Unconstitutional The Supreme Court issued its landmark opinion in Windsor on June 26, 2013. Since then, every single court to evaluate same-sex marriage bans have found them unconstitutional, either under the federal or relevant state constitution. See Henry v. Himes, -- F. Supp. 2d --, 2014 WL 1418395, at * 18 (S.D. Ohio April 14, 2014) (permanently enjoining Ohios recognition ban); Baskin v. Bogan, --F.2d--, 2014 WL 1568884, at *5 (S.D. Ind. April 18, 2014) (preliminarily enjoining Indiana's marriage recognition ban); DeBoer v. Snyder, -- F. Supp. 2d -- , 2014 WL 13
1100794, at *17 (E.D. Mich. Mar. 21, 2014) (permanently enjoining Michigans celebration ban on equal protection grounds); Tanco v. Haslam, -- F. Supp. 2d -- , 2014 WL 997525, at **6, 9 (M.D. Tenn. Mar. 14, 2014) (enjoining enforcement of Tennessees recognition ban on equal protection grounds); De Leon, 2014 WL 715741 at **1, 24 (preliminarily enjoining Texas marriage bans on equal protection and due process grounds); Lee v. Orr, -- F. Supp. 2d --, 2014 WL 683680, at *2 (N.D. Ill. Feb. 21, 2014) (declaring Illinois celebration ban unconstitutional on equal protection grounds); Bostic v. Rainey, 970 F. Supp. 2d 456 (finding Virginias marriage bans unconstitutional on due process and equal protection grounds, and preliminarily enjoining enforcement); Bourke v. Beshar, -- F. Supp. 2d -- , 2014 WL 556729, at *1 (W.D. Ky. Feb. 12, 2014) (declaring Kentuckys recognition ban unconstitutional on equal protection grounds); Bishop v. United States ex rel. Holder, 962 F. Supp. 2d 1252, 1296 (N.D. Okla. 2014) (permanently enjoining Oklahomas celebration ban on equal protection grounds); Obergefell, 962 F. Supp. 2d at 997-98 (permanently enjoining, as to plaintiffs, enforcement of Ohios recognition ban on due process and equal protection grounds); Kitchen, 961 F. Supp. 2d at 1216 (permanently enjoining Utahs marriage bans on due process and equal protection grounds); Gray v. Orr, -- F. Supp. 2d --, 2013 WL 635518, at *6 (N.D. Ill. Dec. 5, 2013) (granting temporary injunctive relief from marriage bans to same-sex couple); Griego v. Oliver, 316 P.3d 865, 888-89 (N.M. 2013) (finding that New Mexicos marriage laws violate its constitution to the extent they ban same-sex marriages); Garden State Equality v. Dow, 82 A.3d 336, 369 (N.J. 2013) (requiring New Jersey to allow same-sex couples to marry). See also Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 997 (N.D. Cal. 2010) (finding Californias marriage ban unconstitutional on due process and equal protection grounds), affd on alternative grounds sub. nom. Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012), vacated sub. nom. Hollingsworth v. Perry, 133 S. Ct. 2652, 2667 (2013) (The 14
judgment of the Ninth Circuit is vacated, and the case is remanded with instructions to dismiss the appeal for lack of jurisdiction.); Varnum v. Brien, 763 N.W.2d 862, 907 (Iowa 2009) (permanently enjoining Iowas marriage ban and holding parallel civil institutions for same sex couples inadequate on equal protection grounds); In re Marriage Cases, 183 P.3d 384, 441-42 (Cal. 2008) (declaring Californias marriage bans unconstitutional on equal protection grounds), superseded by constitutional amendment, Cal. Const. art I, 7.5, as recognized in Hollingsworth v. Perry, 133 S. Ct. 2652, 2659 (2013); Kerrigan v. Commr of Pub. Health, 957 A.2d 407, 525-31 (Conn. 2008) (declaring Connecticuts marriage bans violate its constitutions equal protection principles); Goodridge v. Dept of Pub. Health, 798 N.E.2d 941, 961 (Mass. 2003) (striking down Massachusettes marriage ban under the states due process and equal provisions) Baehr v. Miike, 1996 WL 694235, at **1, 22 (Hawaii Cir. Ct. Dec. 3, 1996) (permanently enjoining Hawaiis marriage ban on equal protection grounds), affd 950 P.2d 1234 (Haw. 1997). III. Colorados Marriage Bans Deny Plaintiffs Equal Protection of the Laws The Equal Protection Clause of the U.S. Constitutions Fourteenth Amendment provides that no state shall deny to any person within its jurisdiction the equal protection of its laws. U.S. Const. amend. XIV, 1. The Constitution neither knows nor tolerates classes among citizens. Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting). This clause of the Constitution is a profound recognition of the essential and radical equality of all human beings. It seeks to ensure that any classifications the law makes are made without respect to persons, that like cases are treated alike, that those who appear similarly situated are not treated differently without, at the very least, a rational reason for the difference. SECSYS, LLC v. Vigil, 666 F.3d 678, 684-85 (10th Cir. 2012) (quoting Engquist v. Oregon Dept of Agric., 553 U.S. 591, 602 (2008)). 15
A. Colorados Marriage Bans Fail Under Heightened Scrutiny The Supreme Courts instruction in Windsor that the State can no longer single out gay and lesbian relationships for second-class status, see supra II-A, makes it unnecessary to apply traditional heightened scrutiny under the Equal Protection Clause. Nonetheless, Supreme Court precedent also requires this Court to apply a heightened standard to classifications, like the Marriage Bans, which discriminate on the basis of both sexual orientation and gender. This heightened standard shifts the burden to the State to demonstrate that the ban is substantially related to an important government objective. See Clark v. Jeter, 486 U.S. 456, 461 (1988). The State cannot meet its burden. 2
1. Colorados Marriage Bans Discriminate on the Basis of Sexual Orientation and Are Subject to Heightened Scrutiny When the four traditional criteria used by the Supreme Court to determine whether a particular group qualifies as a quasi-suspect class are applied to homosexuals the conclusion is unmistakable: classifications based on sexual orientation require at least heightened scrutiny. A litany of courts has now reached this same conclusion. See, e.g., Windsor v. United States, 699 F.3d 169, 181 (2d Cir. 2012), affd on other grounds by Windsor, 133 S. Ct. at 2695; Obergerfell, 962 F. Supp. 2d at 991; Pederson v. Office of Personnel Mgmt., 881 F. Supp. 2d 294, 310-33 (D. Conn. 2012); Golinski v. United States Office of Personnel Mgmt., 824 F. Supp. 2d 968, 985-90 (N.D. Cal. 2012); In re Balas, 449 B.R. 567, 573-75 (Bankr. C.D. Cal. 2011); Perry, 704 F. Supp. 2d at 997; Griego, 316 P.3d at 885; Varnum, 763 N.W.2d at 885-96; In re Marriage Cases, 183 P.3d at 441-42; Kerrigan, 957 A.2d at 525-31. In addition, the Ninth Circuit has held that, apart
2 The State cannot meet the burden of strict scrutiny, which would require that the ban be suitably tailored to serve a compelling state interest, see City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985). By only offering in its Answer that the ban is related to the achievement of important governmental objectives, the State effectively admits its strict scrutiny failure. See States Ans. at 12. 16
from these traditional factors, Windsor and Lawrence require application of heightened scrutiny. See SmithKline Beecham Corp., 740 F.3d at 480-81. Finally, this conclusion has also been reached by the Department of Justice. See McHugh Decl. Ex. 14: Windsor v. U.S., Brief of the United States on the Merits Question at 16. The Supreme Court instructs courts to apply four criteria to determine whether a group of individuals qualifies as a suspect or semi-suspect class entitled to the protection of heightened scrutiny. Those criteria include: A) whether the class has been historically subject to discrimination; B) whether the class has a defining characteristic that frequently bears [a] relation to ability to perform or contribute to society; C) whether the class exhibits obvious, immutable, or distinguishing characteristics that define them as a discrete group; and D) whether the class is a minority or politically powerless. Windsor, 699 F.3d at 181 (quoting Bowen v. Gilliard, 483 U.S. 587, 602 (1987)). These four criteria do not all apply equally; rather, the last two are not strictly necessary factors to identify a suspect class, but are nevertheless indicative. Windsor, 699 F.3d at 181. Sexual orientation nonetheless satisfies each of these four traditional criteria. a. Gay and Lesbian Individuals Have Suffered a History of Discrimination The history of discrimination against gay and lesbian individuals has been both severe and pervasive. Obergerfell, 962 F. Supp. 2d at 987 (collecting some of the most egregious examples of discrimination); see also SUF 95-103. It is easy to conclude that that homosexuals have suffered a history of discrimination and this question is not much in debate. Windsor, 699 F.3d at 182. In fact, every court to consider the question has concluded that this factor is satisfied. See, e.g., Windsor, 669 F.3d at 169; High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 573 (9th Cir. 1990), overruled on other grounds by Smithkline, 740 F.3d at 480; Ben-Shalom 17
v. Marsh, 881 F.2d 454, 465 (7th Cir. 1989), cert. denied, 494 U.S. 1004 (1990); Obergerfell, 962 F. Supp. 2d at 897, Pederson, 881 F. Supp. 2d at 314; Golinski, 824 F. Supp. 2d at 985-86; Perry, 704 F. Supp. 2d at 981-82; In re Balas, 449 B.R. at 576; Greigo, 316 P.3d at 871; Varnum, 763 N.W.2d at 889-90; In re Marriage Cases, 183 P.3d at 442; Kerrigan, 957 A.2d at 432-34. Accordingly, this factor weighs in favor of finding that classifications based on sexual orientation demand heightened scrutiny. b. Homosexuality Bears No Relationship to an Individuals Ability to Contribute to Society Beyond suffering a severe history of discrimination, the Supreme Court has instructed that the other essential characteristic a group must possess to warrant heightened scrutiny is a relevant group characteristic that bears no relationship to the groups ability to contribute to society. See Frontiero v. Richardson, 411 U.S. 677, 686 (1973). Importantly, the parties here all agree that [n]one of the Plaintiffs sexual orientation bears any relation to his or her ability to perform in or contribute to society. SSF 14. The great majority of courts to consider the question have similarly concluded that sexual orientation is irrelevant to a persons ability to contribute to society. See, e.g., Windsor, 699 F.3d at 182-83; Obergerfell, 962 F. Supp. 2d at 988-89; Golinski, 824 F. Supp. 2d at 986; Pederson, 881 F. Supp. 2d at 320; Perry, 704 F. Supp. 2d at 1002; Watkins v. U.S. Army, 875 F.2d 699, 725 (9th Cir. 1989). Accordingly, there can be no debate that classifications based on sexual orientation satisfy this criterion. c. Gay and Lesbian Individuals Share a Distinguishing Characteristic The test for heightened scrutiny also sometimes looks at whether the group in question possesses an immutable . . . or distinguishing characteristic that define [persons] as a discrete group. Bowen v. Gilliard, 483 U.S. 587, 602 (1987) (quotation omitted). Immutability is not 18
limited to characteristics that are strictly unchangeable, but looks at whether a characteristic is a core trait or condition that one cannot or should not be required to abandon. Obergerfell, 962 F. Supp. 2d at 990. [S]exual orientation is so fundamental to a persons identity that one ought not be forced to choose between ones sexual orientation and ones rights as an individualeven if such a choice could be made. Id. at 991; see also Karouni v. Gonzales, 399 F. 3d 1163, 1173 (9th Cir. 2005) (finding that homosexuality is a fundamental aspect of . . . human identity); Hernandez-Montiel v. INS, 225 F.3d 1084, 1093 (9th Cir. 2000) (Sexual orientation and sexual identity are immutable; they are so fundamental to ones identity that a person should not be required to abandon them.), overruled in part on other grounds by Thomas v. Gonzales, 409 F.3d 1177 (9th Cir. 2005); Griego, 316 P.3d at 884; In re Marriage Cases, 183 P.3d at 442; Kerrigan, 957 A.2d at 438 (In view of the central role that sexual orientation plays in a persons fundamental right to self-determination, we fully agree with the plaintiffs that their sexual orientation represents the kind of distinguishing characteristic that defines them as a discrete group for purposes of determining whether that group should be afforded heightened protection . . . .). As the Supreme Court has already explained, the right to engage in intimate sexual conduct between consenting adults constitutes an integral part of human freedom . . . . Lawrence v. Texas, 539 U.S. 558, 577 (2003). d. Gay and Lesbian Individuals Lack Political Power Finally, while the Court need not necessarily find that homosexuals lack political power in order to find that classifications based on sexual orientation must be subject to heightened scrutiny, gay and lesbian individuals also satisfy this criterionarguably the only criterion of the four that is open to some debate. See Griego, 316 P.3d at 882 (Focusing on the political powerless prong is a reasonable strategy for the opponents of same-gender marriage because whether same-gender 19
couples (the LGBT community) are a discrete group who have been subjected to a history of purposeful unequal treatment is not fairly debatable.). This factor examines relative political power and seeks the answer to the question whether the discrimination is unlikely to be soon rectified by legislative means. Golinski, 824 F. Supp. 2d at 987 (quoting Cleburne, 473 U.S. at 440). Here again, courts considering this prong overwhelmingly conclude that, as a group, gay and lesbian individuals to possess a limited ability to protect themselves in the political process. Obergerfell, 962 F. Supp. 2d at 989-90; Pederson, 881 F. Supp. 2d at 832-33; Griego, 316 P.3d at 884 (finding that members of the LGBT community do not have sufficient political strength to protect themselves from purposeful discrimination); Golinski, 824 F. Supp. 2d at 989 (finding that the unequivocal evidence demonstrates that, although not completely politically powerless, the gay and lesbian community lacks meaningful political power); but see Sevcik v. Sandoval, 911 F. Supp. 2d 996, 1009-1010 (D. Nev. 2012). In fact, the history of same-sex marriage bans across the nation illustrates the historical lack of political power possessed by gays and lesbians. De Leon, 2014 WL 715741, at *13. This lack of political power is caused by a number of factors, including small population size and dispersion, the effect of HIV/AIDS on the community, violence against gay and lesbian people, relative invisibility because many gay, lesbian, and bisexual people are not open about their sexual orientation, censorship, public hostility and prejudice, political and social hostility, unreliable allies in the political process, moral and political condemnation, and a powerful, numerous, and well-funded opposition. Obergerfell, 962 F. Supp. 2d at 989-90. 20
2. Colorados Celebration Ban Discriminates on the Basis of Gender and is Subject to Heightened Scrutiny The Celebration Ban also violates the Equal Protection Clause because it discriminates on the basis of gender. The Celebration Ban treats couples consisting of a man and a woman differently than couples consisting of a man and a man or a woman and a woman. See, e.g., Colo. Const. art. II, 31 (Only a union of one man and one woman shall be valid or recognized as a marriage this state.) (emphasis added). Accordingly, the denial of civil marriage turns on the gender of the individual one wishes to marry: a man who wishes to marry a man may not do so because he is a man; a woman may not marry a woman because she is a woman. See, e.g., SSF 2. This distinction based on gender requires heightened scrutiny. See United States v. Virginia, 518 U.S. 515, 532-33 (1996); Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982); Craig v. Boren, 429 U.S. 190, 197 (1976); Frontiero v. Richardson, 411 U.S. 677, 682 (1973) (plurality). This level of review shifts the burden to the State to show at least that the challenged classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives. Virginia, 518 U.S. at 533 (quotations omitted). 3. The State Cannot Meet its Burden of Showing an Important Purpose Justifying the Marriage Ban Regardless of whether the Court finds that the Celebration Ban discriminates on the basis of sexual orientation or gender, either classification merits heightened review and shifts the burden to the State to demonstrate that the law is substantially related to an actual and important government objective. See Tuan Anh Nguyen v. I.N.S., 533 U.S. 53, 77 (2001). 3 Whatever
3 In its answer, the State claims that [t]he challenged state laws are the product of the will of the people of Colorado and are related to the achievement of important governmental objectives. See States Ans. at 12. The mere fact that a law is the product of the will of the people cannot shield it from the dictates of the United States Constitution. See, 21
allegedly important governmental objectives the State asserts, it is apparent that the State cannot meet its burden under heightened scrutiny given that the marriage ban bears no rational relationship to any conceivable government interest, as explained below. B. Colorados Marriage Bans Fail Under Rational Basis Review Though the Court should apply heightened scrutiny, the marriage bans lack even a rational basis. [E]ven in the ordinary equal protection case calling for the most deferential of standards, [courts] insist on knowing the relation between the classification adopted and the object to be attained. Romer, 517 U.S. at 632. By requiring that the classification bear a rational relationship to an independent and legitimate legislative end, we ensure that classifications are not drawn for the purpose of disadvantaging the group burdened by the law. Id. at 633 (citation omitted). A state may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational. Cleburne, 473 U.S. at 447. Every court to consider whether nearly identical marriage bans pass rational basis review following the Supreme Courts decision in Windsor have concluded that they do not. DeBoer, 2014 WL 1100794, at **11-16; Bourke, 2014 WL 556729, at **6-8 (challenging only recognition ban); Kitchen, 961 F. Supp. 2d at 1210-14; Bishop, 962 F. Supp. 2d at 1287-95; Tanco, 2014 WL 997525, at **5-6 (granting preliminary injunction as to challenge of recognition ban only); De Leon, 2014 WL 715741, at **21-23. Similarly, Colorado courts applying an identical standard rational basis standard have repeatedly struck down laws for failing to meet it. See, e.g., Rodriguez v. Schutt, 914 P.2d 921, 927 (Colo. 1996) (striking down statute under rational basis review as based upon an arbitrary and illusory difference); Higgs v. W. Landscaping & Sprinkler Sys., Inc.,
e.g., Romer, 517 U.S. at 623, 685-36 (striking down an amendment to Colorado Constitution adopted by state-wide referendum). 22
804 P.2d 161, 165 (Colo. 1991) (same); Indus. Claim Appeals Office of State of Colo. v. Romero, 912 P.2d 62, 68 (Colo. 1996) (same); Gallegos v. Phipps, 779 P.2d 856, 861-63 (Colo. 1989) (finding legitimate government purpose but striking down statue because it was not rationally related to it); Pepper v. Indus. Claim Appeals Office of State, 131 P.3d 1137, 1140 (Colo. App. 2005) aff'd on other grounds sub nom. City of Florence v. Pepper, 145 P.3d 654 (Colo. 2006); see also HealthONE v. Rodriguez ex rel. Rodriguez, 50 P.3d 879, 893 n.7 (Colo. 2002) (The analytical framework used to evaluate the right to equal protectionstrict scrutiny, intermediate scrutiny, and rational basisis the same under both the Colorado and federal constitutions.). 1. No Rational Connection Exists Between the Marriage Ban and Any Conceivable Justification a. Preserving Traditional Marriage Solely for the Sake of Tradition is not a Legitimate State Interest Colorado voters were told that one reason to pass Amendment 43 was to preserv[e] the commonly accepted definition of marriage. Marriage as an institution has historically consisted of one man and one woman . . . . Amendment 43 Blue Book; see also McHugh Decl. Ex. 15: Brief of the States as Amici Curiae in Kitchen at 14-15 (the States Amicus Br.). But tradition alone cannot form a rational basis for upholding the marriage ban. See Heller v. Doe, 509 U.S. 312, 327 (1993) (the [a]ncient lineage of a legal concept does not give it immunity from attack for lacking a rational basis); Bostic, 2014 WL 561978 (tradition alone cannot justify denying same-sex couples the right to marry any more than it could justify Virginias ban on interracial marriage). Whats more, that bare adherence to the way things have always been is the most commonly-cited rationale for marriage bans and makes them particularly suspect. As the Supreme Court has instructed, courts must be especially vigilant in evaluating the rationality of any classification involving a group that has been subject to a tradition of disfavor for a traditional classification is 23
more likely to be used without pausing to consider its justification than is a newly created classification. Cleburne, 473 U.S. at 453 n.6 (Stevens, J., concurring) (quotation omitted). What the State may try to couch as protecting Traditional Marriage is nothing more than moral condemnation of gays and lesbians and their families. The U.S. Supreme Court has long held that the majoritys moral disapproval of a minority practice or group does not constitute a legitimate state interest. [T]he fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack. Lawrence, 539 U.S. at 477-78; see also Massachusetts v. U.S. Dept. of Health and Human Servs., 682 F.3d 1, 15 (1st Cir. 2012) (invalidating section 3 of the Defense of Marriage Act because the statute expressed a moral disapproval of homosexuality); Bishop, 962 F. Supp. 2d at 1289 ([M]oral disapproval of homosexuals as a class, or same-sex marriage as a practice, is not a permissible justification for a law.); De Leon, 2014 WL 715741, at *16-17 (rejecting morality as a justification); Kitchen, 2013 WL 6697874, at *27 (same). The fact that the Marriage Bans may reflect some Coloradans religious views does not save them from Constitutional attack. DeBoer, 2014 WL 1100794, at *15 (The same Constitution that protects the free exercise of ones faith in deciding whether to solemnize certain marriages rather than others, is the same Constitution that prevents the state from either mandating adherence to an established religion, U.S. Const. amend I, or enforcing private moral or religious beliefs without an accompanying secular purpose.) (quoting Perry, 704 F. Supp. 2d at 930931).
24
b. There Exists No Rational Connection Between Colorados Marriage Ban and Optimal Child-Rearing Amendment 43 voters were also told that traditional marriage provides the optimal environment for creating, nurturing, and protecting children and preserving families. Amend. 43 Blue Book; see also States Amicus Br. at 15. There is little doubt that encouraging optimal conditions for children is a compelling and legitimate governmental interest. The notion that marriage bans bear any relationship whatsoever to that interest however, has been soundly rejected by nearly every court to consider the question. First, there can no longer be any doubt that same-sex couples are equally equipped to raise healthy, happy children as opposite-sex couples. Indeed, the Colorado legislature acknowledged this fact when it passed Colorados Civil Unions bill. See C.R.S. 14-15-107(4) (affording same sex couples the same rights and obligations with respect to their children as married couples). Consistent with this view, the States policy is to encourage same-sex couples to foster and adopt children in the governments custody. See SSF 16; SUF 93. Even before civil unions were passed, various counties, at the direction of the State, placed children in their custody with same- sex couples. SUF 94. Moreover, the overwhelming scientific consensus, based on decades of peer-reviewed scientific research, shows unequivocally that children raised by same-sex couples are just as well adjusted as those raised by heterosexual couples. Henry, 2014 WL 1418395 at *16; see also DeBoer, 2014 WL 1100794, at *4 (children of same-sex couples do just as well in school as the children of heterosexual married couples, and that same-sex couples are just as stable as heterosexual couples); Perry, 704 F. Supp. 2d at 980 (Children raised by gay or lesbian parents are as likely as children raised by heterosexual parents to be healthy, successful and well-adjusted. 25
The research supporting this conclusion is accepted beyond serious debate in the field of developmental psychology) (emphasis added); Varnum, 763 N.W.2d at 899 (Plaintiffs presented an abundance of evidence and research, confirmed by our independent research, supporting the proposition that the interests of children are served equally by same-sex parents and opposite-sex parents); Golinski, 824 F. Supp. 2d at 991 (More than thirty years of scholarship resulting in over fifty peer-reviewed empirical reports have overwhelmingly demonstrated that children raised by same-sex parents are as likely to be emotionally healthy, and educationally and socially successful as those raised by opposite-sex parents.). With respect to children raised by same-sex or opposite-sex couples, there is a strong no differences consensus within the professional associations in the psychological and sociological fields. DeBoer, 2014 WL 1100794, at *4. The only study that purports to show contrary evidence was deemed entirely unbelievable and not worthy of serious consideration. Id. The State has implicitly recognized this no difference by conferring the same parental rights and responsibilities as married couples, see C.R.S. 14-15-107(1), (4), (5)(g), and by encouraging same-sex couples to foster and adopt children in governmental custody. SSF 16, SUF 93. The State went even further and declared that the responsibilities and rights of parties to a civil union with respect to the biological child of one of the parties, which child is conceived during the term of the civil union, are determined as if the parties were spouses . . . . C.R.S. 14- 15-107(6). This includes the presumption that a child conceived during a civil union is the child of both parties to the civil union to the exclusion of any other potential parent. See id. 19-4-105. Thus the State has legally eschewed any preference for dual biological parenting or opposite- gender parenting. Further, not only does the Marriage Bans fail to serve the purpose of protecting children, it actively harms them. See supra I.B. 26
The genuineness of any claim by the State that childrens welfare is the actual purpose behind the Marriage Bans must be viewed with considerable skepticism considering the States decision to afford gay and lesbian parents the same rights and benefits with respect to children through Civil Unions, see C.R.S. 14-15-107(1),(4),(5),(9) as well as the States practice of encouraging same-sex couples to foster and adopt children in county custody, SSF 1b, SUF 93. c. There is No Rational Connection Between Colorados Marriage Bans and Encouraging Marriage and Responsible Procreation The States second conceivable rationale for the Marriage Bans related to rearing children is that restricting the institution of marriage to opposite-gender couples will encourage potentially procreative couples to raise children produced by their sexual union together. See States Amicus Br. at 15. This rationale turns on the fact that only opposite-sex couples can reproduce accidentlyand thus their relationships require the incentive of marriage in order to promote stability in families that risk producing unintended children. See id. at 17-18. As many courts have recognized, this rationale ignores two key undisputed facts: first, traditional marriage has never been restricted to only those who might accidently procreate by their union, see, e.g., De Leon, 2014 WL 715741 at *15 (the procreative rationale threatens the legitimacy of marriages involving post-menopausal women, infertile individuals, and individuals who choose to refrain from procreating), and second, same-sex couples have and continue to procreate, as evidenced by the five couples in this case who currently have or are expecting children. See SSF 11-12. More fundamentally, the notion that heterosexual couples need marriage to remain exclusive to them in order to maintain their desire to enter into the institution (and thereby the protection of their sometimes-accidental children) is premised on an assumption that extending marriage to all committed couples will have a detrimental effect on the frequency of marriage 27
among heterosexuals. But there is no logical reason to believe extending marriage rights to all couples would have this effect, nor is there any empirical evidence that supports this claim. As the Kitchen court explained, [i]t defies reason to conclude that allowing same-sex couples to marry will diminish the example that married opposite-sex couples set for their unmarried counterparts. Both opposite-sex and same-sex couples model the formation of committed, exclusive relationships, and both establish families based on mutual love and support. Kitchen, 961 F. Supp. 2d at 1211; see also De Leon, 2014 WL 715741 at *15 (finding that state of Texas failed to establish how recognizing a same-sex marriage can influence, if at all, whether heterosexual couples will marry, or how other individuals will raise their families); Perry, 704 F. Supp. 2d at 972 (Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriage.); Griego, 316 P.3d at 886 (Regarding responsible procreation, we fail to see how forbidding same-gender marriages will result in the marriages of more opposite-gender couples for the purpose of procreating, or how authorizing same-gender marriages will result in the marriages of fewer opposite-gender couples for the purpose of procreating.). Accordingly, there is no rational connection between any asserted interest in encouraging responsible procreation and Colorados marriage ban. IV. The Marriage Bans Violate Plaintiffs Due Process Rights The U.S. Constitution guarantees that all citizens have certain fundamental rights. Because they are so important, an individuals fundamental rights may not be submitted to vote; they depend on the outcome of no elections. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943). The Due Process clause of the Fourteenth Amendment states that: nor shall any State deprive any person of life, liberty or property, without due process of law . . . . U.S. Const. 28
amend. XIV, 1. The Supreme Court has held that all fundamental rights comprised within the term liberty are protected by the Federal constitution from invasion by the States. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 847 (1992) (quotation omitted). A legislative enactment which infringes on a fundamental right . . . is constitutionally permissible only if it is necessary to promote a compelling state interest and does so in the least restrictive manner possible. Evans v. Romer, 882 P.2d 1335, 1341 (Colo. 1994) affd, 517 U.S. 620 (1996) (emphasis in original) (quoting Dunn v. Blumstein, 405 U.S. 330, 342 (1972); citing Plyler v. Doe, 457 U.S. 202, 217 (1982)). A. Colorados Celebration Ban Denies Plaintiffs Their Fundamental Right to Marry There can be no serious doubt that in America the right to marry is a rigorously protected fundamental right. Bostic, 970 F. Supp. 2d 456; see also Casey, 505 U.S. at 847-48 (finding marriage to be an aspect of liberty protected against state interference); Turner v. Safley, 482 U.S. 78, 97 (1987) (finding that a regulation that prohibited inmates from marrying without the permission of the warden impermissibly burden[ed] the right to marry); Zablocki v. Redhail, 434 U.S. 374, 38386 (1978) (defining marriage as a right of liberty); Cleveland Board of Ed. v. LaFleur, 414 U.S. 632, 639-40 (1974) (This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.); Boddie v. Connecticut, 401 U.S. 371, 376 (1971) (finding that choices about marriage are among associational rights this Court has ranked as of basic importance in our society) (citations, quotations omitted); Loving v. Virginia, 388 U.S. 1, 12 (1967) (The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.); Griswold v. Connecticut, 381 U.S. 479, 486 (1965) (Marriage is a coming together for better or for worse, hopefully enduring, and 29
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.); Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942) (finding marriage to be a basic civil right[ ] of man); Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (finding that marriage is a liberty protected by the Fourteenth Amendment). Further, the choice of whether to marry, and whom to marry, is protected by the Due Process Clause from intrusion by the state. See Lawrence, 539 U.S. at 574 ([O]ur laws and tradition afford constitutional protection to personal decisions relating to marriage . . . .) (citation omitted); see also Roberts v. U.S. Jaycees, 468 U.S. 609, 620 (1984) ([T]he Constitution undoubtedly imposes constraints on the States power to control the selection of ones spouse . . . .); Loving, 388 U.S. at 12 (Under our Constitution, the freedom to marry or not to marry a person of another race resides with the individual and cannot be infringed by the State.). 1. Marriage Is a Fundamental Right to Marry the Person of Your Choosing The right to marry is not simply the right to become a married person by signing a contract with someone of the opposite sex. . . . A persons choices about marriage implicate the heart of the right to liberty that is protected by the Fourteenth Amendment. Kitchen, 961 F. Supp. 2d at 1200 (citation omitted); see also Hodgson v. Minnesota, 497 U.S 417, 435 (1990) ([T]he regulation of constitutionally protected decisions, such as . . . whom he or she shall marry, must be predicated on legitimate state concerns other than disagreement with the choice the individual has made.) (citation omitted); Zablocki, 434 U.S. at 384 (Although Loving arose in the context of racial discrimination, prior and subsequent decisions of this Court confirm that the right to marry is of fundamental importance for all individuals.); Loving, 388 U.S. at 12 (The Fourteenth 30
Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not to marry, a person of another race resides with the individual and cannot be infringed by the State.). 2. Plaintiffs Seek Nothing More than Access to the Same Right Already Held by Opposite-Sex Couples in Colorado [S]ame-sex marriage is included within the fundamental right to marry. De Leon, 2014 WL 715741, at *20; see also Kitchen, 961 F. Supp. 2d at 1202-03 (citation omitted) (The alleged right to same-sex marriage that the State claims the Plaintiffs are seeking is simply the same right that is currently enjoyed by heterosexual individuals: the right to make a public commitment to form an exclusive relationship and create a family with a partner with whom the person shares an intimate and sustaining emotional bond.); Bostic, 970 F Supp. 2d at 456 (Just as there can be no question that marriage is a fundamental right, there is also no dispute that under Virginias Marriage Laws, Plaintiffs and Virginia citizens similar to Plaintiffs are deprived of that right to marry.); Perry, 704 F. Supp. 2d at 993 (To characterize plaintiffs objective as the right to same-sex marriage would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoynamely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages.); In re Marriage Cases, 183 P.3d at 433-34 (the right to marry . . . guarantees same-sex couples the same substantive constitutional rights as opposite-sex couples to choose ones life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all the constitutionally based incidents of marriage); Goodridge v. Dept of Pub. Health, 798 N.E.2d 941, 958 (Mass. 2003) ([a]s both Perez and Loving make clear, the right to marry means little if it does not include the right to marry the person of ones choice). 31
The Supreme Court has consistently refused to narrow the scope of the fundamental right to marry by reframing a plaintiffs asserted right to marry as a more limited right that is about the characteristics of the couple seeking marriage. In individual cases regarding parties to potential marriages with a wide variety of characteristics, the Court consistently describes a general fundamental right to marry rather than the right to interracial marriage, the right to inmate marriage, or the right of people owing child support to marry. Henry, 2014 WL 1418395, at *7 (citing Golinski v. U.S. Office of Pers. Mgmt., 824 F. Supp. 2d 968, 982 n.5 (N.D. Cal. 2012) (citing Loving, 388 U.S. at 12; Turner, 482 U.S. at 94-96, Zablocki, 434 U.S. at 383-86)); see also In re Marriage Cases, 183 P.3d at 421 n.33 (Turner did not characterize the constitutional right at issue as the right to inmate marriage.). While courts use history and tradition to identify the interests that due process protects, they do not carry forward historical limitations, either traditional or arising by operation of prior law, on which Americans may exercise a right, once that right is recognized as one that due process protects. Henry, 2014 WL 1418395, at *8; see also In re Marriage Cases, 183 P.3d at 430 (Fundamental rights, once recognized, cannot be denied to particular groups on the ground that these groups have historically been denied those rights.) (quotation omitted). The history of Loving confirms that the fundamental right to marry cannot be defined in so narrow a fashion that the basic protections afforded by the right are withheld from a class of persons . . . who historically have been denied the benefit of such rights. In re Marriage Cases, 183 P.3d at 430. In a prior challenge to Virginias anti-miscegenation statute, the Supreme Court of Appeals of Virginia described the right at issue as the right to interracial marriage. Naim v. Naim, 87 S.E.2d 749, 755 (Va. 1955) ( No such claim for the intermarriage of the races could be supported; by no sort of valid reasoning could it be found to be a foundation of good citizenship or a right which must be made available to all on equal terms.) (emphasis added) vacated and remanded, 350 U.S. 891 (1955), affd 90 S.E.2d 849, app. dism. 350 U.S. 985 (1956). When the 32
Supreme Court invalidated these laws, however, it did not understand the right at issue to be the right to interracial marriage, but instead recognized that the right to marry a person of a different race, despite the historical ban on such practices, was included in the fundamental right to marry. Loving, 388 U.S. at 12. Under Loving an interracial marriage was considered to be a subset of marriage, in the same way that same-sex marriage is included within the fundamental right to marry. De Leon, 2014 WL 715741, at *20. The California Supreme Court has described its own landmark decision striking down the states anti-miscegenation laws as confirming that the right to marry includes the right to same-sex marriage: in this courts 1948 decision holding that the California statutory provisions prohibiting interracial marriage were unconstitutionalthe court did not characterize the constitutional right that the plaintiffs in that case sought to obtain as a right to interracial marriage and did not dismiss the plaintiffs constitutional challenge on the ground that such marriages never had been permitted in California. Instead, the Perez decision focused on the substance of the constitutional right at issuethat is, the importance to an individual of the freedom to join in marriage with the person of ones choicein determining whether the statute impinged upon the plaintiffs fundamental constitutional right. In re Marriage Cases, 183 P.3d at 420 (emphasis in original) (citing Perez v. Sharp, 198 P.2d 17, 19 (Cal. 1948)); see Baehr v. Lewin, 852 P.2d 44, 63 (Haw. 1993 (noting Hawaiis arguments in support of its marriage ban was tautological and circular and comparing them to Virginias argument that it had never been the custom of the state to recognize mixed marriages, marriage always having been construed to presuppose a different configuration.). Previously, the State has argued that while defining marriage as the right to make a public commitment to form an exclusive relationship and create a family with a partner with whom the person shares an intimate and sustaining emotional bond . . . might sound deeply rooted in the nations history, it plainly fails to meet the Glucksberg requirement that a careful description of the asserted fundamental liberty interest be made. States Amicus Br. at 7 (citing Washington v. 33
(1997)G" \s "WSFTA_14c4654838664731b5c8b926cf2c200f" \c 3 Washington v. Glucksberg, 521 U.S. 702 at 720-721 (1997); Kitchen, 961 F. Supp. 2d at 1202-03). 4 On the contrary, Colorados own statutory history evinces an ability to carefully descri[be] the right to marry in terms that are neither tied to procreation nor to gender. Prior to 1973, Colorados definition of marriage was simply: Marriage is considered in law a civil contract to which the consent of the parties is essential. C.R.S. Ch. 90-1-1 (1963) (current version at C.R.S. 14-1-101 (1973)). B. Colorados Recognition Ban Denies Plaintiffs Their Right to Remain Married [O]nce you get married lawfully in one state, another state cannot summarily take your marriage away, because the right to remain married is properly recognized as a fundamental liberty interest protected by the Due Process Clause of the United States Constitution. Obergefell, 962 F. Supp. 2d at 973; see also Henry, 2014 WL 1418395, at *9. [T]he idea of being married in one state and unmarried in another is one of the most perplexing and distressing complication[s] in the domestic relations of citizens. Obergefell, 962 F. Supp. 2d at 978 (quoting Williams v. North Carolina, 317 U.S. 287, 299 (1942)) (alteration in original). The Supreme Court has established that existing marital, family, and intimate relationships are areas into which the government should generally not intrude without substantial justification. Obergefell, 962 F. Supp. 2d at 978 (citing Roberts, 468 U.S. at 618; Lawrence, 539 U.S. at 578) (emphasis in original). When a state effectively terminates the marriage of a same-sex couple married in another jurisdiction, it intrudes into the realm of private marital, family, and intimate relations specifically protected by the Supreme Court. Obergefell, 962 F. Supp. 2d at 979; Henry, 2014 WL 1418395 at 9. As the Supreme Court has held: this differential treatment humiliates tens of thousands of children now
4 The Glucksberg analysis is irrelevant where, as here, parties are seeking access to a pre-existing fundamental right, rather than asking the court to recognize a new fundamental right. See Kitchen, 961 F. Supp. 2d at 1203. 34
being raised by same-sex couples, Id. (quoting Windsor, 133 S. Ct. at 2694) (emphasis removed), which includes the children being raised by Amy Smart and Sandra Abbott, Wendy and Michelle Alfredsen, Sara Knickerbocker and Ryann Peyton, and Jodi Lupien and Kathleen Porter as well as the child who will be born to James Davis and Christopher Massey. C. The Recognition Ban Denies Same-Sex Couples their Fundamental Right to Travel The Recognition Ban also violates the fundamental right to interstate travel. The right to travel interstate is without question a fundamental right under the United States Constitution. Heninger v. Charnes, 200 Colo. 194, 198 (1980) (citations omitted). It is, of course, well settled that the right of a United States citizen to travel from one State to another and to take up residence in the State of his choice is protected by the Federal Constitution . . . . [A] State may neither tax nor penalize a citizen for exercising his right to leave one State and enter another. Jones v. Helms, 452 U.S. 412, 417-19 (1981). A state law implicates the right to travel when it actually deters such travel . . . or when it uses any classification which serves to penalize the exercise of that right. Atty Gen. of N.Y. v. Soto-Lopez, 476 U.S. 898, 903 (1986) (citations, quotations omitted); see also Dunn v. Blumenstein, 405 U.S. 330, 341 (1972) (It has long been established that a State may not impose a penalty upon those who exercise a right guaranteed by the Constitution . . . . Constitutional rights would be of little value if they could be . . . indirectly denied . . . .) (quoting Harman v. Forssenius, 380 U.S. 528, 540 (1965)). The Recognition Ban deters and penalizes married same-sex couples who wish to move to Colorado because it forces such couples to forfeit legal recognition of their marriage as the cost of moving to Colorado. In Dunn, the Supreme Court struck down a Tennessee statute that precluded individuals from voting until they had resided within the state for one year. 405 U.S. 330. The Dunn Court concluded that this law force[s] a person who wishes to travel and change residences 35
to choose between travel and the basic right to vote. Absent a compelling state interest, a State may not burden the right to travel in this way. Id. at 342 (citations omitted). Like voting, the right to marry is a fundamental right. See Robertson v. City & County of Denver, 874 P.2d 325, 340 (Colo. 1994) (the United States Supreme Court has held that the right to marry, to vote, and the right to interstate travel are fundamental rights) (footnotes omitted). Just as Tennessee forced an unconstitutional choice on individuals between exercising their fundamental rights to vote and to travel, the Recognition Ban imposes a similar unconstitutional choice on same-sex married couples who wish to take up residence in Colorado between their right to marry and their right to interstate travel. See Dunn, 405 U.S. at 342. The State can offer no compelling interest that justifies this burden on the right travel. The Recognition Ban unconstitutionally penalizes the exercise of the right to travel by forcing married couples to choose between moving to Colorado and remaining married. In an age of widespread travel and ease of mobility, it would create inordinate confusion and defy the reasonable expectations of citizens whose marriage is valid in one state to hold that marriage invalid elsewhere. Henry, 2014 WL 1418395, at *10 (citation, quotation omitted). A law that forces couples to check their legal marriages at the state line as the cost of exercising their right to interstate travel violates the United States Constitution. D. Colorados Marriage Bans Are Not Necessary to Effectuate a Compelling State Interest Because the Plaintiffs seek to exercise their fundamental rights to marryincluding the right to remain marriedand travel, the defendants must show that the Marriage Bans are necessary to promote a compelling state interest and do[] so in the least restrictive manner possible. Evans II, 882 P.2d at 1341 (emphasis omitted) (citation, quotation omitted). 36
Defendants cannot make such a showing, and the State has implicitly conceded as much. See States Amicus Br. at 13-23 (making no attempt to justify the Marriage Ban under any standard other than rational basis); see also States Ans. at 12 (defending the Marriage Bans as related to the achievement of important governmental objectives not compelling state interests). Because none of the justifications presented by Defendants survive even rational basis review, see supra III-B, they necessarily fail to meet the strict scrutiny review required here. V. Colorados Civil Union Law Is Inadequate And Fails to Cure the Constitutional Infirmities of the Marriage Bans In 2013, Colorado enacted the Colorado Civil Union Act, which purports to provide eligible couples the opportunity to obtain the benefits, protections, and responsibilities afforded by Colorado law to spouses consistent with the principles of equality under law and religious freedom embodied in both the United States Constitution and Constitution of this State. C.R.S. 14-15- 102. In its Answer, the State invoked the Civil Union Act as an affirmative defense: Colorados Civil Union Act provides same-sex couples, including same-sex couples who were married out-of- state, the opportunity to obtain the benefit, protections, and responsibilities afforded by Colorado law to opposite-sex married couples. States Ans. at 12. The Civil Union Act, however, neither provides same-sex couples the same rights as opposite-sex couples, nor the State any cover to justify the Marriage Bans. A. Civil Unions Are A Separate, Second-Class Institution [M]arriage is more than a routine classification for purposes of certain statutory benefits. Windsor, 133 S.Ct. at 2692. The designation of the word marriage has extraordinary significance . . . because marriage is the name that society gives to the relationship that matters most between two adults. . . . It is the designation of marriage itself that expresses validation, by the state and the community, and that 37
serves as a symbol, like a wedding ceremony or a wedding ring, of something profoundly important. Perry, 671 F.3d at 1078 (citation omitted). [T]he institution of marriage carries with it a status and significance that the newly created classification of civil unions does not embody . . . . Kerrigan, 957 A.2d at 412 (2008) (finding that the segregation of heterosexual and homosexual couples into separate institutions constitutes a cognizable harm.). While marriage is as old as civilization, and carries with it a dignity and status of immense import, Windsor, 133 S.Ct. at 2689, 2692, civil unions (first introduced in Denmark in 1989 and in the U.S. in 2000) are newer than cell phones (1973) or the Internet (TCP/IP was standardized in 1982). The universal lexicon surrounding marriage is simply missing from civil unions. Garden State Equality, 82 A.3d at 366 (There is, for example, no commonly understood definition of what a civil union means.). A married couple consists of spouses, C.R.S. 14-15-103(6), while the Civil Union Act uses the equally awkward phrases partner in a civil union or party to a civil union to describe a person in a civil union, id. 14-15-103(5). Similarly, one gets married, is in a marriage, and has marital assets. Does one get unionized civil unionized? Are jointly owned assets union assets? None of the Plaintiffs consider civil unions the equivalent of marriages. See SUF 14, 27b, 34e, 41a, 47, 51. The Plaintiffs in a civil union experience the stigma from their inferior status of their relationship on a daily basis. Id. at 27b, 34e, 41a, 47, 51. The differences in language between marriage and civil union status perpetuate treating gays and lesbians and their families as different, as other, with stigmatizing results. McHugh Decl. Ex. 16: Report of the Vermont Commission on Family Recognition and Protection at 9 (April 21, 2008) (the Vermont Civil Union Report); id. Ex. 17: The Legal, Medical, Economic & Social Consequences of New Jersey Civil Union Law, Final 38
Report of the New Jersey Civil Union Review Commission at 2 (Dec. 10, 2008) (the New Jersey Civil Union Report) (marriage is a term of persuasive weight that everyone understands and respects). It is no wonder Plaintiffs in a civil union routinely struggle to explain to family and friends what the term means. Id. at 26, 34a-b, 41a, 65a. Not surprisingly, courts analyzing whether marriage equivalents like civil unions are equal in social status to marriage have without exception found that they are not. See Kerrigan, 957 A.2d at 418 (In view of the exalted status of marriage in our society, it is hardly surprising that civil unions are perceived to be inferior to marriage.); In re Marriage Cases, 183 P.3d at 434 (The current statuesby drawing a distinction between the name assigned to the family relationship available to opposite-sex couples and the name assigned to the family relationship available to same-sex couples, and by reserving the historic and highly respected designation of marriage exclusively to opposite-sex couples while offering same-sex couples only the new and unfamiliar designation of domestic partnershippose a serious risk of denying the official family relationship of same-sex couples the equal dignity and respect that is a core element of the constitutional right to marry); Opinions of the Justices to the Senate, 802 N.E.2d 565, 570 (Mass. 2004) (The dissimilitude between the terms civil marriage and civil union is not innocuous; it is a considered choice of language that reflects a demonstrable assigning of same-sex, largely homosexual, couples to second-class status); Perry, 704 F. Supp. 2d at 970, 971 (finding as facts after trial that [d]omestic partnerships lack the social meaning associated with marriage, and marriage is widely regarded as the definitive expression of love and commitment in the United States and that [t]he availability of domestic partnership does not provide gays and lesbians with a status equivalent to marriage because the cultural meaning of marriage and its associated benefits 39
are intentionally withheld from same-sex couples in domestic partnerships.). 5 See also Vermont Civil Union Report at 6-14 (detailing the experienced inequality of civil unions); New Jersey Civil Union Report at 11-23 (same). In addition to being new, the institution of civil unions lack the guaranteed permanency of marriage. As even a dissenting judge in Kerrigan recognized, The institution of civil union is purely a creature of statute, subject to change or repeal at the pleasure of the legislature. Marriage, on the other hand, is a fundamental civil right protected by the constitution. Although the legislature has the authority to alter the legal incidents of marriage, it presumably could not abolish the institution altogether, and would be required to apply any statutory changes uniformly to all married couples. Thus, contrary to the trial courts conclusion, the difference between the two institutions is not merely one of nomenclature but has specific legal consequences for the plaintiffs. Kerrigan, 957 A.2d at 516 (Zarella, J., dissenting). The marriages of opposite-sex couples in Colorado not only come with all the statutory and federal benefits available to married couples, but are also protected by the United States Constitution. The Civil Union Act, however, is subject to the whims of the electorate and legislature and could be repealed during the next legislative session. B. Civil Unions Do Not Confer the Same Benefits and Protections as Marriage 1. Plaintiffs Do Not Receive the Same Benefits and Protections of State Law The Civil Union Act does not provide Plaintiffs Jodi Lupien and Kathleen Porter, Tommy Craig and Josh Wells, and Wendy and Michelle Alfredsen and other same-sex couples who are in a
5 In comparison, Baker v. State, 744 A.2d 864 (Vt. 1999); Lewis v. Harris, 908 A.2d 196 (N.J. 2006), and Sevcik, 911 F. Supp. 2d at 1015-18, focused on the legal rights associated with marriage and not the social status. None of these decisions can survive Windsors observation that [m]arriage is more than a routine classification for purposes of certain statutory benefits. 133 S. Ct. at 2692. In fact, the Nevada Attorney General has recognized its arguments grounded upon equal protection and due process in Sevcik are no longer sustainable under Windsor, and has withdrawn from the case. Catherine Cortez Masto, Attorney General Mastos Statement on Same-Sex Marriage Case, Nev. Atty. Gen. (Feb. 10, 2014), http://ag.nv.gov/News/PR/2014/Miscellaneous/Attorney_General_Mastos_Statement_On_Same- Sex_Marriage_Case/. 40
civil union but not married in another jurisdiction (the Civil Union Couples), the opportunity to obtain the benefits, protections, and responsibilities afforded by Colorado law to opposite-sex married couples. States Ans. at 12. As originally written, the Civil Unions Act explicitly denied Civil Union Couples the right to file their state tax return jointly: (1) The general assembly finds that current federal law prohibits the filing of a joint income tax return by parties who are not considered legally married under federal law. Since Colorado income tax filings are tied to the federal income tax form by requiring taxpayers to pay a percentage of their federal taxable income as their state income taxes, this prevents the filing by the parties to a civil union of a joint state income tax return. (2) Until a statutory change is enacted to authorize the filing of a joint state income tax return by parties to a civil union, this article shall not be construed to permit the filing of a joint state income tax return by the parties to a civil union. C.R.S. 14-15-117 (2013) (amended 2014). On February 27, 2014, Colorado amended its tax statutes to require that: (1) If the federal taxable income of two taxpayers may legally be determined on a joint federal return but actually is determined on separate federal returns, such income for purposes of the Colorado income tax shall be separately determined. (2) If the federal taxable income of two taxpayers is determined on a joint federal return, their tax shall be determined on their joint federal taxable income. C.R.S. 39-22-107; see also C.R.S. 14-15-117 (2014). After Windsor, the IRS clarified that same-sex couples, legally married in jurisdictions that recognize their marriages, will be treated as married for federal tax purposes. The ruling applies regardless of whether the couple lives in a jurisdiction that recognizes same-sex marriage or a jurisdiction that does not recognize same-sex marriage. IRS Notice IR-2013-72 (Aug. 29, 2013). However, the IRS further noted that the ruling does not apply to registered domestic partnerships, civil unions or similar formal relationships recognized under state law. Id. (emphasis added). Because the State has chosen to tie its state taxes to federal law and has chosen to provide same-sex couples only the option of civil 41
unions, Civil Union Couples may not file their state tax returns jointly. SUF 87. Certain Civil Union Couples will thus pay more state income tax than if they were allowed to marry. Id. 91. 2. Plaintiffs Do Not Receive the Same Benefits and Protections of Federal Law The Civil Union Act explicitly reserves the terms marriage and spouse to opposite-sex couples. C.R.S. 14-15-103(4), (6). There are over 1,000 federal laws in which marital or spousal status is addressed as a matter of federal law. Windsor, 133 S. Ct. at 2683. Because federal statutes and regulations use the terms marriage and spouse, federal benefits that would be available to same-sex couples if they were allowed to be lawfully married in Colorado are not available to them as partners in a civil union. See Garden State Equality, 82 A.3d 336 at 365 ([T]he Office of Personnel Management, Department of State, the Department of Labor, the Internal Revenue Service, and the Centers for Medicaid and Medicare, have stated that they will not be recognizing civil unions, and rather will be confining eligibility for benefits to spouses in lawful marriages.). Even same-sex couples who are legally married in another state lose certain federal benefits because Colorado does not recognize them as married, including protections under the Family Medical Leave Act, 29 C.F.R. 825.122(b) and the Copyright Act, see 17 U.S.C. 101; and may lose social security and veterans benefits. See 42 U.S.C. 416(h)(1)(A)(i); SUF 106; 38 U.S.C. 103(c). In addition to making Civil Union Couples ineligible for many federal benefits, civil unions, unlike marriages, are not recognized in every state as a legal relationship. The majority of states do not recognize civil unions as a legal relationship, nor do the majority of foreign countries. See Vermont Civil Union Report at 26 (noting that only 8 states recognize a Vermont Civil Union); New Jersey Civil Union Report at 38 (noting lack of clarity regarding recognition of New Jersey Civil Unions). In those states and foreign nations, Civil Union Couples would be deemed 42
legal strangers to each other. See, e.g., Appling v. Doyle, 826 N.W.2d 666, 674 (Wis. App. 2012) (noting that Wisconsin does not recognize civil unions from other states); see also Perry 704 F. Supp. 2d at 971 (The court asked the parties to identify which states recognize California domestic partnerships. No party could identify with certainty the states that recognize them.). Even when couples take additional legal steps to help provide greater protections for themselves and their children, when they travel there is no amount of supplementary paperwork that can provide all the benefits and protections of marriage. C. Even If Civil Unions Were Equal, Which They Are Not, Such Separate Status Is Not Permissible The history of our nation has demonstrated that separate is seldom, if ever, equal. Opinions of the Justices to the Senate, 802 N.E.2d at 569. Justice Harlan opined on the issue of separate but equal in his dissent in Plessy v. Ferguson where he insisted that the Constitution prohibits distinctions implying inferiority in civil society because there is in this country no superior, dominant or ruling class of citizens. 163 U.S. at 556, 559 (Harlan, J., dissenting). Our constitution . . . neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. Id. at 559. He further explained that this is true even of laws that confer equal rights and benefits, stating that the thin disguise of equal accommodations. . .will not mislead anyone . . . . Id. at 562. More importantly, the same principles that were present in the landmark case of Brown v. Board of Education are present today with Colorados civil union law and marriage recognition ban. See Brown v. Bd. of Ed. of Topeka, Shawnee Cnty., Kan., 347 U.S. 483 (1954). The core issues raised by the separate status for same-sex couples embodied in the civil union law are the same as courts faced in Brown. See id. In Brown, the Supreme Court rejected the idea that 43
equality of treatment is accorded when races are provided substantially equal facilities. Id. at 488. The Court reasoned that segregation generates a feeling of inferiority as to [blacks] status in the community that may affect their hearts and minds in a way unlikely ever to be undone. Id. at 494. Similarly, in United States v. Virginia, the Fourth Circuit had initially found that single- gender education at Virginia Military Institute could be justified by its institutional mission, and allowed VMI to create a separate school for women. United States v. Virginia, 518 U.S. 515, 527- 29 (1996). The Supreme Court overturned the exclusion of women from VMI holding that the exclusion denied women full citizenship stature and that a separate facility could not provide equality. Id. at 532, 534-35. The Court found the scheme was unconstitutional because the womens school was not equal to VMI. Id. at 53. Thus, the Court ruled that a separate facility could not provide equality. Id. at 551-54. Significantly, the Court noted that a separate institution for women could not provide the standing in the community, traditions and prestige that would be provided by full inclusion. Id. at 554 (quoting Sweatt v. Painter, 339 U.S. 629, 634 (1950)). Civil unions exclude same-sex couples from marriage and creates a system that is unclear, unjust and just plain unequal. [T]he provisioning of the rights of marriage through the separate status of civil unions perpetuates the unequal treatment of committed same-sex couples. New Jersey Civil Union Report at 2; see also id. at 1 (this Commission finds that the separate categorization established by the Civil Union Act invites and encourages unequal treatment of same-sex couples and their children). Looking back through history, the U.S. Supreme Court has repeatedly admonished these types of schemes. The same principles can be applied here to the notion that same-sex relationships must be placed in a separate category. Additionally, courts have increasingly recognized that the alternative status that Colorado assigns to same-sex couples is inadequate and unequal and that gay people must have the same rights available to others. It is this 44
two-tiered marriage/civil union statutory structure that reinforces the view that civil unions are inadequate, and continue to represent a separate and unequal system that history shown to be unacceptable. CONCLUSION For all of these reasons, summary judgment should be granted in Plaintiffs favor on all of their claims for relief. DATED this 2nd day of May, 2014. Respectfully submitted,
s/ John M. McHugh John M. McHugh, #45456; jmchugh@rplaw.com Amy R. Gray, #40814; agray@rplaw.com Michael Kotlarczyk, # 43250; mkotlarczyk@rplaw.com Tess Hand-Bender, #42681; thandbender@rplaw.com Jason M. Lynch, #39130; jlynch@rplaw.com REILLY POZNER LLP 1900 Sixteenth Street, Suite 1700 Denver, Colorado 80202 Phone: (303) 893-6100; Fax: (303) 893-6110
s/ Marcus Lock Marcus Lock, #33048; mlock@lawoftherockies.com LAW OF THE ROCKIES 525 North Main Street Gunnison, Colorado 81230 Phone: (970) 641-1903; Fax: (970) 641-1943
s/ Ann Gushurst Ann Gushurst, #29187; ann@ggfamilylaw.com GUTTERMAN GRIFFITHS PC 10375 Park Meadows Blvd., Suite 520 Littleton, Colorado 80124 Phone: (303) 858-8090; Fax: (303) 858-8181
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CERTIFICATE OF SERVICE I hereby certify that on May 2, 2014, I electronically filed the foregoing BRIEF IN SUPPORT OF PLAINTIFFS MOTION FOR SUMMARY JUDGMENT through ICCES which will send notification of such filing to the following:
Jack Finlaw Benjamin Figa Governors Office of Legal Counsel 121 State Capitol Denver, CO 80203 Jack.finlaw@state.co.us Ben.figa@state.co.us
Attorneys for Gov. John W. Hickenlooper, Jr.
Dan Domenico Michael Francisco Kathryn Starnella Colorado Attorney Generals Office 1300 Broadway, 10 th Floor Denver, CO 80202 Dan.domenico@state.co.us Michael.francisco@state.co.us Kathryn.starnella@state.co.us
Attorneys for the State of Colorado
Wendy Shea Denver City Attorneys Office 1437 Bannock St. Denver, CO 80202 Wendy.shea@denvergov.org
Attorney for Debra Johnson, Clerk and Recorder for the City and County of Denver Ralph Ogden M. Anne Wilcox Wilcox & Ogden, P.C. 160 Lafayette Street Denver, CO 80218
Professor Thomas Russell 1001 16 th Street B180 # 175 Denver CO 80265