2:14-cv-00024 #70

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SHAWN K. AIKEN 2390 East Camelback RoadSuite 400 Phoenix, Arizona 85016 Telephone: (602) [email protected] [email protected] [email protected] [email protected] [email protected] Shawn K. Aiken - 009002 Heather A. Macre - 026625William H. Knight - 030514Stephanie McCoy Loquvam - 029045

HERB ELY3200 North Central Avenue Suite 1930 Phoenix, Arizona 85012 Telephone: 602-230-2144 [email protected] Herb Ely – 000988 MIKKEL (MIK) JORDAHL P.C. 114 North San Francisco Suite 206 Flagstaff, Arizona 86001 Telephone: (928) 214-0942 [email protected] Mikkel Steen Jordahl - 012211

DILLON LAW OFFICE PO Box 97517 Phoenix, Arizona 85060 Telephone: (480) 390-7974 [email protected] Dillon - 014393

GRIFFEN & STEVENS LAW FIRM, PLLC 609 North Humphreys St. Flagstaff, Arizona 86001 Telephone: (928) 226-0165 [email protected] Ryan J. Stevens - 026378

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

Joseph Connolly and Terrel L. Pochert; Suzanne Cummins and Holly N. Mitchell; Clark Rowley and David Chaney; R. Mason Hite, IV and Christopher L. Devine; Meagan and Natalie Metz; Renee Kaminski and Robin Reece; Jeffrey Ferst and Peter Bramley,

Plaintiffs,

v. Chad Roche, In His Official Capacity As Clerk Of The Superior Court Of Pinal County, Arizona; Michael K. Jeanes, In His Official Capacity As Clerk Of The Superior Court Of Maricopa County, Arizona; and Deborah Young, In Her Official Capacity As Clerk Of The Superior Court Of Coconino County, Arizona,

Defendants.

Case No. 2:14-cv-00024-JWS PLAINTIFFS’ RESPONSE TO

DEFENDANTS’ CROSS-MOTION FOR SUMMARY

JUDGMENT

-AND-

REPLY IN SUPPORT OF PLAINTIFFS’ MOTION FOR

SUMMARY JUDGMENT

Case 2:14-cv-00024-JWS Document 70 Filed 07/01/14 of 26

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TABLE OF CONTENTS

INTRODUCTION ........................................................................................................... 1

ARGUMENT .................................................................................................................... 2

I. AFTER OVER FORTY YEARS OF DOCTRINAL DEVELOPMENT, BAKER V. NELSON NO LONGER CONTROLS DISPOSITION OF THE EQUAL PROTECTION OR DUE PROCESS CLAIMS RAISED HERE. ............................................................................. 2

II. THE MARRIAGE DISCRIMINATION LAWS FAIL AN EQUAL PROTECTION CHALLENGE BECAUSE THEY ARE NOT SUBSTANTIALLY RELATED TO ACHIEVING ANY IMPORTANT—MUCH LESS LEGITIMATE—GOVERNMENT INTEREST. .......... 5 A. The Ninth Circuit’s Decision in SmithKline Beecham Compels Heightened

Scrutiny of the Marriage Discrimination Laws. 5 B. The Marriage Discrimination Laws Fail Heightened Scrutiny. 6

III. THE MARRIAGE DISCRIMINATION LAWS DENY PLAINTIFFS THEIR FUNDAMENTAL RIGHT TO MARRY. ........................................................................ 8 A. Plaintiffs Seek Access to an Existing Fundamental Right—the Freedom to

Marry the Partner of One’s Choosing—Triggering Strict Scrutiny Under the Due Process Clause. 8

B. Turner v. Safley Stands For the Fundamental Right to Marry Regardless of Procreative Capability or Desire. 9

C. Defendants’ Procreative Potential and Childrearing Arguments Actually Militate in Favor of Marriage Equality. 10

D. Fundamental Rights Such As Marriage Cannot Be Infringed By Policy Choices. 11

IV. THE MARRIAGE RECOGNITION PLAINTIFFS HAVE STANDING TO CHALLENGE THE MARRIAGE DISCRIMINATION LAWS. ..................................................................... 14

V. THE COURT SHOULD DENY DEFENDANTS’ APPLICATION FOR STAY BECAUSE THEY FAIL TO DEMONSTRATE A STRONG SHOWING OF SUCCESS ON APPEAL OR ANY OF THE OTHER TRADITIONAL REQUIREMENTS FOR ENTRY OF A STAY. ...... 16

CONCLUSION AND REQUEST FOR RELIEF ........................................................... 18


Connolly et. al. v. Roche et al. ii

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TABLE OF AUTHORITIES

Cases

Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977) .......... 16

Awad v. Ziriax, 670 F.3d 1111 (10th Cir. 2012) .................................................................. 18

Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971) ................................................................ 2, 3

Baker v. Nelson, 409 U.S. 810 (1972) ........................................................................... 2, 3, 4

Baskin v. Bogan, 2014 WL 1814064 (S.D. Ind. May 8, 2014) .............................................. 4

Bishop v. United States ex rel. Holder, 962 F. Supp. 2d 1252

(N.D. Okla. Jan. 14, 2014) .................................................................................... 4, 7, 11

Bostic v. Rainey, 2014 WL 561978 (E.D. Va. Feb. 13, 2014) ............................................ 4, 7

Bostic v. Schaefer, Nos. 14-5003, 14-5006 (10th Cir.) ........................................................... 4

Bourke v. Beshear, 2014 WL 556729 (W.D. Ky. Feb. 12, 2014) ........................................... 4

Boutilier v. Immigration & Naturalization Serv., 387 U.S. 118 (1967)................................... 3

Bowers v. Hardwick, 478 U.S. 186 (1986) ............................................................................. 2

Bronson v. Swensen, 500 F.3d 1099 (10th Cir. 2007) ......................................................... 14

Carey v. Population Servs. Int’l, 431 U.S. 678 (1977) .......................................................... 11

City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) .............................................. 7

Collins v. Harker Heights, 503 U.S. 115 (1992) ..................................................................... 9

De Leon v. Perry, 2014 WL 715741 (W.D. Tex. Feb. 26, 2014) .................................. 4, 7, 15

DeBoer v. Snyder, 2014 WL 1100794 (E.D. Mich. Mar. 21, 2014) ................................... 4, 7

Doe v. Commonwealth’s Att’y for Richmond, 403 F. Supp. 2d 1199 (E.D. Va. 1975) ............. 4

Doe v. Commonwealth’s Att’y for Richmond, 425 U.S. 901 (1976) ........................................ 4

Edelman v. Jordan, 415 U.S. 651 (1974) ............................................................................... 3

Eisenstadt v. Baird, 405 U.S. 438 (1972) ........................................................................ 9, 10

Ex parte Burrus, 136 U.S. 586 (1890) ................................................................................. 12

Geiger v. Kitzhaber, 2014 WL 2054264 (D. Or. May 19, 2014) ....................................... 4, 7

Griswold v. Connecticut, 381 U.S. 479 (1965).............................................................. 1, 9, 10


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Heller v. Doe by Doe, 509 U.S. 312 (1993) ............................................................ 5, 8, 11, 18

Henry v. Himes, 2014 WL 1418395 (S.D. Ohio Apr. 14, 2014) ............................................ 4

Hicks v. Miranda, 42 U.S. 332 (1975) ............................................................................... 2, 3

Hilton v. Braunskill, 481 U.S. 770 (1987) ........................................................................... 17

Hollingsworth v. Perry, 133 S.Ct. 2652 (2013) ....................................................................... 6

In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004) ......................................................... 4

Jackson v. Abercrombie, 884 F. Supp. 2d 1065 (D. Haw. 2012) ...................................... 4, 15

Johnson v. California, 543 U.S. 499 (2005) ........................................................................ 13

Kitchen v. Herbert, 961 F.Supp.2d 1181 (D. Utah 2013).............................................. passim

Lair v. Bullock, 697 F.3d 1200 (9th Cir. 2012) ................................................................... 16

Latta v. Otter, 2014 WL 1909999 (D. Idaho May 13, 2014) ............................................ 4, 9

Lawrence v. Texas, 539 U.S. 558 (2003) ...................................................................... passim

Lee v. Orr, 2014 WL 683680 (N.D. Ill. Feb. 21, 2014) ........................................................ 4

Loving v. Virginia, 388 U.S. 1 (1967) .......................................................................... 1, 9, 12

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ........................................................... 14

Mandel v. Bradley, 432 U.S. 173 (1977) ................................................................................ 3

Massachusetts v. U.S. Dept. of Health and Human Servs., 682 F.3d 1 (1st Cir. 2012) ........... 4

Merritt v. Att’y Gen., No. 13-00215, 2013 WL 6044329 (M.D. La. Nov. 14, 2013) ............. 4

Moore v. City of E. Cleveland, 431 U.S. 494 (1977) ............................................................. 11

Morrison v. Sadler, 821 N.E.2d 15 (Ind. Ct. App. 2005) ...................................................... 4

Nken v. Holder, 556 U.S. 418 (2009) ................................................................................. 17

Obergefell v. Wymyslo, 962 F. Supp. 2d 968 (S.D. Ohio Dec. 23, 2013) ............................... 4

Pedersen v. Office of Personnel Mgmt, 881 F. Supp. 2d 294 (D. Conn. 2012) ........................ 4

Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012) ...................................................................... 6

Pierce v. Soc’y of Sisters, 268 U.S. 510 (1925) ..................................................................... 11

Planned Parenthood v. Casey, 505 U.S. 833 (1992) ........................................................... 1, 9

Plessy v. Ferguson, 163 U.S. 537 (1896) ................................................................................. 1


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Roe v. Wade, 410 U.S. 113 (1973) ......................................................................................... 9

Romer v. Evans, 517 U.S. 620 (1996) .................................................................................... 4

Sevcik v. Sandoval, 911 F. Supp. 2d 996 (D. Nev. 2012) ...................................................... 4

Smelt v. County of Orange, 374 F. Supp. 2d 861 (C.D. Cal. 2005) ....................................... 4

SmithKline Beecham Corp. v. Abbot Labs., 740 F.3d 471 (9th Cir. 2014) .................... 5, 6, 17

Sosna v. Iowa, 419 U.S. 393, 404, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975) ............................. 12

Tanco v. Haslam, 2014 WL 997525, at *6, *9 (M.D. Tenn. Mar. 14, 2014) ........................ 4

Turner v. Safley, 482 U.S. 78 (1987) .......................................................................... 3, 9, 10

United States v. Virginia, 518 U.S. 515 (1996) ...................................................................... 6

United States v. Windsor, 133 S.Ct. 2675 (2013) .................................................. 4, 5, 12, 18

Virginian Ry. Co. v. United States, 272 U.S. 658 (1926) ..................................................... 17

W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) ..................................................... 1, 14

Washington v. Glucksberg, 521 U.S. 702 (1997) ............................................................... 8, 9

Watt v. Energy Action Educ. Found., 454 U.S. 151 (1981) ................................................... 15

Whitewood v. Wolf, 2014 WL 2058105 (M.D. Pa. May 20, 2014) .................................... 4, 5

Windsor v. United States, 699 F.3d 169 (2d Cir. 2012) ................................................... 5, 14

Wisconsin v. Yoder, 406 U.S. 205 (1972) .......................................................................... 1, 9

Wolf v. Walker, 2014 WL 2558444 (W.D. Wisc. June 6, 2014) ........................................... 1

Wolf v. Walker, 2014 WL 2558444 ...................................................................................... 4

Zablocki v. Redhail, 434 U.S. 374 (1978) ........................................................................ 9, 18

STATUTES

28 U.S.C. § 1257 .................................................................................................................. 2

A.R.S. § 12-284(A) ............................................................................................................ 15

A.R.S. § 25-101 ............................................................................................................ 16, 19

A.R.S. § 25-101(C) .................................................................................................. 3, 16, 19

A.R.S. § 25-112 .................................................................................................................. 19

A.R.S. § 25-112(A) ................................................................................................... 3, 16, 19


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A.R.S. § 25-125 .................................................................................................................. 19

A.R.S. § 25-902 ................................................................................................................. 15

OTHERAUTHORITIES

Oral Arg. in Hollingsworth v. Perry, No. 12-144, available at 2013 WL 1212745 .................. 4

Senate Bill 1038 ................................................................................................................... 6


Connolly et. al. v. Roche et al. 1

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INTRODUCTION

With familiar vows—“for better or worse,” “for richer or poorer,” “in sickness

and in health,” and “until death do us part”—opposite-sex couples pledge that they shall

comfort one another, for good or ill, for all time. Plaintiffs—seven same-sex couples from

across Arizona—ask for the right to make these same vows to their life-long partner just

as heterosexual couples do.

The Due Process Clause of the Fourteenth Amendment guarantees all men and

women “the right to define one’s own concept of existence, of meaning, of the universe,

and of the mystery of life,” Planned Parenthood v. Casey, 505 U.S. 833, 847 (1992), and the

Equal Protection Clause “neither knows nor tolerates classes among citizens.” Plessy v.

Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting). And yet the Defendant Clerks

argue that they may exclude Plaintiffs from the institution of marriage because (they

speculate) if homosexuals marry, then heterosexual couples would reject marriage or,

having married, divorce more readily.

Defendants champion the rights of “the People,” but the People cannot deny any

fundamental liberty, especially marriage, “intimate to the degree of being sacred,”

Griswold v. Connecticut, 381 U.S. 479, 486 (1965), or the right to equal treatment under

the law. Judge Barbara Crabb recently put it this way: [P]ersonal beliefs, anxiety about change and discomfort about an unfamiliar way of life must give way to a respect for the constitutional rights of individuals, just as those concerns had to give way for the right of Amish people to educate their children according to their own values, Wisconsin v. Yoder, 406 U.S. 205 (1972), for Jehovah’s Witnesses to exercise their religion freely, W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624 (1943), and for interracial couples to marry the person they believed was irreplaceable. Loving v. Virginia, 388 U.S. 1 (1967). In doing this, courts do not “endorse” marriage between same-sex couples, but merely affirm that those couples have rights to liberty and equality under the Constitution, just as heterosexual couples do.

Wolf v. Walker, __ F. Supp. 2d __, No. 3:14-cv-00064, 2014 WL 2558444, at *2 (W.D.

Wisc. June 6, 2014)



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Plaintiffs seek full protection of their rights to liberty and equality under the

Constitution. They ask the Court to declare that the State of Arizona may no longer deny

Arizona’s homosexual citizens the right to marry or refuse to recognize their valid

marriages contracted elsewhere. The Court should strike and permanently enjoin

enforcement of the Marriage Discrimination Laws under the Due Process and Equal

Protection Clauses of the Fourteenth Amendment and, in so doing, allow Plaintiffs to

marry the person they believe is irreplaceable.

ARGUMENT

I. AFTER OVER FORTY YEARS OF DOCTRINAL DEVELOPMENT, BAKER V. NELSON NO LONGER CONTROLS DISPOSITION OF THE EQUAL PROTECTION OR DUE PROCESS CLAIMS RAISED HERE.

In 1971, the Supreme Court of Minnesota held that a same-sex couple was

prohibited from marrying despite the “absence of an express statutory prohibition against

same-sex marriage.” Baker v. Nelson, 191 N.W.2d 185, 185 (Minn. 1971), appeal dismissed,

409 U.S. 810 (1972). The Supreme Court of Minnesota then performed a cursory

review—in two pages of the North Western Reporter—of then-existing U.S. Supreme

Court authority and held that prohibiting the couple from marrying “d[id] not offend the

First, Eighth, Ninth, or Fourteenth Amendments to the United States Constitution.” Id.

at 187.

The aggrieved couple appealed to the Supreme Court of the United States, which,

at the time, had “no discretion to refuse adjudication of the case” because 28 U.S.C. §

1257 then provided for mandatory review by the Supreme Court in cases that raised

constitutional challenges. Hicks v. Miranda, 42 U.S. 332, 344 (1975). Section 1257 did not,

however, require that the Court give every constitutional appeal “plenary consideration.”

Id. And so fourteen years before the Supreme Court held that homosexuals could be

punished criminally for their relationships, in Bowers v. Hardwick, 478 U.S. 186 (1986),

and thirty-one years before the Supreme Court finally overruled Bowers in Lawrence v.

Texas, 539 U.S. 558 (2003), the Supreme Court summarily dismissed Baker v. Nelson, in a



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single sentence, “for want of a substantial federal question.” 409 U.S. at 810.

Although summary disposition carries precedential effect, Hicks, 42 U.S. at 344,

the holding must be construed narrowly because the Supreme Court disposes of such

cases without explanation. Mandel v. Bradley, 432 U.S. 173, 176 (1977) (“Because a

summary affirmance is an affirmance of the judgment only, the rationale of the affirmance

may not be gleaned solely from the opinion below.”); see also Edelman v. Jordan, 415 U.S.

651, 671 (1974). The precedential reach of summary dismissal applies only to the “precise

issues” and facts before the lower court. Mandel, 432 U.S. at 176; Turner v. Safley, 482

U.S. 78, 96 (1987). And, summary dismissals no longer bind lower courts when “doctrinal

developments indicate” that the Court would take a different view. Hicks, 422 U.S. at

344.

Today, those ‘doctrinal developments’ indicate that the Supreme Court would

indeed take a ‘different view.’ In Baker v. Nelson, the lower court reviewed a statutory

scheme with no “express statutory prohibition against same-sex marriage.” 191 N.W.2d

at 185. Here, though, the Marriage Discrimination Laws affirmatively ban homosexual

couples from marrying and those laws “void” valid marriages undertaken in other

jurisdictions. See A.R.S. §§ 25-101(C)-112(A). In addition, Plaintiffs challenge not only a

statutory prohibition, but also a discriminatory state constitutional amendment. These

facts alone distinguish Baker v. Nelson.

But even if the issues in Baker v. Nelson were identical to those raised here, the

Supreme Court’s jurisprudence on homosexual civil rights since 1972 confirms the

“doctrinal developments” described in Hicks. Baker was summarily dismissed at a time

when homosexuals were prohibited from entering the United States because their sexual

orientation evinced a “psychopathic personality,” Boutilier v. Immigration &

Naturalization Serv., 387 U.S. 118 (1967), and imprisoned simply for engaging in the

physical act of love, Doe v. Commonwealth’s Att’y for Richmond, 403 F. Supp. 2d 1199



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(E.D. Va. 1975), summarily aff’d 425 U.S. 901 (1976).1

Today, our courts recognize homosexuals’ fundamental right to participate in the

political process, Romer v. Evans, 517 U.S. 620 (1996), their personal and private liberty to

love the person of their choosing, Lawrence v. Texas, 539 U.S. 558 (2003), and their right

to have their marriages recognized by the federal government, United States v. Windsor,

133 S.Ct. 2675 (2013).2 In the year following the decision in Windsor, nearly every federal

court to have considered the issue, including the 10th Circuit Court of Appeals, has ruled

that Baker does not control. One year after the landmark decision in Windsor, the lower

federal courts overwhelmingly concur that doctrinal developments since 1971 mean that

Plaintiffs’ claims raise a substantial federal question today.3

1 As Justice Ruth Bader Ginsburg pointed out, “Baker v. Nelson was 1971. The

Supreme Court hadn't even decided that gender-based classifications get any kind of heightened scrutiny.” Oral Arg. in Hollingsworth v. Perry, No. 12-144, available at 2013 WL 1212745, at *12.

2 Even before Windsor, courts were split on whether Baker v. Nelson still had

precedential value. Compare Pedersen v. Office of Personnel Mgmt, 881 F. Supp. 2d 294, 307 (D. Conn. 2012) (Baker not controlling); Smelt v. County of Orange, 374 F. Supp. 2d 861, 873 (C.D. Cal. 2005) (same); In re Kandu, 315 B.R. 123, 138 (Bankr. W.D. Wash. 2004) (same), with Massachusetts v. U.S. Dept. of Health and Human Servs., 682 F.3d 1, 8 (1st Cir. 2012) (Baker controlling); Sevcik v. Sandoval, 911 F. Supp. 2d 996, 1003 (D. Nev. 2012) (same); Jackson v. Abercrombie, 884 F. Supp. 2d 1065, 1086 (D. Haw. 2012) (same); Morrison v. Sadler, 821 N.E.2d 15, 19 (Ind. Ct. App. 2005) (same).

3 See Wolf v. Walker, 2014 WL 2558444; Whitewood v. Wolf, __ F. Supp. 2d __, No.

1:13-cv-1861, 2014 WL 2058105 (M.D. Pa. May 20, 2014); Geiger v. Kitzhaber, __F. Supp. 2d __, No. 6:13-cv-01834, 2014 WL 2054264 (D. Or. May 19, 2014); Latta v. Otter, __ F. Supp. 2d __, No. 1:13-cv-00482, 2014 WL 1909999 (D. Idaho May 13, 2014); Baskin v. Bogan, __ F. Supp. 2d __, No. 1:14-cv-00355, 2014 WL 1814064 (S.D. Ind. May 8, 2014); Henry v. Himes, __ F. Supp. 2d __, No. 1:14–cv–129, 2014 WL 1418395, at *1, *18 (S.D. Ohio Apr. 14, 2014); DeBoer v. Snyder, __ F. Supp. 2d __, No. 12–CV–10285, 2014 WL 1100794, at *17 (E.D. Mich. Mar. 21, 2014); Tanco v. Haslam, __ F. Supp. 2d __ , No. 3:13–cv–01159, 2014 WL 997525, at *6, *9 (M.D. Tenn. Mar. 14, 2014); De Leon v. Perry, __ F. Supp. 2d __, No. SA-13-CA-00982, 2014 WL 715741, at *1, *24 (W.D. Tex. Feb. 26, 2014); Lee v. Orr, __ F. Supp. 2d __, No. 13–cv–8719, 2014 WL 683680 (N.D. Ill. Feb. 21, 2014); Bostic v. Rainey, __ F. Supp. 2d __, No. 2:13–cv–395, 2014 WL 561978, at *23 (E.D. Va. Feb. 13, 2014), appeal pending sub nom. Bostic v. Schaefer, Nos. 14-5003, 14-5006 (10th Cir.); Bourke v. Beshear, __ F. Supp. 2d __, No. 3:13–cv–750, 2014 WL 556729, at *1 (W.D. Ky. Feb. 12, 2014); Bishop v. United States ex rel. Holder, 962 F. Supp. 2d 1252, 1295–96 (N.D. Okla. Jan. 14, 2014); Obergefell v. Wymyslo, 962 F. Supp. 2d 968, 997–98 (S.D. Ohio Dec. 23, 2013); Kitchen v. Herbert, 961 F.Supp.2d 1181, 1216 (D. Utah 2013); but see Merritt v. Att’y Gen., No. 13-00215, 2013 WL 6044329 (M.D. La. Nov. 14, 2013) (sole outlier giving weight to Baker v. Nelson, among other dispositive pleading concerns).



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II. THE MARRIAGE DISCRIMINATION LAWS FAIL AN EQUAL PROTECTION CHALLENGE BECAUSE THEY ARE NOT SUBSTANTIALLY RELATED TO ACHIEVING ANY IMPORTANT—MUCH LESS LEGITIMATE—GOVERNMENT INTEREST.

In January 2014, the Ninth Circuit became the second federal circuit to hold that

the Equal Protection Clause compels heightened scrutiny review for discrimination based

on sexual orientation. SmithKline Beecham Corp. v. Abbot Labs., 740 F.3d 471 (9th Cir.

2014); see also Windsor v. United States, 699 F.3d 169 (2d Cir. 2012). Notably, the Tenth

Circuit Court of Appeals, in Kitchen v. Herbert, 961 F. Supp. 2d 1181 (D. Utah 2013),

more recently applied strict scrutiny analysis when overturning Utah’s ban on same-sex

marriage on due process grounds. Strict scrutiny is similar in scope to heightened

scrutiny, but perhaps even more searching. None of Defendants’ justifications for the

Marriage Discrimination Laws are important enough to support denial of life’s most

important relationship to thousands of Arizonans; none of Defendants’ justifications are

compelling enough to overcome heightened (or strict) scrutiny analysis.

A. The Ninth Circuit’s Decision in SmithKline Beecham Compels Heightened Scrutiny of the Marriage Discrimination Laws.

In SmithKline Beecham, the Ninth Circuit held that the Supreme Court’s searching

review in United States v. Windsor equaled heightened scrutiny of sexual orientation

classifications. See generally SmithKline Beecham, 740 F.3d at 471. Heightened scrutiny of

sexual orientation classification is now the standard in the Ninth Circuit.4

Defendants argue that SmithKline Beecham does not apply, first, because Arizona’s

tradition of homosexual exclusion pre-dates the Marriage Discrimination Laws. But, even

so, that fact cannot immunize those laws from heightened review. See Heller v. Doe by

Doe, 509 U.S. 312 (1993).

4 Even if SmithKline Beecham were not controlling, classifications based on sexual orientation easily satisfy all four factors compelling heightened scrutiny based on suspect or quasi-suspect classifications. See, e.g., Whitewood v. Wolf, 2014 WL 2058105, at *11–12. The Tenth Circuit recently held that strict scrutiny—the most exacting level of constitutional scrutiny, even more searching than heightened scrutiny—was the appropriate standard for sexual orientation classifications. Kitchen v. Herbert, 2014 WL 2868044, at *21 (10th Cir. June 25, 2014).



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Second, the Marriage Discrimination Laws cannot be saved because they also

prohibit bigamous and polygamous marriages. The anti-miscegenation laws that

prohibited marrying outside one’s race also prohibited whites from marrying, say, horses,

but that does not alter the core purpose of the offending laws. Moreover, Plaintiffs are

members of an identifiable class of people excluded from marriage simply because of their

status as homosexuals. People seeking to engage in polygamous or bigamous marriages,

on the other hand, do not share any identifiable, much less immutable, characteristic.

And, Arizonans wishing to enter polygamous or bigamous marriages may still enter a valid

marriage with a single, unrelated individual—that is, unless they happen to be

homosexual. SmithKline Beecham controls and heightened scrutiny applies.

B. The Marriage Discrimination Laws Fail Heightened Scrutiny.

In order to withstand review under heightened scrutiny, Defendants must show

“that the challenged classification serves important governmental objectives and that the

discriminatory means employed are substantially related to the achievement of those

objectives.” United States v. Virginia, 518 U.S. 515, 533 (1996) (applying heightened

scrutiny to gender classifications). The burden of justification is “demanding” and rests

entirely on Defendants. Id. Moreover, the justification must be “exceedingly persuasive”

and must be genuine, not hypothesized or invented post hoc in response to litigation. Id.

As Plaintiffs argued in their Motion for Summary Judgment, the Marriage

Discrimination laws sought to prevent homosexuals from marrying or, if they married

elsewhere, enjoying the benefits of marriage in Arizona. The history of the Marriage

Discrimination Laws demonstrates that their impetus was actually fear and prejudice.

(PSOF ¶¶ 16–17, 34–41). The public arguments offered in favor of S.B. 1038 reflected

moral and religious disapproval of homosexuals and same-sex marriage. (PSOF ¶¶ 34–36,

38–43). The Laws fail heightened scrutiny for this reason alone—a discriminatory

purpose cannot constitute an “exceedingly persuasive” justification. See Lawrence, 539 U.

S. at 577; Perry v. Brown, 671 F.3d 1052, 1093 (9th Cir. 2012), vacated and remanded by

Hollingsworth v. Perry, __ U.S. __, 133 S.Ct. 2652 (2013); Kitchen, 961 F. Supp. 2d at



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1213–14, aff’d Kitchen, 2014 WL 2868044; Bishop, 962 F. Supp. 2d at 1289, appeal

pending, Nos. 14-5003 and 14-5006 (10th Cir.).

Second, the Marriage Discrimination Laws are not substantially related to the

achievement of its objectives. Defendants contend that the recognition of same-sex

marriage would result in no less than the disconnection of biological children from their

parents and the destabilization of nuclear families. But, none of these results have any

logical connection to same-sex marriage. As the Utah district court held, “[t]here is no

reason to believe that Amendment 3 has any effect on the choices of couples to have or

raise children, whether they are different-sex couples or same-sex couples.” Kitchen, 961

F. Supp. 2d at 1212.

Judge Shelby was the first of many judges who have reached the same conclusion.

E.g., Geiger, 2014 U.S. Dist. LEXIS 68171, at *43 (“[A]ny governmental interest in

responsible procreation is not advanced by denying marriage to gay a[nd] lesbian couples.

There is no logical nexus between the interest and the exclusion.”); DeBoer, 2014 U.S.

Dist. LEXIS 37274, at *40 (“Nor does prohibiting same-sex marriage increase the

number of heterosexual marriages or the number of children raised by heterosexual

parents.”); De Leon, 2014 U.S. Dist. LEXIS 26236, at *42–43 (“Defendants have 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.”);

Bostic, 970 F. Supp. 2d at 478 (“[R]ecognizing a gay individual’s fundamental right to

marry can in no way influence whether other individuals will marry, or how other

individuals will raise families.”); Bishop, 962 F. Supp. 2d at 1291 (“Marriage is

incentivized for naturally procreative couples to precisely the same extent regardless of

whether same-sex couples (or other non-procreative couples) are included.”).

The Equal Protection Clause “is essentially a direction that all persons similarly

situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432,

439 (1985). Extending the benefits and protections of a civil society to some but not all



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similarly situated families violates this critical guarantee. The Marriage Discrimination

Laws fail to pass muster under heightened scrutiny. III. THE MARRIAGE DISCRIMINATION LAWS DENY PLAINTIFFS THEIR

FUNDAMENTAL RIGHT TO MARRY.

Homosexual Arizonans have the same fundamental rights as heterosexuals,

including the fundamental right to marry, which rests on broader grounds than

procreative capability or desire. Plaintiffs seek to exercise their fundamental right to

marry their chosen partner and no policy choice can interfere with that constitutionally

guaranteed right to due process under the law.

A. Plaintiffs Seek Access to an Existing Fundamental Right—the Freedom to Marry the Partner of One’s Choosing—Triggering Strict Scrutiny Under the Due Process Clause.

Although the Supreme Court has held that fundamental rights must be

“objectively, deeply rooted in this Nation’s history and tradition,” Washington v.

Glucksberg, 521 U.S. 702, 720–21 (1997), the parameters of the Due Process Clause are

intentionally ill-defined. Lawrence, 539 U.S. at 578–79 (“Had those who drew and ratified

the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known

the components of liberty in its manifold possibilities, they might have been more

specific.”). The drafters “knew times can blind us to certain truths and later generations

can see that laws once thought necessary and proper in fact serve only to oppress.” Id. at

579.

So, although tradition and history provide the backdrop for which rights are

considered fundamental, the tradition and antiquity of a discriminatory law does not

amount to validity, even under rational basis review (much less the strict scrutiny

afforded fundamental rights). Cf. Heller v. Doe by Doe, 509 U.S. 312 (1993) (“Ancient

lineage of a legal concept does not give it immunity[.]”). Experience teaches that the

substance of the right itself matters, not the identity of the persons asserting that right. In

this way, “[a]s the Constitution endures, persons in every generation can invoke its

principles in their own search for greater freedom.” Lawrence, 539 U.S. at 579.



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Defendants, citing Glucksberg, contend that Plaintiffs seek access to the new right

of “same-sex marriage.” But Glucksberg concerned the exclusion of a class of people from

a historically fundamental right, not the much narrower question whether anyone has a

fundamental right to assisted suicide.5 As Judge Candy Wagahoff Dale put it, “[t]his ‘new

right’ argument attempts to narrowly parse a right that the Supreme Court has framed in

remarkably broad terms. Loving was no more about the ‘right to interracial marriage’ than

Turner was about the ‘prisoner’s right to marry’ or Zablocki was about the ‘dead-beat

dad’s right to marry.’” Latta, 2014 WL 1909999, at *12.

Were the Due Process Clause so lifeless, few modern fundamental rights would

have been recognized. Griswold v. Connecticut, 381 U.S. 479 (1965), would have been

about the “new right to family planning,” not marital privacy. Yoder, 406 U.S. 205, would

have been about the “new right of Amish truancy,” not right to educate one’s own

children in accord with personal values. Eisenstadt v. Baird, 405 U.S. 438 (1972), Roe v.

Wade, 410 U.S. 113 (1973), and Casey, 505 U.S. 833, would have been about the “new

rights to contraceptives and abortion,” not procreative liberty. And Lawrence v. Texas, 539

U.S. 558, would have been about the “new right to homosexual sodomy,” not the

fundamental right to private, consensual intimacy with one’s chosen partner.

B. Turner v. Safley Stands For the Fundamental Right to Marry Regardless of Procreative Capability or Desire.

Defendants cite Turner v. Safley for the proposition that marriage has only a

procreative purpose. In Turner, the Missouri marriage regulation at issue prohibited all

inmate marriages unless there was a pregnancy or illegitimate birth. Turner v. Safley, 482

U.S. at 82. The Turner Court struck down that marriage ban, but explained that there are

many more reasons to protect the fundamental right to marriage than procreation alone.

Id. at 97. Citing the “reasonable relationship test,” the Turner Court held that “the

5 The very exercise the Court engaged in in Glucksberg was to decide whether to

“break[] new ground,” not that breaking new ground was categorically impermissible. Glucksberg, 521 U.S. at 720, quoting Collins v. Harker Heights, 503 U.S. 115, 125 (1992).



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[Missouri] marriage regulation does not withstand scrutiny.” Id. at 97.

Defendants flatly misapprehend the Court’s holding, arguing that Turner stands

for one proposition: that “most inmate marriages are formed in the expectation that they

ultimately will be fully consummated.” (Defs.’ Cross-Mot. Summ. J. & Mem. Law Supp.

At 8) (“DMSJ”) (citing Turner, 482 U.S. at 96). Consummation is distinguishable from

procreation. After Turner, inmates physically incapable of procreation still have the right

to marry, whether or not consummation would result in pregnancy. Put simply, Missouri

could not allow only those marriages that would lead to procreation because the

fundamental right to marry rests on far broader grounds.

The Turner Court outlined the essential purposes of marriage as follows: first,

inmate marriages “are expressions of emotional support and public commitment.” Id. at

95–96. Second, marriage is often associated with spiritual significance; thus, “the

commitment of marriage may be an exercise of religious faith as well as an expression of

personal dedication.” Id. at 96. Third, the court noted that “marital status often is a

precondition to the receipt of government benefits (e.g., Social Security Benefits),

property rights (e.g., tenancy by the entirety, inheritance rights), and other, less tangible

benefits (e.g., legitimation of children born out of wedlock).” Id. Twenty-seven years

later, these same reasons support Plaintiffs’ relationships, their children, and desire to

access all the benefits and burdens of marriage. PSOF ¶ 1; Plfs’ Resp. to DSOF, Ex. 66

(video declarations).

C. Defendants’ Procreative Potential and Childrearing Arguments Actually Militate in Favor of Marriage Equality.

Defendants suggest that the right to marry is fundamental only because marriage is

linked to procreation. But, “[i]f the right of privacy means anything, it is the right of the

individual, married or single, to be free from unwarranted governmental intrusion into

matters so fundamentally affecting a person as the decision whether to bear or beget a

child.” Eisenstadt, 405 U.S. at 453 (emphasis omitted); see also Griswold, 381 U.S. at 485–

86 (recognizing right of married individuals to use contraception). As Judge Kern noted:



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Assuming a state can rationally exclude citizens from marital benefits due to those citizens’ inability to “naturally procreate,” the state’s exclusion of only same-sex couples in this case is so grossly under inclusive that it is irrational and arbitrary. …In contrast here, the “carrot” of marriage is equally attractive to procreative and non-procreative couples, is extended to most non-procreative couples, but is withheld from just one type of non-procreative couple. Same-sex couples are being subjected to a “naturally procreative” requirement to which no other Oklahoma citizens are subjected, including the infertile, the elderly, and those who simply do not wish to ever procreate. Rationality review has a limit, and this well exceeds it.

Bishop v. U.S., 962 F. Supp. 2d 1252, 1293 (N.D. Okla. 2014).

Even if marriage existed only to advance society’s ‘child-centered’ interests, those

same objectives compel allowing same-sex couples to marry so that their children, like

children of married opposite-sex couples, receive the benefit of stable, intact families. The

Supreme Court has repeatedly referenced the raising of children—rather than just their

creation—as a key factor in the inviolability of marital and familial choices. See, e.g., Carey

v. Population Servs. Int’l, 431 U.S. 678, 685 (1977) (“child rearing and education”

decisions protected from “unjustified government interference” (quotation omitted));

Moore v. City of E. Cleveland, 431 U.S. 494, 505 (1977) (plurality opinion) (“[d]ecisions

concerning child rearing” have been “recognized as entitled to constitutional

protection”); Pierce v. Soc’y of Sisters, 268 U.S. 510, 534–35 (1925) (discussing “the

liberty of parents and guardians to direct the upbringing and education of children under

their control”); Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (liberty protected by the Due

Process Clause includes right “to marry, establish a home[,] and bring up children”).

Thus childrearing, a liberty closely related to marriage, is one exercised by same- and

opposite-sex couples alike.

D. Fundamental Rights Such As Marriage Cannot Be Infringed By Policy Choices.

Defendants next argue that the Marriage Discrimination Laws represent “policy”

choices entitled to deference in the same way that Michigan’s decision to repeal an

affirmative action statute deserved deference. Schuette v. BAMN, 134 S.Ct. 1623 (2014)

(Kennedy, J., for the plurality). But the plurality in Schuette held only that a state’s policy



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choice to repeal an optional remedial measure intended to enforce constitutionally

protected rights was a matter best left to the states. Id. at 1636–38.

The Supreme Court has confirmed that domestic relations is a matter generally left

to the states. See Ex parte Burrus, 136 U.S. 586, 593–94 (1890). In Windsor, however, the

Court clarified that state marriage laws are still subject to constitutional constraints: State laws defining and regulating marriage, of course, must respect the constitutional rights of persons, see, e.g., Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); but, subject to those guarantees, “regulation of domestic relations” is “an area that has long been regarded as a virtually exclusive province of the States.” Sosna v. Iowa, 419 U.S. 393, 404, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975).

Windsor, 133 S.Ct. at 2691 (emphasis added).

Defendants mistakenly argue that federalism trumps the claims here because the

U.S. Supreme Court was deferred to the State of New York’s decision to extend marriage

rights to same-sex couples in Windsor. If New York had the authority to approve same-sex

marriage, Defendants argue, then Arizona may prohibit same-sex marriage.

This goes too far. The Windsor Court discussed the deference given to state

regulation in the areas of domestic relations, but the Court also stressed that any

regulation must also respect fundamental rights guaranteed by the U.S. Constitution. Id.

at 2691–92. (states’ marriage authority is “subject to constitutional guarantees” and

“must respect the constitutional rights of persons”). The Windsor Court explicitly held

that DOMA deprived same sex couples of Due Process. See Windsor, 133 S.Ct. at 2692,

2695 (DOMA created “injury and indignity” that “is a deprivation of an essential part of

the liberty protected by the Fifth Amendment”; “is unconstitutional as a deprivation of

the liberty of the person protected by the Fifth Amendment."); see also id. at 2709 (Scalia,

J., dissenting) (lamenting that Windsor compelled lower courts to strike down state

marriage discrimination laws).

The Supreme Court’s recent decision in Schuette altered none of the settled

principles prohibiting states from denying fundamental constitutional rights to its

citizens. Schuette confirmed the constitutionality of Michigan’s state constitutional



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amendment that prohibited discrimination in college admissions. Schuette, 134 S.Ct. 1623.

Schuette confirmed only “the well-established principle that when hurt or injury is

inflicted on racial minorities by the encouragement or command of laws or other state

action, the Constitution requires redress by the courts.” Id. at 1637. So too here.

Defendants’ contrary argument misses the mark in three critical respects. First,

Schuette upheld a state constitutional amendment that, in the context of admissions to

public universities, barred the use of a suspect classification (i.e., race). Justice Kennedy’s

plurality opinion left undisturbed the settled rule that state policies based on suspect

classifications involving race trigger heightened scrutiny. Id. at 1637–38 (citing Johnson v.

California, 543 U.S. 499, 511–12 (2005) (“[S]earching judicial review . . . is necessary to

guard against invidious discrimination” (alteration and ellipsis original))). Arizona’s

refusal to let the Plaintiffs marry the person of their choice, or recognize their legal

marriage performed in another state: (1) deprives Plaintiffs of the rights, protections, and

benefits that flow, as a matter of course, to married heterosexual couples under Arizona

and federal law; (2) deprives Plaintiffs and their families of the same dignity, respect, and

stature afforded to officially-recognized opposite-sex family relationships; and, (3)

stigmatizes Plaintiffs, as well as their families, and subjects them to severe humiliation,

emotional distress, pain, and psychological harm.

Second, Defendants misread Schuette as a license for states to discriminate—under

the guise of “policy questions”—without constraint. But, in Schuette, the Supreme Court

ruled that the Constitution prohibits voters from deciding whether to use a race-based

affirmative action policy that the Court had previously determined was constitutionally

optional. Id. at 1629. The plurality held that it would be unprecedented to take an issue

away from the voters of a state when the Constitution permits states to resolve that issue.

Id. at 1637–38. Schuette drew a careful distinction between remedial policy measures and

infringement on constitutionally protected liberties.

Third, Schuette did not reverse decades of settled law and permit voters to deny

fundamental rights to the minority:



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The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”

Barnette, 319 U.S. at 638. In short, although a State’s “definition of marriage is the

foundation of the State’s broader authority to regulate the subject of domestic relations

with respect to the protection of offspring[,]”Windsor, 133 S. Ct. at 2691, a State may not

restrict the right to marry in a way that interferes with fundamental rights.

IV. THE MARRIAGE RECOGNITION PLAINTIFFS HAVE STANDING TO CHALLENGE THE MARRIAGE DISCRIMINATION LAWS.

Plaintiffs must show (1) a concrete and particularized injury in fact; (2) a causal

connection between the injury and the conduct in question; and, (3) a likelihood that the

injury will be redressed by a favorable decision. See Lujan v. Defenders of Wildlife, 504

U.S. 555, 560–61 (1992). Defendants argue that the Plaintiff couples who married outside

Arizona—Joe Connolly and Terry Pochert; Meagan and Natalie Metz; Mason Hite and

Christopher Devine; Jeffrey Ferst and Peter Bramley—lack standing because the

Defendant Clerks cannot register Plaintiffs’ out-of-state marriage licenses and, therefore,

allege no “causal connection” between the injury and the “challenged action of the

defendant[s].”6

Defendants are wrong for four reasons. First, as Defendants themselves point out,

the Defendant Clerks do have the authority to recognize out-of-state marriages for

purposes of converting a marriage into a covenant marriage. See A.R.S. § 25-902 (“A

husband and wife may enter into a covenant marriage by submitting to the clerk of the

6 Defendants cite Bronson v. Swensen, 500 F.3d 1099, 1110 (10th Cir. 2007), to support

their argument that Plaintiffs lack standing. Bronson is distinguishable from this case. The Bronson Court found that plaintiffs lacked standing because they brought a “pre-enforcement challenge.” In other words, plaintiffs’ speculative injury—the fear of prosecution—could not be traced to Defendant’s acts. Id. Here, Plaintiffs have suffered concrete and particularized injuries.



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superior court . . . the declaration . . . and a sworn statement of their names and the date

and place their marriage was contracted and by paying the fee prescribed in section 12-

284, subsection A.”). Although Plaintiffs have not applied to convert their out-of-state

marriages into covenant marriages, that futile act is not necessary where the statute

specifically excludes them. 7 See A.R.S. § 25-902. (“Conversion to a covenant marriage

does not make valid a marriage that is prohibited pursuant to this title or that is not validly

contracted in this state.”) ; see also Jackson, 884 F. Supp. at 1082 (finding that plaintiffs

had standing to challenge constitutionality of Hawaii’s same-sex marriage ban where

plaintiffs “did not apply for a marriage license because it was futile in light of [the relevant

statute].”).

Second, Plaintiffs have standing by necessity because—just like opposite-sex

couples who marry out-of-state—there is no state official charged with “recognizing”

Plaintiffs’ marriages.8

Third, the married Plaintiffs allege the required “causal connection” because their

injuries are “directly related” to the Marriage Discrimination Laws. See De Leon, 975 F.

Supp. at 646 (“Plaintiffs . . . established the causation element needed for standing, as the

injuries raised are directly related to Texas’ ban on same-sex marriage.”).

Fourth, the standing of the married Plaintiffs is irrelevant. Because the unmarried

Plaintiffs unquestionably meet all three requirements for standing, this Court need not

consider the standing of the validly married Plaintiffs. See Watt v. Energy Action Educ.

Found., 454 U.S. 151, 160 (1981) (“Because we find [one plaintiff] has standing, we do not

consider the standing of the other plaintiffs.”); see also Arlington Heights v. Metropolitan

7 In fact, Plaintiffs Meagan and Natalie Metz, decided to apply for a covenant marriage

conversion under A.R.S. § 25-902. Supp. Decl. Meagan Metz, June 30, 2014 (Plfs’ Resp. to DSOF, Ex, 66). On June 30, 2014, Meagan went to the courthouse, where she was informed by Superior Court Clerk Deborah Young that, pursuant to Arizona law, Ms. Young could not grant a conversion application to Meagan and her wife solely because they are a same-sex couple. Id.

8 In fact, the Governor and Attorney General demanded dismissal of the original

complaint against them on this very ground. Plaintiffs complied.



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Housing Development Corp., 429 U.S. 252, 264 (1977) (“Because of the presence of [one]

plaintiff, we need not consider whether the other individual and corporate plaintiffs have

standing to maintain the suit.”).

Finally, Plaintiffs easily meet the other two standing requirements: (1) a concrete

and particularized injury in fact; and, (2) a likelihood that the injury will be redressed by a

favorable decision. The validly-married Plaintiffs are denied marriage recognition by

operation of A.R.S. § 25-112(A), which refers to A.R.S. § 25-101, including that statute’s

declaration that same-sex marriages are void and prohibited. Furthermore, A.R.S. §

25-101(C) declares the married Plaintiffs’ valid marriages “void and prohibited.”

(emphasis added). The statute purports to nullify their valid marriages, which, if possible,

means that Plaintiffs would be free to attempt to obtain marriage licenses—and suffer

refusal under the Marriage Discrimination Laws like any other unmarried same-sex

couple. Indeed, the married Plaintiffs each did so. See generally Plfs.’ Exs. 1–14

(declarations). Therefore, like any unmarried same-sex couple who suffered refusal under

the Marriage Discrimination Laws, Plaintiffs have suffered concrete and particularized

injuries that can be rectified only if Defendants are permanently enjoined from enforcing

these laws. See Plfs.’ Resp. Defs.’ Statement Facts Supp. Cross-Mot. Summ. J. (“Plfs.’

Resp. SOF”) ¶ 10.

V. THE COURT SHOULD DENY DEFENDANTS’ APPLICATION FOR STAY BECAUSE THEY FAIL TO DEMONSTRATE A STRONG SHOWING OF SUCCESS ON APPEAL OR ANY OF THE OTHER TRADITIONAL REQUIREMENTS FOR ENTRY OF A STAY.

Defendants requested the Court’s stay of any ruling granting Plaintiffs’ motion for

summary judgment. In the Ninth Circuit, the following principles guide the exercise of

discretion in granting an application for stay of the court’s ruling: “(1) whether the stay

applicant has made a strong showing that he is likely to succeed on the merits; (2)

whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the

stay will substantially injure the other parties interested in the proceeding; and (4) where

the public interest lies.” Lair v. Bullock, 697 F.3d 1200, 1203 (9th Cir. 2012) (quoting



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Nken v. Holder, 556 U.S. 418, 434 (2009)). These same four factors are considered the

“traditional standards” that govern a stay of a civil judgment. Hilton v. Braunskill, 481

U.S. 770, 771 (1987).

“A stay is not a matter of right, even if irreparable injury might otherwise result.”

Virginian Ry. Co. v. United States, 272 U.S. 658, 672 (1926). It is instead “an exercise of

judicial discretion,” and “[t]he propriety of its issue is dependent upon the circumstances

of the particular case.” Id. at 672–73; see also Hilton, 481 U.S. at 777 (“[T]he traditional

stay factors contemplate individualized judgments in each case.”). The party requesting a

stay bears the burden of showing that the circumstances justify an exercise of that

discretion. Nken, 556 U.S. at 433–34.

Defendants must make a “strong showing” of likelihood of success on appeal. In

addition to SmithKline Beecham, discussed in § II.A, supra, the Tenth Circuit recently

decided Kitchen v. Herbert, No. 13-4178 (10th Cir. June 25, 2014), holding as follows: [U]nder the Due Process and Equal Protection Clauses of the United States Constitution, those who wish to marry a person of the same sex are entitled to exercise the same fundamental right as is recognized for persons who wish to marry a person of the different sex, and [Utah’s constitutional amendment and statutes prohibiting same-sex marriage] do not withstand constitutional scrutiny.

Id. at 64. Given these recent decisions from the Ninth and Tenth Circuits (and similar

rulings from U.S. district courts), the Defendants cannot credibly argue for a “strong

showing” of success on appeal.

Defendants must also show a threat of irreparable harm absent issuance of the stay.

Defendants did not explain how allowing some same-sex couples to marry (pending

appellate review) would cause any harm to the State of Arizona or, for that matter, to

anyone else. Any abstract “harm” alleged by the Defendants could not on this record

justify depriving Plaintiffs and other same-sex couples of their constitutional rights, or

outweigh the real, concrete injuries suffered daily by the Plaintiffs.



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More to the point, if Plaintiffs prevail, the continuing deprivation of Plaintiffs’

(and others’) fundamental right to marriage constitutes irreparable harm to Plaintiffs.

Arizona’s marriage discrimination laws “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.”

Windsor, 133 S.Ct. at 2694. Defendants offered no evidence of any purported harm to

them that would follow from denial of their application for stay.

Finally, the public interest would be harmed by a stay. “The public has an interest

in constitutional rights being upheld and in unconstitutional decisions by the government

being remedied.” See Planned Parenthood of Ark. & E. Okla. v. Cline, 910 F. Supp. 2d

1300, 1308 (W.D. Okla. 2012) (citing Awad v. Ziriax, 670 F.3d 1111, 1132 (10th Cir.

2012)). There could be no “public interest” in depriving a class of Arizona’s citizens

their constitutional rights while the Clerks pursue appellate review. See, e.g., Scott v.

Roberts, 612 F.3d 1279, 1297 (11th Cir. 2010) (“[T]he public, when the state is a party

asserting harm, has no interest in enforcing an unconstitutional law.”). This is true even

where the laws at issue are the result of a popular vote. See Awad, 670 F.3d at 1131–32

(“[W]hen the law that voters wish to enact is likely unconstitutional, their interests do

not outweigh Mr. Awad’s in having his constitutional rights protected”).

CONCLUSION AND REQUEST FOR RELIEF

Arizona denies Plaintiffs the right to marry—the “most important relation in life,”

Zablocki v. Redhail, 434 U.S. 374, 384 (1978)—based solely on their sexual orientation.

Heightened scrutiny demands more than conjecture and fear to justify denial of Plaintiffs’

rights to due process and equal protection under the Constitution. Plaintiffs respectfully

request that the Court strike the Marriage Discrimination Laws and permanently enjoin

enforcement of Article 30, § 1 of the Arizona Constitution and A.R.S. §§ 25-101(C) and -



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125.9 DATED: June 30, 2014. By s/ Shawn K. Aiken – 009002

Shawn K. Aiken Heather A. Macre William H. Knight Stephanie McCoy Loquvam 2390 East Camelback Road, Suite 400 Phoenix, Arizona 85016

By s/ Ryan J. Stevens – 026378 Ryan J. Stevens GRIFFEN & STEVENS LAW FIRM, PLLC 609 North Humphreys Street Flagstaff, Arizona 86001

By s/ Mikkel Steen Jordahl -- 012211 Mikkel Steen Jordahl MIKKEL (MIK) JORDAHL PC 114 North San Francisco, Suite 206 Flagstaff, Arizona 86001

By s/ Mark Dillon -- 014393

Mark Dillon DILLON LAW OFFICE PO Box 97517 Phoenix, Arizona 85060

By s/ Herb Ely -- 000988 Herb Ely 3200 North Central Avenue Suite 1930 Phoenix, Arizona 85012 Attorneys for Plaintiffs

9 Defendants argue that Plaintiffs do not seek a ruling invalidating A.R.S. § 25-112, but

that provision does not explicitly prohibit marriage equality; rather, it incorporates A.R.S. § 25-101 as the exception to Arizona’s general principle of recognizing valid foreign marriages. See A.R.S. § 25-112(A), (B). Plaintiffs challenged this statute in their Complaint for Permanent Injunction and Declaratory Judgment in paragraphs 144–50, and specifically challenged A.R.S. § 25-112(A) in paragraphs 119 and 140 of their Amended Complaint for Permanent Injunction and Declaratory Judgment. See also (PMSJ at 24). Plaintiffs have never requested that the Court invalidate A.R.S. § 25-112 because a ruling invalidating the offending provision of A.R.S. § 25-101 has the practical effect of limiting the unconstitutional application of A.R.S. § 25-112 by incorporation.



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I hereby certify that on this 30th day of June, 2014 I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and a copy was electronically transmitted to the following: Kathleen P. Sweeney Todd M. Allison Assistant Attorneys General 1275 West Washington Phoenix, Arizona 85007-2997 [email protected] [email protected] Attorneys for Defendants

Jonathan Caleb Dalton Byron J. Babione Kenneth J. Connelly James A. Campbell Special Assistant Attorney General Alliance Defending Freedom 15100 North 90th Street Scottsdale, Arizona 85260 [email protected] [email protected] [email protected] [email protected] Attorneys for Defendants

s/ DeAnn M. Buchmeier S:\Connolly - Pochert\21401001\PLEADINGS\RspXMsj-ReplyMSJ 140630.docx


2:14-cv-00024 #70

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