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Thomas C. Horne

Attorney General

Robert L. Ellman (AZ Bar No. 014410)

Solicitor General

Email:[email protected]

Kathleen P. Sweeney (AZ Bar No. 011118)

Assistant Attorney General

1275 W. Washington

Phoenix, Arizona 85007-2997

Telephone: (602) 542-3333

Fax: (602) 542-8308


Byron J. Babione (AZ Bar No. 024320)

James A. Campbell (AZ Bar No. 026737)Kenneth J. Connelly (AZ Bar No. 025420)

J. Caleb Dalton (AZ Bar No. 030539)

Special Assistant Attorneys General

Alliance Defending Freedom

15100 N. 90th Street

Scottsdale, Arizona 85260

Telephone: (480) 444-0020

Fax: (480) 444-0028


Email:[email protected]:[email protected]


Attorneys for Defendants

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Nelda Majors, et al.,

Plaintiffs,v.

Michael K. Jeanes, in his official capacity

as Clerk of the Superior Court of

Maricopa County, Arizona, et al.,

Defendants.

Case No: 2:14-cv-00518-JWS

DEFENDANTS MEMORANDUMOF LAW IN OPPOSITION TO

FRED MCQUIRES MOTION FOR

TEMPORARY RESTRAINING

ORDER

Case 2:14-cv-00518-JWS Document 70 Filed 09/08/14 Page 1 of 26
mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]

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Table of Contents

Table of Authorities ............................................................................................................ ii

Introduction ........................................................................................................................ 1

Argument ............................................................................................................................ 1

I.

Plaintiff Is Unlikely to Succeed on the Merits. ....................................................... 3

A.

The Supreme CourtsBakerDecision Forecloses Plaintiffs Claims. ......... 3

B.

The Fourteenth Amendment Does Not Forbid Arizona from

Maintaining Its Man-Woman Marriage Definition. ..................................... 3

1.

Rational-Basis Review Applies to Plaintiffs Claims. ...................... 3

a. SmithKlineDoes Not Require Heightened Scrutiny. ............. 3

b.

Arizonas Man-Woman Marriage Definition Does Not

Impermissibly Discriminate Based on Sex. ........................... 5

c.


Infringe Fundamental Rights. ................................................ 6

d.

Arizonas Marriage-Recognition Policy Is Not Subject

to Heightened Scrutiny........................................................... 7

2.

The Man-Woman Marriage Definition Satisfies

Constitutional Review. ...................................................................... 8

a.

The Man-Woman Marriage Definition Furthers the

States Compelling Interest in Connecting Children to

Both of Their Biological Parents. .......................................... 9

b.

The Man-Woman Marriage Definition Avoids the

Long-Term Adverse Effects that the State Could

Logically Project Would Accompany the Redefinition

of Marriage. .......................................................................... 11

c.

The Challenged Marriage Laws Protect the Peoples

Right to Define Marriage for Their Community.................. 13

II.

Plaintiff Has Not Shown that the Relief Will Prevent Irreparable Harm. ............. 14

III.

The Balance of Equities Weighs Decidedly in Defendants Favor. ...................... 15

IV.

The Public Interest Does Not Support Plaintiffs Motion. .................................... 16

V.

If the Court Grants Plaintiffs Motion, the Court Should Carefully Craft Its

Order. ..................................................................................................................... 16

Conclusion ........................................................................................................................ 17


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Table of Authorities

Cases:

Adoptive Couple v. Baby Girl,

133 S. Ct. 2552 (2013) ...........................................................................................9

Andersen v. King County,

138 P.3d 963 (Wash. 2006) ................................................................... 5, 7, 10, 11

Baehr v. Lewin,

852 P.2d 44 (Haw. 1993)................................................................................... 5, 7

Baker v. General Motors Corp.,

522 U.S. 222 (1998) ...............................................................................................8

Baker v. Nelson,409 U.S. 810 (1972) .......................................................................................... 3, 7

Baker v. Nelson,

191 N.W.2d 185 (Minn. 1971) ...............................................................................3

Bishop v. Smith,

Nos. 14-5003, 14-5006, 2014 WL 3537847 (10th Cir. July 18, 2014) ................17

Califano v. Yamasaki,

442 U.S. 682 (1979) .............................................................................................17

Caribbean Marine Services v. Baldrige,

844 F.2d 668 (9th Cir. 1988) ................................................................................15

Citizens for Equal Protection v. Bruning,

455 F.3d 859 (8th Cir. 2006) ........................................................................... 4, 11

City of Cleburne v. Cleburne Living Center, Inc.,

473 U.S. 432 (1985) ...............................................................................................4

Coalition for Economic Equity v. Wilson,

122 F.3d 718 (9th Cir. 1997) ................................................................................16

Conaway v. Deane,

932 A.2d 571 (Md. 2007) ............................................................................ 5, 7, 11

FCC v. Beach Communications, Inc.,

508 U.S. 307 (1993) ...............................................................................................8

Goodridge v. Department of Public Health,

798 N.E.2d 941 (Mass. 2003) ................................................................................6


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Heller v. Doe,

509 U.S. 312 (1993) ...............................................................................................9

Herb Reed Enters. v. Florida Entertainment Management,

736 F.3d 1239 (9th Cir. 2013) ..............................................................................14

Herbert v. Evans,

No. 14A65, 2014 WL 3557112 (U.S. July 18, 2014) (order) ................... 2, 14, 16

Herbert v. Kitchen,

134 S. Ct. 893 (2014) (order) .................................................................... 2, 14, 16

Hernandez v. Robles,

855 N.E.2d 1 (N.Y. 2006) ....................................................................... 4, 5, 7, 11

Hollingsworth v. Perry,

558 U.S. 183 (2010) ........................................................................................ 2, 16

Jackson v. Abercrombie,

884 F. Supp. 2d 1065 (D. Haw. 2012) .......................................................... 10, 11

Johnson v. Robison,

415 U.S. 361 (1974) .............................................................................................10

Kahawaiolaa v. Norton,

386 F.3d 1271 (9th Cir. 2004) ................................................................................3

Latta v. Otter,No. 14-35420 (9th Cir. May 20, 2014) (order) ......................................................2

Lawrence v. Texas,

539 U.S. 558 (2003) ...............................................................................................7

Lewis v. Harris,

908 A.2d 196 (N.J. 2006) .......................................................................................7

Los Angeles Haven Hospice, Inc. v. Sebelius,

638 F.3d 644 (9th Cir. 2011) ................................................................................17

Los Angeles Memorial Coliseum Commission v. National Football League,

634 F.2d 1197 (9th Cir. 1980) ..............................................................................15

Loving v. Virginia,

388 U.S. 1 (1967) .............................................................................................. 5, 6

In re Marriage Cases,

183 P.3d 384 (Cal. 2008)........................................................................................5


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In re Marriage of J.B. & H.B.,

326 S.W.3d 654 (Tex. Ct. App. 2010) ............................................................ 7, 11

In re Mortensons Estate,

316 P.2d 1106 (Ariz. 1957) ....................................................................................8

Massachusetts v. U.S. Department of Health & Human Services,

682 F.3d 1 (1st Cir. 2012) ......................................................................................7

McQuigg v. Bostic,

No. 14A196, 2014 WL 4096232 (U.S. Aug. 20, 2014) (order) ................ 2, 14, 16

Morrison v. Sadler,

821 N.E.2d 15 (Ind. Ct. App. 2005) .......................................................... 7, 10, 11

Murphy v. Ramsey,

114 U.S. 15 (1885) .................................................................................................6

Nguyen v. INS,

533 U.S. 53 (2001) ...............................................................................................11

Robicheaux v. Caldwell,

Nos. 13-5090, 14-97, 14-327, 2014 WL 4347099 (E.D. La. Sept. 3, 2014) ........11

Rostker v. Goldberg,

453 U.S. 57 (1981) ...............................................................................................11

Sampson v. Murray,415 U.S. 61 (1974) ........................................................................................ 14, 15

Santosky v. Kramer,

455 U.S. 745 (1982) .............................................................................................10

Schuette v. BAMN,

134 S. Ct. 1623 (2014) .................................................................................. 13, 16

Smelt v. County of Orange,

374 F. Supp. 2d 861 (C.D. Cal. 2005) ....................................................................5

Smith v. Organization of Foster Families for Equality & Reform,

431 U.S. 816 (1977) ...............................................................................................9

SmithKline Beecham Corp. v. Abbott Laboratories,

740 F.3d 471 (9th Cir. 2014) ............................................................................. 3, 4

Standhardt v. Superior Court,

77 P.3d 451 (Ariz. Ct. App. 2003) ............................................................ 7, 10, 11


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Tully v. Griffin, Inc.,

429 U.S. 68 (1976) .................................................................................................3

United States v. Tenney,

11 P. 472 (Ariz. 1886) ............................................................................................4

United States v. Virginia,

518 U.S. 515 (1996) .......................................................................................... 6, 9

United States v. Windsor,

133 S. Ct. 2675 (2013) .................................................................... 4, 5, 7, 8, 9, 16

Washington v. Glucksberg,

521 U.S. 702 (1997) .......................................................................................... 6, 7

Winter v. Natural Resources Defense Council, Inc.,

555 U.S. 7 (2008) ...................................................................................................1

Zablocki v. Redhail,

434 U.S. 374 (1978) ...............................................................................................6

Statutes:

Ariz. Admin. Code R9-19-115 .....................................................................................14

Ariz. Rev. Stat. 25-101 ...................................................................................................8

Ariz. Rev. Stat. 25-102 ...................................................................................................8

Ariz. Rev. Stat. 25-112 ...................................................................................................8

Ariz. Rev. Stat. 36-323 .................................................................................................14

20 C.F.R. 404.335.................................................................................................. 14, 15

38 C.F.R. 3.54 ...............................................................................................................15

38 U.S.C. 1304 .............................................................................................................15

Other Authorities:

Peter L. Berger & Thomas Luckmann, The Social Construction of Reality: A

Treatise in the Sociology of Knowledge(1966) ...................................................12

Eirini Flouri & Ann Buchanan, The Role of Father Involvement in Childrens

Later Mental Health, 26 J. Adolescence 63 (2003) .............................................13

Robert P. George et al., What is Marriage?(2012) ........................................................12


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Elizabeth Marquardt et al.,My Daddys Name is Donor: A New Study of Young

Adults Conceived Through Sperm Donation(Institute for American Values

2010) .....................................................................................................................10

Jane Mendle et al.,Associations Between Father Absence and Age of

First Sexual Intercourse, 80 Child Dev. 1463 (2009) ..........................................13

Barack Obama, Obamas Speech on Fatherhood(June 15, 2008),

http://www.realclearpolitics.com/articles/2008/06/obamas_speech

_on_fatherhood.html ..................................................................................... 12, 13

G. Robina Quale,A History of Marriage Systems(1988) .................................................9

Social Security Program Operations Manual System, GN 00305.100, TN 31 (05-

04), July 17, 2006, https://secure.ssa.gov/poms.nsf/lnx/0200305100 (last

visited Sept. 6, 2014) ............................................................................................14

United Nations Convention on the Rights of the Child, G.A. Res. 44/25 (Nov. 20,

1989) .......................................................................................................................9

United States Department of Veterans Affairs, Compensation,

http://benefits.va.gov/COMPENSATION/types-

dependency_and_indemnity.asp (last visited Sept. 6, 2014) ...............................15

James Q. Wilson, The Marriage Problem(2002) .............................................................9

Witherspoon Institute,Marriage and the Public Good: Ten Principles(2008) .............12

11A Charles A. Wright et al., Federal Practice & Procedure Civil(3d ed. 2014) ..........2


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Defendants submit this response in opposition to Plaintiff Fred McQuires

(Plaintiff) Motion for Temporary Restraining Order (ECF No. 64).

Introduction

The events giving rise to Plaintiffs motion are unfortunate. But Defendants, as

public officers, are charged with enforcing the States marriage policy, which affirms

marriage as the union of a man and a woman. The People of Arizona recognize that

marriagea social institution of utmost importancehas always existed to steer

naturally procreative relationships into enduring unions and to connect children to both

their biological mother and their biological father. While voters in some States have

decided to move marriage further away from these purposes by redefining it from a

gendered (man-woman) institution to a genderless (any two persons) institution,

Arizonans have reasonably chosen to preserve marriage as a gendered institution. The

Fourteenth Amendment does not forbid the People from making this policy choice.

Accordingly, Plaintiff has failed to show that he is likely to prevail on the merits of his

claims, and his motion should be denied.

Argument

Plaintiff claims that the Fourteenth Amendment requires Arizona to recognize a

marriage license that he received from another State, seeSecond Am. Compl. 33 (ECF

No. 50), and through this motion, he seeks an immediate order requiring Defendants to

recognize [the] California marriage license issued to him and George Martinez, seePl.s

TRO Mem. at 3 (ECF No. 64). A plaintiff seeking a temporary restraining order or a

preliminary injunction must establish [1] that he is likely to succeed on the merits, [2]

that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the

balance of equities tips in his favor, and [4] that an injunction is in the public interest.

Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Such relief is an

extraordinary remedy.Id.at 24. It may only be awarded upon a clear showing that the

plaintiff is entitled to such relief.Id.at 22. Consequently, Plaintiff must show that all

four of these factors weigh unmistakably in his favor. He has failed to do this.


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Before analyzing the four factors, Defendants emphasize that Plaintiffs motion

fails for two threshold reasons. First, by repeatedly issuing stay orders in similar

marriage cases, the Supreme Court has indicated that lower courts should not implement

injunctive relief in these cases until the Court finally resolves whether the Constitution

requires States to adopt a genderless marriage definition. SeeHerbert v. Kitchen, 134 S.

Ct. 893 (2014) (staying injunction against Utahs marriage laws);Herbert v. Evans, No.

14A65, 2014 WL 3557112 (U.S. July 18, 2014) (staying injunction that requires Utah to

recognize marriage licenses issued to same-sex couples);McQuigg v. Bostic, No.

14A196, 2014 WL 4096232 (U.S. Aug. 20, 2014) (staying court of appeals mandate that

would have implemented an injunction against Virginias marriage laws); see alsoOrder,

Latta v. Otter, No. 14-35420 (9th Cir. May 20, 2014) (staying injunction against Idahos

marriage laws). Those precedents preclude Plaintiffs request to immediately enjoin the

challenged marriage laws. Second, a temporary-restraining order is designed to preserve

the status quo. 11A Charles A. Wright et al., Fed. Prac. & Proc. Civ. 2951 (3d ed.

2014). Plaintiffs motion, however, seeks to changethe status quo by requiring the State,

for the first time ever, to recognize a same-sex relationship as a marriage. A temporary-

restraining order is thus unsuitable here.

Furthermore, the Supreme Courts stay orders in the marriage cases inform the

four-prong analysis that applies here. To issue those stays, the Court necessarily found

(1) a fair prospect that a majority of the [Supreme] Court will vote to uphold man-

woman marriage laws as constitutional and (2) a likelihood that irreparable harm will

result to the States from enjoining those laws before the Supreme Court settles the

constitutional question at issue here. SeeHollingsworth v. Perry, 558 U.S. 183, 190

(2010) (per curiam) (outlining the factors for issuing a stay pending appeal). Those

conclusions weigh against Plaintiffs arguments that he is likely to succeed on the merits,

seeTRO Mem. at 8-10, and that the State will not be harmed by enjoining the challenged

laws, see id.at 15-16.


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I.

Plaintiff Is Unlikely to Succeed on the Merits.1

A.

The Supreme CourtsBakerDecision Forecloses Plaintiffs Claims.

Binding Supreme Court precedent forecloses Plaintiffs claims. InBaker v.

Nelson, 409 U.S. 810 (1972), the Supreme Court unanimously dismissed, for want of a

substantial federal question, an appeal from the Minnesota Supreme Court presenting

the question whether a State that maintains marriage as a man-woman union violates the

Due Process Clause or the Equal Protection Clause of the Fourteenth Amendment.Id.;

see alsoJurisdictional Statement at 3,Baker v. Nelson, 409 U.S. 810 (1972) (No. 71-

1027);Baker v. Nelson, 191 N.W.2d 185, 186-87 (Minn. 1971). That summary dismissal

inBakeris a decision on the merits that constitutes controlling precedent, unless and

until re-examined by this Court. Tully v. Griffin, Inc., 429 U.S. 68, 74 (1976). Because

the Supreme Court has never reassessed the question that the parties raised inBaker, that

decision binds this Court, and Plaintiff cannot prevail.

B.

The Fourteenth Amendment Does Not Forbid Arizona from

Maintaining Its Man-Woman Marriage Definition.

Separate fromBakers binding force, Plaintiffs claims lack merit because the

Fourteenth Amendment does not forbid Arizonas man-woman marriage definition.

1. Rational-Basis Review Applies to Plaintiffs Claims.

Rational-basis review applies here because Arizonas man-woman marriage

definition does not infringe a fundamental right or discriminate based on a quasi-suspect

classification. See Kahawaiolaa v. Norton, 386 F.3d 1271, 1277-78 (9th Cir. 2004).

a. SmithKlineDoes Not Require Heightened Scrutiny.

There are four reasons why the Ninth Circuits decision in SmithKline Beecham

Corp. v. Abbott Laboratories, 740 F.3d 471 (9th Cir. 2014), does not require this Court to

apply heightened scrutiny. Cf.Pl.s Prelim. Inj. Mem. at 21 (ECF No. 63).

1Defendants incorporate here the legal argument in Defendants Cross-Motion for

Summary Judgment and Memorandum of Law in Support filed in Connolly v. Roche, No.

2:14-cv-00024-JWS (ECF No. 59). Defendants summarize those arguments here.


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First, by its own terms, SmithKlinerequires heightened scrutiny only when state

action discriminates on the basis of sexual orientation. 740 F.3d at 483. But Arizonas

man-woman definition of marriage does not. That definition distinguishes between man-

woman couples and all other relationships (including same-sex couples and polyamorous

relationships). It does not explicitly classify individuals based on their sexual orientation.

Second, the state action at issue in SmithKlineintended to discriminate against

gays and lesbians.Id.at 477-78 (finding intentional discrimination). Here, however,

Arizonas man-woman definition of marriage, which predates the States inception, see,

e.g., United States v. Tenney, 11 P. 472, 477 (Ariz. 1886), is not born of any intent to

discriminate against gays and lesbians. Not a shred of evidence suggests that Arizonans

recognized man-woman marriage more than a hundred years ago for the purpose of

disadvantaging gays and lesbians. By focusing his attention only on the laws enacted in

1996 and 2008, seeTRO Mem. at 8-9, Plaintiff misses the mark, for even if the State had

not approved those enactments, marriage in this State would still be a man-woman union.

Third, because same-sex couples have distinguishing characteristics relevant to

interests the State has the authority to implement, constitutional analysis requires only

a rational means to serve a legitimate end. City of Cleburne v. Cleburne Living Ctr.,

Inc., 473 U.S. 432, 441-42 (1985). Arizonas marital definition is based on a biological

difference between man-woman couples and same-sex couplesnamely, the natural

capacity to create children and to provide those children with their biological mother and

biological father. Because this basic biological difference relates directly to societys

interests in regulating marriage, seeinfraat 9, the States definition of marriage is subject

only to rational-basis review. SeeCitizens for Equal Prot. v. Bruning, 455 F.3d 859, 866-

67 (8th Cir. 2006);Hernandez v. Robles, 855 N.E.2d 1, 11 (N.Y. 2006).

Fourth, SmithKlinepremised its new equal-protection standard entirely on United

States v. Windsor, 133 S. Ct. 2675 (2013). See740 F.3d at 480 (noting that Windsoris

dispositive of the question of the appropriate level of scrutiny). Thus, SmithKlinecan

reach no further than Windsorin demanding heightened scrutiny. Windsor, however, did


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not establish that all laws that disparately impact same-sex couples warrant heightened

scrutiny. Rather, it premised its careful consideration analysis on its conclusion that the

federal government had unusually depart[ed] from [its] history and tradition of reliance

on state law to define marriage. 133 S. Ct. at 2692. Because Arizonas man-woman

marital definition does not depart from history or exhibit any other unusual characteristic,

Windsors predicate for applying careful consideration analysis is absent here.

b.


Impermissibly Discriminate Based on Sex.

Plaintiffs sex-discrimination arguments are unpersuasive. SeePrelim. Inj. Mem.

at 22. The Supreme Courts sex-discrimination equal-protection cases have never strayed

from the baseline rule that a law does not impermissibly discriminate based on sex unless

it subjects men as a class or women as a class to disparate treatment. Smelt v. Cnty. of

Orange, 374 F. Supp. 2d 861, 876-77 (C.D. Cal. 2005) (collecting Supreme Court cases),

affd in part, vacated in part, 447 F.3d 673 (9th Cir. 2006).

Because Arizonas man-woman marriage definition does not treat men as a class

differently from women as a class, Plaintiffs sex-discrimination arguments fall short.

Even though this argument has been raised in the many similar cases that have been

litigated throughout the country, no appellate court, state or federal, except for a two-

justice plurality inBaehr v. Lewin, 852 P.2d 44, 59-63 (Haw. 1993), has adopted

Plaintiffs sex-discrimination theory. See, e.g.,In re Marriage Cases, 183 P.3d 384, 439

(Cal. 2008); Conaway v. Deane, 932 A.2d 571, 598-99 (Md. 2007);Hernandez, 855

N.E.2d at 10-11;Andersen v. King Cnty., 138 P.3d 963, 988 (Wash. 2006) (plurality).

Plaintiffs reliance onLoving v. Virginia, 388 U.S. 1 (1967), a race-discrimination

case, is misplaced. SeePrelim. Inj. Mem. at 23 n.12.Loving, to be sure, observed that

equal application does not immunize a racially discriminatory law from strict scrutiny.

388 U.S. at 9. But the Supreme Court has never extended that principle to sex

discrimination. Instead, the Court has declined to equat[e] gender classifications with

classifications based on race and has carefully inspected under heightened scrutiny


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only official action that closes a dooror denies opportunityto women (or to men).

United States v. Virginia, 518 U.S. 515, 532 (1996) (emphasis added). Because Arizonas

marriage laws do not close a door to either sex, finding sex discrimination here would be

an unprecedented expansion of the Supreme Courts case law.

c.


Infringe Fundamental Rights.

In Washington v. Glucksberg, 521 U.S. 702 (1997), the Supreme Court discussed

how to ascertain whether an asserted right is fundamental.Id.at 720-21. The Court

requires a careful description of the asserted fundamental liberty interest, id. at 721,

and demands that the carefully described right must be objectively, deeply rooted in

this Nations history and tradition, id. at 720-21. The carefully described right at issue

here is the purported right to marry a person of the same sex. That right is not deeply

rooted in our Nations history and tradition. Marriage between two people of the same

sex was unknown in this country before 2004, seeGoodridge v. Dept of Pub. Health,

798 N.E.2d 941, 970 (Mass. 2003), and is now recognized in only a minority of States.

Nor can Plaintiff rely on the established fundamental right to marry that the

Supreme Court has recognized, for that deeply rooted right is the right to enter the

relationship of husband and wife. Marriage, after all, is a term that throughout Supreme

Court precedent developing the fundamental right to marry has always meant the union

. . . of one man and one woman.Murphy v. Ramsey, 114 U.S. 15, 45 (1885). Indeed,

every case vindicating the fundamental right to marry has involved a man and a woman.

And the Supreme Courts repeated references to the vital link between marriage and our

very existence and survival confirm that the Court has understood marriage as a

gendered relationship with a connection to procreation. See, e.g.,Loving, 388 U.S. at 12;

Zablocki v. Redhail, 434 U.S. 374, 383-84 (1978).

Lest there be any doubt on this point, the Supreme Court has twice indicated that

the fundamental right to marry does not include the right to marry a person of the same

sex. First, just five years afterLoving, the Court was presented with the same asserted


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fundamental right raised here, but it denied that claim on the merits, summarily and

unanimously.Baker, 409 U.S. at 810; see alsoMassachusetts v. U.S. Dept of Health &

Human Servs., 682 F.3d 1, 8 (1st Cir. 2012) (concluding thatBaker forecloses arguments

that presume or rest on a constitutional right to same-sex marriage). Second, Windsor

stated that marriage between a man and a woman no doubt had been thought of . . . as

essential to the very definition of that term and to its role and function throughout the

history of civilization. 133 S. Ct. at 2689. This language directly refutes any suggestion

that the deeply rooted right to marry includes uniting two persons of the same sex.

It is thus not surprising that the majority of appellate courts that have faced this

fundamental-right question, under a state constitution or the Federal Constitution, have

found no fundamental right to marry a person of the same sex. See, e.g., Standhardt v.

Superior Court, 77 P.3d 451, 460 (Ariz. Ct. App. 2003);Baehr, 852 P.2d at 57;Morrison

v. Sadler, 821 N.E.2d 15, 32-34 (Ind. Ct. App. 2005); Conaway, 932 A.2d at 624-29;

Lewis v. Harris, 908 A.2d 196, 211 (N.J. 2006);Hernandez, 855 N.E.2d at 9-10;In re

Marriage of J.B. & H.B., 326 S.W.3d 654, 675-76 (Tex. Ct. App. 2010);Andersen, 138

P.3d at 976-79.2

d.

Arizonas Marriage-Recognition Policy Is Not Subject to

Heightened Scrutiny.

It is not unusual or unconstitutional for a State to decline to recognize a couples

out-of-state marriage. Comity and full-faith-and-credit principles have always permitted

2Plaintiff vaguely asserts that Arizonas man-woman marriage definition violates his

protected liberty interests in association, integrity, autonomy, and self-definition.Prelim. Inj. Mem. at 18 (capitalization omitted). Plaintiff relies principally onLawrence

v. Texas, 539 U.S. 558, 573 (2003), for this claim. But Lawrencewhich struck down a

criminal statute that prohibited the most private human conduct, sexual behavior, . . . in

the most private of places, the home, id.at 567explicitly stated that it did not

involve, and thus did not decide, whether the government must give formal recognition

to any relationship that homosexual persons seek to enter, id.at 578. Moreover, the

Supreme Court has rejected the idea that constitutional rights may be simply deduced

from abstract concepts of personal autonomy. Glucksberg, 521 U.S. at 725. Rather,

those rights must be grounded in this Nations history and constitutional traditions.Id.


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Arizona, like other States, to decline to recognize [m]arriages performed outside the

state which offend [its] strong public policy.In re Mortensons Estate, 316 P.2d 1106,

1108 (Ariz. 1957); see alsoBaker v. Gen. Motors Corp., 522 U.S. 222, 232 (1998) (The

Full Faith and Credit Clause does not compel a state to substitute the statutes of other

states for its own statutes dealing with a subject matter concerning which it is competent

to legislate. (internal quotation marks omitted)).

Moreover, by declining to recognize Plaintiffs California marriage license, the

State has not treated him differently than any man-woman couple who sought to evade

Arizonas marriage law by marrying in another State. The State prohibits allpersons

residing in this state from evad[ing] the laws of this state relating to marriage by going

to another state or country for solemnization of the marriage. Ariz. Rev. Stat. 25-

112(C). Plaintiff violated this statutory provision. SeeMcQuire Supp. Decl. 5 (ECF No.

66). He is thus treated no differently than an underage, seeAriz. Rev. Stat. 25-102(A),

or closely related man-woman couple, seeAriz. Rev. Stat. 25-101(A), who resides in

Arizona and similarly seeks to evade the States marriage laws.

Finally, the implications of Plaintiffs recognition-based arguments are untenable.

Requiring Arizona to recognize a relationship as a marriage simply because another State

does would effectively nationalize the domestic-relations policy of the most inventive

State. That would not only contravene the well-established comity and full-faith-and-

credit principles discussed above, it would also conflict with Windsors acknowledgment

that the Constitution permits variation among States domestic-relations policies

concerning which couples may marry. See133 S. Ct. at 2691 (noting that States may

differ on permissible degree[s] of consanguinity and minimum age[s] for marriage).

2. The Man-Woman Marriage Definition Satisfies Constitutional

Review.

Arizonas man-woman marriage definition satisfies rational-basis review. That

standard is a paradigm of judicial restraint, under which courts have no license . . . to

judge the wisdom, fairness, or logic of legislative choices. FCC v. Beach Commcns,


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Children deprived of their substantial interest in know[ing] [their] natural

parents, as the Supreme Court has recognized, experience a loss[] [that] cannot be

measured, one that may well be far-reaching. Santosky v. Kramer, 455 U.S. 745, 760

n.11 (1982). This observation is supported by social science showing that [y]oung adults

conceived through sperm donation (and thus without a connection to their biological

father) experience profound struggles with their origins and identities. Elizabeth

Marquardt et al.,My Daddys Name is Donor: A New Study of Young Adults Conceived

Through Sperm Donation7 (Institute for American Values 2010). The State thus has a

compelling interest in connecting children to both of their biological parents.

The State establishes the requisite relationship between this interest and the means

chosen to achieve it so long as the inclusion of one group promotes [this] purpose, and

the addition of other groups would not.Johnson v. Robison, 415 U.S. 361, 383 (1974).

Therefore, the relevant inquiry is not whether excluding same-sex couples from marriage

furthers the States interest in encouraging biological mothers and fathers to jointly raise

their children. Rather, the relevant question is whether an opposite-sex definition of

marriage furthers legitimate interests that would not be furthered, or furthered to the same

degree, by allowing same-sex couples to marry.Jackson v. Abercrombie, 884 F. Supp.

2d 1065, 1107 (D. Haw. 2012); accordStandhardt, 77 P.3d at 463;Morrison, 821 N.E.2d

at 23, 29;Andersen, 138 P.3d at 984 (plurality).

Applying that analysis, the man-woman marriage definition plainly satisfies

constitutional review. Only sexual relationships between a man and a woman advance the

States interest because only those relationships naturally produce children and are able to

provide those children with both of their biological parents. Sexual relationships between

individuals of the same sex, by contrast, do not naturally create children or provide them

with both their mother and their father. Those relationships thus do not implicate the

States overriding purpose for regulating marriage. See, e.g.,Johnson, 415 U.S. at 378

(stating that a classification will be upheld if characteristics peculiar to only one group

rationally explain the statutes different treatment of the two groups).


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That is why a host of judicial decisions, including a federal decision issued just

last week, have concluded that laws defining marriage as the union of one man and one

woman and extending a variety of benefits to married couples are rationally related to the

government interest[s] in steering procreation into marriage and connecting children to

their biological parents.Bruning, 455 F.3d at 867-68; see, e.g.,Robicheaux v. Caldwell,

Nos. 13-5090, 14-97, 14-327, 2014 WL 4347099, at *6 (E.D. La. Sept. 3, 2014)

(Louisianas [man-woman marriage laws] are directly related to achieving marriages

historically preeminent purpose of linking children to their biological parents.);Jackson,

884 F. Supp. 2d at 1112-14; Standhardt, 77 P.3d at 461-64;Morrison, 821 N.E.2d at 23-

31; Conaway, 932 A.2d at 630-34;Hernandez, 855 N.E.2d at 7-8;In re Marriage of J.B.

& H.B., 326 S.W.3d at 677-78;Andersen, 138 P.3d at 982-85 (plurality).

Additionally, the man-woman definition of marriage satisfies heightened scrutiny

because even under that more demanding standard, the Constitution requires simply that

a State treat similarly situated persons similarly, not that it engage in gestures of

superficial equality.Rostker v. Goldberg, 453 U.S. 57, 79 (1981). To fail to

acknowledge even our most basic biological differences, like those between same-sex

couples and man-woman couples, risks making the guarantee of equal protection

superficial, and so disserving it.Nguyen v. INS, 533 U.S. 53, 73 (2001); accordid.at 63

(upholding a proof-of-citizenship law under heightened scrutiny because the two classes

at issue[f]athers and motherswere not similarly situated with regard to proof of

biological parenthood). Because man-woman couples and same-sex couples are not

similarly situated with regard to the States interest in connecting children to both

biological parents, the challenged marriage laws withstand heightened scrutiny.

b. The Man-Woman Marriage Definition Avoids the Long-

Term Adverse Effects that the State Could Logically

Project Would Accompany the Redefinition of Marriage.

The State may logically project that redefining marriage poses a significant risk of

bringing about adverse social consequences over time. Redefining marriage in genderless

terms would transform it into an institution that no longer has any intrinsic definitional


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connection to its overriding social purposes of channeling naturally procreative

relationships into enduring unions and linking children to both of their biological parents.

Although it is not possible to know the long-term consequences of redefining marriage in

this way, seeTranscript of Oral Argument at 48,Hollingsworth v. Perry, 133 S. Ct. 2652

(2013) (No. 12-144) (Kennedy, J.) (indicating that counsel challenging Californias man-

woman marriage definition asked the Court to go into uncharted waters), it is

undeniable that legally redefining marriage as a genderless institution will have real-

world consequences. Complex social institutions like marriage comprise a set of norms,

patterns, and expectations that powerfully affect peoples views and actions. SeePeter L.

Berger & Thomas Luckmann, The Social Construction of Reality: A Treatise in the

Sociology of Knowledge72 (1966). Changing the legal definition of a pervasive

institution will inevitably alter societys views and expectations regarding that institution

and ultimately individuals choices and actions when they interact with it.

Faced with uncertainties about the future, it is logical for the People to project that

redefining marriage will jeopardize its utility in serving its purpose of connecting

children to both their mother and their father. For example, genderless marriage

necessarily undermines the importance of, and eliminates the States preference for,

children being raised by both their biological mother and their biological father. See

Witherspoon Institute,Marriage and the Public Good: Ten Principles18-19 (2008). As

over seventy prominent scholars have acknowledged, that would tend to alienate fathers

from tak[ing] responsibility for the children they beget.Id.; see alsoRobert P. George

et al., What is Marriage?8 (2012). And it would encourage mothers to create or raise

children apart from their fathers. Those developments, collectively, would lead to more

children being raised without their fathers.

The States concern is that those children would suffer. As President Obama has

explained:

We know the statistics that children who grow up without a father are five

times more likely to live in poverty and commit crime; nine times more

likely to drop out of schools and twenty times more likely to end up in


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prison. They are more likely to have behavioral problems, or run away from

home, or become teenage parents themselves. And the foundations of our

community are weaker because of it.

Barack Obama, Obamas Speech on Fatherhood(June 15, 2008), http://www.realclear

politics.com/articles/2008/06/obamas_speech_on_fatherhood.html.3

Based on this concern about potentially increasing the number of children raised

without their father (and other adverse societal effects that might accompany the

redefinition of marriage),4Arizonans have reasonably declined to redefine marriage.

c. The Challenged Marriage Laws Protect the Peoples

Right to Define Marriage for Their Community.

The State also has an important interest in protecting the Peoples collective rightto define marriage for their community. In Windsor, the Supreme Court extolled the

virtue of allow[ing] the formation of consensus when the People seek a voice in

shaping the destiny of their own times on the definition of marriage. 133 S. Ct. at 2692.

Similarly, in Schuette v. BAMN, 134 S. Ct. 1623 (2014), a plurality of the Supreme Court

affirmed the Peoples right to speak and debate and learn and then, as a matter of

political will, to act through a lawful electoral process, id.at 1637, that shape[s] the

course of their own times, id.at 1636-37, on public-policy questions of a sensitive,

complex, delicate, arcane, difficult, divisive, or profound nature, id.at 1637-

38. When Arizonans enacted the marriage laws challenged here, they protected this

collective right to decide one of the most profound and divisive questions of our day.

Because the challenged laws do not violate Plaintiffs fundamental rights, the States

important interest in protecting the Peoples right to democratically decide this social

question amply sustains the challenged laws.

3See, e.g., Jane Mendle et al.,Associations Between Father Absence and Age of First

Sexual Intercourse, 80 Child Dev. 1463, 1463 (2009); Eirini Flouri & Ann Buchanan,

The Role of Father Involvement in Childrens Later Mental Health, 26 J. Adolescence 63

63 (2003).4Other potential adverse consequences are discussed in Defendants Cross-Motion for

Summary Judgment and Memorandum of Law in Support filed in Connolly v. Roche, No.

2:14-cv-00024-JWS (ECF No. 59).


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II.

Plaintiff Has Not Shown that the Relief Will Prevent Irreparable Harm.

Plaintiff has the burden to show that irreparable harm is likely. Herb Reed Enters.

v. Fla. Entmt Mgmt., 736 F.3d 1239, 1251 (9th Cir. 2013). The possibility that adequate

compensatory or other corrective relief will be available at a later date, in the ordinary

course of litigation, weighs heavily against a claim of irreparable harm.Sampson v.

Murray, 415 U.S. 61, 90 (1974) (internal quotation marks omitted).

Plaintiff argues that he has shown irreparable harm primarily because he believes

that the challenged marriage laws violate his constitutional rights. TRO Mem. at 11. But

because, as explained above, those laws do not contravene the Fourteenth Amendment,

Plaintiff has not shown an irreparable harm deriving from a constitutional violation.

Plaintiff also raises an asserted dignity harm from the fact that the State does not

recognize his California marriage to Mr. Martinez. TRO Mem. at 12. That asserted harm,

however, mirrors dignity-based allegations of the many same-sex couples in States like

Virginia and Utah. Yet the Supreme Court has stayed the injunctions entered in favor of

those couples. SeeKitchen, 134 S. Ct. at 893;Evans, 2014 WL 3557112, at *1;McQuigg,

2014 WL 4096232, at *1. That counsels strongly against granting Plaintiffs motion.

Plaintiff also claims harm from the fact that Mr. Martinezs death certificate will

not list Plaintiff as the surviving spouse. TRO Mem. at 13-14. That, however, is not an

irreparable injury. As Plaintiff himself admits, seeid.at 14, Arizona law permits him to

obtain an amended death certificate should he eventually prevail in this case. SeeAriz.

Admin. Code R9-19-115 (enacted under the authority of Ariz. Rev. Stat. 36-323(A)).

Plaintiff also alleges monetary harm, arguing that a death certificate that lists him

as Mr. Martinezs surviving spouse would allow him to access social-security and

veterans-affairs benefits for surviving spouses. TRO Mem. at 14-15. But even if Plaintiff

receives an order compelling recognition of his California marriage license, federal law

independently bars him from accessing those benefits. Plaintiff cannot obtain social-

security benefits as a surviving spouse because he received his marriage license less than

nine months before Mr. Martinez passed away. See20 C.F.R. 404.335(a)(1); Social


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Security Program Operations Manual System, GN 00305.100, TN 31 (05-04), July 17,

2006,https://secure.ssa.gov/poms.nsf/lnx/0200305100(last visited Sept. 6, 2014);

McQuire Supp. Decl. 5.5Similarly, Plaintiff cannot acquire the veterans-affairs benefits

that he has identified because (1) he received his California marriage license more than

fifteen years after Mr. Martinezs military service ended and less than one year before

Mr. Martinez passed away and (2) they did not have a child. See38 U.S.C. 1304; 38

C.F.R. 3.54(c); U.S. Dept of Veterans Affairs, Compensation,http://benefits.va.gov/

COMPENSATION/types-dependency and indemnity.asp(last visited Sept. 6, 2014);

McQuire Supp. Decl. 5, 9; Martinez Decl. 2-3 (ECF No. 61) (Ex. D). Thus, forcing

the State to recognize Plaintiffs California marriage license would not enable him to

obtain the social-security and veterans-affairs benefits that he has identified.

Even if Plaintiff could attribute this asserted financial harm to the State, [i]t is

well established that monetary injury is not normally considered irreparable.L.A.

Meml Coliseum Commn v. Natl Football League, 634 F.2d 1197, 1202 (9th Cir. 1980).

Mere injuries, however substantial, in terms of money . . . are not enough. Sampson,

415 U.S. at 90. Nor does Plaintiff establish irreparable harm through his speculation that

if he does not obtain immediate injunctive relief, he might lose his house before this

litigation concludes. TRO Mem. at 15. Speculative injury does not constitute irreparable

injury sufficient to warrant granting a preliminary injunction or a temporary restraining

order. Caribbean Marine Servs. Co. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988).

III.

The Balance of Equities Weighs Decidedly in Defendants Favor.

While Plaintiff has failed to establish irreparable harm, Defendants and the People

that they represent will surely experience irreparable harm if the Court were to enjoin the

5Nor can Plaintiff establish any of the alternative requirements for obtaining these

benefits. See20 C.F.R. 404.335(a)(2)-(4). Plaintiffs declarations show that he did not

expect Mr. Martinez to live for nine months after obtaining the marriage license, that Mr.

Martinezs death did not result by accident or occur in the line of duty, that they did not

previously marry, and that neither of them has a child. SeeMcQuire Supp. Decl. 5, 8-

9; McQuire Decl. 3-4, 10, 13-14 (ECF No. 61) (Ex. E).

https://secure.ssa.gov/poms.nsf/lnx/0200305100https://secure.ssa.gov/poms.nsf/lnx/0200305100https://secure.ssa.gov/poms.nsf/lnx/0200305100http://benefits.va.gov/COMPENSATION/types-dependency_and_indemnity.asphttp://benefits.va.gov/COMPENSATION/types-dependency_and_indemnity.asphttp://benefits.va.gov/COMPENSATION/types-dependency_and_indemnity.asphttp://benefits.va.gov/COMPENSATION/types-dependency_and_indemnity.asphttp://benefits.va.gov/COMPENSATION/types-dependency_and_indemnity.asphttp://benefits.va.gov/COMPENSATION/types-dependency_and_indemnity.asphttps://secure.ssa.gov/poms.nsf/lnx/0200305100

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States man-woman marriage laws as Plaintiff requests. [I]t is clear that a state suffers

irreparable injury wheneveran enactment of its people or their representatives is

enjoined. Coal. for Econ. Equity v. Wilson, 122 F.3d 718, 719 (9th Cir. 1997) (emphasis

added). In addition, enjoining Arizonas man-woman marriage laws (even for a limited

purpose) would annul in part the exercise of a fundamental right held . . . by all in

commonnamely, the right to speak and debate and learn and then, as a matter of

political will, to act through a lawful electoral process. Schuette, 134 S. Ct. at 1637.

The Supreme Court has already confirmed that States experience irreparable harm

when courts enjoin their man-woman marriage laws. By repeatedly staying injunctions

against States man-woman marriage laws, seeKitchen, 134 S. Ct. at 893;Evans, 2014

WL 3557112, at *1;McQuigg, 2014 WL 4096232, at *1, the Supreme Court has found a

likelihood that irreparable harm will result from enjoining those laws. Hollingsworth,

558 U.S. at 190 (outlining the standard for granting the stay). That irreparable harm

shows that the balance of equities tips sharply against Plaintiffs request for relief.

IV. The Public Interest Does Not Support Plaintiffs Motion.

Through a statewide election in 2008, Arizonans reaffirmed their considered

perspective on the . . . institution of marriage to ensure that the People themselves would

shap[e] the destiny of their own times on the meaning of marriage. SeeWindsor, 133 S.

Ct. at 2692-93. Plaintiff, however, seeks to displace the publics voice, as reflected in the

votes of more than 1.2 million Arizonans, on this issue of profound importance. The

public interest thus does not support Plaintiffs motion.

V.

If the Court Grants Plaintiffs Motion, the Court Should Carefully Craft Its

Order.

For the foregoing reasons, Defendants oppose the relief that Plaintiff requests in

this motion. But if the Court agrees with Plaintiffs arguments, the Court should limit its

order in light of the following considerations.

First, notwithstanding Plaintiffs request, the Court should not declare that

[Plaintiffs] California marriage to George Martinez is valid under Arizona lawfor all


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purposes. TRO Mem. at 17. The for all purposes language is too broad because the

exigency for Plaintiffs motion is Mr. Martinezs death certificate. Any declaration that

this Court issues should thus be limited to that purpose, which is precisely what Plaintiff

focuses on in the third and fourth prongs of the relief that he seeks. Seeid.

Second, contrary to Plaintiffs suggestion, see id.at 1, the Court should not enjoin

all three DefendantsMichael K. Jeanes, Will Humble, and David Raber. Although Mr.

Humble (the Director of the Department of Health Services) would be directly involved

in providing the requested death certificate, neither Mr. Jeanes (a state-court clerk who

issues marriage licenses) nor Mr. Raber (the Director of the Department of Revenue)

would play any role in providing that relief.6

Thus, neither Mr. Jeanes nor Mr. Raber

should be bound by any temporary injunction because injunctive relief should be no

more burdensomeand no broaderthan necessary to remedy the harm alleged in

Plaintiffs motion.L.A. Haven Hospice, Inc. v. Sebelius, 638 F.3d 644, 664 (9th Cir.

2011) (quoting Califano v. Yamasaki, 442 U.S. 682, 702 (1979)).

Third, any order granting Plaintiffs motion should unambiguously state that the

relief does not apply to anyone other than him. Clarity on this point is critical to ensure

that Defendants and the public know precisely the scope and effect of any such order.

Conclusion

For these reasons, Defendants request that the Court deny Plaintiffs motion.

6Plaintiff lacks standing to assert his recognition claim against Mr. Jeanes, a state-court

clerk who, aside from one situation not applicable here, lacks authority to recognize out-of-state marriages. SeeBishop v. Smith, Nos. 14-5003, 14-5006, 2014 WL 3537847, at

*15 (10th Cir. July 18, 2014) (concluding that plaintiffs lacked standing to raise a

recognition claim against a state-court clerk who issues marriage licenses); Jeanes Decl.

5, Connolly v. Roche, No. 2:14-cv-00024-JWS (D. Ariz. June 10, 2014) (ECF No. 53-2)

(Exhibit 14 supporting Defendants Cross-Motion for Summary Judgment) (declaring

that Mr. Jeanes does not recognize out-of-state marriages for any purpose other than

converting a recognized marriage to a covenant marriage). Plaintiff similarly lacks

standing to seek the relief that he requests in this motion from Mr. Raber, a public official

whose duties do not involve preparing death certificates.


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Respectfully submitted this 8th day of September, 2014.

s/ Byron J. Babione

Byron J. Babione

James A. CampbellKenneth J. Connelly

J. Caleb Dalton

Special Assistant Attorneys General

Thomas C. Horne

Attorney General

Robert L. Ellman

Solicitor General

Kathleen P. Sweeney

Assistant Attorney General

Attorneys for Defendants


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CERTIFICATE OF SERVICE

I hereby certify that I electronically transmitted the attached document to the

Clerks Office using the CM/ECF System for filing and service of a Notice of Electronic

Filing to the following recipients on this 8th day of September, 2014:

Jennifer C. Pizer

Carmina Ocampo

Lambda Legal Defense & Education Fund, Inc.

4221 Wilshire Blvd., Suite 280

Los Angeles, CA 90010

[email protected]

[email protected]

Paul F. Eckstein

Daniel C. Barr

Kirstin T. Eidenbach

Barry G. Stratford

Alexis E. Danneman

Perkins Coie LLP

2901 North Central Avenue, Suite 2000

Phoenix, AZ 85012-2788

[email protected]

[email protected]@perkinscoie.com

[email protected]

[email protected]

[email protected]

Attorneys for Plaintiff

Dated: September 8, 2014

s/ Byron J. BabioneByron J. Babione

mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]

2:14-cv-00518 #70

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