DISTRICT COURT, ADAMS COUNTY, COLORADO Adams County Justice Center 1100 Judicial Center Drive Brighton, CO 80601 REBECCA BRINKMAN AND MARGARET BURD, et al. Plaintiffs, v. KAREN LONG, in her official capacity as Clerk and Record of Adams County, et al., Defendants. COURT USE ONLY JOHN W. SUTHERS, Attorney General DANIEL D. DOMENICO, Solicitor General* MICHAEL FRANCISCO, Assistant Solicitor

General* KATHRYN A. STARNELLA, Assistant Attorney

General* Ralph L. Carr Colorado Judicial Center 1300 Broadway, 10th Floor Denver, CO 80203 Telephone: 720.508.6551 Email: dan.domenico@state.co.us; michael.francisco@state.co.us; kathryn.starnella@state.co.us Registration Numbers: #32083, #39111, #43619 *Counsel of Record

Case No. 13CV032572 (Consolidated with 14cv30731, Denver) Div.: C

STATE OF COLORADO'S COMBINED RESPONSE TO THE ADAMS AND DENVER PLAINTIFFS' MOTIONS FOR SUMMARY JUDGMENT

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TABLE OF CONTENTS ARGUMENT ............................................................................................. 7

I. Neither Windsor nor Romer mandates invalidation of Colorado’s laws. ................................................................................ 7

A. Colorado has not deprived Plaintiffs of any rights or protections that they previously had under Colorado or federal law. ..................................................................................... 9

B. Colorado does not deprive same sex couples of their right to travel. ............................................................................................ 10

C. Rational basis review comports with Windsor. ........................... 12

1. Sexual orientation is not a suspect class. ............................. 12

2. Colorado’s marriage laws do not discriminate based on gender. ................................................................................... 17

3. Plaintiffs’ “separate but equal” argument fails as a legal matter ........................................................................... 18

II. Colorado’s definition of marriage satisfies the applicable rational basis standards of review. ................................................ 19

A. Colorado’s definition of marriage supports conceivable and legitimate state ends. ................................................................... 19

B. Colorado’s one-man, one-woman definition of marriage combats the harmful situation where children are born into this world, but not raised by their biological parents. ................ 24

III. Colorado’s government marriage does not violate due process. ........................................................................................... 26

A. This Court cannot ignore the Washington v. Glucksberg tests. .............................................................................................. 26

B. Plaintiffs’ broadly asserted right to marry “anyone you choose” is limitless. ....................................................................... 28

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C. Platitudes about the importance of marriage in society do not require courts to constitutionally compel the State to extend government marriage to anyone and everyone. .............. 31

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TABLE OF AUTHORITIES

CASES

Baker v. Nelson, 181 N.W.2d 185 (Minn. 1971) ..................................... 21 Baker v. Nelson, 409 U.S. 810 (1972) ..................................................... 31 Bishop v. United States ex rel. Holder, 962 F. Supp. 2d 1252 (N.D.

Okla. 2014) ........................................................................................... 17 Brown v. Board of Education, 347 U.S. 483 (1954) ................................ 18 De Leon v. Perry, 975 F. Supp. 2d 632 (W.D. Tex. 2014) ......................... 5 Dunn v. Blumstein, 405 U.S. 330, 342 (1972) ........................................ 11 Evans v. Romer, 854 P.2d 1270 (Colo. 1993) ............................................ 8 Evans v. Romer, 882 P.2d 1335 (Colo. 1994) ............................................ 8 Fed. Commc’ns Comm’n v. Beach Commc’ns, Inc. 508 U.S. 307

(1993) .................................................................................................... 19 Geiger v. Kitzhaber, --- F. Supp. 2d ----, 2014 WL 2054264 (D. Or.

May 19, 2014) ................................................................................... 7, 17 Hernandez v. Robles, 855 N.E. 2d 1 (N.Y. 2006) .................................... 21 Jackson v. Abercrombie, 884 F. Supp. 2d 1065 (D. Haw. 2012) . 17, 19, 21 Kitchen v. Herbert, 961 F. Supp. 2d 1181 (D. Utah 2013) ................... 5, 8 Latta v. Otter, ---F. Supp. 2d ---- 2014 WL 1909999 (D. Idaho May

13, 2014) ......................................................................................... 16, 17 Lawrence v. Texas, 539 U.S. 558 (2003) ........................................... 13, 21 Loving v. Virginia, 388 U.S. 1 (1967) ...................................................... 31 McGowan v. Maryland, 366 U.S. 420 (1961) .......................................... 16 Nevada v. Hall, 440 U.S. 410 (1979) ................................................... 9, 12 Opinions of the Justices to the Senate, 802 N.E.2d 565 (Mass.

2004) ....................................................................................................... 1 People v. Lucero, 747 P.2d 660 (Colo. 1987) ........................................... 29

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Plessy v. Ferguson, 163 U.S. 537 (1896) ................................................. 18 Romer v. Evans, 517 U.S. 620 (1996) ................................................. 8, 13 Saenz v. Roe, 526 U.S. 489, 500-03 (1999) .............................................. 11 Schuette v. Coalition to Defend Affirmative Action, No. 12-682,

slip op. (2014) ......................................................................................... 6 Sevcik v. Sandoval, 911 F. Supp. 2d 996 (D. Nev. 2012) ........................ 17 Shapiro v. Thompson, 394 U.S. 618 (1969) ............................................. 11 Smithkline Beecham Corp. v. Abbott Labs., 740 F.3d 471 (9th Cir.

2014) ..................................................................................................... 15 Tuan Anh Nguyen v. INS, 533 U.S. 53 (2001) ........................................ 13 United States v. Ramirez, 86 F. App’x 384 (10th Cir. 2004) .................. 10 United States v. Windsor, 133 S Ct. 2675 (2013) ................................. 1, 8 Washington v. Glucksberg, 521 U.S. 702 (1997) .............................. 26, 27 Whitewood v. Wolf, No. 13-cv-1861, slip op. at 22 (M.D. Pa. May

20, 2014) ............................................................................................... 16 Wright v. Arkansas, No. 60CV-13-2662 (Ark. May 9, 2014) .................. 16

STATUTES

C.R.S. § 14-2-104(1) ................................................................................... 5 C.R.S. §§ 14-15-102; 24-34-601 ........................................................... 4, 18 Section 2 of DOMA, 28 U.S.C. §1738C ................................................... 10

OTHER AUTHORITIES

3A Am. Jur. 2d Aliens and Citizens §§ 345, 350 (2014) ........................... 9 Andrew J. Cherlin, The Deinstitutionalization of American

Marriage, 66 J. Marriage & Fam. 848, 848, 850, 853, 858 (2004) ...... 23 Divorce rates by State: 1990, 1995, and 1999-2011,Centers for

Disease Control and Prevention .......................................................... 24 Joanna L. Grossman, “Resurrecting Comity: Revisiting the

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Problem of Non-Uniform Marriage Laws,” 84 Or. L. Rev. 433, 443 (2005) ............................................................................................. 29

Restatement (Second) of Conflict of Laws § 283 cmts j and k (2014) ...... 9 Sarah Primrose, “The Decline of Common Law Marriage & the

Unrecognized Cultural Effect,” 34 Whittier L. Rev. 187 (Winter 2013) ..................................................................................................... 29

Vivian E. Hamilton, “The Age of Marital Capacity: Reconsidering Civil Recognition of Adolescent Marriage,” 92 B.U.L. Rev. 1817 (Dec. 2012) ............................................................................................ 30

INTRODUCTION

This case is not about same-sex couples’ right to adopt or raise children or

their fitness as parents. Although the myriad of court decisions have broadened the

same-sex marriage debate to include adoption and parental-fitness, this case is not

about those tangential issues. Moreover, Colorado’s Civil Union laws have mollified

the debate on those issues.

This case is about marriage as a government institution versus marriage as a

personal or religious institution. Indeed, it has not gone unnoticed that the secular,

legal institution of marriage, or government marriage, “has gradually come to mean

something very different from its original religious counterpart[.]” Opinions of the

Justices to the Senate, 802 N.E.2d 565, 579 (Mass. 2004) (Sosman, J., dissenting);

see also United States v. Windsor, 133 S Ct. 2675, 2718 (2013) (discussing

differences between “traditional” or “conjugal” views of marriage and “consent-

based” views of marriage). (Alito & Thomas, JJ dissenting). Nevertheless, despite

the fact that government marriage has diverged from its religious counterpart, one

thing holds true: marriage remains a matter within the States’ sovereign power to

regulate and, consequently, the states may – and do – limit who may marry who

based on a variety of factors.

Plaintiffs’ motions for summary judgment crystallize their position as follows:

the only legitimate purpose of marriage is to recognize individuals’ committed love

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to one another; Colorado’s one-man, one-woman definition of marriage precludes

same-sex couples from obtaining certain benefits under federal law; and Colorado’s

relegation of same-sex couples to civil union-status perpetuates discrimination and

confusion among same sex couples’ family members, friends, and employers, as well

as strangers with whom same sex couples interact. See, e.g., Denver Plaintiffs’

Motion for Summary Judgment (MSJ) at 3, 10, 41. Tellingly, the Denver Plaintiffs

refer to Colorado’s non-recognition of same-sex marriage as a “Celebration Ban,”

which underscores Plaintiffs’ adult-centric view of marriage. Denver Plaintiffs’ MSJ,

at 1.

Plaintiffs’ adult-centric view of marriage is manifested by the tangible harms

that purportedly result directly from Colorado’s definition of marriage:

• Unmarried Plaintiffs’ inability to jointly file state and federal tax returns;

• Inability to enjoy “over 1,100 federal rights implicated by marital status,” including:

o Certain tax treatment the Internal Revenue Service reserves for married couples;

o The U.S. Department of State’s determination of spousal eligibility for immigration purposes;

o Receipt of spousal employee benefits offered by the Office of Personnel Management, the Department of Defense, the Department of Labor’s Wage and Hour Division, and the Department of Veterans’ Affairs;

o Rights of a widow(er) under the Copyright Act; and o Access to social security benefits that are available to spouses;

• Incurred legal expenses for estate planning, preparation of medical directives, ensuring legal protections for their parental status, changing their last name to match that of their partner; and

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• Greater federal and state tax burdens than if they were able to file as a married couple.

See Ex. B to Denver Plaintiffs’ MSJ, at ¶¶ 27(d), 58(a), 62, 86-92; see also Denver

Plaintiffs’ MSJ at 6. The message is unmistakable: Plaintiffs’ complain of certain

tangible benefits, which they are purportedly denied because of Colorado’s law.

None of these benefits, however, concern benefits of which their children are

deprived. Further, the denial of federal benefits is a matter of federal – not state –

law. Finally, costs associated with estate planning, preparation of medical

directives, ensuring legal protections for parental status, and changing one’s last

name are neither unique to civil unions nor necessarily obviated by the State’s

recognition of same-sex marriages.

Additionally not at issue in this case, Plaintiffs contend that Colorado’s non-

recognition of same-sex marriage perpetuates confusion, misunderstanding,

discrimination, ridicule, derision, (sub-)conscious slights, and prejudice among

family members, friends, co-workers, employers, and other persons whom they

encounter. See, e.g., Denver Plaintiffs’ Exs. B-1, at ¶¶ 21-27 and Ex. B-8, at ¶¶ 24-

26 (articulating some family members’ personal disdain for same-sex marriage or

same-sex relationships, family members’, co-employees’, and employers’ derogatory

comments about gays and lesbians, people’s confusion about the familial constructs

resulting from a same-sex marriage, and peoples’ inability to equate same-sex

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marriages or relationships to opposite-sex marriages or relationships). Plaintiffs

further complain about people’s ignorance about civil unions and the fact that they

“have to explain to people why we do not want to get a civil union or why civil

unions are not enough.” Id. at ¶¶ 28-29; Ex. B-2, at ¶¶ 6, 41; Ex B-3, ¶ 16 (stating

that Plaintiffs “feel hurt that [they] both have to explain [their] relationship and its

status to others”). Finally, Plaintiffs complain that their inability to marry under

Colorado law has rendered them “ineligible for certain ‘family’ discounts, including

‘married’ auto insurance discounts and family memberships at the gym.” Ex. B-7, at

¶ 23.

People’s confusion, misunderstanding, and human nature, however, cannot

be regulated; recognition of same-sex marriage by popular vote, legislation, or court

decree will not solve those problems. (i.e some people may be confused or

uncomfortable with two moms or two dads, regardless of a government marriage

certificate being issued). Surely, the State can – and does – protect against sexual

orientation-based discrimination in its public accommodation laws, and persons

who discriminate could be prosecuted. See C.R.S. §§ 14-15-102 (Civil Union Act); 24-

34-601. Legislation or court decree, however, will not magically change people’s

minds. Organic, considered, patient, deliberate debate and discourse, however, will.

Indeed, in just eight years since Coloradans voted to amend their state constitution

and fourteen years since the General Assembly amended the Uniform Marriage Act,

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C.R.S. § 14-2-104(1), Coloradans’ views on same-sex marriage have changed

markedly, with a majority of polled voters now in favor of same-sex marriage by a

61-33 percent margin. See Ex. 8 to State’s MSJ. Moreover, unlike some states whose

bans or non-recognition of same-sex marriage have been stricken (e.g., Texas,

Utah)1, Colorado has not foreclosed the possibility for further public debate and

reform. Unlike some other states, no Colorado statute or constitutional provision

expressly bars the State and any political subdivision thereof from creating or

recognizing any legal status identical to or similar to marriage.

With the growing number of lower court decisions that have struck other

states’ laws that either ban or do not recognize same-sex marriage, a temptation to

simply declare Colorado’s marriage laws unconstitutional may exist. Any such

temptation, however, should be tempered with the legal analysis required to declare

Colorado’s marriage laws unconstitutional. Consider that the United States

Supreme Court has had at least three opportunities to declare either that sexual

orientation is a suspect classification, or that same-sex marriage is a fundamental

right, or both, and it expressly did not. Courts are not arbiters of moral and political

1 See De Leon v. Perry, 975 F. Supp. 2d 632 (W.D. Tex. 2014) (describing constitutional provision that was amended to expressly bar any future creation or recognition of same-sex marriages, civil unions, or the like); Kitchen v. Herbert, 961 F. Supp. 2d 1181, 1191 (D. Utah 2013) (describing statutory provision that prohibited the state from “recognize[ing], enforc[ing], or giv[ing] legal effect to any law creating any legal status, rights, benefits, or duties that are substantially equivalent to those provided under Utah law” to a married man and woman).

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debates, which this case presents, and the United States Supreme Court embodies

that principle in its consistent exercise of judicial restraint despite its members’

own moral code or reluctance to maintain the status quo. See Schuette v. Coalition

to Defend Affirmative Action, No. 12-682, slip op. at 16-17 (2014) (Kennedy, J.)

(cautioning that courts impede the democratic process by issuing decrees based on

the proposition that the public lacks the ability to debate and resolve certain

issues).

Before this Court wades into the moral and political debate inherent in this

lawsuit, consider the following: Can a rational person believe that redefining

marriage, so as to belittle it to no more than a status symbol or a congratulatory

certificate, could damage the institutions longstanding and disputed role in helping

to encourage heterosexual couples to stay together to raise the children they create:

The guideposts to resolving this question are as follows: no Supreme Court

precedent mandates invalidation, rational basis review comports with Supreme

Court precedent, Colorado’s laws serve to persuade fathers and mothers to remain

committed to the children they produce, and the Supreme Court exercises great

caution in expanding the universe of fundamental rights in deference to society’s

resolution of issues through political discourse and debate.

Yes, a rational person can believe that redefining marriage could damage the

longstanding institution of government marriage.

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ARGUMENT

I. Neither Windsor nor Romer mandates invalidation of Colorado’s laws.

Like the myriad of court decisions that have overturned states’ non-

recognition of same-sex marriage, Plaintiffs heavily rely on isolated portions of the

Supreme Court’s Defense of Marriage Act (DOMA) decision in United States v.

Windsor to support their argument that Colorado’s laws are “designed to deprive

same sex couples full protection and benefit of the law and of social recognition,”

“treat [same-sex couples’] relationships as second-class, second-tier, and unworthy

of recognition,” and “serve to injure, stigmatize, demean, and degrade same sex

couples.” Denver Plaintiffs’ MSJ at 9 (internal quotations and modifications

omitted). This overwhelming reliance on isolated portions of the Supreme Court’s

Windsor decision, however, must be reviewed with abundant objectivity and

circumspection.

As the District of Oregon aptly noted in its May 19, 2014 decision concerning

Oregon’s non-recognition of same-sex marriage, challenges to states’ marriage laws

are not reproductions of Windsor and are distinguishable from Windsor in a number

of important respects, including that Windsor concerned a federal act that

interfered with state authority to define marriage and adapt its terms to societal

needs and consensus. See Geiger v. Kitzhaber, F. Supp. 2d, 2014 WL 2054264 at *6

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(D. Or. May 19, 2014). Moreover, unlike this and other challenges to states’ laws,

DOMA amounted to unprecedented governmental overreach in stripping away

rights and protections that the people of New York State democratically chose to

grant to same-sex couples in that state. See Windsor, 133 S Ct. 2675, 2693-94

(2013); see also id. at 2694-95 (noting that “DOMA’s principle effect is to identify a

subset of state-sanctioned marriages and make them unequal.”).

Plaintiffs’ reliance on the Romer-line of cases, Evans v. Romer, 854 P.2d 1270

(Colo. 1993), Evans v. Romer, 882 P.2d 1335 (Colo. 1994), and Romer v. Evans, 517

U.S. 620 (1996), which invalidated Amendment 2 to Colorado’s Constitution, also

fails to justify application of strict scrutiny review. See Adams Plaintiffs’ MSJ at 9-

10, 24-28; see also Denver Plaintiffs’ MSJ at 10, 28. Unlike Amendment 2,

Colorado’s constitutional and statutory amendments, which limit marriage to one

man and one woman, do not strip homosexuals of any legal protections they

previously possessed under Colorado law and do not prevent any homosexual,

including any of the plaintiffs, from petitioning to change Colorado’s laws. In this

regard, too, Colorado’s laws are distinguishable from the marriage laws of states

such as Utah and Texas, which barred any future creation or recognition of same-

sex marriages, civil unions, or other formalized same-sex relationships. Cf. Kitchen

v. Herbert, 961 F. Supp. 2d 1181, 1209 (D. Utah 2013) (analogizing Utah’s

constitutional amendment to DOMA and Colorado’s Amendment 2 because the

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amendment went beyond denying the right to marriage and declared “that no

domestic union could be given the same or substantially equivalent legal effect as

marriage”).

A. Colorado has not deprived Plaintiffs of any rights or protections that they previously had under Colorado or federal law.

This case is about Coloradans’ decision not to expand the definition of

marriage. Although Plaintiffs complain that Colorado’s non-recognition of same-sex

marriages strips them of rights and protections that Plaintiffs were extended under

other states’ laws, Colorado has no obligation to recognize marriages that contradict

its strong policy interests. See, e.g., RESTATEMENT (SECOND) OF CONFLICT OF LAWS §

283 cmts j and k (2014) (articulating principle that marriages entered into in one

state will generally be held valid in another state unless it contradicts the strong

policy of another state); 3A AM. JUR. 2D Aliens and Citizens §§ 345, 350 (2014)

(discussing scenarios under which validly entered foreign marriages may be invalid

under state law requirements); see also Nevada v. Hall, 440 U.S. 410, 422 (1979)

(stating that the “full faith and credit clause does not require one state to substitute

for its own statute, applicable to persons and events within it, the conflicting

statute of another state[.]”); id. at 423-34 (stating that the full faith and credit

clause “does not here enable one state to legislate for the other or to project its laws

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across state lines[.]”); United States v. Ramirez, 86 F. App’x 384, 385 (10th Cir.

2004) (finding no violation of the full faith and credit clause arising from Utah’s

enforcement of its window tinting laws against a Coloradan motorist and no

requirement that Utah apply Colorado’s window tinting laws); Section 2 of DOMA,

28 U.S.C. §1738C2 (stating, “[n]o State . . . shall be required to give effect to any

public act, record, or judicial proceeding of any other State . . . respecting a

relationship between persons of the same sex that is treated as a marriage under

the laws of such other State . . . or a right or claim arising from such relationship.”).

B. Colorado does not deprive same sex couples of their right to travel.

The Married Plaintiffs’ right to travel argument does not avail them of a

right to enter into same-sex marriage under Colorado law3. First, the right to travel

concerns at least three different components: (1) the right of a citizen of one state to

enter and leave another state; (2) the right to be treated as a welcome visitor rather

than an unfriendly alien when temporarily present in the second State; and (3) a

newly-arrived citizens’ right to the same privileges and immunities enjoyed by other

2 This section of DOMA was not challenged in Windsor. See 133 S. Ct. at 2682-83. 3 The roots of Plaintiffs’ asserted right to travel have eluded the courts and been “variously assigned” to the United States Constitution’s Privileges and Immunities Clause of Article IV, Section 2, the Commerce Clause, and the Privileges and Immunities Clause of the Fourteenth Amendment. See Att’y Gen. of New York v. Soto-Lopez, 476 U.S. 898, 902 (1986).

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citizens of the same state. See Saenz v. Roe, 526 U.S. 489, 500-03 (1999). Colorado,

however, does not restrict any same-sex couples’ ability to travel to Colorado from

out-of-state. Likewise, Plaintiffs do not allege that Colorado treats any visiting

same-sex couples as unfriendly aliens. Although some Coloradans might treat

visiting same-sex couples as unfriendly aliens, as a matter of state policy, Colorado

does not sanction or condone this behavior. Moreover, as already stated, persons

engaging in discriminatory conduct could face prosecution.

Second, right-to-travel claims generally arise from one of two scenarios: (a)

statutes that treat residents and non-residents or long-term and short-term

residents differently; and (b) laws that seek to impede travel as a primary objective,

with a majority of cases concerning the former category, as opposed to the latter.

See, e.g., Dunn v. Blumstein, 405 U.S. 330, 342 (1972) (discussing

unconstitutionality of Tennessee’s durational residency requirement because it

imposed prohibitions on the right to vote on only those persons who have recently

exercised the right to travel); Shapiro v. Thompson, 394 U.S. 618, 631-34 (1969)

(discussing unconstitutionality of Connecticut’s durational residency requirements

for welfare benefits). In sum, right to travel claims generally concern penalties that

are incurred for the exercise of the right to travel.

Here, Colorado’s marriage recognition laws do not distinguish between

residents and non-residents; rather, Colorado’s laws distinguish between same-sex

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and opposite-sex couples. Put another way, Colorado law does not, on the one hand,

recognize same-sex marriages of Colorado couples, but, on the other hand, not

recognize same-sex marriages of visiting or recently relocated couples. Simply,

Colorado does not recognize any same-sex marriages, irrespective of whether the

couple has resided in Colorado long- or short-term, or whether the couple is only

visiting. Conversely, with a few policy-based statutory exceptions,4 Colorado

generally recognizes any opposite-sex marriage, irrespective of the residency or

visiting status in Colorado. As the Supreme Court recognized in Hall, “in this

Nation, each sovereign governs only with the consent of the governed,” and, unless a

sovereign’s laws are patently unconstitutional, its chosen system of laws is “equally

entitled to our respect,” even though another State may have adopted a different

system. 440 U.S. at 426.

C. Rational basis review comports with Windsor.

1. Sexual orientation is not a suspect class.

The Adams and Denver County Plaintiffs argue that rational basis does not

apply to this case because, they contend, that Supreme Court precedent requires

application of heightened scrutiny to classifications that discriminate on the basis of

4 See, e.g., C.R.S. §§ 14-2-109.5(2) (identifying criteria for recognition of out-of-of-state common law marriages; 14-2-110 (identifying categories of prohibited marriages).

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sexual orientation. See Denver Plaintiffs’ MSJ at 15-16 (listing the four criteria that

the Supreme Court identified to determine whether a group of persons qualifies as a

suspect or semi-suspect class entitled to heightened scrutiny); Adams Plaintiffs’

MSJ at 55 (same). Contrary to Plaintiffs’ assertions, however, the Supreme Court

has never concluded that sexual orientation constitutes a quasi-suspect or suspect

class, which justifies a level of scrutiny higher than rational basis. Time and time

again, the Supreme Court has declined to deem sexual orientation a quasi-suspect

class: in Romer v. Evans, Lawrence v. Texas, and most recently, in United States v.

Windsor.

Under rational basis review, “the means need only be ‘rationally related’ to a

conceivable and legitimate state end,” whereas, under heightened scrutiny, “the

discriminatory means must be ‘substantially related’ to an actual and important

governmental interest.” Tuan Anh Nguyen v. INS, 533 U.S. 53, 77 (2001). In

Windsor, the Court found no relation between DOMA’s unprecedented interference

with the states’ sovereign authority to regulate marriages and a conceivable and

legitimate interest of the federal government – the Supreme Court could find no

conceivable legitimate federal government interest. Specifically, writing for the

majority, Justice Kennedy expressed grave concerns with the federal government’s

creation of “two contradictory marriage regimes” within a state that recognized

same-sex marriages because:

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• DOMA’s stated purpose was to dictate morality and policy on an area (marriage)5 that expressly falls within States’ sovereign authority to dictate and regulate6;

• After considerable debate and discourse7, the people of New York State decided for themselves (as opposed to people of other states) to acknowledge and protect same-sex relationships via the institution of marriage8; and

• DOMA interfered with the will of New York State’s people by creating two contradictory regimes within New York State: New York State same-sex couples who were married under state law, and the same same-sex couples who were not married under federal law.9

In sum, because the federal government has no business regulating marriage

and its interference with New York State’s sovereign authority was intended to

impose the federal government’s morality upon the people of each of the United

States and to rob certain citizens of the rights that their chosen state gave them,

Section 3 of DOMA smacked of lacking any rational basis. See id. at 2695 (noting

that, although “Congress has great authority to design laws to fit its own conception 5 133 S. Ct. at 2693 (“The stated purpose of the law was to promote an interest in protecting the traditional moral teachings reflected in heterosexual-only marriage laws.”) (internal quotations omitted). 6 Id. at 2692 (noting that New York State’s decision to recognize same-sex marriages was “a proper exercise of its sovereign authority within our federal system, all in the way that the Framers of the Constitution intended.”). 7 Id. at 2689 (acknowledging the “statewide deliberative process that enabled [New York State’s] citizens to discuss and weigh arguments for and against same-sex marriage”). 8 Id. (stating, “New York acted to enlarge the definition of marriage” to address New York State citizens’ and elected representatives’ perceived inadequacies in New York’s law). 9 Id. at 2694 (discussing the “two contradictory regimes”).

15

of sound national policy, it cannot deny” the people of these United States the

liberties that their chosen states have lawfully given them).

Plaintiffs incorrectly rely on the Ninth Circuit Court of Appeals’

interpretation of the Supreme Court’s Windsor decision for the proposition that

distinctions based on sexual orientation mandate heightened scrutiny. See Adams

Plaintiffs’ MSJ at 61 (citing Smithkline Beecham Corp. v. Abbott Labs., 740 F.3d

471, 484 (9th Cir. 2014)))10. In its analysis of Windsor, the Ninth Circuit summarily

concluded and broadly reasoned that the Supreme Court applied heightened

scrutiny because:

(a) The Supreme Court was “concerned with the public message sent by

DOMA about the status occupied by gays and lesbians in our society” because

DOMA “[told] those couples, and all the world, that their otherwise valid marriages

are unworthy of federal recognition”; and

(b) The decision lacked the traditional hallmarks of rational basis review,

namely references to the “strong presumption” in favor of constitutionality and the

“extremely deferential” posture toward government action.

740 F.3d at 482-83 (emphasis added). Notably, however, the Ninth Circuit

overlooked an important aspect of the Supreme Court’s decision: the New York

10 The Ninth Circuit panel has since issued an order, sua sponte, directing further briefing on whether the case should be reconsidered en banc; briefing is pending.

16

State same-sex couples’ marriages were “otherwise valid” – until DOMA invalidated

those marriages – because New York State law recognized and validated same-sex

marriages. Had New York State law not recognized and validated same-sex

marriages, those marriages would not have been otherwise valid – they would not

have been valid at all.

Additionally, the Ninth Circuit overlooked why the Supreme Court declined

to defer to and presume the legitimacy of Congress’s legislative decision: Congress

had no business regulating a matter (i.e., marriage) that uniquely fell within states’

sovereign authority to regulate. Because Congress had no business interfering with

states’ marital policies and laws, and its legislative decision lacked any valid

precedent, the Supreme Court could not defer to or presume the legitimacy of

Congress’s decision to enact DOMA.11 Put another way, “no state of facts reasonably

[could] be conceived to justify”12 Congress’s invalidation of a category of marriages

deemed valid under New York State law. In sum, DOMA’s patent invalidity

11 Since Windsor, several courts have overlooked this key aspect of the Supreme Court’s decision, i.e., Congress’s unprecedented interference with states’ marriage laws, to broadly construe and misapply Windsor’s precedential effect. See, e.g., Whitewood v. Wolf, No. 13-cv-1861, slip op. at 22 (M.D. Pa. May 20, 2014) (misapplying Windsor for the proposition that one jurisdiction’s refusal to recognize another jurisdiction’s family relationships is unconstitutional); Latta v. Otter, ---F. Supp. 2d ---- 2014 WL 1909999, at *16-18 (D. Idaho May 13, 2014) (relying on Ninth Circuit’s non-nuanced interpretation of Windsor); Wright v. Arkansas, No. 60CV-13-2662 (Ark. May 9, 2014). 12 McGowan v. Maryland, 366 U.S. 420, 426 (1961) (stating that a law that imposes classifications must be upheld under rational basis review “if any state of facts reasonably may be conceived to justify” it).

17

rendered any judicial deference impossible. Accordingly, the Supreme Court’s

rejection of rational basis review to sexual orientation-based distinctions is not

apparent from its analysis. Cf. Windsor, 133 S. Ct. at 2706-07 (Roberts, C.J.,

dissenting) (stating, “[a]s nearly as I can tell, the Court agrees [that rational basis

review applies to sexual orientation-based classification]; its opinion does not apply

strict scrutiny, and its central propositions are taken from rational basis cases”).

2. Colorado’s marriage laws do not discriminate based on gender.

Plaintiffs wrongly assert that Colorado’s marriage laws discriminate on the

basis of gender because they “turn [ ] on the gender of the individual one wishes to

marry[.]” See Denver Plaintiffs’ MSJ at 20.

Courts have consistently rejected gender discrimination claims premised on

states’ non-recognition of same-sex marriage. As the District of Oregon recently

reasoned in its consideration of Oregon’s non-recognition of same-sex marriage,

laws that limit marriage to one man and one woman do not discriminate based on

gender because all men and all women “are prohibited from doing the exact same

thing: marrying an individual of the same gender”; the law does not target any one

gender. Geiger 2014 WL 2054264 at *13; see also Latta v. Otter, ---F.Supp. 2d----

2014 WL1909999, at *15 (D.Idaho May 13, 2014 Bishop v. United States ex rel.

Holder, 962 F. Supp. 2d 1252, 1286-87 (N.D. Okla. 2014); Jackson v. Abercrombie,

884 F. Supp. 2d 1065, 1098-99 (D. Haw. 2012) (collecting cases); Sevcik v. Sandoval,

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911 F. Supp. 2d 996, 1005 (D. Nev. 2012) (rejecting gender discrimination claim

arising from Nevada’s definition of marriage).

Like other states’ marriage laws, Colorado’s government marriage applies

equally to men and women; Colorado’s non-recognition of same-sex marriages

applies equally to marriages between two men or two women. Accordingly,

Plaintiffs’ gender discrimination claim should be rejected.

3. Plaintiffs’ “separate but equal” argument fails as a legal matter

Plaintiffs equate their plight to slaves and other people forced by law to live

separately during periods in our Nation’s history and complain that Colorado’s Civil

Union Act amounts to an unconstitutional “separate but equal” regime. See Adams

Plaintiffs’ MSJ at 3-4, 44, 79-84; Denver Plaintiffs’ MSJ at 42-44. Though these are

powerful political arguments, Plaintiffs’ reliance on the “separate but equal”

doctrine and the Brown v. Board of Education13 and Plessy v. Ferguson14 -line of

cases, however is unavailing. As already noted, the Supreme Court has had ample

opportunity to mandate that States treat same-sex and opposite-sex couples

identically, as a matter of constitutional law, but it has not done so.

Moreover, “unlike the Jim Crow laws and segregated school systems,”

Colorado’s Civil Union Act “was enacted not to perpetuate discrimination but to

13 347 U.S. 483 (1954) 14 163 U.S. 537 (1896)

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afford same-sex couples rights they hand not previously had.” Jackson v.

Abercrombie, 884 F. Supp. 2d 1065, 1107-11 (D. Haw. 2012) (rejecting the same-sex

couple plaintiffs’ “separate but equal” argument based on Hawaii’s civil union law).

II. Colorado’s definition of marriage satisfies the applicable rational basis standards of review.

The opening motions for summary judgment show a surprising amount of

agreement on the rational basis question. The State of Colorado has shown there

are several plausible rational bases for its marriage laws. Again, it must be

stressed, rational basis review does not require the Court (or Plaintiffs) to agree

with the rational basis arguments that support Colorado’s marriage laws. See, e.g.,

Fed. Commc’ns Comm’n v. Beach Commc’ns, Inc. 508 U.S. 307, 315 (1993) (rational

basis may be based on “speculation unsupported by evidence or empirical data.”).

A. Colorado’s definition of marriage supports conceivable and legitimate state ends.

Marriage as a governmental institution is rationally related to the state’s

interest in persuading fathers and mothers to remain committed to the children

they produce. The state has an interest in maximizing the number of children that

are raised by their biological parents. Critically, the Plaintiffs agree this state

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interest is legitimate. As the Denver Plaintiffs stated:

“There is little doubt that encouraging optimal conditions for

children is a compelling and legitimate governmental interest.”

Denver Plaintiffs’. MSJ at 25.

Nowhere in the hundred plus pages of summary judgment briefing do any of

the plaintiffs argue that the state should not encourage couples who produce

children to remain together and raise their kids to adulthood. This concession goes a

long way in proving that Colorado’s marriage laws must be upheld under rational

basis review.

Compelled to concede the validity of this state interest, Plaintiffs try to

persuade this court that Colorado’s marriage laws have no actual or plausible

connection to serving this interest. The Plaintiffs’ arguments can be grouped into

three claims:

1. Some lower court judges of late have asserted that marriage laws are not related to maximizing responsible biological parents.

2. Colorado encourages same-sex couples to adopt children and gives parental rights to spouses in a civil union.

3. There is no empirical evidence showing that experimentation with marriage laws will reduce the number of responsible biological parents.

These claims fall well short of proving that no person could possibly, rationally,

believe that the traditional definition of marriage has a positive role in dealing with

the constant stream of children being born. The Plaintiffs’ arguments do not stand

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up to scrutiny.

First – that some lower courts have recently ruled one way proves little. The

“parade” of recent lower court cases represents merely one side of the debate. Other

judges have opined otherwise, including appellate courts, courts of last resort, and

numerous Supreme Court Justices. See Jackson v. Abercrombie,; Hernandez v.

Robles, 855 N.E. 2d 1 (N.Y. 2006); Baker v. Nelson, 181 N.W.2d 185 (Minn. 1971);

Lawrence v. Texas, 539 U.S. 558, 585 (2003) (O’Connor, J., concurring) (describing

“preserving the traditional institution of marriage” as a “legitimate state interest”);

Windsor, 133 S. Ct. at 2716 (Alito, J., dissenting) (“At present, no one – including

social scientists, philosophers, and historians – can predict with any certainty what

the long-term ramifications of widespread acceptance of same-sex marriage will be.

And judges are certainly not equipped to make such an assessment.”).

Are these jurists so misguided and mal-reasoned that we should deny their

analysis the dignity of being part of this debate about the role of government

marriage in modern society? Plaintiffs are, in essence, asking this court to ignore

half of the debate and declare a victory by default.

The echo-chamber of cases coming after Windsor all share the same flaw of

misreading the Supreme Court’s Windsor opinion and, often, engaging in taking

sides in the moral and social debate about marriage that has little to do with the

relevant constitutional claims. Reading one is akin to reading them all. Indeed, the

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diligent supplemental filings in this case highlight the lack of substantive legal

analysis exhibited in any given new case. Should this Court rule any particular way

because the number of recent cases is 15, or 16, or even 18? These cases ought not

be treated as a lodestar to judge Colorado’s marriage laws. As just one example, the

majority of these cases arise from jurisdictions where the states have not allowed

same-sex couples to adopt children. The analysis of these states’ rules cannot be

treated as coextensive with an independent constitutional analysis of Colorado’s

marriage laws. This Court must come to its own conclusions.

Second – Colorado’s decision to support same-sex couples through adoption

laws and civil unions is a virtue, not a vice. Colorado also allows single parents to

adopt kids. That fact relates to a different societal interest (providing for children

when biological parents are not available or have failed) and has nothing to do with

the interest served by government marriage. It is entirely reasonable to encourage

marriage as an institution to persuade as many biological parents as possible to

care for their own kids (Colorado’s position), while at the same time, having

separate institutions and laws to address different situations. Consider – adoption

is not a replacement for marriage.

That the state has foster homes, divorce laws, and adoption does not

undermine the state interest supporting Colorado’s marriage laws. Same-sex

adoption and marriage are not mutually exclusive. Acknowledging the adequacy of

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parenting situations other than a biological father and mother simply does not

diminish the reasonable intent to encourage, in general, biological parents to take

responsibility for their children.

Third – Plaintiffs both make the claim that there is no empirical proof that

marriage laws encourage the state interest in maximizing parents’ responsibility for

their offspring. The Plaintiffs’ empirical arguments prove too much. Consider the

argument in the abstract. The State of Colorado (and many other states) is

concerned that radically changing the institution of marriage will diminish the

institution in society. If marriage is less attractive to opposite-sex couples by

becoming untethered from conceptions of responsible child rearing - then some

couples (not all), will forgo marriage. Many erudite experts on marriage have

argued as much for decades. State’s MSJ at 37-41 (citing authorities on institution

of marriage). Even experts who favor changing marriage laws in favor of same-sex

couples have recognized that the institution of marriage will be fundamentally

changed.15

15 See, e.g., Andrew J. Cherlin, The Deinstitutionalization of American Marriage, 66 J. Marriage & Fam. 848, 848, 850, 853, 858 (2004) (explaining that “weakening of the social norms that define people’s behavior in … marriage” shifts the focus of marriage from serving vital societal needs (including the needs of children) to facilitating the personal fulfillment of individuals and could even culminate, in the fading away of marriage, to the point that it becomes “just one of many kinds of interpersonal romantic relationships.”)

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Consider the argument empirically. Plaintiffs ask this Court to predict that

radically changing marriage will result in fewer opposite-sex couples getting

married. Massachusetts was the first state to be compelled to recognize same sex

marriage in 2004. The divorce rate has increased noticeably since that change was

degreed. See Divorce rates by State: 1990, 1995, and 1999-2011,Centers for Disease

Control and Prevention, available at

http://www.cdc.gov/nchs/data/dvs/divorce_rates_90_95_99-11.pdf. To be sure,

Colorado is not claiming that every change in the divorce rate can be proven to be

caused, 100%, by a change in the marriage laws. Plaintiffs, likewise, are hard-

pressed to disprove the state’s argument about the empirical data.

Plaintiffs no doubt disagree with the State’s argument. But disagreement is

not enough. Plaintiffs have the high bar of persuading this Court that these

respected authorities, including Justice Alito, are completely without reason. The

Court must declare these arguments to be worse than wrong – they must be deemed

unworthy of debate.

B. Colorado’s one-man, one-woman definition of marriage combats the harmful situation where children are born into this world, but not raised by their biological parents.

The message is that marriage is about children. Because many in society

view marriage as the proper context to have and raise children, they either get

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married before procreating or shortly thereafter. In both cases, the government

institution of marriage serves a legitimate state interest. Plaintiffs’ motions for

summary judgment actually endorse the view that government marriage

certificates are part and parcel with a government message to society in general

about what marriage is about. No doubt, Plaintiffs want that message to be adult-

centric, focused on the emotions between spouses.

If government marriage is truly about love and commitment, then the

message communicated by the State will undermine the role of marriage as a

prophylactic for inevitable sexual relations between opposite-sex couples that are

naturally capable of producing children. Marriage as an institution based on

emotion will also communicate that marriages can be discarded later in time, due to

nothing more than the emotional whims of the parties to the marriage. The more

temporary marriage becomes, the less the State will be served by couples entering

into marriages.

Satisfying rational basis review does not require the State to win a debate

about what is the best or most-appealing law. The State need only show that people

of sound mind can plausibly take one side in the debate. This is a low bar. The State

has plain, rational reasons for its government institution of marriage.

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III. Colorado’s government marriage does not violate due process.

Both sets of Plaintiffs have confirmed that their substantive due process

argument is based on an expansive claim that all individuals have a right to marry

anyone one chooses. E.g. Denver Plaintiffs’ MSJ at 29 (“Marriage is a fundamental

right to marry the person of your choosing.”); Adams Plaintiffs’ MSJ at 28 (“Right to

Marry the Person of Your Own Choosing is a Fundamental Right Guaranteed by

the Due Process Clause”). This is not the law. If it were, none of the limits to

marriage could stand.

A. This Court cannot ignore the Washington v. Glucksberg tests.

Embracing the broadest claim under substantive due process was only the

starting point. Plaintiffs found it necessary to eschew the Supreme Court’s lodestar

for deciding substantive due process claims: Washington v. Glucksberg, 521 U.S. 702

(1997). A basic review of this seminal case answers all the relevant legal questions

about recognizing a new substantive due process right in this case.

In fact, Plaintiffs’ arguments bear a striking resemblance to the arguments

advanced in Glucksberg by the plaintiffs – arguments soundly rejected by the

Supreme Court:

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Argument Glucksberg This Case Plaintiffs rely on a recent, factually similar predicate case as support for broad fundamental.

521 U.S. at 708 (relying on Cruzan v. Dir. Missouri Dep’t of Health, 497 U.S. 261 (1990))

Denver Pltfs MSJ at 8-13 (relying on Windsor); Adams Pltfs MSJ at 36-39 (same)

Plaintiffs quote Casey v. Planned Parenthood for broad liberty interest: "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State." Casey, 505 U.S. at 851.

521 U.S. at 726-27

Adams Pltfs MSJ at 35

Plaintiffs argued the due process right at issue was not new, but already existing.

521 U.S. at 723-24

Denver Pltfs MSJ at n.4, p.33; Adams Pltfs MSJ at 40

States were engaged in serious thoughtful examination of the issue.

521 U.S. at 719

Colorado MSJ at 1

Defendants point to international experience with challenged due process activity.

521 U.S. at 734 (Netherlands)

Colorado MSJ at 37 (Netherlands)

The Plaintiffs have no answer to Glucksberg. They resort to demeaning the

opinion, in a footnote, as “irrelevant,” (Denver Plaintiffs’ MSJ at 33 n.4), or claiming

the argument from the 1997 case was “thoroughly debunked” by the 1967 case of

Loving v. Virginia (Adams Plaintiffs’ MSJ at 40). In fact, Glucksberg remains the

binding, definitive rule that this Court must determine if the claimed right is (1)

“objectively, deeply rooted in this Nation’s history and tradition,” and (2) the right is

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carefully described. 521 U.S. at 720-21. Plaintiffs’ claims flunk both tests. None of

the Plaintiffs make a serious attempt to satisfy the required tests. This court must

apply the Glucksberg tests and, once it does so, the claims in this case fall short.

B. Plaintiffs’ broadly asserted right to marry “anyone you choose” is limitless.

If the Fourteenth Amendment guarantees every citizen the right to marry

anyone one chooses, the core of each Plaintiffs’ argument in this case, then marriage

would be constitutionally transformed into a virtually unlimited institution. Such a

broad right cannot be reconciled with many historically rooted limits on marriage.

Drawing attention on their love and commitment to one another, all Plaintiffs in

this case argue that the Substantive Due Process right to marriage as a

fundamental right extends to couples who are loving and committed (regardless of

sexual orientation). See, e.g., Denver Plaintiffs’ MSJ at 1 (“those free to marry the

person they love and those denied that fundamental right.”); Adams Plaintiffs’ MSJ

at 2 (“Plaintiffs are two well-established professionals who have lived together

continuously since 1986 in a loving, committed, and intimate relationship.”).

Marriage, in Plaintiffs’ view, is about the level of love and commitment between the

spouses, not about procreation or children. If so for these plaintiffs, why not for

loving committed spouses in a polygamous or polyamorous relationship? Why not

for loving and committed minors or even close relatives? The Denver Plaintiffs do

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not address these important line-drawing issues.

The Adams County Plaintiffs, however, offer a peculiar defense of these

existing marriage limits. They speculate that the state would have a compelling

government interest (presumably to satisfy strict scrutiny) to limit marriage by age,

familial relationship, or number. Adams Pltfs MSJ at 46. This speculation cannot

stand upon close examination. These existing limits on marriage have not been

scrutinized by courts under the strict scrutiny review that Plaintiffs claim applies to

the right to marry anyone of one’s choosing. States have thus far been free to

regulate the institution of marriage for these individuals who may express love for

one another. Some states, including Colorado, have even created regulation for

common law marriage to cover situations where certain individuals can be treated

as married through a course of conduct. See, e.g., People v. Lucero, 747 P.2d 660, 663

(Colo. 1987) (describing common law marriage). The freedom of states to allow or

recognize common law marriage, see generally potential Sarah Primrose, “The

Decline of Common Law Marriage & the Unrecognized Cultural Effect,” 34 Whittier

L. Rev. 187, 190 (Winter 2013) (collecting and categorizing state laws recognizing

common law marriage), or first-cousin marriage, see generally Joanna L. Grossman,

“Resurrecting Comity: Revisiting the Problem of Non-Uniform Marriage Laws,” 84

Or. L. Rev. 433, 443 (2005) (collecting and categorizing state laws regarding

marriage of first cousins), or marriage between 17 year olds, see generally Vivian E.

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Hamilton, “The Age of Marital Capacity: Reconsidering Civil Recognition of

Adolescent Marriage,” 92 B.U.L. Rev. 1817, 1832 (Dec. 2012) (collecting and

categorizing state laws regarding marital age restrictions), would be instantly

called into question by the radical right to marry anyone you choose as advanced by

these Plaintiffs.

Indeed, if marriage must be extended to anyone who shares love and

commitment, as Plaintiffs repeatedly argue, then any state limit on marriage would

be difficult to limit in the face of loving people living together. Thus far, states

(including Colorado) have not been forced to justify well-known, historic limits on

government marriage by proving that strict scrutiny could be satisfied. Categorical

line drawing for marriage would be virtually impossible under the strict scrutiny

analysis suggested by these Plaintiffs. (Consider how the traditional, categorical

exclusions from marriage eligibility would be attacked as not narrowly tailored to

proffered state interests.) A ruling in favor of these Plaintiffs on a broad theory of

Substantive Due Process would inevitably lead to constitutional attacks on other

line-drawing components of marriage (even of these Plaintiffs profess to agree with

those lines, at this time).

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C. Platitudes about the importance of marriage in society do not require courts to constitutionally compel the State to extend government marriage to anyone and everyone.

Marriage is undeniably viewed by most as a cherished, important societal

institution. The Supreme Court’s decisions addressing marriage have reflected the

common view of marriage as important by offering broad statements about the role

of marriage in America. E.g., Loving v. Virginia, 388 U.S. 1, 12 (1967) (“The freedom

to marry has long been recognized as one of the vital personal rights essential to the

orderly pursuit of happiness by free men.”). This broad statement about the

importance of marriage, however, has never been a sufficient legal reason to strike

down marriage laws.

Plaintiffs here, and the parade of recent cases looking at state marriage laws,

make much of the judicial quotes recognizing the overall importance and value of

marriage. None of these statements, however, transforms marriage into a

mandatory-issue certificate the government must give to any people who desire the

affirmation. As evidence that these generic statements are dicta, consider the U.S.

Supreme Court decision in Baker v. Nelson, 409 U.S. 810 (1972), where the

plaintiffs claimed a fundamental right to marriage for same sex couples. The

fundamental right to marriage was denied for same-sex couples in that case, and

the decision remains binding on this Court. More importantly, the broad statements

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about marriage from previous cases, such as Loving, were not sufficient for the

Supreme Court to extend the constitutional right to marriage to same-sex couples.

Just so here.

Respectfully submitted this 30th day of May, 2014.

JOHN W. SUTHERS Attorney General /s/ Michael L. Francisco DANIEL D. DOMENICO, 32083* Solicitor General MICHAEL FRANCISCO, 39111* Assistant Solicitor General KATHRYN A. STARNELLA, 43619* Assistant Attorney General Attorneys for the State of Colorado *Counsel of Record

CERTIFICATE OF SERVICE

I hereby certify that on May 30, 2014, I electronically filed the foregoing State of Colorado’s Combined Response to the Adams and Denver Plaintiffs’ Motions for Summary Judgment with the Integrated Colorado Courts E-Filing System (ICCES), which will send notification of such filing to counsel of record.

/s/ Kathryn Starnella Kathryn Starnella