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Kathryn D. Kendell (5398)

National Center for Lesbian Rights

870 Market Street, Suite 370

San Francisco, CA 94102

Telephone: (415) 392-6257Facsimile: (415) 392-8442

[email protected]

Attorney for Proposed Amicus Curiae the National Center for Lesbian Rights

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF UTAH

CENTRAL DIVISION

KITCHEN, et al.,

Plaintiffs,

v. Case No. 2:13-cv-00217-RJS

HERBERT, et al., Honorable Robert J. Shelby

Defendants.

THE NATIONAL CENTER FOR LESBIAN RIGHTS MOTION FOR LEAVE TO FILE

MEMORANDUM OF LAW AS AM ICUS CURIAEIN SUPPORT OF PLAINTIFFS

MOTION FOR SUMMARY JUDGMENT AND IN OPPOSITION TO DEFENDANTS

MOTION FOR SUMMARY JUDGMENT

Case 2:13-cv-00217-RJS Document 86 Filed 12/02/13 Page 1 of 4
mailto:[email protected]:[email protected]:[email protected]

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TheNational Center for Lesbian Rights (NCLR) respectfully seeks leave of Court to

file the accompanying memorandum of law as amicus curiae in support of Plaintiffs motion for

summary judgment and in opposition to Defendants motion for summary judgment .

Because an amicus curiaeparticipates only for the benefit of the court, and is not a party

to the litigation, the court has the sole discretion to determine the fact, extent, and manner of

participation by the amicus. Kane Cnty., Utah v. United States, 934 F. Supp. 2d 1344, 1347 (D.

Utah 2013) (quotations, citation, and alteration omitted). Generally, courts have exercised great

liberality in permitting an amicus curiaeto file a brief in a pending case and an amicusmust

merely make a showing that his participation is useful to or otherwise desirable to the court.

United States v. Louisiana, 751 F. Supp. 608, 620 (E.D. La. 1990);see also Hammond v. City of

JunctionCity, Kansas, No. 00 2146JWL, 2001 WL 1665374 (D. Kan. Dec. 17, 2001) (granting

leave to file as amicus curiaebecause it is in the interest of the court andall parties to ensure

that all arguments concerning [an important] issue are presented fully at this juncture).

NCLR is a national nonprofit legal organization dedicated to protecting and advancing

the civil rights of lesbian, gay, bisexual, and transgender people and their families through

litigation, public policy advocacy, and public education. Since its founding in 1977, NCLR has

played a leading role in securing fair and equal treatment for LGBT people and their families in

the areas of constitutional and civil rights. NCLR currently represents Plaintiffs in lawsuits

across the country who seek the freedom to marry in their states, or the right to have their valid

out-of-state marriages recognized, including cases in Tennessee, New Mexico, and Idaho.

NCLR has a strong interest in protecting LGBT families across the country, including in Utah,

and has extensive legal expertise with the issues pending before this Court.


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NCLRrespectfully suggests that the accompanying memorandum of law may assist the

Court in resolving the issues presented in this case. NCLR supports all of the arguments made

by the Plaintiffs in this case, including that Utahs laws prohibiting same-sex couples from

marrying and prohibiting recognition of the lawful marriages of same-sex couples who married

in other states unconstitutionally deprive those couples of their fundamental right to marry and

impermissibly discriminate against same-sex couples based on their gender and sexual

orientation. NCLR files this brief to address several additional and distinct reasons why Utahs

refusal to respect the marriages of same-sex couples who married in other states violates the

Constitutions guarantees of due process and equal protection. Specifically, as the Supreme

Court recently recognized in United States v. Windsor,133 S. Ct. 2675, 2693 (2013), the

marriages of same-sex couples entered into in other states share equal dignity with other

couples marriages and are entitled to the same protections that the federal Constitution ensures

for all other marriages. In Windsor,the Supreme Court held that Section 3 of the federal

Defense of Marriage Act, 1 U.S.C. 7 (DOMA), interfere[d] with the equal dignity of the

marriages same-sex couples by treating those marriages as if they did not exist for purposes of

federal law. Id.

NCLR has a particular interest in these issues because it represents four married same-sex

couples in Tennessee who have filed a federal lawsuit in the United States District Court for the

Middle District of Tennessee seeking to require Tennessee to recognize the legal marriages that

plaintiffs entered into in other states. Tanco v. Haslam,No. 3:13-cv-01159 (M.D. Tenn. Oct. 23,

2013). On November 19, 2013, NCLR filed on behalf of the plaintiffs in that action a motion for

preliminary injunction arguing that the couples are likely to prevail on their arguments that the

federal Constitution requires Tennessee to recognize their valid marriages entered into in other


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states. In light of the briefing that NCLR prepared in the Tennessee lawsuit, NCLR wishes to

bring to this Courts attention certain arguments in support of the claim by Plaintiffs in this case

that the federal Constitution requires Utah to recognize legal marriages that same-sex couples

entered into in other states. As an organization with a long history of litigating these issues in

courts across the country, NCLR therefore respectfully requests leave of court to file the

accompanying memorandum of law in support of Plaintiffs motion for summary judgmentand

in opposition to Defendants motion for summary judgment.

Dated: November 29, 2013 Respectfully Submitted,

____________________________


National Center for Lesbian Rights870 Market Street, Suite 370

San Francisco, CA 94102

Telephone: (415) 392-6257

Facsimile: (415) [email protected]

Attorneys for ProposedAmicus CuriaetheNational Center for Lesbian Rights


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National Center for Lesbian Rights

870 Market Street, Suite 370San Francisco, CA 94102

Telephone: (415) 392-6257

Facsimile: (415) [email protected]

Attorney for Proposed Amicus Curiae the National Center for Lesbian Rights

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF UTAH, CENTRAL DIVISION

KITCHEN, et al.,

Plaintiffs,

v. Case No. 2:13-cv-00217-RJS

HERBERT, et al., Honorable Robert J. Shelby

Defendants.

MEMORANDUM OF LAW OF THE NATIONAL CENTER FOR LESBIAN RIGHTS AS

AM ICUS CURIAEIN SUPPORT OF PLAINTIFFS MOTION FOR SUMMARY

JUDGMENT AND IN OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY

JUDGMENT

Case 2:13-cv-00217-RJS Document 86-1 Filed 12/02/13 Page 1 of 21

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TABLE OF CONTENTS

STATEMENT OF INTEREST ...................................................................................................... 1

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

ARGUMENT ................................................................................................................................. 3

A. Utahs Anti-Recognition Laws Are An Unusual Deviation From ItsLongstanding Tradition And Practice Of Recognizing Valid Marriages

From Other States .............................................................................................................. 4

B. Utahs Anti-Recognition Laws Unjustifiably Infringe Upon Same-SexCouples Protected Liberty Interest In Their Marriages .................................................... 6

1. Utahs anti-recognition laws inflict severe harms on marriedsame-sex couples and their children and disrupt their marital

and family relationships ................................................................................... 9

2. Like DOMA, Utahs anti-recognition laws were enacted for theimproper purpose of treating married same-sex couples

unequally ........................................................................................................ 12

C. Utahs Anti-Recognition Laws Violate Equal Protection ................................................ 13D. Utahs Refusal To Recognize Same-Sex Couples Valid Marriages

Undermines Important Goals Of Federalism ................................................................... 13

E. Section 2 Of DOMA Provides No Justification For Utahs DiscriminatoryMarriage Recognition Laws ............................................................................................. 15

CONCLUSION ............................................................................................................................ 17


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TABLE OF AUTHORITIES

Cases

Cahoon v. Pelton, 342 P.2d 94 (Utah 1959) ................................................................................... 4

Dept of Agriculture v. Moreno, 413 U.S. 528, 534-35 (1973) .................................................... 14

Griswold v. Connecticut,381 U.S. 479 (1965) ........................................................................... 7, 8

Lawrence v. Texas, 539 U.S. 558, 578 (2003) .............................................................................. 11

Loving v. Virginia, 388 U.S. 1 (1967)............................................................................................. 7

M.L.B. v. S.L.J., 519 U.S. 102 (1996) ............................................................................................. 8

McConnell v. McConnell, 99 F. Supp. 493, 494 (D.D.C. 1951) ..................................................... 4

Moore v. City of East Cleveland, 431 U.S. 494 (1977) .................................................................. 8

Norton v. Macfarlane, 818 P.2d 8 (Utah 1991) .............................................................................. 4

Obergefell v. Kasich, No. 1:13-cv-501, 2013 WL 3814262, at *1 (S.D. Ohio July 22, 2013) ....... 6

Pearson v. Pearson, 51 Cal. 120 (1875) ......................................................................................... 5

Roberts v. Hartz, 113 Fed. Appx. 306, 312 (10th Cir. 2004) ......................................................... 8

Roberts v. United States Jaycees, 468 U.S. 609 (1984) .................................................................. 7

Saenz v. Roe, 526 U.S. 489, 508 (1999) ....................................................................................... 16

Shapiro v. Thompson, 394 U.S. 618, 641 (1969) .......................................................................... 16

Tanco v. Haslam,No. 3:13-cv-01159 (M.D. Tenn. Oct. 23, 2013) ................................................ 2

Thomas v. ChildrensAid Soc. of Ogden, 364 P.2d 1029 (Utah 1961) .......................................... 5

Troxel v. Granville, 530 U.S. 57 (2000) ..................................................................................... 7, 8

United States v. Windsor,133 S. Ct. 2675, 2693 (2013) ....................................................... passim


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Washington v. Glucksberg, 521 U.S. 702 (1997) ........................................................................... 7

Wells v. Childrens Aid Soc. of Utah, 681 P.2d 199 (1984) ........................................................... 5

Statutes

Act of March 14, 1995, ch. 146, 1995 Utah Laws 146 (providing that a marriage recognized in

any other state or country may not be recognized in Utah) (codified as amended Utah Code

Ann. 30-1-4 (Supp. 1995) (effective May 1, 1995) ................................................................. 4

Defense of Marriage Act, 1 U.S.C. 7 ........................................................................................... 2

Utah Code 30-1-2 ................................................................................................................. 12, 14

Utah Code 30-1-4 ................................................................................................................... 4, 12

Utah Code 40-1-2 (repealed 1963) .............................................................................................. 5

Utah Code 30-1-2(5) ..................................................................................................................... 12

Utah Rev. Stat. 1186 (1898) ........................................................................................................ 5

Other Authorities

James R. Browning, Anti-Miscegenation Laws in the U.S., 1 Duke B. J. 26 (1951) ..................... 5

Joseph William Singer, Same Sex Marriage, Full Faith and Credit, and the Evasion ofObligation, 1 STAN.J.C.R.&C.L. 1, 40 (2005) ......................................................................... 5

Lois A. Weithorn, Can a Subsequent Change in Law Void a Marriage that Was Valid at Its

Inception? Considering the Legal Effect of Proposition 8 on California's Existing Same-SexMarriages,60 Hastings L.J. 1063, 1125 (2009) ......................................................................... 9

Luther L. McDougal III et al.,American Conflicts Law713 (5th ed. 2001). ................................. 4

William M. Richman & William L. Reynolds, Understanding Conflict of Laws398 (3d ed. 2002)

................................................................................................................................................. 5, 9

Constitutional Provisions

Utah Const. art. I, 29 .............................................................................................................. 4, 12


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STATEMENT OF INTEREST

The National Center for Lesbian Rights (NCLR)is a national nonprofit legal

organization dedicated to protecting and advancing the civil rights of lesbian, gay, bisexual, and

transgender people and their families through litigation, public policy advocacy, and public

education. Since its founding in 1977, NCLR has played a leading role in securing fair and equal

treatment for LGBT people and their families in the areas of constitutional and civil rights.

NCLR currently represents plaintiffs in lawsuits across the country who seek the freedom to

marry, or the right to have their valid out-of-state marriages recognized, including in cases in

Tennessee, New Mexico, and Idaho. NCLR has a strong interest in protecting LGBT families

across the country, including in Utah, and has extensive legal expertise with the issues pending

before this Court.

INTRODUCTION

Amicus curiaeNCLR respectfully submits this brief in support of Plaintiffs motion for

summary judgment and in opposition to Defendants motion for summary judgment. NCLR

supports all of the arguments made by the Plaintiffs in this case. In particular, Utahs laws

prohibiting same-sex couples from marrying and prohibiting recognition of the lawful marriages

of same-sex couples who married in other states unconstitutionally deprive those couples of their

fundamental right to marry and impermissibly discriminate against same-sex couples based on

their gender and sexual orientation.

NCLR files this brief to address several additional and distinct reasons why Utahs

refusal to respect the marriages of same-sex couples who married in other states also violates the

Constitutions guarantees of due process and equal protection. NCLR has a particular interest in

these issues because it represents four married same-sex couples in Tennessee who have filed a


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lawsuit in the United States District Court for the Middle District of Tennessee seeking to require

Tennessee to recognize their legal marriage entered into in other states. Tanco v. Haslam,No.

3:13-cv-01159 (M.D. Tenn. filed Oct. 21, 2013). On November 19, 2013, NCLR filed on behalf

of the plaintiffs in that action a motion for preliminary arguing that the couples are likely to

prevail on their arguments that the federal Constitution requires Tennessee to recognize their

valid foreign marriages. In light of the briefing that NCLR prepared in the Tennessee lawsuit,

NCLR wishes to bring to this Courts attention additional arguments in support of the claim by

Plaintiffs in this case that the federal Constitution requires Utah to recognize legal marriages that

same-sex couples entered into out-of-state.

Specifically, as the Supreme Court recently recognized in United States v. Windsor,133

S. Ct. 2675, 2693 (2013), the marriages of same-sex couples entered into in other states share

equal dignity with other couples marriages and are entitledto the same protections that the

United States Constitution ensures for all other marriages. In Windsor,the Supreme Court held

that Section 3 of the federal Defense of Marriage Act, 1 U.S.C. 7 (DOMA), interfere[d]

with the equal dignity of the marriagesof same-sex couples by treating those marriages as if

they did not exist for purposes of federal law. Id.

Utahs categorical refusal to respect the valid marriages of same-sex couples who married

in other states violates due process and equal protection for the same reasons that the Supreme

Court concluded in Windsorthat the federal governments categorical refusal to respect valid

same-sex marriages violated those constitutional guarantees. Like Section 3 of DOMA, Utahs

anti-recognition laws unjustifiably infringe upon married same-sex couples constitutionally

protected liberty interest in their existing marriages and constitutes a deprivation of the liberty

of the person protected by due process. Id. at 2695. Similarly, the anti-recognition laws


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deprive married same-sex couples of equal protection of the laws by discriminating against the

class of legally married same-sex couples, not to achieve any important or even legitimate

government interest, but simply to express disapproval of that class and subject that class to

unequal treatment. See id.at 2695-96. As with DOMA, the challenged Utah anti-recognition

laws principal effect is to identify a subset of state-sanctioned marriages and make them

unequal. Id.at 2694. Utahs refusal to respect the otherwise valid marriages of same-sex

couples cannot withstand constitutional scrutiny because no legitimate purpose overcomes the

purpose and effect to disparage and to injure married same-sex couples. Id.at 2696.

ARGUMENT

In addition to unconstitutionally depriving same-sex couples of their fundamental right to

marry and impermissibly discriminating on the basis of gender and sexual orientation, Utahs

refusal to recognize same-sex couples valid out-of-state marriages also raises constitutional

issues that are distinct from those raised by Utahs refusal to permit same-sex couples to marry.

Utahs anti-recognition laws constitute a stark departure from Utahs longstanding practice, and

that of other states, of recognizing valid marriages from other states in all but the rarest of

circumstances. The resulting harms caused to married same-sex couples are severe, leaving

those couples and their families in an untenable limbo and effectively stripping them of an

existing marital status for all state law purposes. As the Supreme Court affirmed in Windsor,

laws that depart from existing practice and tradition by withholding governmental recognition

from valid state marriages warrant careful considerationunder both due process and equal

protection review. Id.at 2693. Like DOMA, Utahs refusal to recognize legally married same-

sex couples violates basic due process and equal protection principles by excluding married


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same-sex couples from protection, not to further a legitimate purpose, but simply to identify a

subset of state-sanctioned marriages and make them unequal. Id. at 2693, 2694.

A. Utahs Anti-Recognition Laws Are An Unusual Deviation From ItsLongstanding Tradition And Practice Of Recognizing Valid Marriages FromOther States.

Before the enactment of House Bill 366 (HB 366) in 1995,1Utah law provided that

[m]arriages solemnized in any other country, state or territory, if valid where solemnized, are

valid here. Utah Code 30-1-4 (1994);see alsoCahoon v. Pelton, 342 P.2d 94, 96 (Utah 1959)

(Generally, the laws of the state where a marriage is consummated determine its validity.)

overruled in part on other grounds by Norton v. Macfarlane, 818 P.2d 8 (Utah 1991). This

ruleknown as the place of celebration ruleis recognized in every state and is a defining

element of our federal system and American family law. See, e.g.,McConnell v. McConnell, 99

F. Supp. 493, 494 (D.D.C. 1951) (The general and apparently universally accepted rule is that

the validity of a marriage is to be determined by the law of the place of the celebration of the

marriage, or the lex loci contractus.). The rule recognizes that individuals order their lives

based on their marital status and need to know reliably and certainly, and at once, whether they

are married or not. Luther L. McDougal III et al.,American Conflicts Law713 (5th ed. 2001).

This rule of marriage recognition also confirms the parties expectations, it provides stability in

an area where stability (because of children and property) is very important, and it avoids the

potentially hideous problems that would arise if the legality of a marriage varied from state to

1 Act of March 14, 1995, ch. 146, 1995 Utah Laws 146 (providing that a marriage recognized inany other state or country may not be recognized in Utah) (codified as amended Utah Code Ann.

30-1-4 (Supp. 1995) (effective May 1, 1995). HB 366 created an exception to the place ofcelebration rule for the marriages of same-sex couples, as well as for certain bigamous and

underage marriages. In 2004, Utah voters enshrined a similar provision in the Utah Constitution.

Utah Const. art. I, 29(2) (No other domestic union, however denominated, may be recognized

as a marriage or given the same or substantially equivalent legal effect.).


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state. William M. Richman & William L. Reynolds, Understanding Conflict of Laws398 (3d

ed. 2002).2

Before the enactment of HB 366, this rule had been in place in Utah for nearly a century.

See, e.g., Utah Rev. Stat. 1186 (1898). Even during the era in which Utah and many other

states barred interracial marriages,seeformer Utah Code 40-1-2 (repealed 1963), Utah

recognized interracial marriages from other states, including those entered into by Utah residents

who traveled to other states to avoid Utahs prohibition of interracial marriage. SeeJames R.

Browning,Anti-Miscegenation Laws in the U.S., 1 Duke B. J. 26, 29, 35 (1951) (describing

Utahs practice of recognizing valid interracial marriages from other states).3

Against this background, Utahs ban on recognizing the valid marriages of same-sex

couples who marry in other states represents a stark departure from the general rule followed

throughout the country and from Utahs own past and current treatment of out-of-state marriages.

Utah enacted these laws in 1995 and 2004 as part of a national wave of statutes and state

constitutional amendments aimed at barring same-sex couples from the protections of marriage.

Courts throughout the country, including this Court, are now considering whether the states have

2 Reliance by courts on the public policy exception to deny recognition to out-of-state marriages

historically has been extremely rare in Utah and elsewhere. Indeed, until the recent hysteriaassociated with same sex marriage, the public policy exception was fast becoming obsolete.

Joseph William Singer, Same Sex Marriage, Full Faith and Credit, and the Evasion of

Obligation, 1 STAN.J.C.R.&C.L. 1, 40 (2005).

3 See alsoThomas v. Childrens Aid Soc. of Ogden, 364 P.2d 1029 (Utah 1961) (assuming

without deciding that Utah would recognize the marriage of an interracial couple who married inIdaho to avoid Utahs miscegenation statute if the marriage had not been void under both Idaho

and Utah law on other grounds) overruled in part on other grounds by Wells v. Childrens Aid

Soc. of Utah, 681 P.2d 199 (1984). Conversely, states that banned interracial marriage generallyrecognized interracial marriages contracted in Utah before Utah began to prohibit such

marriages. See, e.g.,Pearson v. Pearson, 51 Cal. 120 (1875) (recognizing marriage contracted

between Utah residents before moving to California, where interracial marriages were

prohibited).


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deprived married same-sex couples of constitutionally protected liberties through enactment and

enforcement of state-level Defense of Marriage laws that departed from their longstanding

practices of respecting valid marriages from other states. See, e.g., Obergefell v. Kasich, No.

1:13-cv-501, 2013 WL 3814262, at *1 (S.D. Ohio July 22, 2013) (enjoining state officials from

refusing to recognize the valid out-of-state marriage of a same-sex couple). For the reasons

explained below and in Plaintiffs briefs, Utahs refusal to recognize the marriages of an entire

category of persons who validly married in other states, solely to exclude a disfavored group

from the ordinary legal protections and responsibilities they would otherwise enjoy, and despite

the severely harmful impact of that refusal, cannot survive any level of constitutional scrutiny.

B. Utahs Anti-Recognition Laws Unjustifiably Infringe Upon Same-Sex CouplesProtected Liberty Interest In Their Marriages.

Like the plaintiff in Windsor, Plaintiffs Karen Archer and Kate Call are already legally

married. Windsorheld that the federal governments refusal to recognize legally married same-

sex couples violated due process because it burdened many aspects of married and family life,

from the mundane to the profound, 133 S. Ct. at 2694, and because its avowedpurpose and

practical effectwere to treat those couples unequally, rather than to further a legitimate purpose.

Id. at 2693. Utahs anti-recognition laws deprive married same-sex couples of due process for

the same reasons.

Windsors holding that married same-sex couples have a protected liberty interest in their

marriages means that married same-sex couples, like other married couples, have liberty interests

in their marriages that are protected against infringement by any level of governmentfederal,

state, or local. The State of Utahs argument that Windsors holding applies only to the federal

government has no merit. Def.s Mot. Summ. J. at 47. It seems doubtful that Utah would

contend that it may disregard other liberty interests protected by the federal Constitution simply


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because a case in which a federal court recognized that liberty interest involved the federal

government as a defendant instead of a state. A protected liberty interest is safeguarded from

unjustified intrusion by any government. For example, a persons protected interest in

maintaining parent-child bonds exists regardless of whether those interests are threatened by the

federal government or by a state. See, e.g., Troxel v. Granville, 530 U.S. 57 (2000) (invalidating

state law that impermissibly infringed upon parental rights).

Windsors recognition that same-sex couples marriages are constitutionally protected is

consistent with cases stretching back for decades in which the Court has held that spousal

relationships, like parent-child relationships, are among those intimate family bonds whose

preservation must be afforded a substantial measure of sanctuary from unjustified

interference by the State. Roberts v. United States Jaycees, 468 U.S. 609, 618 (1984);see also

Loving v. Virginia, 388 U.S. 1, 12 (1967) (reversing married interracial couples convictions for

violations of anti-miscegenation statutes4); Griswold v. Connecticut,381 U.S. 479, 485-86

(1965) (holding that marriage is a relationship lying within the zone of privacy created by

several fundamental constitutional guarantees); Washington v. Glucksberg, 521 U.S. 702, 720

(1997) (recognizing marital privacy as a fundamental liberty interest). The Supreme Courts

cases protecting family relationships have explained that the Due Process Clause guarantees

more than fair process; it also includes a substantive component that provides heightened

protection against government interference with certain fundamental rights and liberty interests.

4 WhileLovingis usually cited as a case about the right to marry, it also involves a particularly

severe type of interference with an existing marital relationship. The plaintiffs inLoving hadtraveled outside their home State of Virginia to get married, and it was Virginias refusal to

recognize that marriage, and its criminal prosecution of the married couple when they returned to

Virginia, that led to their successful challenge in the Supreme Court.


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Troxel, 530 U.S. at 65 (internal quotation marks and citations omitted);see also Roberts v. Hartz,

113 Fed. Appx. 306, 312 (10th Cir. 2004).

Under these and other cases, laws that significantly burden protected liberties must be

subjected to heightened scrutiny. See, e.g. Griswold, 381 U.S. at 485-86, 503-504 (applying

heightened constitutional scrutiny in striking down law barring use of contraceptives by married

couples);Moore v. City of East Cleveland, 431 U.S. 494, 499 (1977) (holding that where law

burdened a protected family relationship, the court must examine carefully the importance of

the governmental interests advanced and the extent to which they are served by the challenged

regulation.);M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996) (holding that state action burdening a

protected parent-child relationship requires close consideration); Windsor, 133 S. Ct. at 2692

(holding that federal statute burdening marital relationships requires careful consideration)

(internal citations omitted).

Utahs anti-recognition laws also warrant heightened scrutiny because, as the Supreme

Court recognized in Windsor, there is no basis to distinguish between same-sex and opposite-sex

married couples in defining their liberty interest in their existing marriages lawfully entered in

other jurisdictions. See id. at 2693 (affirming the equal dignity of same-sex marriages, a dignity

conferred by the States in the exercise of their sovereign power). Marriage is a status of

immense import. Id. at 2681. Once that status has been lawfully conferred by a state,

Plaintiffs have the same protected liberty interest in their marital relationships as did the

plaintiffs in Windsor, Loving, Griswold,and other cases involving attempts by the government to

burden protected family relationships.


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1. Utahs anti-recognition laws inflict severe harms on married same-sexcouples and their children and disrupt their marital and family

relationships.

In a manner virtually unprecedented in this countrys history (outside the context of anti-

miscegenation laws), Utahs anti-recognition laws, and similar laws that other states have

recently enacted with respect to married same-sex couples, cause serious harms to families and

society by disregarding the longstanding, deeply rooted, and otherwise near-universal rule that a

marriage that is validly entered into by a couple living in one state will be recognized when the

couple travels or relocates to another state. This uniform rule of marriage recognition confirms

the parties expectations, it provides stability in an area where stability (because of children and

property) is very important, and it avoids the potentially hideous problems that would arise if the

legality of a marriage varied from state to state. Richman & Reynolds,supra,at 398. By

excluding legally married same-sex couples from this uniform rule, Utah has created an

untenable and chaotic situation whereby Plaintiffs Archer and Call are legally married in Iowa,

where they wed, legally married in the many other states and countries that recognize the

marriages of same-sex couples who marry in other jurisdictions, and legally married for purposes

of most federal protections and responsibilities. But so long as they reside in Utah, these

Plaintiffs legal marriage, and those of other legally married same-sex couples, are deemed void

and unenforceable under the laws of this state. The instability and harms caused to these

Plaintiffs and others by this extraordinary situation are significant, continuing, and cumulative.

[N]ullification of a valid marriage when both partners wish to remain legally married

constitutes the most extreme form of state interference imaginable in the marital relationship.

Lois A. Weithorn, Can a Subsequent Change in Law Void a Marriage that Was Valid at Its

Inception? Considering the Legal Effect of Proposition 8 on California's Existing Same-Sex

Marriages,60 Hastings L.J. 1063, 1125 (2009).


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By excluding legally married same-sex couples from recognition, the State of Utah

disrupts their protected family relationships. Marriage provides the only means under Utah law

whereby two adults can establish a family unit that must be legally respected by the state and by

others. Through hundreds of statutes, regulations, and common law rules, Utahs laws provide

married couples with comprehensive protections and responsibilities that enable them to make a

legally binding commitment to one another and to any children they may have, and to be treated

as a legal family. These state-law protections range from the mundane to the profound,

Windsor, 133 S. Ct. at 2694, but many are designed to assist families in their times of greatest

need and to protect them when misfortune strikes unexpectedly. Virtually all other couples who

legally marry in other states, including couples who could not have married under Utahs own

laws, are treated as married in Utah, and automatically obtain all of the same protections and

responsibilities as other married couples in Utah. Utahs anti-recognition laws strip legally

married same-sex couples of all marital protections under state law and deprive them of the

certainty, stability, permanence, and predictability that marriage is designed to provide.5

By treating married couples as legal strangers, Utahs anti-recognition laws strip the

5 Moreover, the federal government has not yet determined whether certain federal benefits and

protections will accrue to married same-sex couples who live in states that do not recognize their

marriages. For example, the Social Security Administration has announced that it will recognize

the marriages of same-sex couples who reside in a state that recognizes their marriages. Program

Operations Manual System, GN 00210.100, available at

https://secure.ssa.gov/apps10/poms.nsf/lnx/0200210100. But the Administration currently isholding spousal benefits claims filed by married same-sex couples living in states that do not

respect their marriages and has not announced whether those benefits will be available to such

couples. Program Operations Manual System, GN 00210.005, available at

https://secure.ssa.gov/apps10/poms.nsf/lnx/0200210005.

https://secure.ssa.gov/apps10/poms.nsf/lnx/0200210100https://secure.ssa.gov/apps10/poms.nsf/lnx/0200210100https://secure.ssa.gov/apps10/poms.nsf/lnx/0200210005https://secure.ssa.gov/apps10/poms.nsf/lnx/0200210005https://secure.ssa.gov/apps10/poms.nsf/lnx/0200210005https://secure.ssa.gov/apps10/poms.nsf/lnx/0200210100

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married Plaintiffs of privacy and autonomy and interfere with their freedom of intimate

association. In effect, they have been divorced against their will, for state law purposes, by

operation of law. By stripping Plaintiffs of the recognition, dignity, and protection they

obtained by entering into lawful marriages, Utahs law demeans the couple, whose moral and

sexual choices the Constitution protects[.] Windsor, 133 S. Ct. at 2694 (citingLawrence v.

Texas, 539 U.S. 558, 578 (2003)). Marriage is a status of immense import. Id.at 2681. It

conveys the depth and seriousness of a couples commitment to one another, and instructs others

to respect the couples privacy, dignity, and autonomy and the integrity of their family

relationship. Like DOMA, Utahs anti-recognition laws demean and stigmatize married same-

sex couples by excluding them from these important protections and placing them in the

untenable position of being legally married, but being treated by the State of Utah as unmarried.

Id.at 269394. Indeed, it is difficult to conceive of a more direct or substantial burden on

marital and family relationships than a law that legally nullifies Plaintiffs valid marriages.

Utahs anti-recognition laws tell[] those couples, and all the world, that their otherwise valid

marriages are unworthy of . . . recognition. Id.

Utahs anti-recognition laws also harm the children of married same-sex couples by

instructing them that the State of Utah regards their parents marriages and their families as less

worthy of recognition than other marriages and familiesindeed, that they are worthy of no

recognition at all. Id. at 2694 (differential treatment of same-sex married couples and opposite-

sex couples under DOMA humiliates tens of thousands of children now being raised by same-

sex couples and makes it even more difficult for the children to understand the integrity and

closeness of their own family and its concord with other families in their community and in their

daily lives). Utahs anti-recognition laws instruct[]all [state] officials, and indeed all persons


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with whom same-sex couples interact, including their own children, that their marriage is less

worthy than the marriages of others by rendering their lawful marriages a legal nullity for all

state law purposes the moment the couple crosses the state line. Id.at 2696.

In sum, the harms inflicted on Plaintiffs and their families are as severe, damaging, and

pervasive as those recognized in Windsor.

2. Like DOMA, Utahs anti-recognition laws were enacted for the improperpurpose of treating married same-sex couples unequally.

Utahs anti-recognition laws have the same avowed purpose and practical effect as

Section 3 of DOMA: to deny married same-sex couples all of the benefits and responsibilities

that otherwise would flow from Utahs recognition of the valid marriages of couples who marry

in other states. That purpose is apparent on the face of the laws themselves, which render void

any marriages between same-sex couples that are legally entered into in other states. See Utah

Code 30-1-2(5) (prohibiting and declaring void marriages between persons of the same sex);

Utah Code 30-1-4 (excluding married same-sex couples from Utahs general recognition of

valid marriages from other states);see alsoUtah Const. art. I, 29 (marriages of same-sex

couples may not be recognized or given legal effect). Like DOMA, Utahs anti-recognition

laws were enacted to ensure that if any State decides to recognize same-sex marriages, those

unions will be treated as second-class marriages. Windsor, 133 S. Ct. at 269394. Their

principal effect is to identify a subset of state-sanctioned marriages and make them unequal,

and their principal purpose is to impose inequality. Id.at 2694. Like Section 3 of DOMA, the

Anti-Recognition Laws therefore violate due process and equal protection because no legitimate

purpose overcomes the purpose and effect to disparage and to injure married same-sex couples

in this extraordinary manner. Id. at 2696.


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C. Utahs Anti-Recognition Laws Violate Equal Protection.In addition to infringing upon the protected liberty interests of married same-sex couples,

Utahs anti-recognition laws facially discriminate against the class of legally married same-sex

couplesthe same class at issue in Windsor.6 Seeid. at 2695 (The class to which DOMA

directs its restrictions and restraints are those persons who are joined in same-sex marriages).

For the same reasons explained above, that classification violates basic equal protection

principles by singling out a disfavored group for disadvantageous treatment, not to further a

legitimate goal, but to impose inequality.

D. Utahs Refusal To Recognize Same-Sex Couples Valid Marriages UnderminesImportant Goals Of Federalism.

Defendants erroneously suggest that Windsor stands for the proposition that a states

authority over marriage is absolute. Def.s Mot. Summ. J. at 51. In fact, the Windsorcourt

unequivocally affirmed that state regulations of marriage must respect the constitutional rights

of persons. 133 S. Ct. at 2691. That obligation applies not only to restrictions on marriage

under state law, but also to state laws addressing the recognition of marriage from other states.

As Windsorheld, when a same-sex couple enters into a valid marriage under the laws of a state,

the spouses acquire a status of immense import. Id. at 2692. Once married, those couples

have the same protected interest in their marital privacy, dignity, and autonomy as other married

couples. Id. at 2693 (holding that married same-sex couples have equal dignity). As explained

above, a state may not, consistent with the requirement of due process, infringe upon that

6 Those laws, as well as Utahs laws barring marriage by same-sex couples within the state, also

facially classify based on sexual orientation and gender. Amicusstrongly agrees with Plaintiffs

that those laws must be subject to heightened scrutiny for that reason, as well as because they

infringe upon a protected liberty interest.


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because they expect that other states will respect their marriages. Interstate transportability of

marriages has becomeand has long beena defining feature of American law and one that is

essential to stability, order, and the basic functioning of our highly mobile society. For one state

to treat another states valid marriages as null and void without adequate justification is not only

an affront to the rights of individuals, it is also an affront to the equal sovereignty of other states.

For these reasons, the WindsorCourts emphasis on states sovereignty over marriage

underscores why Utahs anti-recognition laws (like those of other states that categorically deny

recognition to married same-sex couples) constitute an extraordinary departure from basic

principles of federalism, as well as of due process and equal protection.

E. Section 2 Of DOMA Provides No Justification For Utahs DiscriminatoryMarriage Recognition Laws.

The State of Utah seeks refuge in DOMAs Section 2, arguing that it gives Utah and

other states carte blanche to exclude the marriages of same-sex couples from recognition. Def.s

Mot. Summ. J. at 48.8 As an initial matter, the basis of the Courts determination in Windsorthat

Section 3 of DOMA violates basic due process and equal protection principles applies equally to

Section 2. Like Section 3, Section 2 targets the class of legally married same-sex couples for

disfavored treatment. In Windsor, the Court emphasized that discriminations of an unusual

character warrant careful consideration. 133 S. Ct. at 2692. The Court discussed the unusual

character of Section 3, but Section 2 is just as unusual and unprecedented. Never before has

8 The State of Utah seems to suggest that merely by describing Section 2 of DOMA, the Windsor

Court affirmed its validity. Def.s Mot. Summ. J. at 48. But the constitutionality of Section 2

was not before the Court in Windsor,and the WindsorCourts one line summary of what Section2 purports to do is no more affirming of that provisions validity than is the Courts subsequent

description, immediately thereafter, of what Section 3 of DOMA purports to do. Windsor, 133 S.

Ct. at 2682-83. Nothing in Windsorsuggests that Section 2, if challenged, would survive

constitutional scrutiny.


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Congress passed a statute purporting to authorize the states to ignore a whole class of marriages.

Moreover, in explaining why Section 3 was invalid, the Court in Windsorfound that DOMA had

the improper purpose and effect of treating lawfully married same-sex couples unequally

which is equally true of Section 2. In finding animus, the Court cited statements made in the

House Report which apply equally to Section 2 as to Section 3. See id. at 2693. The Court also

noted that the title of the statute itself evinced an improper purpose to discriminate, which

applies equally to Section 2. In light of the Courts analysis, it would be utterly anomalous to

conclude that section 2 of DOMA was not equally infected with the animus that the Court found

with respect to section 3 of DOMA.

In any event, this Court need not reach the issue of Section 2s validity here, because

regardless of what Section 2 purports to authorize, this Court must decide whether Utahs anti-

recognition laws satisfy the Fourteenth Amendments commands of dueprocess and equal

protection of the laws. No statute passed by Congress can exempt Utah from those fundamental

requirementsamong the most important provisions of our federal system since the Civil War.

See, e.g., Shapiro v. Thompson, 394 U.S. 618, 641 (1969) (Congress may not authorize the

States to violate the Equal Protection Clause); Saenz v. Roe, 526 U.S. 489, 508 (1999)

(Although we give deference to congressional decisions and classifications, neither Congress

nor a State can validate a law that denies the rights guaranteed by the Fourteenth Amendment.)

(internal citations omitted). Defendants argument is as baseless as the argument that Congress

could have changed the result inLoving v. Virginiaby enacting a statute providing:

No State, territory, or possession of the United States, or Indian tribe, shall

be required to give effect to any public act, record, or judicial proceedingof any other State, territory, possession, or tribe respecting a relationship

between persons of different races that is treated as a marriage under the

laws of such other State, territory, possession, or tribe, or a right or claimarising from such relationship.


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