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TABLE OF CONTENTS

TABLE OF AUTHORITIES ......................................................................................................... iii

INTRODUCTION ...........................................................................................................................2

STATEMENT OF FACTS ..............................................................................................................5

LEGAL STANDARD ......................................................................................................................5

ARGUMENT ...................................................................................................................................6A. The decision in United States v. Windsor does not compel a finding in favor of the

plaintiffs; instead, it supports Alaska's right as a sovereign state to define marriage ....7

B. The right of the people to govern: Windsor and Schuette v. Coalition to Defend Affirmative Action ..............................................................................................8

C. The Supreme Court has already decided that a constitutional claim forsame-sex marriage does not raise a federal question ...................................................10

D. There is no fundamental right to same-sex marriage under the Due Process Clause ofthe Fourteenth Amendment..........................................................................................11

E. For purposes of equal protection, Alaska's marriage laws should be judged under therational basis test ..........................................................................................................13

1. Supreme Court precedent demonstrates that rational basis is thecorrect standard of review ................................................................................13

2. The decision in SmithKline Beecham v. Abbott Laboratories does not supportthe application of any standard other than rational basis review in this case ..16

F. Permitting Alaska to exercise its sovereign right to define marriage serves importantgovernment interests and thus survives review under either a due process or equal

protection analysis .......................................................................................................18

1. Several important government interests are served by permitting Alaska's votersto decide how to define marriage ...........................................................................18

2. Alaska's marriage laws do not deny same-sex couples equal protection or the rightto receive the same government benefits that married couples receive and thisimportant fact supports deferring to the judgment of Alaska's voters on the public

policy issue presented in this case .........................................................................21

3. Even if the state's important government interests arguably could also be served by redefining marriage to include same-sex marriage, this does not make Alaska'slaws unconstitutional .............................................................................................22

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4. The state's marriage laws are not unconstitutional because of animus ..................23

G. Loving v. Virginia is a race case that does not support the conclusion that a state'sadoption of the traditional definition of marriageis unconstitutional ........................................................................................................25

H. The State's marriage laws do not unconstitutionally discriminate on the basis of sex ...................................................................................................................26

I. Alaska's laws prohibiting recognition of same-sex marriages from other jurisdictionsdo not violate plaintiffs' constitutional rights ..............................................................26

J. Recent court decisions do not compel the conclusion that the Supreme Court hasdecided that same-sex marriage is a constitutional right; instead, they reveal judicial

policy making...............................................................................................................27

CONCLUSION ..............................................................................................................................29

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TABLE OF CASES AND AUTHORITIES

CASES

ACLU v. State,

122 P.3d 781 (Alaska 2005).................................................................................................4, 21, 24

Agostini v. Felton ,521 U.S. 203 (1997) .......................................................................................................................11

Andersen v. King County ,138 P.3d 963 (Wash. 2006)......................................................................................................28, 29

Anderson v. Liberty Lobby, Inc.,477 U.S. 242 (1986) .........................................................................................................................5

Baker v. Nelson ,291 Minn. 310 (1971) ....................................................................................................................10

Baker v. Nelson ,409 U.S. 810 (1972) .......................................................................................................3, 10, 11, 26

Ballard v. United States ,329 U.S. 187 (1946) .................................................................................................................20, 21

Board of Trustees of University of Alabama v. Garrett,531 U.S. 356 (2011) .......................................................................................................................15

Bond v. United States,131 S.Ct. 2355 (2011) ......................................................................................................................9

Bishop v. Smith,2014 WL 3537847 (10 th Cir. 2014) ...............................................................................................24

Citizens for Equal Protection v. Bruning,455 F.3d 859 (8 th Cir. 2006) ....................................................................................................28, 29

City of Cleburne v. Cleburne Living Ctr., Inc.,473 U.S. 432 (1985) .......................................................................................................................23

Dandridge v. Williams,397 U.S. 471 (1970) .......................................................................................................................15

FCC v. Beach Communics, Inc .,508 U.S. 307 (1993) .................................................................................................................22, 27

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Goodridge v. Dept. of Public Health,798 N.E.2d 941 (Mass. 2003) ....................................................................................................2, 13

Haddock v. Haddock,201 U.S. 562 (1906) .........................................................................................................................7

Harris v. Millenium Hotel,330 P.3d 330 (Alaska 2014).................................................................................................4, 21, 24

Heller v. Doe ,509 U.S. 312 (1993) ...........................................................................................................15, 22, 23

Hernandez v. Robles ,855 N.E.2d 1 (N.Y. 2006) ..............................................................................................2, 26, 28, 29

Jackson v. Abercrombie ,

884 F. Supp. 2d 1065 (D. Haw. 2012) .........................................................................26, 28, 29, 30 Johnson v. California ,543 U.S. 499 (2005) .......................................................................................................................14

Kitchen v. Herbert,755 F.3d 1193 (10 th Cir. 2014) ................................................................................................11, 20

Lawrence v. Texas,539 U.S. 558 (2003) .................................................................................................................14, 29

Loving v. Virginia,388 U.S. 1 (1967) .........................................................................................................11, 25, 26, 27

Maher v. Roe,432 U.S. 464 (1977) .......................................................................................................................15

Mandel v. Bradley ,473 U.S. 173 (1977) .......................................................................................................................10

Mass. Board of Retirement v. Murgia,427 U.S. 307 (1976) .......................................................................................................................15

Nevada v. Hall,440 U.S. 410 (1979) .................................................................................................................26, 28

Personnel Adm'r v. Feeney,442 U.S. 256 (1979) .......................................................................................................................26

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ALASKA CONSTITUTION

Alaska Const. Art. 1, Sec. 25 ...........................................................................................................3

STATUTES AND REGULATIONS

28 U.S.C. 1738 C .........................................................................................................................27 AS 25.05.011(a) ...............................................................................................................................3AS 25.05.013 ...................................................................................................................................3AS 25.05.021 .................................................................................................................................24AS 25.05.171 .................................................................................................................................24 AS 25.23.020(a) .............................................................................................................................21

COURT RULES

Fed.R. Civ.P. 12(c) ..........................................................................................................................6

Fed.R. Civ.P. 56(a) ..........................................................................................................................5

OTHER AUTHORITIES

Erwin Chemerinsky, Constitutional Law: Principles and Policies, 807(4 th ed. 2011) ............................................................................................................................16, 17

Loren Leman, Statement in Support, in ALASKA 1998 OFFICIAL ELECTION PAMPHLET-BALLOT MEASURE 2 (1998) Ballot Measure 2, Constitutional Amendment LimitingMarriage; http://www.elections.alaska.gov/doc/oep/1998/98bal2.htm ...........................................4

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INTRODUCTION

Who decides whether or not to define marriage to include same-sex marriage? The

citizens of the individual states through the exercise of their right to vote or the judiciary? That is

what this case comes down to. In a democratic society, the voters and their elected

representatives decide important matters of public policy. If this were not so, the government

would cease to be a democracy. But it is also the case that a state cannot deny its citizens their

fundamental constitutional rights. The Supreme Court has never held that there is a federal

constitutional right to same-sex marriage but the plaintiffs argue that such a right exists and

accordingly the will of Alaska's voters on the subject must be set aside.Until very recently, it was unquestioned that marriage was a civil union between one

woman and one man. The Supreme Court noted only a year ago that "marriage between a man

and a woman no doubt had been thought of by most people as essential to the very definition of

that term and to its role and function throughout the history of civilization." 1 In 2006, New

York's highest court, in upholding that state's law that a civil marriage is between one woman

and one man, observed that: "It was an accepted truth for almost everyone who ever lived, in

any society in which marriage existed, that there could be marriages only between participants of

different sex." 2

1 United States v. Windsor . 133 S.Ct. 2675, 2689 (2013).2 Hernandez v. Robles , 855 N.E.2d 1, 8 (N.Y. 2006). No state authorized marriage betweentwo individuals of the same sex until Massachusetts' highest court in 2003 determined that a rightto same-sex marriage could be found under that state's constitution. Goodridge v. Dep't of Pub.

Health, 798 N.E.2d 941 (Mass. 2003).

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receive equal protection under the law as "All Alaskans are equal before the law. But that's not

what this debate is about." 8

Alaska's Supreme Court has interpreted Alaska's Constitution consistent with the intent of

the voters, holding that the definition of marriage in this state is a union between one woman and

one man. 9 The Court has also considered the legislative history of the Marriage Amendment and

concluded that it does not bar same-sex couples from receiving benefits provided to married

couples, and held that Alaska's guarantee of equal protection provides that same-sex couples may

not be discriminated against in the provision of government benefits. 10 In this regard, the Court

has noted that "the legislature did not include a prohibition on benefits in the text of theresolution proposing the Marriage Amendment." 11

The State of Alaska does not dispute that the residents of individual states have the right

to change their marriage laws. This recognizes the system of federalism that governs this nation

and the right of the citizenry to make fundamental determinations of public policy. However, the

State urges that residents of Alaska possess the same fundamental right to retain the traditional

definition of marriage. This basic premise of democratic government should not be usurped by

the judiciary absent compelling circumstances which the State respectfully urges are not present

in this case.

8 Loren Leman, Statement in Support, in ALASKA 1998 OFFICIAL ELECTIONPAMPHLET-BALLOT MEASURE 2 (1998) Ballot Measure 2, Constitutional Amendment

Limiting Marriage; http://www.elections.alaska.gov/doc/oep/1998/98bal2.htm 9 ACLU v. State, 122 P.3d 781, 786 (Alaska 2005); see also State v. Schmidt, 323 P.3d 647;658 (Alaska 2014); Harris v. Millenium Hotel, 330 P.3d 330 (Alaska 2014). 10 ACLU , 122 P.3d at 790.11 State v. Schmidt, 323 P.3d 647; 658 (Alaska 2014), citing S.J. Res. 42, 20 th Leg., 2d Sess.(Alaska 1998).



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STATEMENT OF FACTS

Plaintiffs are five couples residing in Alaska. They initiated this action by filing

a complaint alleging that Alaska's marriage laws violate the federal constitutional right to due

process and equal protection because they do not authorize same-sex marriage. 12 Plaintiffs

Hamby and Shelden contend that even though they were married out-of- state, they are "legal

strangers" in Alaska, and that they have "experienced difficulties obtaining benefits, such as

health insurance, extended to other married couples as a routine matter." 13 Plaintiffs Tow and

Laborde were married out-of-state, contend that they are "legal strangers" in this state, and that

Alaska's marriage laws "complicate the process" by which Ms. Laborde could adopt twochildren. 14 Plaintiffs Pearson and Lamb wish to marry in Alaska but cannot. 15 Plaintiffs Egan

and Robinson and plaintiffs Wiese and Cortez were married out-of-state; both couples contend

that they are "legal strangers" in this state because of Alaska's marriage laws. 16

LEGAL STANDARD

Plaintiffs have filed a motion for summary judgment. 17 Summary judgment is properly

entered if "there is no genuine issue as to any material fact and the moving party is entitled to

judgment as a matter of law." 18 Plaintiffs contend that summary judgment should be entered in

their favor because it is undisputed that the plaintiffs who were married out-of-state are

12 Complaint at doc. 1.13 Pl. Mot at 7 at doc. 20.14 Id. at 7-8.15 Id. at 8-9.16 Id. at 9-10.17 Id.18 Fed .R. Civ.P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986).




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prevented from having their marriages recognized in Alaska, and because plaintiffs Pearson and

Lamb, an unmarried same-sex couple, cannot get married in this state because of Alaska law. 19

State Defendants agree that there are no material issues of fact in dispute but assert that

the State is entitled to judgment as a matter of law because plaintiffs' claims do not state

a violation of the federal Constitution. Thus, summary judgment should not be granted to the

plaintiffs. Instead, summary judgment or a judgment on the pleadings 20 should be entered in

favor of the State Defendants.

ARGUMENT

Under the United States Constitution, the states retain the authority to make basicdecisions including defining marriage in accordance with the system of federalism. Moreover,

the citizens have a fundamental right to be heard on the important public policy issues of the day,

such as whether to change the definition of marriage a definition which the Supreme Court has

said has existed throughout the history of civilization. Where the citizens have exercised their

rights through the right to vote their decision should not be overturned by the judiciary absent

compelling circumstances such as the violation of a fundamental constitutional right. The

Supreme Court has never held that there is a fundamental constitutional right to same-sex

marriage. The question of whether to define marriage to include the right to marry someone of

the same sex is an important question of public policy. But it is a decision for the citizenry to

make through the democratic process, not the judiciary.

19 Pl. Mot at 10 at doc. 20.20 Fed.R. Civ.P. 12(c).




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A. The decision in United States v. Windsor does not compel a finding in favor of theplaintiffs; instead, it supports Alaska's right as a sovereign state to definemarriage.

The Supreme Court in United States v. Windsor 21 readily acknowledged the states'

authority to define marriage. The Court pointed out that "(b)y history and tradition the definition

and regulation of marriage has been treated as being within the authority and realm of the

separate States." 22 "The states, at the time of the adoption of the Constitution, possessed full

power over the subject of marriage and divorce [and] the Constitution delegated no authority

to the Government of the United States on the subject of marriage and divorce." 23 With this legal

background at its center, the Court focused on the factual context of the dispute before it:

through their voters, the people of a state decided to change the definition of marriage to include

same-sex marriage. But the federal government refused to recognize such marriages that were

lawfully entered into in the state. The Court rejected the effort by the federal government to

intrude on the states' traditional authority to define marriage and held that the federal government

could not refuse to recognize marriages lawfully entered into within a state.

Despite these clear facts, plaintiffs ironically interpret Windsor to require that federal

courts do what the Supreme Court held that the federal government could not do: intrude on the

states' traditional authority to define marriage and mandate that each state adopt a uniform

definition of marriage which authorizes same-sex marriage. This interpretation of Windsor

makes no sense. Rather than supporting plaintiffs' claims, Windsor stands for the proposition that

the definition of marriage is an issue for the states and the will of the voters of each state should

21 133 S.Ct. 2675 (2013).22 Id. at 2689-2690. 23 Id. at 2691, quoting Haddock v. Haddock, 201 U.S. 562, 575 (1906).




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govern regardless of whether the federal government or a federal court agrees with the policy

choices made by the state's voters. As the Court recognized, this process permits the states to

develop consensus on community issues and it recognizes that a central component of the

nation's governing system is its recognition of federalism and the rights of the states to determine

state issues like the definition of marriage. 24

And even if Windsor is not interpreted to require that plaintiffs' complaint be dismissed

summarily, it is nonetheless quite clear that the Court in Windsor did not find that there is a

constitutional right to same-sex marriage. As Chief Justice Roberts noted, "the logic of [the

majority's] opinion does not decide, the distinct question whether the States, in the exercise oftheir 'historic and essential authority to define the marital relation,' may continue to utilize the

traditional definition of marriage" because "it is undeniable that its judgment is based on

federalism." 25 The majority also made this clear, concluding its decision with the statement that

"(t)his opinion and its holding are confined to those lawful marriages" 26 under state law.

B. The right of the people to govern: Windsor and Schuette v. Coalition to Defend Affirmative Action .

The fact that Windsor turned largely on the Court's respect for the sovereign rights of

states to define marriage is not the only way in which it supports Alaska's position in this case.

Importantly, the people of New York chose how to define marriage through the electoral

process: "After a statewide deliberative process that enabled its citizens to discuss and weigh

arguments for and against same-sex marriage," the voters of New York opted to change the

24 Id. at 2692.25 Id. at 2696-2697.26 Id. at 2696.




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definition of marriage within their state to provide for same-sex marriage. 27 The Supreme Court

pointed out that voters in the state "'[sought] a voice in shaping the destiny of their own times,'

[and] (t)hese actions were without doubt a proper exercise of [the state's] sovereign authority

within our federal system, all in the way that the Framers of the Constitution intended." 28

This recognition of the primacy of the voters' right to decide important and sensitive

public policy matters such as the definition of marriage cannot be ignored as dictum. Again this

year, the Supreme Court recognized the public's right to decide important questions, rejecting the

notion that important and sensitive issues should be designated only for the judiciary to decide

while leaving the less important and less sensitive questions of the day for consideration by thecitizenry. This right of the citizens to vote and decide the critical issues affecting their lives was a

central factor in the Court's decision in Schuette v. Coalition to Defend Affirm Action .29 In that

case, the Court reaffirmed the right of citizens to "debate," "decide," and "shape the course of

their own times" through the right to vote on even difficult and sensitive subjects such as race. 30

In rejecting an effort to overturn the will of the voters, the Court emphasized that to remove the

citizenry and conclude that a subject is too sensitive or difficult to be left to voters would be an

unprecedented restriction on the exercise of a "fundamental right" held by all in common "to

speak and debate" and act through a lawful electoral process and would raise "serious First

27 Id. at 2689.28 Id. at 2692, quoting in part Bond v. United States, 131 S.Ct. 2355, 2359 (2011).29 134 S.Ct. 1623 (2014).30 Id. at 1636-1637.




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not acknowledge, and we do not hold, that other courts should conclude our more recent cases

have, by implication, overruled an earlier precedent. Rather, lower courts should follow the case

which directly controls, leaving to this Court the prerogative of overruling its own decisions." 39

In these circumstances, there is no basis for this court to do anything other than dismiss

the complaint. If the issue is to be revisited, it is for the Supreme Court, not a lower court.

D. There is no fundamental right to same-sex marriage under the Due ProcessClause of the Fourteenth Amendment.

In order to be recognized as a fundamental right under the Due Process Clause of the

Fourteenth Amendment, the alleged right must have a foundation in American history, the law,

and practice. It must be "deeply rooted in this Nation's history and tradition." 40 Although the

Supreme Court has recognized a right to traditional marriage, 41 it has never found a fundamental

right to same-sex marriage under the Due Process Clause.

Plaintiffs nonetheless cite to cases involving restrictions on the right to traditional

marriage to support their claim that there is a fundamental right to same-sex marriage. But all of

the cases cited involved marriages between a woman and a man and the issue was whether or not

a particular limitation, such as a race restriction 42 or a child support restriction, 43 could be placed

on the traditional right to marry. Thus, those cases arose in an entirely different context from this

39 Agostini v. Felton , 521 U.S. 203, 237 (1997). The Tenth Circuit in a split decisionrecently affirmed a lower court's decision ruling against a state's traditional marriage law.Kitchen v. Herbert, 755 F.3d 1193 (10 th Cir. 2014). But significantly, in dissent Justice Kellyreviewed Baker v. Nelson and concluded that it controls because a lower court could not overrule

Baker and contravene the Supreme Court's ruling that a same-sex marriage claim does not raise aquestion under the federal Constitution. Id. at 1232-33.40 Washington v. Glucksberg, 521 U.S. 702, 720-721 (1997).41 Zablocki v. Redhail, 434 U.S. 374 (1978).42 Loving v. Virginia, 388 U.S. 1 (1967). 43 Zablocki v. Redhail, 434 U.S. 374 (1978).




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question that the text of the Constitution does not establish any right to same-sex marriage. And

it would be a tenuous exercise to apply the Court's fundamental rights analysis to establish a

right to same-sex marriage in the absence of any reference to it in the Constitution. Until very

recently, no state had recognized same-sex marriage and there is no question that same-sex

marriage was not recognized at the time the nation was formed or when the Fourteenth

Amendment was adopted in 1868. 47 Thus, it cannot reasonably be argued that such a right is

"deeply rooted" in the nation's history and tradition. Accordingly, it seems clear that there is not

a fundamental right to same-sex marriage.

Because there is no fundamental right at issue, Alaska's laws must only have a rational basis, and as set forth below, Alaska's laws meet that standard.

E. For purposes of equal protection, Alaska's marriage laws should be judgedunder the rational basis test.

1. Supreme Court precedent demonstrates that rational basis is the correctstandard of review.

Plaintiffs contend that classifications based on sexual orientation should be subject to

scrutiny beyond the traditional rational basis test, but the Supreme Court has never so held.

Tellingly, the Supreme Court had the opportunity last year in Windsor to hold that classifications

based on sexual orientation are subject to heightened scrutiny but it did not do so. In fact, in

addressing the federal Defense of Marriage Act ("DOMA"), the Supreme Court used the

language of rational basis review, concluding that "(t)he federal statute is invalid, for no

47 No state recognized same-sex marriage until 2003 when the Massachusetts SupremeJudicial Court found such a right in the state constitution. Goodridge v. Dept. of Public Health,798 N.E.2d 941 (Mass. 2003). Netherlands was the first nation in history to permit same-sexmarriage in 2000. Windsor, 133 S.Ct. 2675, 2715 (2013) (Alito, J., dissenting).




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legitimate purpose" 48 supported the law. The holding was consistent with a prior decision

involving sexual orientation in which the Supreme Court applied rational basis review, Romer v.

Evans. 49 In Romer, the Court held that a state's decision to withdraw specific legal protection

previously granted within a state to individuals based on their sexual orientation served no

rational basis and thus violated equal protection. Likewise, in the Court's third decision involving

sexual orientation, Lawrence v. Texas , the Court declined to hold that classifications relating to

sexual orientation are subject to a heightened standard of review. 50 Thus, the controlling

Supreme Court precedent is that equal protection claims involving sexual orientation are not

reviewed under strict or intermediate scrutiny.It is also important to place the issue of the applicable level of scrutiny of a democratic

body's decisions within the context of cases decided by the Supreme Court involving other

groups' efforts to argue for a high level of judicial scrutiny. Rarely has the Supreme Court

expanded the very limited class of groups about which legislative actions affecting the group will

be subject to strict or intermediate scrutiny. Instead, such heightened scrutiny has been restricted

to distinctions based on race, national origin, and alienage, 51 and classifications based on gender

and legitimacy. 52

48 133 S.Ct. at 2696.49 517 U.S. 620 (1996).50 539 U.S. 558 (2003). The Supreme Court invalidated a state law criminalizing private,consensual homosexual activity in Lawrence . The decision was based on the right to privacy, not

equal protection, and the Court did not hold that any heightened scrutiny applied to issuesinvolving sexual orientation.51 Classifications based on these factors are subject to strict scrutiny. Johnson v. California ,543 U.S. 499, 505-06 (2005).52 The Supreme Court has held that classifications based on gender and legitimacy aresubject to intermediate scrutiny. United States v. Virginia , 518 U.S. 515, 532-33 (1996).




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Significantly, the Supreme Court has rejected arguments that the elderly, 53 physically or

mentally disabled individuals, 54 or the poor and impoverished 55 should be included in the very

limited category of groups about which governmental classifications must meet heightened or

strict scrutiny. Instead, rational basis is applied to laws that specifically affect these individuals.

Strong arguments can be made that governmental action affecting these groups should be

subject to heightened scrutiny. For example, older persons and the elderly possess immutable

characteristics that are obvious to the public, and they historically have been subject to

discrimination in many important parts of life such as the ability to earn a living. 56 But

classifications affecting the elderly are subject to the rational basis test. Similarly, the mentallydisabled can hardly be considered a group that has much political power and such individuals

have been subjected to discrimination. However, even in the context of a state law that

established procedures for institutionalization of such individuals an obvious major loss of

freedom only rational basis scrutiny was applied to the state's action. 57 Likewise, the poor can

also count on no more than a rational basis review of state laws directly impacting their right to

welfare benefits and to receive a reasonable public education 58 despite the fact that the

53 Mass. Board of Retirement v. Murgia, 427 U.S. 307 (1976); Vance v. Bradley, 440 U.S.93 (1979).54 Heller v. Doe , 509 U.S. 312 (1993); see also Board of Trustees of Univ. of Alabama v.Garrett , 531 U.S. 356, 365-68 (2001).55 San Antonio School Dist. v. Rodriguez, 411 U.S. 1 (1973); Maher v. Roe, 432 U.S.

464 (1977).56 Mass. Board of Retirement v. Murgia, 427 U.S. 307 (1976); Vance v. Bradley, 440 U.S.93 (1979).57 Heller v. Doe, 509 U.S. 312 (1993).58 Dandridge v. Williams, 397 U.S. 471 (1970); San Antonio School Dist. v. Rodriguez,411 U.S. 1 (1973); see also Maher v. Roe, 432 U.S. 464 (1977).




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selection was based on its conclusion that the Supreme Court in United States v. Windsor 65

applied some sort of "heightened scrutiny" of a classification affecting individuals based on their

sexual orientation. 66 Importantly, the Supreme Court in Windsor did not adopt the Second

Circuit's conclusion that intermediate scrutiny applied to sexual orientation claims. 67 Thus,

Supreme Court precedent providing that rational basis review applies to such classifications

continues to be the law. Third, the conclusion in SmithKline Beecham that the Supreme Court in

practice applied a form of "heightened scrutiny" in Windsor does not lead to the conclusion that

the rational basis analysis no longer applies to review of classifications based on sexual

orientation.The best reading of the panel's decision in SmithKline Beecham is that it concluded that

the Supreme Court in Windsor applied what has been referred to as rational basis review with

more "bite" 68 based on the facts of that case. In particular, the Court in Windsor focused on the

fact that rights previously granted to a group were being taken away from them based on the

characteristics of the group. Specifically, New York had granted recognition to same-sex

marriages but the federal government rejected that determination even though a sovereign state

traditionally has the authority to define marriage. The Court found that the federal government's

action had the effect of taking away from plaintiffs rights that had been previously granted to

them by a state law. The Windsor decision is similar to the Supreme Court's holding in another

sexual orientation case, Romer v. Evans, 69 in which the Court applied rational basis review to

65 133 S.Ct. 2675 (2013).66 740 F.3d at 483-484.67 Windsor v. United States , 699 F.3d 169, 185 (2d Cir. 2012).68 Chemerinsky, Constitutional Law Principles and Policies, page 555; 696.69 517 U.S. 620 (1996).




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a state law which sought to repeal local laws barring discrimination based on sexual orientation

and to prevent the enactment of such laws. Again, the focus was on the fact that the plaintiffs had

been granted rights which were subsequently taken away because of their status. Neither case

holds that rational basis review does not apply to classifications based on sexual orientation in

general and certainly the cases do not hold that a state's decision to define marriage as between

one man and one woman is subject to strict or intermediate scrutiny.

Accordingly, cases involving sexual orientation continue to be subject to the rational

basis test although in certain circumstances not present here, a court may apply the test with

more "bite." The circumstances potentially justifying a more demanding rational basis review arenot present here because unlike in Romer , Alaska voters did not take away rights previously

granted to the plaintiffs. Instead, they simply reaffirmed that the traditional definition of

marriage in the state as between one man and one woman would continue.

F. Permitting Alaska to exercise its sovereign right to define marriage servesimportant government interests and thus survives review under either a dueprocess or equal protection analysis.

1. Several important government interests are served by permitting Alaska'svoters to decide how to define marriage.

The state has a critical interest in permitting its citizens to exercise their fundamental

right to decide whether to make significant changes in important institutions through the

democratic process. As the Supreme Court has made clear, the voters of a state have a

fundamental right to decide the important issues of their times regardless of the sensitive nature

of any particular issue. 70 In fact, as Justice Kennedy noted in Schuette , preventing the public

from exercising their rights of self-government and removing by judicial fiat the public's right to

70 Schuette, 134 S.Ct. at 1636-1637.




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vote is "demeaning to the democratic process" as it "presume(s) that the voters are not capable of

deciding an issue of this sensitivity on decent and rational grounds." 71 Such an action "would be

an unprecedented restriction on the exercise of a fundamental right held not just by one person

but by all in common. It is the right to speak and debate and learn and then, as a matter of

political will, to act through a lawful electoral process." 72 Not to permit the voters to decide

difficult and important issues of public policy raises "serious First Amendment implications" and

is "inconsistent with the underlying premises of a responsible, functioning democracy." 73

The Supreme Court in Windsor respected the wishes of the citizens of New York when

they determined the definition of marriage "(a)fter a statewide deliberative process that enabledits citizens to discuss and weigh arguments for and against same-sex marriage" 74 even though

federal legislators disagreed with the state's voters' decision. Recently, in upholding a state's law

defining traditional marriage a federal court stated as follows: "Of even more consequence, in

this Court's judgment, defendants assert a legitimate state interest in safeguarding that

fundamental social change, in this instance, is better cultivated through democratic consensus." 75

The residents of Alaska also deserve this same respect for the decision they made through the

democratic process. Permitting Alaska's residents to decide whether to retain the traditional

definition of marriage serves the important governmental interests of supporting the democratic

form of government.

71 134 S.Ct. at 1637.72 Id. 73 Id. 74 133 S.Ct. at 2689.75 Robicheaux v. Caldwell, 2014 WL 4347099 at 5 (E.D. La. 2014).




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Additionally, the voters' interests in acting cautiously in maintaining the traditional

definition of marriage as between one man and one woman is an important government interest.

As set forth above, the Supreme Court only a year ago pointed out that "marriage between a man

and a woman no doubt had been thought of by most people as essential to the very definition of

that term and to its role and function throughout the history of civilization." 76 The importance to

a state's citizens of exercising caution when considering changes to the way they define

fundamental social institutions was recognized recently by a federal appellate court justice as

providing a rational basis for a state's laws maintaining the traditional definition of marriage. 77

Further, although many may disagree and consider these to be antiquated notions, it islegitimate for voters to believe that children can prosper with a father and a mother in their lives

because they derive unique values from each parent, 78 and that marriage encourages a man

and a woman to remain together when children are born of their relationship and to remain

together as the children mature and are in need of guidance and support from each parent. These

of course are aspirations; they may not be applicable or attainable in all situations. And the state

does not live in a fairytale world. It attempts to ensure that all children have the best chance to

grow in a stable environment by supporting families in need as much as possible while also

providing for alternatives such as adoption and foster care. But these actions and recognition of

reality in many cases does not mean that the voters had no rational basis for seeking to retain

traditional marriage. As a federal court recently stated: "The Court is persuaded that a meaning

76 United States v. Windsor . 133 S.Ct. 2675, 2689 (2013).77 Kitchen v. Herbert, 755 F.3d 1193, 1239-1240 (10 th Cir. 2014) (Kelly, J. dissenting).78 The Supreme Court noted in a case addressing whether women needed to be included in

juries that "a distinct quality is lost if either sex is excluded" and that "(t)he two sexes are notfungible; a community made up exclusively of one is different from a community composed of

both." Ballard v. United States , 329 U.S. 187, 193 (1946).




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of what is marriage that has endured in history for thousands of years, and prevails in a majority

of states today, is not universally irrational on the constitutional grid." 79

2. Alaska's marriage laws do not deny same-sex couples equal protection or the

right to receive the same government benefits that married couples receiveand this important fact supports deferring to the judgment of Alaska's voterson the public policy issue presented in this case.

In assessing whether Alaska residents should have their right to vote negated by the

courts, it is important to recognize that in this state same-sex couples have an equal protection

right to receive the same level of benefits as married couples. As set forth above, Alaska's

Supreme Court has held that the Marriage Amendment does not deprive same-sex couples of

benefits, that it was not the intent of the voters or the legislature to do so, and that the state

Constitution provides equal protection to same-sex couples. 80

Thus, although two plaintiffs in this case have made vague references to experiencing

difficulties obtaining health insurance, Alaska law provides that state provided health benefits

are provided to committed same-sex couples on the same basis as for married couples. 81

Similarly, although there is another vague reference by two plaintiffs concerning the adoption

process, there is no claim that Alaska prohibits gay persons from adopting and it is undisputed

that this state permits adoption by same- sex couples. 82

Accordingly, although plaintiffs borrow the legal arguments made in cases brought

against other states' marriage laws, the fact is that Alaska is different in that the definition of

79 Robicheaux v. Caldwell, 2014 WL 4347099 at 6 (E.D. La. 2014). 80 See ACLU v. State, 122 P.3d 781, 786 (Alaska 2005); State v. Schmidt, 323 P.3d 647;658 (Alaska 2014); Harris v. Millenium Hotel, 330 P.3d 330 (Alaska 2014). 81 Id.82 AS 25.23.020(a). Plaintiffs also argue that Alaska's marriage laws deprive same-sexcouples of "hundreds of rights and protections under Alaska law" but simply cite their owncomplaint. Pl. Mot. at 29.




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marriage as being between one woman and one man is not coupled with a denial of benefits to

same-sex couples. This is important because the determination of whether to vacate a

democratically passed law under the doctrine of judicial review inevitably involves a weighing

of the competing interests of democratic rule against the rights of minorities. In this state an

accommodation has been reached and it should be respected.

3. Even if the state's important government interests arguably could also beserved by redefining marriage to include same-sex marriage, this does notmake Alaska's laws unconstitutional.

Plaintiffs contend that the state's marriage laws are irrational because many of the

interests supporting the laws would not be undermined by permitting same-sex marriage. But thisargument misunderstands the role of the courts in reviewing democratically enacted legislation.

A court's role in reviewing a state's law is quite limited. As the Supreme Court has pointed out, a

court does not sit as a "super legislature;" instead, a law is presumed constitutional and the

burden is on the plaintiff to negate every conceivable basis. 83 In fact, a state has no obligation to

produce evidence to sustain the rationality of its laws because its choice is presumptively valid

and may be based on rational speculation unsupported by evidence or empirical data. 84 And the

existence of facts supporting the legislative judgment is to be presumed. 85

Moreover, even if it can be argued that a law is over inclusive or under inclusive,

this does not make it an unconstitutional law. 86 Thus, even if the state's law could be considered

over inclusive by creating an incentive for different sex couples to engage in responsible child

83 Heller v. Doe , 509 U.S. 312, 320 (1993).84 FCC v. Beach Communics, Inc ., 508 U.S. 307, 315 (1993).85 United States v. Carolene Prods ., 304 U.S. 144, 152 (1938); Under the rational basis test,a law is constitutional if there is any conceivable legitimate purpose for it. Eg. Schweiker v.Wilson, 450 U.S. 221 (1981).86 See eg. Vance v. Bradley, 440 U.S. 93, 108 (1979); Heller , 509 U.S. at 326.




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rearing because not all different sex couples can or want to procreate, this is not a basis for

finding the law unconstitutional. Similarly, an argument that many state objectives could be met

by including same-sex couples within the definition of marriage is an argument that the law is

under inclusive but that also is not a basis for finding a law to be unconstitutional at least under

rational basis review. 87 Accordingly, simply because a state's interests could, in the opinion of

some, be improved does not make the current laws invalid. Instead, the political process is the

route to be followed for making changes in existing law. 88

4. The state's marriage laws are not unconstitutional because of animus.

Of course, even a law typically reviewed under the rational basis test can be found to beunconstitutional because it is motivated by animus toward a group of individuals. 89 Plaintiffs

contend that because Alaska has maintained the traditional definition of marriage, its laws must

be the product of bias or animus toward same-sex couples. 90 This argument necessarily requires

the conclusion that the residents of Alaska were motivated by animus when they voted to retain

the traditional definition of marriage. There is no basis for such a conclusion. Plaintiffs could

never know what was in the hearts and minds of Alaska's many voters. And importantly, there is

no dispute that Alaska's voters retained the traditional definition of marriage which had existed

since statehood. Thus, this is not a case like Romer 91 where a state acted to withdraw specific

legal protections that had been previously granted to individuals because of their sexual

87 Id.88 City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 440 (1985)("The Constitution presumes that even improvident decisions will eventually be rectified by thedemocratic process.").89 See eg. Romer , 517 U.S. 620 (1996).90 Pl. Mot at 28-29 at doc. 20.91 517 U.S. 620 (1996).




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orientation. Further, as set forth above, Alaska's Supreme Court has reviewed the legislative

history of the Marriage Amendment and concluded that neither the voters in enacting the

provision nor the legislature in submitting the ballot provision sought to deny benefits or equal

protection of the law to same-sex couples. 92

Significantly, other courts have been quite unwilling to cast the residents of a state as

being motivated simply by bias or animus just because they voted to retain the traditional

definition of marriage. For example, Justice Holmes of the Tenth Circuit wrote in Bishop v.

Smith 93 that Oklahoma's traditional marriage law was not the result of animus because it was not

an across-the-board denial of rights to persons based on their sexual orientation such as in Romer and because it was not an "unusual" law because marriage has for virtually all times been defined

as including one woman and one man. This is consistent with Justice Kennedy's warning in

Schuette against concluding that voters are not capable of making decisions on sensitive or

divisive issues. 94

92 See ACLU v. State, 122 P.3d 781, 786 (Alaska 2005); State v. Schmidt, 323 P.3d 647; 658(Alaska 2014); Harris v. Millenium Hotel, 330 P.3d 330 (Alaska 2014). Plaintiffs' citation toselected portions of public testimony regarding SB 308 from 1996 (Pl. Attach. 1, doc. 27) inorder to support an animus argument is baseless because not only can a few individuals'comments not stand for the view of all of Alaska's voters and legislators but, as set forth above,Alaska's Supreme Court has concluded that Alaska's marriage law does not deny the right of

equal protection to same-sex couples. Additionally, it is significant to note that the state'smarriage laws do not provide that all different sex individuals may marry. For example, marriage

between several persons is prohibited and marriage between persons of certain ages is also not permitted. AS 25.05.021; AS 25.05.171.93 Bishop v. Smith, 2014 WL 3537847 at 22-30(10 th Cir. 2014) (Holmes, J. concurring).94 134 S.Ct. at 1636-1638.




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G. Loving v. Virginia is a race case that does not support the conclusion that astate's adoption of the traditional definition of marriage is unconstitutional.

The Loving v. Virginia 95 case is a classic race discrimination case which went to the heart

of the reason the Fourteenth Amendment was adopted: to provide equal protection for those

historically discriminated against on the basis of their race. In fact, the Supreme Court made this

clear in Loving : "The clear and central purpose of the Fourteenth Amendment was to eliminate

all official state sources of invidious racial discrimination in the Statesthe Equal Protection

Clause demands that racial classifications, especially suspect in criminal statutes, be subjected to

the most 'rigid scrutiny,' and, if they are ever to be upheld, they must be shown to be necessary to

the accomplishment of some permissible state objective, independent of the racial discrimination

which it was the object of the Fourteenth Amendment to eliminate." 96 In reversing the criminal

convictions of the couple in Loving , the Court declared that the Virginia law making it a crime

for white and black persons to marry was a product of "White Supremacy" and that "there can be

no doubt that restricting the freedom to marry solely because of racial classifications violates the

central meaning of the Equal Protection Clause." 97

Accordingly, plaintiffs' argument that Loving supports the conclusion that the state's

definition of marriage as between one man and one woman violates equal protection under the

Fourteenth Amendment is wrong because it misses the central holding of the Loving case which

was its rejection of a race based restriction on marriage as unlawful under the Fourteenth

Amendment. Moreover, the fact that the Supreme Court's focus in Loving was on impermissible

race discrimination is underscored by the fact that Loving, issued in 1967, was followed by

95 388 U.S. 1 (1967).96 Id. at 10 (internal citation omitted).97 Id. at 11.




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Baker v. Nelson in 1972 in which the Supreme Court rejected the possibility of finding a federal

constitutional right to same-sex marriage. If Loving controlled the issue raised in this case, the

Court would have reversed in Baker v. Nelson.

H. The State's marriage laws do not unconstitutionally discriminate on the basis ofsex.

Plaintiffs contend that Alaska's marriage laws constitute unlawful sex discrimination

because they do not permit same-sex marriage. 98 But the state's laws apply equally to both men

and women. Neither a man nor a woman can marry a person of the same sex. And plaintiffs have

made no showing that the marriage laws were enacted for the purpose of discriminating against

women or men. 99 Most courts which have considered challenges to traditional marriage laws

based on a sex discrimination theory have rejected the claim. 100 It is urged that this court as well

should reject the argument that the state's marriage laws discriminate on the basis of gender

given that they expressly do not do so.

I. Alaska's laws prohibiting recognition of same-sex marriages from other jurisdictions do not violate plaintiffs' constitutional rights.

It is well established that a state is not required under the federal Constitution "to apply

another state's law in violation of its own legitimate public policy." 101 Nonetheless, plaintiffs

argue that Alaska must recognize same-sex marriages entered into outside of Alaska even though

98 Pl. Memo. at 31-33.99 See Personnel Adm'r v. Feeney, 442 U.S. 256, 274 (1979) (a statute that is non-discriminatory on its face still could have a purpose to discriminate against one sex).100 Eg. Jackson v. Abercrombie , 884 F. Supp. 2d 1065, 1098-1071 (D. Haw. 2012), appeals

pending , Nos. 12-16995 and 12-16998 (9 th Cir.) ("Hawaii's marriage laws do not treat males andfemales differently as a class; consequently, the laws do not discriminate on the basis ofgender."); Hernandez v. Robles , 855 N.E.2d 1, 10 (N.Y. 2006) ("By limiting marriage toopposite-sex couples, New York is not engaging in sex discrimination."). 101 Nevada v. Hall, 440 U.S. 410, 422 (1979).




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Alaska's Constitution does not define marriage in that manner. 102 As set forth above, there is no

question that the states under the Constitution have the authority to define marriage and enact

laws regarding domestic relations for their residents. 103 Plaintiffs' effort to force recognition of

out-of-state marriages, if accepted, would simply nationalize same-sex marriage and as a result

defeat the states' authority under the federal system to define marriage. For the same reasons that

Alaska's laws defining marriage as between one woman and one man do not violate the federal

Constitution, the state's recognition laws also do not violate the Constitution. 104

J. Recent court decisions do not compel the conclusion that the Supreme Court hasdecided that same-sex marriage is a constitutional right; instead, they reveal

judicial policy making.Plaintiffs assert that the recent run of court decisions abrogating state marriage laws over

the past few months supports their arguments and makes it clear that the legal conclusion in this

case is obvious. 105 But a careful consideration of these recent decisions leads to a very different

and troubling conclusion. Specifically, many courts seem to be treading close to if not crossing

the line from performing an appropriate but very deferential review of a state's democratically

enacted laws to a review which in reality is the substitution of a court's own policy judgment for

that of the voters. This is a serious issue. The equal protection clause "is not a license for courts

to judge the wisdom, fairness, or logic of [the voters'] choices." 106 When a court reviews a state's

laws, particularly those enacted directly by the people, it must be careful that it is not substituting

its own subjective point of view regarding what is a good policy in the guise of deciding whether

102 Pl. Mot at 34-40 at doc. 20.103 Windsor, 133 S.Ct. at 2691-92.104 Also, the state is not required to recognize same-sex marriages entered into outside of thisstate under Section 2 of DOMA. 28 U.S.C. Sec. 1738C.105 Pl. Memo. at 1, 21 at doc. 20.106 F.C.C. v. Beach Communications, Inc., 508 U.S. 307, 313 (1993).




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a law is rational or not. It is hard not to see this problem at work considering the large number of

district courts that in the span of less than a year have determined that there is a constitutional

right to same-sex marriage when this was certainly far from the consensus only a year or two

ago. 107

What has happened? Plaintiffs will say that the Supreme Court's decision in Windsor

requires that states define marriage to include same-sex marriage. But although it could have,

Windsor emphatically did not decide that there was a constitutional right to same-sex marriage

and did not even state that classifications based on sexual orientation were subject to any

heightened standard of review. Instead, the Court in Windsor expressly stated that the definitionof marriage and related issues of domestic relations have historically been for the states to

resolve:

The recognition of civil marriages is central to state domestic relations lawapplicable to its residents and citizensThe definition of marriage is thefoundation of the State's broader authority to regulate the subject ofdomestic relations 'The states, at the time of the adoption of theConstitution, possessed full power over the subject of marriage anddivorce.the Constitution delegated no authority to the G overnment ofthe United States on the subject of marriage and divorce.' 108

So if Windsor does not mandate the outcome in these cases, how else to explain the

recent decisions. Plaintiffs' explanation is that state laws defining marriage as between one

107 See, e.g., Citizens for Equal Protection v. Bruning, 455 F.3d 859, 867-68 (8 th Cir. 2006); Jackson v. Abercrombie , 884 F.Supp. 2d 1065 (D. Haw. 2012), appeals pending , Nos. 12-16995and 12-16998 (9 th Cir.); Sevcik v. Sandoval , 911 F.Supp. 2d 996, 1014-18 (D. Nev. 2012), appeal

pending , Nos. 12-17668 (9 th Cir.); Andersen v. King County , 138 P.3d 963, 982-83 (Wash.2006); Hernandez v. Robles , 855 N.E.2d 1, 6-9 (N.Y. 2006).108 Windsor, 133 S.Ct. at 2689-2691.




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woman and one man are so irrational that they must be declared unconstitutional. 109 But how can

an idea such as defining marriage according to its traditional definition of one woman and one

man go from being rational to utterly irrational in a matter of months? And if the historic

definition of marriage is utterly irrational, then it is more than a little puzzling that a long line of

judges over the past several years in many courts across the country were unable to detect an

irrational law when they saw one because they upheld the constitutionality of state laws defining

marriage. 110 And Supreme Court justices too apparently could not differentiate between

a rational and an irrational law when considering cases that involved sexual orientation claims.

For example, plaintiffs cite Lawrence v. Texas in support of their claim that the traditionaldefinition of marriage is unconstitutional but in Lawrence Justice O'Connor supported the

Court's decision by pointing out that "Texas cannot assert any legitimate state interest here, such

as national security or preserving the traditional institution of marriage. "111

In these circumstances, the recent run of decisions does not support plaintiffs' position

but instead, unfortunately, looks like not much more than an intervention by some courts into the

law-making process that ought to be and has until now been - reserved for the people.

CONCLUSION

The core issue presented by this complaint is who should decide the basic question of

whether or not to redefine marriage within the states: the people or the courts. The State urges

that the issue should be resolved through the democratic process, with residents of each state free

109 Under the rational basis test, a law is constitutional if there is any conceivable legitimate purpose for it. Eg. Schweiker v. Wilson , 450 U.S. 221 (1981).110 Note 107.111 Lawrence v. Texas, 539 U.S. 558, 585 (2003) (emphasis supplied).




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