In The United States Court of Appeals For The Ninth Circuit: Plaintiffs-Appellees

No.
14-35856

In the United States Court of Appeals for the Ninth Circuit

MATTHEW HAMBY, et al.,
PlaintiffsAppellees,
v.

SEAN C. PARNELL, in his official capacity as Governor of Alaska, et al.,
DefendantsAppellants
_______________________
On appeal from the United States District Court, District of Alaska
No. 3:14-cv-00089-TMB
_______________________

APPELLANTS PETITION FOR INITIAL EN BANC HEARING
_______________________

MICHAEL C. GERAGHTY
Attorney General of Alaska
WILLIAM MILKS
KEVIN WAKLEY
Assistant Attorneys General
ALASKA ATTORNEY GENERALS OFFICE
P.O. Box 110300
Juneau, AK 110300
907.465.3600
bill.milks@alaska.gov
S. KYLE DUNCAN
DUNCAN PLLC
1629 K Street NW, Suite 300
Washington, DC 20006
202.714.9492
kduncan@duncanpllc.com

Counsel for Appellants

October 22, 2014

Case: 14-35856 10/22/2014 ID: 9286999 DktEntry: 7 Page: 1 of 52
FRAP 35(B) STATEMENT

En banc hearing is warranted because Alaskas appeal presents a
question of extraordinary importance whose outcome is controlled by
erroneous circuit precedent.
Compelled by Latta v. Otter, __ F.3d __, 2014 WL 4977682 (9th Cir.
Oct. 7, 2014), the district court ruled that the Fourteenth Amendment
requires Alaska to license and recognize same-sex marriages, contrary
to its Constitution and laws. But Lattas imposition of heightened
scrutiny on state marriage laws places this circuit on the short end of a
10-2 split, and contradicts the Supreme Courts Windsor decision.
SmithKline Beecham Corp. v. Abbott Labs., 759 F.3d 990, 992-93 (9th
Cir. 2014) (OScannlain, J., dissenting). Absent en banc hearing,
Alaskas appeal will be controlled by Latta, which effectively guarantees
the invalidity of all man-woman marriage laws in this circuit.
Resolution of an issue of that magnitude deserves the Courts plenary
consideration. Otherwise, Alaskas citizens will be stripped of any
ability to vindicate their historic and essential authority to define the
marital relation, United States v. Windsor, 133 S. Ct 2675, 2692 (2013).

ii
Appellants therefore respectfully ask the Court to grant initial en
banc hearing to review the district courts decision that the Equal
Protection and Due Process Clauses of the Fourteenth Amendment
compel Alaskas citizens to license and recognize same-sex marriages.
That decision was incorrect and the en banc Court, following briefing
and oral argument, should reverse it. See Conde-Vidal v. Garcia-
Padilla, slip op. at 16 (D. Puerto Rico Oct. 21, 2014) (No. 14-cv-1253)
(concluding Windsor did not create a fundamental right to same
gender marriage nor did it establish that state opposite-gender
marriage regulations are amenable to federal constitutional
challenges, and observing, [i]f anything, Windsor stands for the
opposite proposition: it reaffirms the States authority over
marriage[.]); Robicheaux v. Caldwell, 2 F.Supp.3d 910, 913, 920, 923
(E.D. La. 2014) (holding post-Windsor that Louisiana has a legitimate
interest under a rational basis standard for addressing the meaning of
marriage through the democratic process, and rejecting equal
protection and due process challenges), appeals docketed, No. 14-31037
(5th Cir. Sept. 4, 5, & 8, 2014); Kitchen v. Herbert, 755 F.3d 1193, 1234-
39 (10th Cir. 2014) (Kelly, J., concurring in part and dissenting in part)

iii
(concluding the Constitution does not compel the State to recognize
same-gender marriage within its own borders [and] a fortiori it
need not recognize those solemnized without), cert. denied, 83 U.S.L.W.
3102, 2014 WL 3841263 (U.S. Oct. 6, 2014); Bostic v. Schaefer, 760 F.3d
352, 397 (4th Cir. 2014) (Niemeyer, J., dissenting) (Because there is no
fundamental right to same-sex marriage and there are rational reasons
for not recognizing it, just as there are rational reasons for recognizing
it, I conclude that we, in the Third Branch, must allow the States to
enact legislation on the subject in accordance with their political
processes.), cert. denied, 83 U.S.L.W. 3102, 2014 WL 3924685 (U.S.
Oct. 6, 2014).
s/ William Milks
William Milks
Kevin Wakley
s/ S. Kyle Duncan
S. Kyle Duncan



iv
TABLE OF CONTENTS

FRAP 35(b) Statement ................................................................................. i

Table of Authorities .................................................................................... v

Statement of Facts ...................................................................................... 2

Reasons for Granting Initial En Banc Hearing ......................................... 3

Conclusion ................................................................................................. 10

Certificate of Service ................................................................................. 11

APPENDIX

District Courts October 12, 2014 Order and Opinion ......................... A

Notice of Appeal ..................................................................................... B

District Courts October 14, 2014 Final Judgment .............................. C


v
TABLE OF AUTHORITIES

Cases
Batson v. Kentucky,
476 U.S. 79 (1986) .................................................................................. 3

Bostic v. Schaefer,
760 F.3d 352 (4th Cir. 2014) ......................................................... ii-iii, 7

Conde-Vidal v. Garcia-Padilla,
No. 14-cv-1253 (D. Puerto Rico Oct. 21, 2014) ................................. ii, 6

Connolly v. Jeanes,
No. 2:14-cv-00024 (D. Ariz. Oct. 17, 2014) ........................................... 4

Haddock v. Haddock,
201 U.S. 562 (1906) ................................................................................ 9

Kitchen v. Herbert,
755 F.3d 1193 (10th Cir. 2014) .................................................. ii-iii, 6-7

Latta v. Otter,
__ F.3d __, 2014 WL 4977682 (9th Cir. Oct. 7, 2014) .................... i, 3, 4

Louisville Gas & Elec. v. Coleman,
277 U.S. 32 (1928) .................................................................................. 8

Majors v. Horne,
No. 2:14-cv-00518 (D. Ariz. Oct. 17, 2014) ........................................ 4, 5

Robicheaux v. Caldwell,
2 F.Supp.3d 910 (E.D. La. 2014) ....................................................... ii, 6

Romer v. Evans,
517 U.S. 620 (1996) ...................................................................... 7-8, 10

SmithKline Beecham Corp. v. Abbott Labs.,
740 F.3d 471 (9th Cir. 2014) .................................................................. 3

vi

SmithKline Beecham Corp. v. Abbott Labs.,
759 F.3d 990 (9th Cir. 2014) ............................................................... i, 4

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

Williams v. North Carolina,
317 U.S. 287 (1942) ................................................................................ 5

Windsor v. United States,
699 F.3d 169 (2d Cir. 2012) .................................................................... 9

Statutes
42 U.S.C. 1983 .......................................................................................... 1

ALASKA STAT. 25.05.011 ........................................................................... 1

ALASKA STAT. 25.05.013 ........................................................................... 1

Rules
FED. R. APP. P. 4 .......................................................................................... 2

Orders
Herbert v. Kitchen,
134 S. Ct. 893 (2014) .............................................................................. 3

Herbert v. Kitchen,
83 U.S.L.W. 3102, 2014 WL 3841263 (U.S. Oct. 6, 2014) .................... 6

Order in Hamby v. Parnell, No. 14-35856 (9th Cir. Oct. 15, 2014) .......... 2

Parnell v. Hamby,
No. 14A413 (U.S. Oct. 17, 2014) ............................................................ 3

Rainey v. Bostic,
83 U.S.L.W 3102, 2014 WL 3924685 (U.S. Oct. 6, 2014) ..................... 6


vii
Constitutional Provisions
U.S. Const. amend. XIV ...................................................................... i, ii, 1

ALASKA CONST. art. I, 25 .......................................................................... 1

Other Authorities
Merits Br. for United States,
United States v. Windsor, 133 S. Ct. 2675 (2013) (No. 12-307) ............ 9

Petn for Rehg En Banc,
Latta v. Otter (9th Cir. Nos. 14-35420 & 14-35421) .......................... 5-6

Petn for Rehg En Banc,
Sevcik v. Sandoval (9th Cir. No. 12-17668) .......................................... 5

STATEMENT OF FACTS
1. Alaskas citizens define civil marriage as consisting only of the
relationship between a man and a woman. ALASKA CONST. art. I, 25
(1998) (providing [t]o be valid or recognized in this State, a marriage
may exist only between one man and one woman); ALASKA STAT.
25.05.011 (1996) (defining marriage as, inter alia, a civil contract
entered into by one man and one woman). Alaska does not recognize
out-of-state same-sex marriages. ALASKA STAT. 25.05.013(a), (b) (1996)
(providing an out-of-state marriage entered into by persons of the same
sex is void in this state and may not be recognized by the state as
being entitled to the benefits of marriage).
2. Appellees are five same-sex couples married outside Alaska and
one unmarried same-sex couple. They sued Appellants under 42 U.S.C.
1983, claiming Alaskas marriage laws violate the Fourteenth
Amendment by declining to license or recognize same-sex marriages. On
October 12, 2014, the United States District Court for the District of
Alaska granted Appellees motion for summary judgment, declaring
that Alaskas marriage laws violate both the equal protection and due
process guarantees of the Fourteenth Amendment. The order

2
immediately enjoined Appellants from enforcing Alaskas laws to the
extent that [they] prohibit otherwise qualified same-sex couples from
marriage and refus[e] to recognize lawful same-sex marriages entered
in other states. Order at 25. The district courts equal protection
analysis was controlled by Latta, entered less than a week earlier. Id. at
8 (Latta unambiguously requires that the Court employ a heightened
standard of review to this case.).
3. The following day, October 13, Appellants filed a notice of appeal
and moved for an emergency stay of the district courts order pending
appeal, which the district court denied on October 14.
1
That same
evening, appellants applied to this Court for an emergency stay pending
appeal. The next day, a panel consisting of Judges OScannlain, Berzon,
and Bybee grant[ed] a temporary stay of the district courts order until
12 noon PDT on Friday, October 17, 2014, to afford appellants an
opportunity to seek a stay from the United States Supreme Court.
Order in Hamby v. Parnell, No. 14-35856 (9th Cir. Oct. 15, 2014), at 1.
Partially dissenting, Judge OScannlain would have granted the stay

1
On October 14, the district court entered final judgment with respect to its
October 12 order. Appellants notice of appeal, filed October 13, is deemed to have
been filed on the day of entry of final judgment. FED. R. APP. P. 4(a)(2).

3
motion in its entirety. Id. at 2 (While I concur in affording the state of
Alaska the opportunity to seek a stay from the Supreme Court, I would
grant the stay pending appeal in this court.) (citing Herbert v. Kitchen,
134 S. Ct. 893 (2014)). Pursuant to the panels order, Appellants sought
an emergency stay from the Supreme Court on October 16, which was
denied the next day. Parnell v. Hamby, No. 14A413 (U.S. Oct. 17, 2014).
REASONS FOR GRANTING INITIAL EN BANC HEARING
Initial en banc hearing is warranted for the following reasons.
1. Alaskas appeal is controlled by a panel decision, Latta, which puts
this circuit out of step with ten other circuits and the Supreme Court.
Latta applied heightened scrutiny to evaluate equal-protection
challenges to state marriage laws. Latta, 2014 WL 4977682, at *4
(applying the law of our circuit under which classifications on the
basis of sexual orientation are subject to heightened scrutiny). The
decision drew on SmithKline Beecham Corp. v. Abbott Laboratories, 740
F.3d 471, 481-83 (9th Cir.), rehg en banc denied, 759 F.3d 990 (9th Cir.
2014), an antitrust case that applied heightened scrutiny to determine
whether the Constitution prohibits juror strikes based on sexual
orientation. See Batson v. Kentucky, 476 U.S. 79 (1986). This Court

4
declined to act on a sua sponte call to rehear SmithKline en banc,
despite the fact that SmithKline was the first opinion among our sister
circuits to apply heightened scrutiny to an equal protection claim in
light of Windsor, and that [e]very circuit court but our ownand the
Second Circuit in Windsor, in a maneuver the Supreme Court declined
to followhas held to the contrary. SmithKline, 759 F.3d at 991
(OScannlain, J., dissenting from denial of en banc rehearing).
2. By extending SmithKline, Latta has raised the stakes of its
erroneous holding by orders of magnitude. Latta used SmithKline to
strike down man-woman marriage definitions in Nevada and Idaho,
and its precedential force has already resulted in the invalidation of the
marriage laws in Alaska and Arizona. See Connolly v. Jeanes, slip op. at
2 (D. Ariz. Oct. 17, 2014) (No. 2:14-cv-00024); Majors v. Horne, slip op.
at 2 (D. Ariz. Oct. 17, 2014) (No. 2:14-cv-00518). Latta thus used the
reasoning in a juror-challenge casewhich was wrong to begin withto
invalidate the fundamental democratic authority of state citizens to
shape their marriage laws. See, e.g., Windsor, 133 S. Ct. at 2691 (noting
that [t]he significance of state responsibilities for the definition and
regulation of marriage dates to the Nations beginning).

5
3. The panel hearing Alaskas appeal will be bound by Lattas
heightened-scrutiny analysis. See, e.g., Majors, supra, slip op. at 3
(observing that, in light of Latta, [i]t is clear that an appeal to the
Ninth Circuit would not succeed). This will nullify Alaskas ability to
defend its citizens exercise of a core aspect of their sovereignty. See,
e.g., Windsor, 133 S. Ct. at 2691 (The definition of marriage is the
foundation of the States broader authority to regulate the subject of
domestic relations with respect to the [p]rotection of offspring, property
interests, and the enforcement of marital responsibilities) (quoting
Williams v. North Carolina, 317 U.S. 287, 298 (1942)). Only en banc
hearing can preserve Alaskas ability to challenge Lattas flawed
premises and reclaim its historic and essential authority to define the
marital relation. Windsor, 133 S. Ct. at 2692.
4. En banc hearing will not only preserve Alaskas right to effectively
vindicate its citizens sovereignty on appeal, but it will also conserve
judicial resources. An en banc petition is already pending in Sevcik v.
Sandoval, the Nevada case consolidated with Latta. See Petn for Rehg
En Banc in Sevcik v. Sandoval (9th Cir. No. 12-17668) (filed Oct. 13,
2014). Yesterday, Idaho filed an en banc petition in Latta. See Petn for

6
Rehg En Banc in Latta v. Otter (9th Cir. Nos. 14-35420 & 14-35421)
(filed Oct. 21, 2014). It would accomplish nothing to make Alaska wind
its way through an effectively pre-determined panel process, while en
banc petitions presenting the same issue are already pending. The far
more efficient course is to hear Alaskas appeal en banc now.
5. Furthermore, en banc hearing is justified in view of the national
landscape on this rapidly developing issue. The Supreme Court has
signaled its unwillingness to intervene at this time, evidently because
there is yet no post-Windsor circuit split. See, e.g., Rainey v. Bostic, 83
U.S.L.W 3102, 2014 WL 3924685 (U.S. Oct. 6, 2014) (Mem.); Herbert v.
Kitchen, 83 U.S.L.W. 3102, 2014 WL 3841263 (U.S. Oct. 6, 2014) (Mem.)
(denying petitions for certiorari); but see Conde-Vidal, slip op. at 16
(observing, [i]f anything, Windsor reaffirms the States authority
over marriage); Robicheaux, 2 F.Supp.3d at 913, 920, 923 (holding
post-Windsor that Louisiana has a legitimate interest under a rational
basis standard for addressing the meaning of marriage through the
democratic process); Kitchen, 755 F.3d at 1234-39 (Kelly, J., concurring
in part and dissenting in part) (concluding the Constitution does not
compel the State to recognize same-gender marriage within its own

7
borders [and] a fortiori it need not recognize those solemnized
without); Bostic, 760 F.3d at 397 (Niemeyer, J., dissenting) (Because
there is no fundamental right to same-sex marriage and there are
rational reasons for not recognizing it, just as there are rational reasons
for recognizing it, I conclude that we, in the Third Branch, must allow
the States to enact legislation on the subject in accordance with their
political processes.). The responsibility thus falls in the short run to
circuit courts. Plenary consideration by this Court would aid
immeasurably in this ongoing national discussion.
6. Finally, en banc hearing is warranted because Latta is wrong:
applying heightened scrutiny to state marriage definitions on the theory
that they classify by sexual orientation flatly contradicts Windsor.
a. When it invalidated the federal marriage definition in DOMA,
Windsor reasoned that [d]iscriminations of an unusual character
merit careful consideration to determine whether they are obnoxious to
the constitutional provision. 133 S. Ct. at 2692 (quoting Romer v.
Evans, 517 U.S. 620, 633 (1996)). By applying careful consideration to
DOMA, Windsor could not possibly have mandated heightened scrutiny.
Windsor was directly quoting Romer, which applied rational basis

8
review to a Colorado constitutional amendment that classified by sexual
orientation. See Romer, 517 U.S. at 633 (asking whether the challenged
provision b[ore] a rational relationship to an independent and
legitimate legislative end). Romer, in turn, drew its careful
consideration language from a case invalidating a state tax under
rational basis review. See Louisville Gas & Elec. v. Coleman, 277 U.S.
32, 37-38 (1928) (tax must bear[ ] a reasonable and just relation to the
act in respect to which the classification is proposed) (quotes omitted).
Neither Windsor nor Romer authorizes application of anything other
than rational basis review to sexual orientation classifications.
b. Furthermore, Windsor found DOMAs marriage definition was
unusual, not because it classified by sexual orientation, but because it
depart[ed] from [the] history and tradition of [federal] reliance on state
law to define marriage. Windsor, 133 S. Ct. at 2692; see also id. at 2691
(Consistent with this allocation of authority, the Federal Government,
through our history, has deferred to state-law policy decisions with
respect to domestic relations.). This federal deference to state authority
to define marriage was of central relevance to Windsor. Id. at 2692.
Thus, even assuming Windsor applied something north of rational basis

9
review to DOMAs definitionwhich is doubtfulthe decision cannot
mean that a States marriage definition merits similar scrutiny. To the
contrary, a state marriage definition is the opposite of DOMAs federal
definition: far from a novel intrusion into domestic relations law, when
a State legislates in this realm it exercises its historic and essential
authority to define the marital relation. Id; see also, e.g., id. at 2691
(explaining that 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 (quoting Haddock v. Haddock, 201 U.S. 562, 575 (1906)).
c. Nor does Windsor support finding that gays and lesbians are a
suspect class. In Windsor the Supreme Court had ample opportunity
to adopt this theory, but did not. The Second Circuit opinion had
analyzed the suspect-class factors and applied heightened scrutiny.
Windsor v. United States, 699 F.3d 169, 181-85 (2d Cir. 2012). The
Solicitor General spent nineteen pages making the same argument.
Merits Br. for United States at 16-36, United States v. Windsor, 133 S.
Ct. 2675 (2013) (No. 12-307). And the Attorney General had earlier

10
announced the Presidents view that classifications based on sexual
orientation should be subject to a heightened standard of scrutiny.
Windsor, 133 S. Ct. at 2683. Despite all this, Windsor did not even
mention the suspect-class factors nor adopt heightened scrutiny. Surely,
had the Supreme Court intended to do soand in the process overrule
Romer and reject numerous circuit decisionsit would have said so.
CONCLUSION
Alaska respectfully asks the Court to grant initial en banc hearing.
Respectfully submitted,
MICHAEL C. GERAGHTY
Attorney General of Alaska

s/ William Milks
WILLIAM MILKS (ABA 0411094)
KEVIN WAKLEY (ABA 1405019)
ALASKA ATTORNEY GENERALS OFFICE
P.O. Box 110300
Juneau, AK 110300
Tel: 907.465.3600
Fax: 907.465.2520
Email: bill.milks@alaska.gov
s/ S. Kyle Duncan
S. KYLE DUNCAN
*
(DC Bar No.
1010452)
DUNCAN PLLC
1629 K Street NW, Suite 300
Washington, DC 20006
Tel: 202.714.9492
Fax: 571.730.4429
Email: kduncan@duncanpllc.com


"
Application for Ninth Circuit admission pending.

11
CERTIFICATE OF SERVICE
I hereby certify that on October 22, 2014 I filed the foregoing petition
through the Courts CM/ECF system, which will send electronic notice
of filing to the following counsel of record:

Heather L. Gardner (ABA 0111079)
Caitlin Shortell (ABA 0405027)
Shortell Gardner
645 G Street, Suite 100-807
Anchorage, AK 99501
Phone: (907) 272-8181
Fax: (888) 526-6608
hgardnerlaw@yahoo.com
Caitlin@Caitlinshortell.com

Allison E. Mendel (ABA 8310136)
Mendel & Associates, Inc.
1215 W. 8th Avenue
Anchorage, Alaska 99501
Phone: (907) 279-5001
Fax: (907) 279-5437
amendel@mendelandassociates.com

Counsel for Appellees

s/ William Milks
William Milks


Appendix A
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA

MATTHEW HAMBY, et al.,

Plaintiffs,

v.

SEAN C. PARNELL, et al.,

Defendants.

Case No. 3:14-cv-00089-TMB

O R D E R

I. INTRODUCTION
The issue in this case is whether Alaskas constitutional and statutory provisions prohibiting
same-sex marriage and the recognition of same-sex marriages lawfully entered in other states
violate the Fourteenth Amendment of the United States Constitution.
1
The Plaintiffs are five same-
sex couples living in Alaska; four of the couples are lawfully married in other states and one couple
is unmarried but seeks to marry in Alaska (Plaintiffs).
2
All couples wish to have their
commitments legally recognized by the State of Alaska. The Defendants, sued in their official
capacities, are: Sean Parnell, the Governor of the State of Alaska; Michael Geraghty, the Attorney
General of the State of Alaska; William J . Streur, the Commissioner of the Alaska Department of
Health and Human Services; and Phillip Mitchell, the section chief of the Division of Public Health
of the Alaska Department of Health and Social Services for the Alaska Bureau of Vital Statistics
(Defendants).
3

1
See Dkt. 1.

2
Dkt. 20 at 10.

3
Dkt. 1 at 7-8.
1

Case 3:14-cv-00089-TMB Document 38 Filed 10/12/14 Page 1 of 25
Plaintiffs brought this action pursuant to 42 U.S.C. 1983 and filed a motion for summary
judgment, arguing that Alaskas laws banning same-sex marriage and refusing to recognize a
same-sex marriage lawfully entered in another state violate both the Due Process and Equal
Protection Clauses of the Fourteenth Amendment of the U.S. Constitution.
4
Plaintiffs seek
declaratory and injunctive relief.
5
The Defendants deny any violation of the Plaintiffs
constitutional rights and therefore seek summary judgment as a matter of law in their favor.
6

For the reasons that follow, the Plaintiffs motion for summary judgment is GRANTED. The
Court finds that Alaskas ban on same-sex marriage and refusal to recognize same-sex marriages
lawfully entered in other states is unconstitutional as a deprivation of basic due process and equal
protection principles under the Fourteenth Amendment of the U.S. Constitution.
II. BACKGROUND
Plaintiffs challenge the constitutionality of three Alaskan laws: Article 1, Section 25 of the
Alaska Constitution and Alaska statutes Section 25.05.011 and Section 25.05.013 (collectively,
the same-sex marriage laws). Article 1, Section 25 of the Alaska Constitution, adopted in 1998
and effective in 1999, confines the definition of a valid marriage to couples of the opposite sex:
25. Marriage
To be valid or recognized in this State, a marriage may exist only between one man and
one woman.
7

4
See Dkt. 20.

5
Dkt. 1 at 2, 33.

6
Dkt. 31.

7
AK CONST. Art. 1, 25 (1998).

2

Alaska statute Section 25.05.011, enacted in 1996, reiterates the definition of marriage as being
between male-female couples and prevents the solemnization of any marriage that does not meet
that requirement:
25.05.011. Civil Contract
(a) Marriage is a civil contract entered into by one man and one woman that requires
both a license and solemnization. The man and the woman must each be at least one
of the following:
(1) 18 years of age or older and otherwise capable;
(2) Qualified for a license under Alaska Stat. 25.05.171; or
(3) A member of the armed forces of the United States while on active duty.
(b) A Person may not be joined in marriage in this state until a license has been obtained
for that purpose as provided in this chapter. A marriage performed in this state is not
valid without solemnization as provided in this chapter.
8

Alaska law recognized valid marriages entered in other states. However, in 1996, Section
25.05.013 was written to specifically exclude out-of-state same-sex marriages from that formal
recognition. It provides:
25.05.013. Same-sex marriages.
(a) A marriage entered into by persons of the same sex, either under common law or
under statute, that is recognized by another state or foreign jurisdiction is void in this
state, and contractual rights granted by virtue of the marriage, including its
termination, are unenforceable in this state.
(b) A same-sex relationship may not be recognized by the state as being entitled to the
benefits of marriage.
9

In combination, the same-sex marriage laws specifically identify homosexual couples as a
group that is (1) not entitled to the benefits and responsibilities conferred by marriage, and (2)
excluded from having lawful out-of-state marriages recognized by the State of Alaska. The
Plaintiffs argue that the laws effect stigmatizes same-sex couples and their children by relegating
them to a second class status, as well as undermines the Plaintiffs ability to achieve their
8
ALASKA STAT. 25.05.011 (1996).

9
ALASKA STAT. 25.05.013 (1996).
3

aspirations, disadvantages them financially, and denies them dignity and status of immense
import.
10
The Plaintiffs allege that these harms deprive them of their rights under the Fourteenth
Amendment, which include the right of all people to choose whom to marry and to be treated
equally under the law.
11

III. LEGAL STANDARD
Summary judgment is appropriate where there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.
12
The facts of this case are not in
dispute; the Plaintiffs present a facial challenge to the constitutionality of Alaskas laws prohibiting
same-sex marriage and the recognition of same-sex marriages lawfully entered in other states.
Challenges regarding facial constitutionality implicate only issues of law.
13
If Plaintiffs
demonstrate that Alaskas same-sex marriage laws are facially invalid, the Court will strike the
laws as unconstitutional.
14

The Fourteenth Amendment of the U.S. Constitution provides, in relevant part, that no state
shall deprive any person of life, liberty, or property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the laws.
15
At the heart of [Fourteenth
Amendment] liberty is the right to define ones own concept of existence, of meaning, of the
10
Dkt. 1 at 11 (quoting United States v. Windsor, 133 S.Ct. 2675, 2692 (2013)).

11
Dkt. 20 at 11; see Zablocki v. Redhail, 434 U.S. 374, 384 (1978).

12
Fed. R. Civ. P. 56(a).

13
See, e.g., U.S. v. Bynum, 327 F.3d 986, 990 (9th Cir. 2003).

14
See Citizens United v. Federal Election Comn, 558 U.S. 310, 312 (2010).

15
U.S. CONST. amend. XIV.

4

universe, and of the mystery of human life. Beliefs about these matters could not define the
attributes of personhood were they formed under compulsion of the State.
16
While the power to
define and regulate marriage is allocated to the separate states, state laws still may not infringe
upon individual constitutional rights.
17
Although the freedoms guaranteed by the Due Process and
Equal Protection Clauses of the Fourteenth Amendment are closely related and often intersect,
18

the Court will address each clause in turn.
A. The Due Process Clause
Due process under the Fourteenth Amendment, containing both procedural and substantive
components, protects all fundamental rights comprised within the term libertyfrom invasion by
the States.
19
Protection provided by the substantive component of due process barr[s] certain
government actions regardless of the fairness of the procedures used to implement them[and]
serves to prevent governmental power from being used for purposes of oppression.
20

Furthermore, [n]either the Bill of Rights nor the specific practices of States at the time of the
adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty
which the Fourteenth Amendment protects.
21

16
Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 851 (1992).

17
See, e.g., Windsor, 133 S.Ct. at 2680; Loving v. Virginia, 388 U.S. 1, 7 (1967).

18
Lawrence v. Texas, 539 U.S. 558, 575 (2003) (Equality of treatment and the due process
right to demand respect for conduct protected by the substantive guarantee of liberty are linked
in important respects.).

19
Casey, 505 U.S. at 846-47 (quoting Whitney v. California, 274 U.S. 357, 373 (1927)).

20
Daniels v. Williams, 474 U.S. 327, 331 (1986) (internal citation omitted) (quoting Den ex
dem. Murray v. Hoboken Land & Imp. Co., 59 U.S. 272, 277 (1855)).

21
Casey, 505 U.S. at 848.
5

To be considered fundamental, a right must be objectively, deeply rooted in the Nations
history and tradition
22
and implicit in the concept of ordered liberty to the point that neither
liberty nor justice would exist if they were sacrificed.
23
In addition to procreation, contraception,
family relationships, child rearing, and education,
24
the Supreme Court has consistently recognized
that an individuals choice to marry is a fundamental right protected by due process.
25
While the
power to define and regulate marriage is allocated to the separate states, state laws still may not
infringe upon individual constitutional rights.
26

Here, the Court is initially tasked with determining whether the right to marry an individual of
the same sex and the right to have legal recognition of a same-sex marriage entered in another state
are fundamental rights. If so, the Court asks whether and to what degree Alaskas same-sex
marriage laws infringe upon those rights.
27
If the laws significantly interfere with the Plaintiffs
22
Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997).

23
Palko v. Connecticut, 302 U.S. 319, 325-26 (1937) (overruled on other grounds by Benton v.
Maryland, 395 U.S. 784 (1969)).

24
Carey v. Population Services Intl, 431 U.S. 678, 685 (1977).

25
See Turner v. Safley, 482 U.S. 78, 95 (1987) ([T]he decision to marry is a fundamental right
and is of fundamental importance for all individuals.); Cleveland Bd. of Educ. v. La Fleur,
414 U.S. 632, 639-640 (1974) (This Court has long recognized that freedom of personal choice
in matters of marriage and family life is one of the liberties protected bythe Fourteenth
Amendment.); Loving, 388 U.S. at 12 (The freedom to marry has long been recognized as one
of the vital personal rights essential to the orderly pursuit of happinessfundamental to our very
existence and survival.).

26
See, e.g., Windsor, 133 S.Ct. at 2680; Loving, 388 U.S. at 7.

27
Beller v. Middendorf, 632 F.2d 788, 807 (9th Cir. 1980) ([S]ubstantive due process scrutiny
of a government regulation involves a case-by-case balancing of the nature of the individual
interest allegedly infringed, the importance of the government interest furthered, the degree of
infringement, and the sensitivity of the government entity responsible for the regulation to more
carefully tailored alternative means of achieving its goals.).

6

rights, the laws cannot be upheld unless [they are] supported by sufficiently important state
interests and [are] closely tailored to effectuate only those interests.
28

B. The Equal Protection Clause
In analyzing an equal protection challenge, the Court first identifies the classification made by
the state.
29
Depending on the classification, the Court uses different standards of review to
determine whether a law violates equal protection.
30
The highest level of scrutiny, strict scrutiny,
applies to suspect classes (e.g., classifications based on race, religion, and national origin) and
requires the government to prove that a discriminatory law is narrowly tailored to achieving a
compelling state interest.
31
The lowest level of scrutiny, rational basis review, applies to
classifications that are generally assumed to be valid (e.g., the elderly and mentally handicapped)
and requires that the law be rationally related to a legitimate state interest.
32
The Court applies
intermediate scrutiny for quasi-suspect classes (e.g., gender and illegitimacy), requiring that the
law be substantially related to achieving a sufficiently important governmental interest.
33

In this case, the State of Alaska has constructed its marriage laws to exclude a class identified
on the basis of sexual orientation. The Supreme Court has yet to declare what standard of review
28
Zablocki, 434 U.S. at 388.

29
See, e.g., United States v. Lopez-Flores, 63 F.3d 1469, 1472 (9th Cir. 1995)

30
Id.

31
See Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 720 (2007);
Johnson v. California, 543 U.S. 499 (2005).

32
See Heller v. Doe, 509 U.S. 312, 320 (1993); Bower v. Whitman, 671 F.3d 905, 917 (9th Cir.
2012).

33
City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 440-41; United States v.
Virginia, 518 U.S. 515, 524 (1996).

7

is appropriate for laws that discriminate on this basis, but the Court is not left without guidance.
J ust days ago, in Latta, v. Otter, the Ninth Circuit employed heightened scrutiny to consider the
constitutionality of same-sex marriage bans in Nevada and Idaho because the laws discriminate
on the basis of sexual orientation.
34
At oral argument on October 10, 2014, the parties agreed
that Latta is precedential in this circuit.
35

Latta unambiguously requires that the Court employ a heightened standard of review to this
case. In Latta, the Ninth Circuit assessed the constitutionality of same-sex marriage bans in Idaho
and Nevada that used similar language to that in Alaskas same-sex marriage bans.
36
Finding that
the laws discriminate on the basis of sexual orientation, the Ninth Circuit employed heightened
scrutiny to find that the states failed to demonstrate that the laws furthered any legitimate
governmental purpose.
37
Lacking sufficient justification, the Ninth Circuit held that the laws were
unconstitutional for impos[ing] legal, financial, social and psychic harms on numerous citizens
34
2014 WL 4977682 at *15 (9th Cir. Oct. 7, 2014). The Ninth Circuits earlier decision in
Smithkline Beecham v. Abbott Laboratories, 740 F.3d 471, 481-84 (9th Cir. 2014) provided that,
in light of Windsor, heightened scrutiny is the appropriate standard of review when laws
discriminate based on sexual orientation. Even absent the Ninth Circuits decision in Latta, the
Court would employ the heightened standard of review as required by Smithkline, leading to the
same result found in this opinion.

35
When oral argument began, a stay by the Supreme Court was in place as to part of the Latta
decision; by the end of oral argument, that stay had been lifted. Regardless, Latta is the
controlling law of this Circuit. Wedbush, Noble, Cooke, Inc. v. S.E.C., 714 F.2d 923, 924 (9th
Cir. 1983) (It is fundamental that the mere pendency of an appeal does not, in itself, disturb the
finality of a judgment. Similarly, the pendency of a petition for rehearing does not, in itself,
destroy the finality of an appellate courts judgment.) (internal citations omitted).

36
2014 WL 4977682, at *4, n.2.

37
Id. at *13, *33.

8

of Idaho and Nevada.
38
It is within this framework that the Court will determine the
constitutionality of Alaskas same-sex marriage laws.
When applying a heightened standard of review under the Equal Protection Clause, the Court
must invalidate discriminatory laws unless they have an exceedingly persuasive justification.
39

The Defendants must show at least that the classification serves important governmental
objectives and that the discriminatory means employed are substantially related to achievement of
those objectives.
40
Moreover, the classification must be based on legitimate government
concerns other than disagreement with the choice the individual has made.
41
Nevertheless, this
Court recognizes the Supreme Courts cautioning that equal protection is not a license for courts
to judge the wisdom, fairness, or logic of legislative choices.
42
In the context of the case at hand,
the Court analyzes the objectives of Alaskas same-sex marriage laws and their relationship to any
important governmental objectives.
IV. DISCUSSION
Since the Supreme Court struck down part of the federal Defense of Marriage Act (DOMA)
last year in United States v. Windsor, numerous federal courts have addressed the constitutionality
of state bans on same-sex marriages.
43
Currently, four circuits have ruled on the issue; the Ninth,
38
Id. at 32.

39
Virginia, 518 U.S. at 531.

40
Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982) (internal quotations
omitted).

41
Hodgson v. Minnesota, 497 U.S. 417, 435 (1990).

42
FCC v. Beach Communications, Inc., 508 U.S. 307, 313 (1993).

43
Windsor, 133 S.Ct. 2675; see, e.g., Brenner v. Scott, 2014 WL 4113100 (N.D. Fla. Aug. 21,
2014); Love v. Beshear, 2014 WL 2957671 (W.D. Ky. J uly 1, 2014); Whitewood v. Wolf, 2014
9

Seventh, Fourth, and Tenth Circuits each held that state laws prohibiting same-sex marriage are
unconstitutional.
44
While the question before the Court today is not identical to that in Windsor,
the holding of the Supreme Court provides insight. The Windsor court found that DOMA
impose[d] a disadvantage, a separate status, and so a stigma upon all those who enter same-sex
marriages and created a differentiation that demeans the [same-sex] couple, whose moral and
sexual choices the Constitution protects.
45

The Plaintiffs continuously cite Windsor to argue that Alaskas same-sex marriage laws
are analogous to DOMA because the laws not only deny them equal dignity by treating
heterosexuals and homosexuals differently, but are also demeaning to their families, undermine
their personal autonomy, and are in violation of their constitutional rights.
46
The Defendants argue
that Windsor is inapposite to this case because the Supreme Courts holding was based on the
states authority to define marriage and the inability of the federal government to interfere with
that authority.
47
The Defendants interpretation of Windsor is that it stands for the proposition
that the definition of marriage is an issue for the states.
48
State sovereignty in defining marriage
WL 2058105 (M.D. Pa. May 20, 2014); DeBoer v. Snyder, 973 F.Supp.2d 757 (E.D. Mich.
2014); DeLeon v. Perry, 975 F.Supp.2d 632 (W.D. Tex. 2014); McGee v. Cole, 2014 WL
321122 (S.D. W. Va. J an. 29., 2014).

44
See Latta, 2014 WL 4977682; Baskin v. Bogan, 2014 WL 4359059 (7th Cir. Sept. 4, 2014);
Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014); Kitchen v. Herbert, 755 F.3d 1193 (10th Cir.
2014); see also Bishop v. Smith, 2014 WL 3537847 (10th Cir. J uly 18, 2014).

45
133 S.Ct. at 2693 (citing Lawrence, 539 U.S. 558).

46
Dkt. 20 at 2, 24-25, 36-40, 43.

47
133 S.Ct. at 2689-91.

48
Dkt. 31 at 13.

10

is certainly emphasized in Windsor, but the primary principle behind the Supreme Courts ruling
is that regulation of marriage consistent with the Constitution requires that state laws not degrade
or demean a class of people without sufficient justification.
49

A. Alaskas Same-Sex Marriage Laws Violate Due Process

1. Alaskas ban on same-sex marriage violates the unmarried plaintiffs fundamental right
to choose whom to marry

The parties do not dispute that our nation has a longstanding history of recognizing an
individuals fundamental right to marry, which is protected by the Due Process Clause of the
Fourteenth Amendment.
50
However, the Plaintiffs argue that same-sex marriage is encompassed
in the right to marry while the Defendants contend that the right to marriage, as rooted in our
nations history and tradition, is strictly between a man and a woman.
It is true, as Defendants argue, that in categorical terms [t]he Supreme Court has never held
that there is a fundamental constitutional right to same-sex marriage.
51
This does not, however,
equate to the notion that no such right exists. As the Supreme Court in Casey explained:
It is tempting, as a means of curbing the discretion of federal judges, to suppose thatthe
Due Process Clause protects only those practices, defined at the most specific level, that were
protected against government interference by other rules of law when the Fourteenth
Amendment was ratified. But such a view would be inconsistent with our law. It is a promise
of the Constitution that there is a realm of personal liberty which the government may not
enter.
52

In other words, even rights not explicitly mentioned in the Bill of Rights can be protected by
substantive due process. For example, in Loving v. Virginia, the right to interracial marriage
49
133 S.Ct. at 2695.

50
Glucksberg, 521 U.S. at 726.

51
Dkt. 31 at 12.

52
Casey, 505 U.S. at 847 (internal citations omitted).
11

was not included in the Constitution (in fact, it was illegal in most states at the time), nor did the
Supreme Court declare a fundamental right to interracial marriage. Rather, the decision hinged on
the determination that the freedom to marry, without an additional descriptor, resides with the
individual and cannot be infringed by the State.
53
In this way, the Supreme Court found
interracial marriage to be an aspect of liberty protected against state interference by the
substantive component of due process.
54

While the Supreme Court cases defining marriage as a fundamental right involved opposite-
sex couples, nothing in the decisions indicates that the fundamental right to marry is circumscribed
by other defining characteristics (e.g., in this case, a fundamental right to male-female marriage).
The Supreme Court has never described or defined marriage as a right that is dependent upon the
particular facts of the case before it or a right belonging to a particular group; on the contrary, its
discussion of marriage has consistently been in broad terms independent of the persons exercising
it.
55
The choice of whom to marry is an associational right[] that is of basic importance in our
society and is sheltered by the Fourteenth Amendment against the States unwarranted
usurpation, disregard, or disrespect.
56

Our society places immense value on marriage because it involve[es] the most intimate and
personal choices a person may make in a lifetime, choices central to personal dignity and
autonomy.
57
In Griswold v. Connecticut, the Supreme Court described in detail the
53
388 U.S. at 12.

54
Casey, 505 U.S. at 847-48.

55
Kitchen, 755 F.3d at 1209.

56
M.L.B. v. S.L.J., 519 U.S. 102, 116 (1971).

57
Casey, 505 U.S. at 851.
12

autonomous essence of marriage and the private choice involved when entering such a
commitment:
Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the
degree of being sacred. It is an association that promotes a way of life, not causes; a harmony
in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an
association for as noble a purpose as any involved in our prior decisions.
58

More recently, in Lawrence v. Texas, the Supreme Court explained that our laws and tradition
afford constitutional protection to personal decisions relating to marriage, procreation,
contraception, family relationships, child rearing, and education. Persons in a homosexual
relationship may seek autonomy for these purposes, just as heterosexual persons do.
59
The
holding in Lawrence concerned an anti-sodomy law in Texas, but the reasoning was rooted in the
persistent concept of individual privacy and independence when exercising the rights to make
decisions on personal matters. In Lawrence, the critical mistake identified by the Supreme Court
in its earlier reasoning is the same error made by Defendants in this case: in the desire to narrowly
define the rights protected by the Fourteenth Amendment, they fail[] to appreciate the extent of
the liberty at stake.
60

Our forefathers wrote the Bill of Rights hundreds of years ago and could not have predicted
the components of liberty in its manifold possibilities as we see today.
61
As the Supreme Court
articulately explained, those who drew and ratified the Due Process Clause[]knew times can

58
381 U.S. 479, 486 (1965).

59
539 U.S. at 574.

60
Id. at 567.

61
Id. at 578-79.

13

blind us to certain truths and later generations can see that laws once necessary and proper in fact
only serve to oppress. As the Constitution endures, persons in every generation can invoke its
principles in their own search for greater freedom.
62
The Plaintiffs in this case do not ask the
Court to recognize an entirely new fundamental right to same-sex marriage; rather, Plaintiffs wish
to participate in the existing liberty granted to other couples to make a deeply personal choice
about a private family matter.
Here, [t]he inescapable fact is that adjudication of substantive due process claims may call
upon the Court in interpreting the Constitution to exercise that same capacity which by tradition
courts always have exercised: reasoned judgment.That does not mean we are free to invalidate
state policy choices with which we disagree; yet neither does it permit us to shrink from the duties
of our office.
63
The Court has been called upon to use reasoned judgment to interpret the right to
choose whom to marry and the breadth of that right under substantive due process. It is in
consideration of this duty that the Court finds that marriage between individuals of the same sex
is encompassed by our nations longstanding fundamental right to marry.
The Court then must determine whether Alaskas same-sex marriage laws significantly
interfere with the Plaintiffs right to marry whom they choose. The answer is obvious as to the
unmarried Plaintiffs: the law prevents them from exercising that right. For many years, there have
been powerful voices condemning homosexual conduct as immoral, but the Courts obligation in
this case is not to determine or mandate a particular moral code, but rather to define the liberty of
all.
64
While homosexuality and the union of same-sex couples through marriage may be against
62
Id.

63
Casey, 505 U.S. at 849.

64
Id. at 850.
14

the beliefs or beyond the moral parameters of some Americans, the core purpose of the Fourteenth
Amendment is to protect an individuals freedom by ensuring that a constitutional right is not
infringed simply because a majority of the people choose that it be.
65
Alaskas laws prohibiting
same-sex marriage usurp, disregard, and disrespect the fundamental right of all homosexuals to
choose who to marry; a right of liberty, privacy, and association freely given to heterosexuals.
66

2. Alaskas refusal to recognize valid same-sex marriages entered in other states violates the
married Plaintiffs fundamental right to have their marriages recognized

In light of the Courts determination that Alaskas laws prohibiting same-sex marriage violate
Plaintiffs fundamental right to choose whom to marry, it necessarily follows that Alaskas anti-
recognition law concerning valid same-sex marriages entered in other states also violates that right.
By refusing to recognize valid same-sex marriages entered in other states and declaring them void
in Alaska, Section 25.05.013 effectively strips same-sex married couples of their liberty interest
in having their valid marriages recognized.
67
Therefore, Alaska Statute 25.05.013 also violates
the married Plaintiffs fundamental right to have their valid out-of-state marriages recognized
under the due process clause.
If this case concerned only a due process claim, the Court would begin to assess the
Defendants assertions of the governmental interests and whether Alaskas same-sex marriage

65
Lucas v. Forty-Fourth Gen. Assembly of State of Colo., 377 U.S. 713, 736-37 (1964).

66
See Meyer v. Nebraska, 262 U.S. 390, 399 (1923); Griswold, 381 U.S. at 486; M.L.B., 519
U.S. at 116.

67
See Windsor, 133 S.Ct. at 2694 (The refusal of one jurisdiction to recognize a legally
established marriage from another jurisdiction demeans the couple, whose moral and sexual
choices the Constitution protectsand whose relationship the [latter] State has sought to
dignify.).

15

laws are related to those interests. However, since this case also involves a claim under the Equal
Protection Clause, which requires the same inquiry, the Court reserves the analysis until after an
initial discussion of the equal protection claim.
B. Alaskas Same-Sex Marriage Laws Violate Equal Protection
A law declaring that in general it shall be more difficult for one group of citizens than for all
others to seek aid from the government is itself a denial of equal protection of the laws in the most
literal sense.
68
Alaskas same-sex marriage laws declare that it is more difficult for homosexuals
to seek the benefits of lawful marriage with a person of their choosing than it is for heterosexuals.
Even if we accept the Defendants contention that Alaskas same-sex marriage laws were not
intended to discriminate against or harm same-sex couples, but rather to retain the traditional
definition of marriage,
69
the fact is that the laws do discriminate.
Defendants provide minimal evidentiary support for the argument concerning the legislative
history of Alaskas same-sex marriage laws, stating simply that Alaskan voters chose to adopt the
definition of marriage as between one man and one woman.
70
Defendants point out that the
Statement in Support of the Marriage Amendment for the Official Election Pamphlet declares that
the amendment does not target anybody or deny anybody their rights; that [a]ll Alaskans
are equal before the law. But thats not what this debate is about.
71
In fact, that is exactly what
the debate on marriage is about. By singling out homosexual couples and banning their ability to
68
Romer v. Evans, 517 U.S. 620, 633 (1996).

69
Dkt. 31 at 9.

70
Id. at 9-10.

71
Id. at 9.

16

marry an individual of their choosing, it is impossible to assert that all Alaskans are equal under
the states laws.
Defendants contend that the same-sex marriage laws do not deny any benefits, and the Court
acknowledges that Alaska grants same-sex couples some benefits corresponding with those
granted to legally-married opposite-sex couples. However, the inability to legally marry denies
same-sex couples a panoply of state and federal benefits afforded opposite-sex couples.
72
The
Court looks to Windsor where the Supreme Court found that the principle purpose and
necessary effect of DOMA were to impose inequality on same-sex couples and their families
by forbidding them from participating in marriage.
73
Here, rather than promoting marriage
between a man and woman by granting them additional rights and privileges, the apparent purpose
and practical effect of Alaska laws is to impose inequality upon same-sex couples by denying them
the rights and privileges afforded heterosexual couples.
Intermediate scrutiny places the demanding burden of justification on the Defendants to
prove that the objectives of Alaskas same-sex marriage laws are substantially related to
achieving an important governmental objective.
74
Additional considerations for assessing laws
that discriminate based on sexual orientation include the resulting injury and indignity, the
disadvantage inflicted on gays and lesbians, and the government-sponsored message sent by
72
See, e.g., 26 U.S.C. 6013 (granting married couples the ability to file income taxes jointly);
26 U.S.C. 1041 (right for married couples to transfer assets to ones spouse while married or
during divorce without tax liability); 5 U.S.C. 8901(5), 8905 (healthcare benefits for legally-
married spouses of federal employees).

73
Windsor, 133 S.Ct. at 2694-95.

74
Virginia, 518 U.S. at 524, 533; Hibbs v. Dept of Human Resources, 273 F.3d 844, 855 (9th
Cir. 2001).

17

the laws about the status of homosexuals in our society.
75
Here, Defendants assert one primary
governmental objective: affirming the citizens right to change law through the democratic
process. The Defendants argument includes the voters interests in maintaining the traditional
definition of marriage and encouraging optimal, stable child-rearing environments that are
implicated by the overarching theme of federalism.
76

1. Affirming Alaskan voters right to decide how to define marriage
Defendants rely on the Supreme Courts ruling in Schuette v. Coalition to Defend Affirmative
Action
77
to emphasize the right of the citizens to vote and decide the critical issues affecting their
lives.
78
Marriage is of particular interest to society as it is often the root or foundation of family
units that create and strengthen communities. It is not surprising that due to the importance and
impact of marriage, a states interest in regulating marriage within its boundaries includes the
power to determine, within constitutional bounds, what marriage is and who may enter into those
unions.
79
It is obvious that the government has a strong interest in supporting the democratic
process, which grants citizens the power to seek a voice in shaping the destiny of their own times
and to have a hand in changing the social institutions of which they are a part.
80

75
Smithkline, 740 F.3d at 482 (quoting Windsor, 133 S.Ct. at 2692-93).

76
Dkt. 31 at 24-27.

77
134 S.Ct. 1623 (2014).

78
Dkt. 31 at 15.

79
Windsor, 133 S.Ct. at 2691.

80
Bond v. United States, 131 S.Ct. 2355, 2364 (2011).

18

However, a states right to define marriage is not unbounded; a state may not exercise its
power to define marriage in a way that infringes upon individuals constitutional rights.
81
Though
each faith, minister, and individual can define marriage for themselves, at issue here are laws that
act outside that protected sphere. Once the government defines marriage and attaches benefits to
that definition, it must do so constitutionally. It cannot impose a traditional or faith-based
limitation upon a public right without a sufficient justification for it.
82
Many Alaskans may
personally wish to enshrine their own definition of marriage in the law. However, this case does
not concern whether any person or group finds same-sex marriage repugnant based on personal
moral or religious beliefs; the Constitution protects the right to express ones personal beliefs and
values, but it also protects same-sex couples from laws that negatively impact their Constitutional
rights.
83
Even if a majority of citizens disapprove of homosexuality, an infringement on same-sex
couples constitutional rights must be predicated on legitimate state concerns other than
disagreement with the choice the individual has made.
84
The basic principle is that fundamental
rights may not be submitted to vote; they depend on the outcome of no elections.
85

The Supreme Court has consistently struck down state laws that regulate marriage in an
impermissible fashion, particularly when the regulation is one that withholds the right to marry
81
Loving, 388 U.S. at 11-12; see also Dkt. 31 (Defendants concede: Where the citizens have
exercised their right to votetheir decision should not be overturned by the judiciary absent
compelling circumstances such as the violation of a fundamental right.)

82
Bourke v. Beshear, 2014 WL 556729 at *10 (W.D. Ky. Feb. 12, 2014).

83
See Geiger v. Kitzhaber, 994 F.Supp.2d 1128, 1137-38 (D. Or. 2014).

84
Hodgson, 497 U.S. at 435.

85
W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943).

19

entirely for a particular group. For example, regardless of the majoritys beliefs, a state may not
refuse the right to marriage for an interracial couple,
86
nor for individuals that have not upheld
their child-support obligations,
87
nor for the incarcerated.
88
Even if many Alaskan citizens have
moral or religious sentiments that conflict with homosexuality, the mere fact that the governing
majority in a state has traditionally viewed a particular practice as immoral is not a sufficient reason
for upholding a law prohibiting the practice.
89

Homosexuals are among the most stigmatized, misunderstood, and discriminated-against
minorities in the history of the world.
90
Alaskas denial of the benefits and dignity of marriage
for them only perpetuates this discrimination without legitimate grounds. Same-sex couples
comprise only a small portion of Alaskas population, and [m]inorities trampled on by the
democratic process have recourse to the courts; the recourse is called constitutional law.
91
To
put it simply, a primary purpose of the Constitution is to protect minorities from oppression by
majorities.... Thus, considerations of federalism cannot carry the day....
92

86
Loving, 388 U.S. at 11.

87
Zablocki, 434 U.S. at 387-88.

88
Turner, 482 U.S. at 96-99.

89
Lawrence, 539 U.S. at 560 (Moral disapproval of a group cannot be a legitimate
governmental interest under the Equal Protection Clause because legal classifications must not
be drawn for the purpose of disadvantaging the group burdened by the law.) Id. at 583
(quoting Dept. of Agriculture v. Moreno, 413 US. 528, 633 (1973).

90
Baskin, 2014 WL 4359059 at *11.

91
Id. at *19.

92
Latta, 2014 WL 4977682, at *29.

20

Moreover, when assessing an equal protection challenge, regardless of the level of scrutiny
employed by the Court, the stated government interests must have a logical relationship to the law
in question. Even if the Court employed the lowest standard of review, it is illogical to say that
Alaskas same-sex marriage laws are rationally related to serving the right of citizens to vote on
significant changes to the law. Alaskas same-sex marriage laws governing the institution of
marriage have nothing to do with promoting or ensuring a citizens voting rights.
2. The preservation of the traditional definition of marriage
Defendants correctly argue that throughout our nations history, a traditional marriage has
typically been an agreement between one man and one woman.
93
However, [a]ncient lineage of
a legal concept does not give it immunity from attack under the appropriate standard of review.
94

Adherence to tradition is not a valid basis for taking away an individuals constitutional rights,
particularly when experience reveals that the injustice no longer serves, or even acts as a detriment
to, the general welfare.
95
In regard to a parallel argument concerning tradition brought by the state
in Baskin, the Seventh Circuit explained:
The states argument from tradition runs head on into Loving v. Virginia, since the limitation
of marriage to persons of the same race was traditional in a number of states when the
Supreme Court invalidated it. Laws forbidding black-white marriage dated back to colonial
times and were found in northern as well as southern colonies and states. Tradition per se has
no positive or negative significance. There are good traditions, bad traditions pilloried in
such famous literary stories as Franz Kafkas In the Penal Colony and Shirley J acksons
the Lottery, bad traditions that are historical realities such as cannibalism, foot-binding,
and suttee, and traditions that from a public-policy standpoint are neither good nor bad (such
93
Dkt. 31 at 26.

94
Heller, 509 U.S. at 326.

95
See Wolf v. Walker, 986 F.Supp.2d 982, 1019 (W.D. Wis. 2014), affd, Baskin, 2014 WL
4359059 (The rejection of these inequalities by later generations shows that sometimes a
tradition may endure because of unexamined assumptions about a particular class of people
rather than because the laws serve the community as a whole.).

21

as trick-or-treating on Halloween). Tradition per se therefore cannot be a lawful ground for
discriminationregardless of the age of the tradition.
96

As previously discussed, the traditional notion of marriage as described by the Supreme Court
is comprised of two individuals that make the deeply personal choice to dedicate their lives to each
other. It is a union that acts as a benefit to society and is defined by commitment, intimacy,
autonomy, and personal dignity. Many same-sex couples, the Plaintiffs among them, desperately
wish to enter into such a legally valid lifelong relationship, and they devote substantial time,
energy, and money to have the state recognize their commitment.
While the state and its citizens may indeed have a legitimate interest in promoting certain
virtues, it does not follow that a law forbidding same-sex marriage has any relation to the status of
male-female marriage. Presented with unsupported arguments about the future effects of same-sex
marriage on traditional marriage, the Ninth Circuit stated:
Unsupported legislative conclusions as to whether particular policies will have societal
effects of the sort at issue in this casedeterminations which often, as here, implicate
constitutional rightshave not been afforded deference by the Court. To the contrary, we
retain an independent constitutional duty to review factual findings where constitutional
rights are at stake. [T]here is no empirical support for the idea that legalizing same-sex
marriage would harmor indeed affectopposite sex marriages or relationships.
97

J ust as in Latta, the Defendants have provided the Court with little more than uncorroborated
suggestions about the impact of same-sex marriage. Without persuasive factual findings to
evaluate, the Court finds that there is inadequate support for the contention that banning same-sex
marriages has any rational relationship to the preservation of traditional marriages.

96
Baskin, 2014 WL 4359059, at *14 (internal citation omitted).

97
Latta, 2014 WL 4977682, at *17, *18 (quoting Gonzalez v. Carhart, 550 U.S. 124, 165-66
(2007)).

22

3. Child-rearing
Defendants further mention the notion that it is legitimate for voters to believe that children
can prosper with a father and a mother in their livesbecause they derive unique values from each
parent and that the state seeks to ensure that all children have the best chance to grow in a stable
environment by supporting families.
98
Again, these contentions are unsupported by empirical
evidence.
99
As the Ninth Circuit found, [r]aising children is hard; marriage supports same-sex
couples in parenting their children, just as it does opposite-sex couples.
100

For the many same-sex couples with children in the United States today, permitting them to
enter into marriage encourages security and stability in their family and for their children. It is
estimated that 23% of same-sex couples in Alaska are raising children (biological, adopted, or
step-children), the third highest percentage in the nation.
101
Preventing these individuals from
participation in marriage places upon them unwarranted social, economic, and political burdens
and prevents them from obtaining the extensive benefits and protections that are provided to
families of opposite-sex couples.
102
Discussing the states arguments regarding procreation and
child-rearing, the Ninth Circuit in Latta found:
98
Dkt. 31 at 26.

99
See, e.g., Lesbian and Gay Parenting. (American Psychological Association),
http://apa.org/pi/lgbt/resources/parenting.aspx?item=6 (last visited October 11, 2014)
([E]vidence to date suggests that home environments provided by lesbian and gay parents are as
likely as those provided by heterosexual parents to support and enable childrens psychological
growth.).

100
Latta, 2014 WL 4977682, at *22.

101
Six Million American Children and Adults Have an LGBT Parent. (Williams Institute,
UCLA School of Law, Feb. 2013), http://williamsinstitute.law.ucla.edu/wp-
content/uploads/LGBT-Parenting.pdf.

102
See Plaintiffs affidavits at Dkts. 21-26.
23

In extending the benefits of marriage only to people who have the capacity to procreate,
while denying those same benefits to people who already have children, Idaho and Nevada
materially harm and demean same-sex couples with children. Denying children resources
and stigmatizing their families on this basis is illogical and unjust. It is
counterproductive, and it is unconstitutional.
103

A more effective way to support the states interest in building strong, supportive families with
children would be to allow same-sex couples the same public resources as heterosexual couples
have for creating and nurturing a family.
104
There is no sensible reason to deny same-sex families
the same advantages and benefits already given to opposite-sex couples.
In sum, any relationship between Alaskas same-sex marriage laws and the government
interests asserted by Defendants is either nonexistent or purely speculative. Alaskas same-sex
marriage laws are a prime example of how the varying treatment of different groups or persons
is so unrelated to the achievement of any combination of legitimate purposes that we can only
conclude that the legislatures actions were irrational.
105
Refusing the rights and responsibilities
afforded by legal marriage sends the public a government-sponsored message that same-sex
couples and their familial relationships do not warrant the status, benefits, and dignity given to
couples of the opposite sex. This Court finds that Alaskas same-sex marriage laws violate the

103
Latta, 2014 WL 4977682, at *25 (internal citation omitted) (quoting Plyler v. Doe, 457 U.S.
202, 220 (1982)).

104
See, e.g., Press Release, American Academy of Pediatrics, American Academy of Pediatrics
Supports Same Gender Civil Marriage (March 21, 2013) (available at: http://www.aap.org/en-
us/about-the-aap/aap-press-room/Pages/American-Academy-of-Pediatrics-Supports-Same-
Gender-Civil-Marriage.aspx) (The American Academy of Pediatrics (AAP) supports civil
marriage for same-gender couplesas well as full adoption and foster care rights for all parents,
regardless of sexual orientationas the best way to guarantee benefits and security for their
children.).

105
Vance v. Bradley, 440 U.S. 93, 97 (1979).

24

Due Process and Equal Protection Clauses of the Fourteenth Amendment because no state interest
provides exceedingly persuasive justification
106
for the significant infringement of rights that
they inflict upon homosexual individuals.
V. CONCLUSION
Any state interests identified by Defendants are insufficient for Alaskas same-sex marriage
laws to pass constitutional muster under due process or equal protection. Plaintiffs Motion for
Summary J udgment at Docket 20 is GRANTED.
With this ruling, the Court hereby DECLARES that Alaskas same-sex marriage laws are
unconstitutional for violating the Due Process and Equal Protection Clauses of the Fourteenth
Amendment to the United States Constitution.
The Court IMMEDIATELY ENJOINS the state of Alaska, including state officers,
personnel, agents, government divisions, and other political entities, from enforcing Alaska
Constitution Article 1, Section 25 and Alaska Statute Sections 25.05.011 and 25.05.013 to the
extent that the laws prohibit otherwise qualified same-sex couples from marriage and refusing to
recognize lawful same-sex marriages entered in other states.
IT IS SO ORDERED.

Dated at Anchorage, Alaska, this 12th day of October, 2014.
/s/ Timothy M. Burgess
TIMOTHY M. BURGESS
UNITED STATES DISTRICT J UDGE
106
Virginia, 518 U.S. at 531.
25


Appendix B
MICHAEL C. GERAGHTY
ATTORNEY GENERAL

William Milks (Alaska Bar No. 0411094)
Kevin Wakley (Alaska Bar No. 1405019)
P.O. Box 110300
J uneau, AK 99811
Phone: 907.465.3600
Fax: 907.465.2520
Email: bill.milks@alaska.gov
kevin.wakley@alaska.gov

Attorneys for all Defendants


FOR THE DISTRICT OF ALASKA

MATTHEW HAMBY and CHRISTOPHER
SHELDEN, a married couple, CHRISTINA
LABORDE and SUSAN TOW, a married
couple, SEAN EGAN and DAVID
ROBINSON, a married couple, TRACEY
WIESE and KATRINA CORTEZ, a married
couple, and COURTNEY LAMB and
STEPHANIE PEARSON, unmarried
persons,

Plaintiffs,

v.

SEAN C. PARNELL, in his official capacity
as Governor of Alaska, MICHAEL
GERAGHTY, in his official capacity as
Attorney General of the State of Alaska,
WILLIAM J . STREUR, in his official
capacity as Commissioner of the State of
Alaska, Department of Health and Social
Services, and PHILLIP MITCHELL, in his
official capacity as State Registrar and
Licensing Officer, Alaska Bureau of Vital
Statistics,

Defendants.

DEFENDANTS NOTICE OF APPEAL

Notice is hereby given that the State Defendants in the above-named case,
under Rule 3 of the Federal Rules of Appellate Procedure, hereby appeal to the United States
Court of Appeals for the Ninth Circuit from the order entered in this action at docket number 38
on the 12th day of October, 2014.
1

DATED October 13, 2014.
MICHAEL C. GERAGHTY
ATTORNEY GENERAL

By: s/William Milks
William Milks
Assistant Attorney General
Alaska Bar No. 0411094

s/Kevin Wakley
Kevin Wakley
Assistant Attorney General
Alaska Bar No. 1405019

Attorneys for all Defendants

1
While a judgment has not been set out in a separate document pursuant to Fed. R. Civ. P.
58, the Ninth Circuit has stated the following:
Even though the district court failed to issue and enter on the docket a separate
judgment on the order granting the County of Santa Barbara Defendants summary
judgment, as was required, see Fed.R.Civ.P. 58(a)(1), 79(a), the district court's
September 25, 2008 Order granting summary judgment in favor of all County
Defendants ... on all claims and containing no equivocal language regarding its
finality (1) is a full adjudication of the issues, and (2) clearly evidences the
judge's intention that it be the court's final act in the matter. Casey v. Albertson's,
Inc., 362 F.3d 1254, 1258 (9th Cir.2004); accord Long v. Cnty. of L.A., 442 F.3d
1178, 1184 n. 3 (9th Cir.2006). [N]either the Supreme Court nor this court views
satisfaction of Rule 58 as a prerequisite to appeal. Kirkland v. Legion Ins. Co.,
343 F.3d 1135, 1140 (9th Cir.2003).
Bravo v. City of Santa Maria, 665 F.3d 1076, 1089 at n. 5 (9th Cir. 2011).

Hamby, et al. v. Parnell, et al. Court Case No. 3:14-cv-00089-TMB
DEFENDANTS NOTICE OF APPEAL Page 2 of 3

CERTIFICATE OF SERVICE
I hereby certify that on October 13, 2014, true and correct copies of the foregoing,
DEFENDANTS NOTICE OF APPEAL were served electronically on the following parties of
record pursuant to the Courts electronic filing procedures:

Heather L. Gradner
Shortell Gardner
Anchorage, AK 99501
hgardnerlaw@yahoo.com

Allison E. Mendel
Mendel & Associates
1215 W. 8th Avenue
Anchorage, Alaska 99501
amendel@mendelandassociates.com

Caitlin Shortell
Shortell Gardner
Anchorage, AK 99501
caitlin@shortellgardner.com

Susan Orlansky
Susan Orlansky LLC
500 L Street, Suite 300
Anchorage, AK 99501
orlansky@frozenlaw.com
J oshua A. Decker
ACLU of Alaska Foundation
1057 W. Fireweed Lane, Suite 207
Anchorage, AK 99503
jdecker@acluak.org

Thomas W. Stenson
ACLU of Alaska Foundation
1057 W. Fireweed Lane, Suite 207
Anchorage, AK 99503
tstenson@akclu.org

Amanda Goad
American Civil Liberties Union
1313 West 8th Street
Los Angeles, CA 90017
agoad@aclu.org

s/Kayla D. Wilke
Kayla D. Wilke
Law Office Assistant I
Hamby, et al. v. Parnell, et al. Court Case No. 3:14-cv-00089-TMB
DEFENDANTS NOTICE OF APPEAL Page 3 of 3


Appendix C
FOR THE DISTRICT OF ALASKA
MATTHEW HAMBY, et al. ,
Plaintiffs,
vs.
SEAN C. PARNELL, et al. ,
Defendants.
JUDGMENT
IN A CIVIL CASE
JURY VERDICT. This action came before the Court for a trial by jury. The
issues have been tried and the jury has rendered its verdict.
XX DECISION BY COURT. This action came to trial or hearing before the Court.
The issues have been tried or heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED that the state of Alaska' s same-sex marriage laws
are unconstitutional for violating the Due Process and Equal Protection Clauses of the
Fourteenth Amendment to the United States Constitution.
The state of Alaska, including state officers, personnel, agents, government divisions,
and other political entities, are immediately enjoined from enforcing Alaska Constitution
Article 1, Section 25 and Alaska Statute Sections 25. 05. 011 and 25. 05. 013 to the extent that
the laws prohibit otherwise qualified same-sex couples from marriage and refusing to recognize
lawful same-sex marriages entered in other states.

APPROVED:
/s/Timothy M. Burgess
TIMOTHY M. BURGESS
United States District Judge
October 14, 2014 MARVEL HANSBRAUGH
Date Clerk

JUDGMENT IN A CIVIL CASE
2

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