Ron Ramsay and Peter Vandervort; ) Celeste and Amber Carlson Allebach; ) Brock Dahl and Austin Lang; Michelle ) Harmon and Joy Haarstick; Bernie ) Erickson and David Hamilton; Matthew ) Lee Elmore and Beau Thomas Downey; ) and Stephanie and Siana Bock, ) ) Plaintiffs, ) ) v. ) Case No. 3:14-CV-57 ) Jack Dalrymple, in his official capacity ) as Governor; Wayne Stenehjem, in his ) official capacity as Attorney General; ) Ryan Rauschenberger, in his official ) capacity as State Tax Commissioner; ) Terry Dwelle, in his official capacity as ) State Health Officer; and Charlotte ) Sandvik, in her official capacity as Cass ) County Treasurer, ) ) Defendants. ) ..................................................................................................................................................... _________________________________________________
MEMORANDUM IN SUPPORT OF MOTION TO DISMISS _________________________________________________
State of North Dakota Wayne Stenehjem Attorney General
By: Douglas A. Bahr Solicitor General State Bar ID No. 04940 Office of Attorney General 500 North 9 th Street Bismarck, ND 58501-4509 Telephone (701) 328-3640 Facsimile (701) 328-4300
Attorneys for Defendants Jack Dalrymple, in his official capacity as Governor, Wayne Stenehjem, in his official capacity as Attorney General, Ryan Rauschenberger, in his official capacity as Tax Commissioner, and Terry Dwelle, in his official capacity as State Health Officer. Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 1 of 50 i TABLE OF CONTENTS AND AUTHORITIES
Page(s)
Statement of the Case ..............................................................................................................1
I. States define marriage ......................................................................................... 1
Gregory v. Ashcroft, 501 U.S. 452 (1991)................................................................................... 2
Natl Fedn Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012)............................................................................... 2
Collector v. Day, 78 U.S. 113 (1870)..................................................................................... 2
Graves v. N.Y. ex rel OKeefe, 306 U.S. 466 (1939)................................................................................... 2
Shelby County v. Holder, 133 S. Ct. 2612 (2013)........................................................................... 2, 5
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)................................................................................... 2
United States v. Windsor, 133 S. Ct. 2675 (2013)................................................................... 2, 4, 5, 6
Haddock v. Haddock, 201 U.S. 562 (1906)................................................................................... 2
Ohio ex rel. Popovici v. Agler, 280 U.S. 379 (1930)............................................................................... 2, 3
United States v. Morrison, 529 U.S. 598 (2000)................................................................................... 3
Sosna v. Iowa, 419 U.S. 393 (1975)................................................................................... 3
Ex parte Burrus, 136 U.S. 586 (1890)................................................................................... 3
Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 2 of 50 ii Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8 th Cir. 2006) ....................................................................... 3
Pennoyer v. Neff, 95 U.S. 714 (1877)..................................................................................... 3
Williams v. North Carolina, 317 U.S. 287 (1942)............................................................................... 3, 4
Boddie v. Connecticut, 401 U.S. 371 (1971)................................................................................... 3
Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193 (2009)................................................................................... 5
II. Binding precedent demands this Court deny Plaintiffs equal protection and due process claims ....................................................................... 5
Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 4 of 50 iv
Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971), appeal dismissed, 409 U.S. 810 (1972) ........................................ 10
Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8 th Cir. 2006) .................................................... 10, 12
Baker v. Nelson, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972) .............. 10, 11, 12
Windsor v. United States, 699 F.3d 169 (2d Cir. 2012), affd, 133 S. Ct. 2675 (2013) ................................................... 10, 11
Lawrence v. Texas, 539 U.S. 558 (2003) ...................................................................... 11
Romer v. Evans, 517 U.S. 620 (1996) ...................................................................... 11
Massachusetts v. U.S. Dept of Health & Human Servs., 682 F.3d 1 (1 st Cir. 2012), cert. denied, 133 S. Ct. 2884 (2013) ............................................. 11
Sevcik v. Sandoval, 911 F. Supp. 2d 996 (D. Nev. 2012) ............................................. 11
Jackson v. Abercrombie, 884 F. Supp. 2d 1065 (D. Haw. 2012) ........................................... 11
Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005) ......................................... 11
Kitchen v. Herbert, No. 13-4178, 2014 WL 2868044 *1 (10 th Cir. June 25, 2014) ....... 12
C. Windsor did not alter the Bruning and Baker decisions ........................... 12
Windsor v. United States, 699 F.3d 169 (2d Cir. 2012), affd, 133 S. Ct. 2675 (2013) ................................................... 12, 13
Baker v. Nelson, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972) .......................... 13
Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8 th Cir. 2006) .......................................................... 13
D. Rational basis review requires judicial restraint and deference to the legislature ...................................................................... 13 Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 5 of 50 v
Romer v. Evans, 517 U.S. 620 (1996) .......................................................... 13, 14, 16
Nordlinger v. Hahn, 505 U.S. 1 (1992) .......................................................................... 13
F.C.C. v. Beach Commc'ns, Inc., 508 U.S. 307 (1993) .................................................... 13, 14, 15, 16
Heller v. Doe ex rel. Doe, 509 U.S. 312 (1993) .................................................... 13, 14, 15, 16
Holt Civic Club v. Tuscaloosa, 439 U.S. 60 (1978) ........................................................................ 14
Baker v. Nelson, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972) .......................... 14
Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8 th Cir. 2006) .................................................... 14, 16
Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356 (1973) ...................................................................... 14
City of City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) ...................................................................... 14
Vance v. Bradley, 440 U.S. 93 (1979) .................................................................. 14, 16
Rast v. VanDeman & Lewis Co., 240 U.S. 342 (1916) ...................................................................... 14
U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166 (1980) ...................................................................... 14
City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986) ........................................................................ 15
United States v. OBrien, 391 U.S. 367 (1968) ...................................................................... 15
Armour v. City of Indianapolis, 132 S. Ct. 2073 (2012) .................................................................. 15
Dandridge v. Williams, 397 U.S. 471 (1970) .......................................................... 15, 16, 17
Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61 (1911) ........................................................................ 15
Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 6 of 50 vi Metropolis Theatre Co. v. City of Chicago, 228 U.S. 61 (1913) ........................................................................ 15
Heath & Milligan Mfg. Co. v. Worst, 207 U.S. 338 (1907) ...................................................................... 15
Bain Peanut Co. v. Pinson, 282 U.S. 499 (1931) ...................................................................... 15
City of New Orleans v. Duke, 427 U.S. 297 (1976) ...................................................................... 16
U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166 (1980) ...................................................................... 16
Gregory v. Ashcroft, 501 U.S. 452 (1991) ...................................................................... 16
Sugarman v. Dougall, 413 U.S. 634 (1973) ...................................................................... 16
Sosna v. Iowa, 419 U.S. 393 (1975) ...................................................................... 16
E. The challenged constitutional provision and laws are rational ................. 17
Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8 th Cir. 2006) .................................................... 17, 19
Baker v. Nelson, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972) .................... 17, 19
Andersen v. King County, 138 P.3d 963 (Wash. 2006) .......................................................... 18
Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 7 of 50 vii Conaway v. Deane, 932 A.2d 571 (Md. 2007) .............................................................. 18
Standhardt v. Superior Court ex rel. County of Maricopa, 77 P.3d 451 (Ariz. Ct. App. 2003) ................................................. 18
Kan. City Taxi Cab Drivers Ass'n v. City of Kan. City, 742 F.3d 807 (8 th Cir. 2013) .......................................................... 19
Executive Air Taxi Corp. v. City of Bismarck, 518 F.3d 562 (8 th Cir. 2008) .......................................................... 19
F. Other rational reasons exist for limiting marriage to opposite-sex couples ............................................................................... 19
1. The legislature could rationally believe it is beneficial for children to be raised by both a mother and a father ....................................................................... 19
Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8 th Cir. 2006) ............................................... 19
In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004) ............................ 20
In re Marriage of J.B. & H.B., 326 S.W.3d 654 (Tex. Ct. App. 2010) ................................ 20
Andersen v. King County, 138 P.3d 963 (Wash. 2006) .......................................... 20, 21
Jackson v. Abercrombie, 884 F. Supp. 2d 1065 (D. Haw. 2012) ................................ 21
F.C.C. v. Beach Commc'ns, Inc., 508 U.S. 307 (1993) ..................................................... 21, 22
Vance v. Bradley, 440 U.S. 93 (1979) ............................................................. 21
2. The legislature could rationally believe it is best to proceed with caution before fundamentally altering the nature of marriage ...................................................... 22
Loving v. Virginia, 388 U.S. 1 (1967) ............................................................... 22
Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 8 of 50 viii Zablocki v. Redhail, 434 U.S. 374 (1978) ........................................................... 22
Maynard v. Hill, 125 U.S. 190 (1888) ........................................................... 22
United States v. Windsor, 133 S. Ct. 2675 (2013) ................................................. 22, 23
Sevcik v. Sandoval, 911 F. Supp. 2d 996 (D. Nev. 2012) ................................... 23
Jackson v. Abercrombie, 884 F. Supp. 2d 1065 (D. Haw. 2012) ................................ 23
Andersen v. King County, 138 P.3d 963 (Wash. 2006) ................................................ 23
New State Ice Co. v. Liebmann, 285 U.S. 262 (1932) ........................................................... 23
F.C.C. v. Beach Commc'ns, Inc., 508 U.S. 307 (1993) ........................................................... 24
Nordlinger v. Hahn, 505 U.S. 1 (1992) ............................................................... 24
Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522 (1959) ........................................................... 24
Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 9 of 50 ix Washington v. Glucksberg, 521 U.S. 702 (1997)........................................................................... 24, 25
Collins v. City of Harker Heights, 503 U.S. 115 (1992)............................................................................ 24-25
Reno v. Flores, 507 U.S. 292 (1993)................................................................................. 25
Log Cabin Republicans v. United States, 658 F.3d 1162 (9 th Cir. 2011) ................................................................... 25
A. The right to marry does not include the right to marry a person of the same gender ................................................................... 26
Reno v. Flores, 507 U.S. 292 (1993) ...................................................................... 26
Washington v. Glucksberg, 521 U.S. 702 (1997) ...................................................................... 26
In re Marriage of J.B. & H.B., 326 S.W.3d 654 (Tex. Ct. App. 2010) ........................................... 26
Kitchen v. Herbert, No. 13-4178, 2014 WL 2868044 *1 (10 th Cir. June 25, 2014) ....... 26
Loving v. Virginia, 388 U.S. 1 (1967) .................................................................... 26, 27
Maynard v. Hill, 125 U.S. 190 (1888) ...................................................................... 27
Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942) ...................................................................... 27
Zablocki v. Redhail, 434 U.S. 374 (1978) ...................................................................... 27
Joseph E. Worcester, A Primary Dictionary of the English Language 176 (1871) ..................................................................................... 27
John Bouvier, A Law Dictionary Adapted to the Constitution and Laws of the United States 105 (12 th ed. 1868) .................................. 27
Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006) .............................................................. 27
Standhardt v. Superior Court ex rel. County of Maricopa, 77 P.3d 451 (Ariz. Ct. App. 2003) ................................................. 27
Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 10 of 50 x B. Same-sex marriage is not deeply rooted in this Nation's history and tradition .................................................................... 28
Seegmiller v. LaVerkin City, 528 F.3d 762 (10 th Cir. 2008) ........................................................ 28
Chavez v. Martinez, 538 U.S. 760 (2003) ...................................................................... 28
Palko v. Connecticut, 302 U.S. 319 (1937) ...................................................................... 28
In re Marriage of J.B. & H.B., 326 S.W.3d 654 (Tex. Ct. App. 2010) ..................................... 28, 29
United States v. Windsor, 133 S. Ct. 2675 (2013) ............................................................ 28, 30
Goodridge v. Dept of Pub. Health, 798 N.E.2d 941 (Mass. 2003) ....................................................... 28
Moore v. City of E. Cleveland, 431 U.S. 494 (1977) ...................................................................... 28
Reno v. Flores, 507 U.S. 292 (1993) ...................................................................... 28
Washington v. Glucksberg, 521 U.S. 702 (1997) .......................................................... 28, 29, 30
Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005) ......................................... 29
In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004) ...................................... 29
Standhardt v. Superior Court ex rel. County of Maricopa, 77 P.3d 451 (Ariz. Ct. App. 2003) ................................................. 29
Dean v. Dist. of Columbia, 653 A.2d 307 (D.C. 1995) ............................................................. 29
Baehr v. Lewin, 852 P.2d 44 (Haw. 1993) .............................................................. 29
Jones v. Hallahan, 501 S.W.2d 588 (Ky. Ct. App. 1973) ............................................. 29
Conaway v. Deane, 932 A.2d 571 (Md. 2007) .............................................................. 29
Andersen v. King County, Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 11 of 50 xi 138 P.3d 963 (Wash. 2006) .......................................................... 29
IV. The challenged provisions do not discriminate based on gender ....................... 31
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985)................................................................................. 31
Sevcik v. Sandoval, 911 F. Supp. 2d 996 (D. Nev. 2012) ........................................................ 31
Jackson v. Abercrombie, 884 F. Supp. 2d 1065 (D. Haw. 2012) ..................................................... 31
V. Plaintiffs right to travel claim fails to state a claim .............................................. 31
A. The right to interstate travel embraces three components ....................... 31
Minnesota Senior Federation v. United States, 273 F.3d 805 (8 th Cir. 2001) ..................................................... 31-32
Saenz v. Roe, 526 U.S. 489, 119 S.Ct. 1518, 143 L.Ed.2d 689 (1999) ................ 32
Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969) .................... 32
N.D. Const. art. IV, 2 ............................................................................. 32
Toomer v. Witsell, 334 U.S. 385 (1948) ...................................................................... 32
Doe v. Miller, 405 F.3d 700 (8 th Cir. 2005) .......................................................... 32
B. The challenged provisions do not violate the right to travel ..................... 33
Doe v. Miller, 405 F.3d 700 (8 th Cir. 2005) .......................................................... 33
Califano v. Gautier Torres, 435 U.S. 1 (1978) .................................................................... 33, 34
Memorial Hosp. v. Maricopa County, 415 U.S. 250 (1974) ...................................................................... 34
Minnesota Senior Federation v. United States, 273 F.3d 805 (8 th Cir. 2001) .......................................................... 34
VI. North Dakota may lawfully deny recognition of same-sex marriages performed elsewhere ......................................................................... 34
A. Federal law authorizes North Dakota to deny recognition to same-sex marriages .......................................................... 34
Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 12 of 50 xii United States v. Windsor, 133 S. Ct. 2675 (2013) .................................................................. 35
B. The Constitution does not require North Dakota to recognize same-sex marriages contrary to its public policy........................................................................................................ 35
Nevada v. Hall, 440 U.S. 410 (1979) ...................................................................... 35
Pac. Employers Ins. Co. v. Indus. Accident Commn, 306 U.S. 493 (1939) ...................................................................... 35
Franchise Tax Bd. v. Hyatt, 538 U.S. 488 (2003) ...................................................................... 35
Sun Oil Co. v. Wortman, 486 U.S. 717 (1988) ...................................................................... 35
Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 13 of 50 1 STATEMENT OF THE CASE Plaintiffs challenge the constitutionality of N.D. Const. art. XI, 28, N.D.C.C. 14-03-01 and 14-03-08, and any other North Dakota law limiting marriage to a legal union between a man and a woman. See Doc. 19 5, 10, 122, 135, 144, 155, p. 48 (A), (B). Plaintiffs claim that North Dakotas exercise of its constitutional authority to define marriage violates equal protection, due process, and the right to travel. Id. 119-58. Defendants Jack Dalrymple, in his official capacity as Governor, Wayne Stenehjem, in his official capacity as Attorney General, Ryan Rauschenberger, in his official capacity as Tax Commissioner, and Terry Dwelle, in his official capacity as State Health Officer (collectively State Defendants), have moved to dismiss Plaintiffs First Amended Complaint for Permanent Injunction and Declaratory Relief (Complaint). They file this memorandum in support of their motion. ARGUMENTS Resolution of the legal disputes Plaintiffs raise rests in part on the States authority to define marriage. As is their right, the people of North Dakota, through the deliberative political process, retain the traditional understanding of marriage as the union between a man and a woman. Ignoring the States constitutional right to define marriage, Plaintiffs seek to redefine marriage through the judicial process. But nothing in the United States Constitution prevents the people of North Dakota from defining marriage as the legal union between a man and a woman. In fact, controlling precedent dictates this Court reject Plaintiffs claims and dismiss the Complaint. I. States define marriage. Plaintiffs claims invite this Court to disregard a central structural feature of the United States Constitution by interjecting federal power into an area of law uniquely within the province of States. A judicial declaration that North Dakotas Constitution and laws defining marriage as the legal union between a man and a woman are Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 14 of 50 2 unconstitutional would nullify the States exercise of powers reserved to it by the Constitution itself. [O]ur Constitution establishes a system of dual sovereignty between the States and the Federal Government. Gregory v. Ashcroft, 501 U.S. 452, 457 (1991). This fundamental principle of federalism, confirmed by the Tenth Amendment, 1 dictates that [i]n our federal system, the National Government possesses only limited powers; the States and the people retain the remainder. Natl Fedn Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2577 (2012). When exercising their reserved powers, States are as independent of the general government as that government within its sphere is independent of the States. Collector v. Day, 78 U.S. 113, 124 (1870), overruled in part, Graves v. N.Y. ex rel OKeefe, 306 U.S. 466 (1939). Federalism, thus, preserves the integrity, dignity, and residual sovereignty of the States, while it secures to citizens the liberties that derive from the diffusion of sovereign power. Shelby County v. Holder, 133 S. Ct. 2612, 2623 (2013) (citations omitted). Plaintiffs challenge to North Dakotas laws defining marriage invokes federal power at its lowest ebb. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring). Just last year, the Supreme Court explained that [t]he 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. United States v. Windsor, 133 S. Ct. 2675, 2691 (2013) (quoting Haddock v. Haddock, 201 U.S. 562, 575 (1906)) (emphasis added). The High Court acknowledged that when the Constitution was adopted the common understanding was that the domestic relations of husband and wife and parent and child were matters reserved to the States. Id. at 2680-81 (quoting Ohio ex rel. Popovici v. Agler, 280 U.S. 379, 383-84
1 The Tenth Amendment to the United States Constitution provides: The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 15 of 50 3 (1930)) (emphasis added). Marriage, almost uniquely, is an area of law where the limits on federal power and the substance of reserved powers together confirm the primacy, if not exclusivity, of State authority. Compare United States v. Morrison, 529 U.S. 598, 613 (2000) (an expansive reading of the Commerce Clause would wrongly authorize Congress to regulate family law (including marriage, divorce, and child custody)) (citation omitted) with Sosna v. Iowa, 419 U.S. 393, 404 (1975) (stating domestic relations [is] an area that has long been regarded as a virtually exclusive province of the States) and Ex parte Burrus, 136 U.S. 586, 593-94 (1890) (The whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the states, and not to the laws of the United States.). In Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8 th Cir. 2006), the Eighth Circuit explained that the institution of marriage has always been, in our federal system, the predominant concern of state government. Id. at 867. It continued: The Supreme Court long ago declared, and recently reaffirmed, that a State has absolute right to prescribe the conditions upon which the marriage relation between its own citizens shall be created, and the causes for which it may be dissolved. Id. (quoting Pennoyer v. Neff, 95 U.S. 714, 73435 (1877)). Driving the point home, the Eighth Circuit unequivocally stated: This necessarily includes the power to classify those persons who may validly marry. Id. Reserving to the States power over marriage and family relations serves substantial purposes, beyond the general benefits of federalism. Each state as a sovereign has a rightful and legitimate concern in the marital status of persons domiciled within its borders. Williams v. North Carolina, 317 U.S. 287, 298 (1942). It is within the States that [the people] live and vote and rear their children under laws passed by their elected representatives. The States provide for the stability of their social order, for the good morals of all their citizens, and for the needs of children from broken homes. Boddie v. Connecticut, 401 U.S. 371, 389 (1971) (Black, J., Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 16 of 50 4 dissenting). The States reserved power to regulate marriage, as an aspect of federalism, played a central role in the Supreme Courts decision declaring section 3 of the Defense of Marriage Act (DOMA) unconstitutional. In Windsor the Court held that Congress violated the Fifth Amendments Due Process Clause, see 133 S. Ct. at 2695, by amending the Dictionary Act to provide that for the purpose of interpreting federal law the word marriage means only a legal union between one man and one woman as husband and wife, and the word spouse refers only to a person of the opposite sex who is a husband or a wife. Id. at 2683 (quoting 1 U.S.C. 7). In reaching that conclusion the Court emphasized the States historic and essential authority to define the marital relation, on the understanding that [t]he 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. Id. at 2692, 2691 (quoting Williams, 317 U.S. at 298). And the Court noted that [c]onsistent with this allocation of authority, the Federal Government, through our history, has deferred to state-law policy decisions with respect to domestic relations. Id. at 2691. Specifically, the Court held that New Yorks recognition of same- sex marriage was without doubt a proper exercise of its sovereign authority within our federal system, all in the way that the Framers of the Constitution intended. Id. at 2692. Congress went astray, the Court held, by interfer[ing] with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power . . . . Id. at 2693. Given this reasoning, it is undeniable that the Courts judgment in Windsor is based on federalism. Id. at 2697 (Roberts, C.J., dissenting). Plaintiffs challenge to North Dakotas definition of marriage invites the Court to make the same error committed by Congress in enacting section 3 of DOMAby creating a federal intrusion on state power with its resulting disrupt[ion] [to] the federal balance. Id. at 2692. Windsor affirms that North Dakotas laws defining marriage Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 17 of 50 5 deserve this Courts respect and deference, no less than New Yorks laws. That the State of North Dakota chose to keep and preserve the traditional heterosexual definition of marriage, while New York decided to allow marriage between persons of the same sex, does not detract from the validity of North Dakotas choice. Windsor reaffirms the long-established precept that the incidents, benefits, and obligations of marriage . . . may vary, subject to constitutional guarantees, from one State to the next. Id. at 2692. Singling out North Dakotas marriage laws for less respect or deference than the Supreme Court gave New Yorks laws would contradict the Courts endorsement of nationwide diversity on the States consideration of same-sex marriage, as well as violating the fundamental principle of equal sovereignty among the States. Shelby Co., 133 S. Ct. at 2623 (quoting Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 203 (2009)). Fundamental principles of federalism reserve to North Dakota the sovereign authority to define and regulate marriage. A judicial declaration re-writing North Dakotas definition of marriage would disrupt the federal balance, just as section 3 of DOMA did, by interjecting federal power into an area of law recognized as uniquely belonging to State authority. Plaintiffs are free to advocate for their own version of marriage through the political process. But they are not entitled to have their views imposed by judicial fiat. As stated by Justice Alito: Same-sex marriage presents a highly emotional and important question of public policybut not a difficult question of constitutional law. The Constitution does not guarantee the right to enter into a same-sex marriage. Indeed, no provision of the Constitution speaks to the issue. Windsor, 133 S. Ct. at 2714 (Alito, J., dissenting); see also id. at 2707 (Scalia, J., dissenting) (stating the Constitution neither requires nor forbids our society to approve of same-sex marriage). Because the Constitution does not dictate States approve same-sex marriage, [i]t leaves the choice to the people, acting through their elected representatives at both the federal and state Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 18 of 50 6 levels. Id. at 2711 (Alito, J., dissenting). Likewise, this Court need not, and should not, choose between same-sex and traditional marriage. This case is really about who decides, not who is right in this important policy debate. As cautioned by Justice Alito, when faced with a request like Plaintiffs to recognize a very new right, . . . judges have cause for both caution and humility. Id. at 2715. Under the United States Constitution, the people of North Dakota decide the definition of marriage for the State of North Dakota. II. Binding precedent demands this Court deny Plaintiffs equal protection and due process claims.
The Constitution grants the people of North Dakota the right to choose how to define marriage. Nothing in the United States Constitution prevents the people of North Dakota from defining marriage as the legal union between a man and a woman. Binding precedent dictates that this Court hold North Dakotas choice to define marriage as the legal union between a man and a woman does not violate equal protection or due process. Plaintiffs assert N.D. Const. art. XI, 28 and N.D.C.C. 14-03-01 and 14-03-08 violate the equal protection guarantee of the Fourteenth Amendment . . . . Doc. 19 122. They also assert that [t]he right to marry the unique person of ones choice . . . is one of the fundamental liberty interests protected for all by the Due Process Clause of the Fourteenth Amendment. Id. 145. But this Court need look no further than binding Eighth Circuit and Supreme Court precedent to reject Plaintiffs claims. As a general rule, statutes challenged on equal protection or substantive due process grounds must only be rationally related to a legitimate government interest unless the law implicates a fundamental right or involves a suspect or quasi-suspect classification. See Gallagher v. City of Clayton, 699 F.3d 1013, 1019 (8 th Cir. 2012); Csiszer v. Wren, 614 F.3d 866, 872 (8 th Cir. 2010); Gunderson v. Hvass, 339 F.3d 639, Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 19 of 50 7 643 (8 th Cir. 2003); Crowley Beverage Co. v. Miller Brewing Co., 862 F.2d 688, 691 (8 th
Cir. 1988). Such a law is accorded a strong presumption of validity, and is upheld if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. Gallagher, 699 F.3d at 1019 (citations omitted). 2
Plaintiffs attempt to avoid rational-basis review by arguing that sexual orientation is a type of class meriting strict or heightened scrutiny. Doc. 19 128. They also argue there is a fundamental right to marry someone of the same gender. Id. 145. But binding precedent holds sexual orientation 3 does not implicate a suspect, or otherwise protected, class and that there is no fundamental right to same-sex marriage. A. The Eighth Circuit has rejected Plaintiffs claims. District courts within the Eighth Circuit are bound to apply the precedent of the Eighth Circuit Court of Appeals. In Hood v. United States, 342 F.3d 861 (8 th Cir. 2003), the Eighth Circuit reversed a district court that embraced the reasoning of other circuits instead of apply the binding precedent of the Eighth Circuit. The Eighth Circuit unequivocally stated the district court is bound, as are we, to apply the precedent of this Circuit. Id. at 864. As for existing circuit precedent, only the court en banc can overrule it. Okruhlik v. Univ. of Ark., 255 F.3d 615, 622 (8 th Cir. 2001). The Eighth Circuit has held sexual orientation does not merit strict or heightened scrutiny, and this Court is bound by that holding.
2 There are other levels of scrutiny that apply to laws that classify according to certain characteristics. See Clark v. Jeter, 486 U.S. 456, 461 (1988). Strict scrutiny is reserved for laws that classify based on so-called suspect classes such as race, alienage, or national origin. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985). And classifications based on sex or illegitimacy receive an intermediate scrutiny. Clark, 486 U.S. at 461. Neither level of scrutiny applies in this case as explained infra. 3 By addressing this issue, State Defendants do not agree that the challenged laws draw distinction based on sexual orientation. Like the constitutional provision challenged in Sevcik v. Sandoval, 911 F. Supp. 2d 996, 1004 (D. Nev. 2012), no distinction is drawn according to sexual orientation.
Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 20 of 50 8 In Bruning, public interest groups whose members included gay and lesbian citizens of Nebraska challenged a Nebraska constitutional amendment, codified as Article I, 29 of the Nebraska Constitution, which provides: Only marriage between a man and a woman shall be valid or recognized in Nebraska. The uniting of two persons of the same sex in a civil union, domestic partnership, or other similar same-sex relationship shall not be valid or recognized in Nebraska.
455 F.3d at 863 (quoting Neb. Const. art. I, 29). The Eighth Circuit held the constitutional amendment should receive rational-basis review under the Equal Protection Clause, rather than a heightened level of judicial scrutiny. Id. at 866; see also id. at 867 (stating appellees are not entitled to strict scrutiny review). Almost every other circuit court has reached the same conclusion. 4 See Cook v. Gates, 528 F.3d 42, 61 (1 st Cir. 2008) (joining sister circuits in declining recognize homosexuals as a suspect class for equal protection purposes and citing cases); Price-Cornelison v. Brooks, 524 F.3d 1103, 1113 n.9 (10 th Cir. 2008) (rejecting, like many others, . . . the notion that homosexuality is a suspect classification and citing cases); see also Lofton v. Secy of Dept of Children & Family Servs., 358 F.3d 804, 818 (11 th Cir. 2004) (holding that homosexuality is not a suspect class and noting that all of our sister circuits that have considered the question have declined to treat homosexuals as a suspect class.); see also Andersen v. King County, 138 P.3d 963, 975 (Wash. 2006) (holding, and citing numerous cases holding, that gay and lesbian persons do not constitute a suspect class). More importantly, irrespective of the holdings of other courts, Bruning is binding precedent on this Court. No intervening Supreme Court precedent supersedes the Eighth Circuits holding in Bruning. Romer v. Evans, 517 U.S. 620 (1996) applied conventional rational basis
4 In its decision striking down part of DOMA, the Second Circuit held that homosexuals are a quasi-suspect class subject to heightened scrutiny. Windsor v. United States, 699 F.3d 169, 185 (2d Cir. 2012), affd, 133 S. Ct. 2675 (2013). But in reviewing the Second Circuits decision, the Supreme Courts majority opinion did not address the status of a sexual orientation class. Windsor, 133 S. Ct. at 2689-96.
Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 21 of 50 9 review in holding that a Colorado constitutional amendment violated equal protection by placing a [s]weeping and unprecedented ban on state and local laws offering gays and lesbians common protections from discrimination. Id. at 627, 631-32, 633, 635. And the Courts other decisions addressing rights relevant to gays and lesbians did not address which level of review was appropriate for laws discriminating on the basis of sexual orientation because their holdings rested on due process rights available to all. See Lawrence v. Texas, 539 U.S. 558, 578 (2003) (Their right to liberty under the Due Process Clause gives them the full right to engage in their [intimate sexual] conduct without intervention of the government and [t]he Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.); Windsor, 133 S. Ct. at 2695 (DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution.). B. The Supreme Court has rejected Plaintiffs claims. Baker v. Nelson, 409 U.S. 810 (1972) is also binding precedent on this Court. In Baker, the United States Supreme Court summarily rejected the equal protection and due process claims made by Plaintiffs in this case. In Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971), appeal dismissed, 409 U.S. 810 (1972), the Minnesota Supreme Court rejected plaintiffs claims that same-sex marriage was a fundamental right. The court also ruled that [t]he equal protection clause of the Fourteenth Amendment, like the due process clause, is not offended by the states classification of persons authorized to marry and that there was no irrational or invidious discrimination. Id. at 187 (holding the challenged statute does not offend the First, Eighth, Ninth, or Fourteenth Amendments to the United States Constitution.). On appeal the United States Supreme Court summarily dismissed the case for want of a substantial federal question. See Baker, 409 U.S. at 810. Under 28 U.S.C. 1257(2), the federal statute in effect at the time, the Supreme Court had no discretion to Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 22 of 50 10 refuse adjudication of the case on the merits. As a result, the dismissal constitutes a ruling on the merits and is binding on the issues addressed. See Hicks v Miranda, 422 U.S. 332, 344-45 (1975), superseded by statute, 28 U.S.C. 1257(2). In Hicks, the Supreme Court stated lower courts are bound by summary decisions by this Court until such time as the Court informs (them) that (they) are not. Id. (quoting Doe v. Hodgson, 478 F.2d 537, 539 (2d Cir. 1973)). The Supreme Court has also stated: If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, [lower courts] should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions. Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989); see also Neely v. Newton, 149 F.3d 1074, 1078 (10 th Cir. 1998) (summary affirmances and summary dismissals for want of a substantial federal question are considered decisions on the merits, and lower courts are thereby bound by the summary actions). In McConnell v. Nooner, 547 F.2d 54, 56 (8 th Cir. 1976), the Eighth Circuit followed Baker, stating the Supreme Courts dismissal of the appeal for want of a substantial federal question constitutes an adjudication on the merits which is binding on the lower federal courts. More recently, in Bruning the Eighth Circuit expressly relied on Bakers holding same-sex marriage is not a fundamental right. It wrote: In the nearly one hundred and fifty years since the Fourteenth Amendment was adopted, to our knowledge no Justice of the Supreme Court has suggested that a state statute or constitutional provision codifying the traditional definition of marriage violates the Equal Protection Clause or any other provision of the United States Constitution. Indeed, in Baker v. Nelson, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972), when faced with a Fourteenth Amendment challenge to a decision by the Supreme Court of Minnesota denying a marriage license to a same-sex couple, the United States Supreme Court dismissed for want of a substantial federal question.
455 F.3d at 870. Though it has had many opportunities to do so, including last year in Windsor, the Supreme Court has never informed lower courts that they are no longer bound by Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 23 of 50 11 Baker. 5 The First Circuit recently recognized that subsequent Supreme Court opinions may open the door to some gay rights claims, but Baker limit[s] the arguments to ones that do not presume or rest on a constitutional right to same-sex marriage. Massachusetts v. U.S. Dept of Health & Human Servs., 682 F.3d 1, 8 (1 st Cir. 2012), cert. denied, 133 S. Ct. 2884, 2887 (2013). The First Circuit wrote: Baker is precedent binding on us unless repudiated by subsequent Supreme Court precedent. Following Baker, gay rights claims prevailed in several well known decisions, but neither mandates that the Constitution requires states to permit same sex marriages. A Supreme Court summary dismissal prevent[s] lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions.
Id. (citations omitted). Other federal district court decisions addressing constitutional challenges to state marriage laws have concluded that Baker remains binding. See Sevcik v. Sandoval, 911 F. Supp. 2d 996 (D. Nev. 2012) (equal protection claim barred by Supreme Courts dismissal of Baker); Jackson v. Abercrombie, 884 F. Supp. 2d 1065 (D. Haw. 2012) (due process and equal protection claims barred by Supreme Courts dismissal of Baker); see also Wilson v. Ake, 354 F. Supp. 2d 1298, 1304-05 (M.D. Fla. 2005) (Although Baker v. Nelson is over thirty (30) years old, the decision addressed the same issues presented in this action and this Court is bound to follow the Supreme
5 Neither Romer, 517 U.S. 620, nor Lawrence, 539 U.S. 558, addressed the constitutionality of state marriage laws, and neither mentions Baker. Romer had nothing to do with marriage laws; rather, it involved the elimination of all basic legal protections and rights of access to the ordinary political process normally available to all people within Colorado. And Lawrence, which was decided after Romer, expressly informed lower courts that the case did not involve whether the government must give formal recognition to any relationship that homosexual persons may seek to enter. 539 U.S. at 578; see also id. at 585 (OConnor, J., concurring) (noting that preserving the traditional institution of marriage would be a legitimate state interest beyond moral disapproval). The Supreme Courts decision in Windsor, 133 S. Ct. 2675, also makes no mention of Baker and certainly does not inform lower courts that they are no longer bound by Baker. Windsor is distinguishable in that it dealt with the constitutionality of a federal law defining marriage, not a state law. See Windsor, 699 F.3d at 178 (The question whether the federal government may constitutionally define marriage . . . is sufficiently distinct from the question in Baker: whether same-sex marriage may be constitutionally restricted by the states.). Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 24 of 50 12 Courts decision.). 6
Bruning and Baker are binding precedent establishing there is no fundamental right to same-sex marriage, sexual orientation is not a suspect class, and state laws limiting marriage to persons of the opposite sex do not violate equal protection or due process. Those holdings are binding on this Court until the en banc Eighth Circuit or the United States Supreme Court reverses course and holds otherwise. C. Windsor did not alter the Bruning and Baker decisions. Windsor did not involve a state law prohibiting same-sex marriage; it involved DOMA. The challenge before the Supreme Court in Windsor did not involve Section 2 of DOMA, which allows States to refuse to recognize same-sex marriages performed under the laws of other States. See 133 S. Ct. at 2682-83. Instead, Windsor involved only Section 3, which for purposes of federal law defined the word marriage to mean only a legal union between one man and one woman as husband and wife, and the word spouse to mean only a person of the opposite sex who is a husband or a wife. Id. at 2682-83 (quoting 1 U.S.C. 7). As discussed earlier, the Windsor Court found Section 3 of DOMA unconstitutional. Importantly, the Court reached this decision based upon the fact that it is the States, not the federal government, that have the power to regulate marriage and domestic relations. Thus, Windsor does not hold that a fundamental right to marry a person of the same sex exists, or that States have to allow and recognize same-sex marriages; rather, it holds that, if a State allows same-sex marriage, federal agencies are required to honor that States decision. The Windsor majority made it clear that its decision cannot be read to establish a fundamental right to marry a person of the same
6 A divided panel (2-1) of the Tenth Circuit recently held that a state may not deny the issuance of a marriage license to two persons, or refuse to recognize their marriage, based solely upon the sex of the persons in the marriage union. Kitchen v. Herbert, No. 13-4178, 2014 WL 2868044 *1 (10 th Cir. June 25, 2014). The majority concluded doctrinal developments had superseded Baker. Id. at *8. Judge Kelly, in his dissent, properly acknowledged that Baker should foreclose the Plaintiffs claims, at least in this court. Id. at 33 (Kelly, C.J., dissenting). Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 25 of 50 13 sex. It wrote: By seeking to displace this protection [provided by state marriage laws] and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment. This opinion and its holding are confined to those lawful marriages. Id. at 2696; see also id. at 2697 (Roberts C.J., dissenting) (I write only to highlight the limits of the majority's holding and reasoning today, lest its opinion be taken to resolve not only a question that I believe is not properly before us DOMA's constitutionalitybut also a question that all agree, and the Court explicitly acknowledges, is not at issue.). The Windsor Court did not explicitly or implicitly over-rule Baker, meaning Baker continues to be good law and binding on this Court. Moreover, Windsor did not address the issues directly addressed by the Eighth Circuit in Bruning, meaning Bruning continues to be binding on this Court. D. Rational basis review requires judicial restraint and deference to the legislature.
The Fourteenth Amendments promise of equal protection has always been grounded in the practical reality that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons. Romer, 517 U.S. at 631. The Equal Protection Clause does not forbid classifications. It simply keeps governmental decisionmakers from treating differently persons who are in all relevant respects alike. Nordlinger v. Hahn, 505 U.S. 1, 10 (1992). The Equal Protection Clause has never provided a license for courts to judge the wisdom, fairness, or logic of legislative choices. F.C.C. v. Beach Commc'ns, Inc., 508 U.S. 307, 313 (1993). Rather, equal protection normally affords legislative decisions considerable deference. Thus, a legislative classification that neither affects a fundamental right nor targets a suspect class is accorded a strong presumption of validity. Heller v. Doe ex rel. Doe, 509 U.S. 312, 319 (1993). Such a classification will not violate the Equal Protection Clause so long as it rationally relates to some legitimate Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 26 of 50 14 governmental purpose. Id. at 320; Romer, 517 U.S. at 631. In other words, [a] statutory classification fails rational-basis review only when it rests on grounds wholly irrelevant to the achievement of the State's objective. Heller, 509 U.S. at 324 (quoting Holt Civic Club v. Tuscaloosa, 439 U.S. 60, 71 (1978)). Baker and Bruning dictate that this Court review Plaintiffs equal protection and due process claims under the rational basis standard. Under rational basis review, the burden rests on Plaintiffs to negative every conceivable basis which might support the legislative classification. Beach Commcns, 508 U.S. at 315 (quoting Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973)). In contrast, the State Defendants need not produce any evidence to show the rationality of the challenged classification. Heller, 509 U.S. at 320. Statutes concerning social policy must be upheld . . . if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. Beach Commcns, 508 U.S. at 313; see also City of City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (When social or economic legislation is at issue, the Equal Protection Clause allows the States wide latitude.). This remains true even if the conceivable legislative facts are legitimately contested. Vance v. Bradley, 440 U.S. 93, 112 (1979) (It makes no difference that the [legislative] facts may be disputed or their effect opposed by argument and opinion of serious strength. It is not within the competency of the courts to arbitrate in such contrariety. (quoting Rast v. VanDeman & Lewis Co., 240 U.S. 342, 357 (1916))). Moreover, the legislature need not have ever articulated any rational basis for its decision, nor does it matter whether the conceived reason for the classification actually motivated the legislature. Beach Commcns, 508 U.S. at 315; see also id. at 318 (Whether the posited reason for the challenged distinction actually motivated Congress is constitutionally irrelevant. (quoting U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 179 (1980))). A lack of legislative facts on the record explaining the legislatures reasoning has no significance under rational basis review. Id. at 315. In short, the Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 27 of 50 15 legislatures choice is not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data. Id. Even if the law was allegedly based on an improper motive, it cannot be struck down so long as any conceivable rational basis exists to support the statute. See, e.g., City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48 (1986) (It is a familiar principle of constitutional law that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive . . . . (quoting United States v. OBrien, 391 U.S. 367, 383 (1968))). Finally, rational basis review compels the Court to accept any legislative generalizations even when there is an imperfect fit between means and ends. Heller, 509 U.S. at 321. As the Supreme Court recently reiterated: the Constitution does not require the [State] to draw the perfect line nor even to draw a line superior to some other line it might have drawn. It requires only that the line actually drawn be a rational line. Armour v. City of Indianapolis, 132 S. Ct. 2073, 2083 (2012); see also Dandridge v. Williams, 397 U.S. 471, 485 (1970) (classification does not violate equal protection simply because it is not made with mathematical nicety or because in practice it results in some inequality (quoting Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78 (1911))); Metropolis Theatre Co. v. City of Chicago, 228 U.S. 61, 6970 (1913) (The problems of government are practical ones and may justify, if they do not require, rough accommodations,illogical, it may be, and unscientific); Heath & Milligan Mfg. Co. v. Worst, 207 U.S. 338, 354 (1907) (the logical appropriateness of the inclusion or exclusion of objects or persons and exact wisdom and nice adaptation of remedies are not required). Courts must remember that the machinery of government would not work if it were not allowed a little play in its joints. Bain Peanut Co. v. Pinson, 282 U.S. 499, 501 (1931). Rational-basis review is a paradigm of judicial restraint. Beach Commcns, 508 U.S. at 314. It forbids the judiciary from sitting as a superlegislature to judge the Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 28 of 50 16 wisdom or desirability of legislative policy determinations . . . . Heller, 509 U.S. at 319 (quoting City of New Orleans v. Duke, 427 U.S. 297, 303 (1976)). The Constitution presumes that, absent some reason to infer antipathy, even improvident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted. Beach Commcns, 508 U.S. at 314 (quoting Vance, 440 U.S. at 97 (footnote omitted)); see also Romer, 517 U.S. at 632 (In the ordinary case, a law will be sustained if it can be said to advance a legitimate government interest, even if the law seems unwise or works to the disadvantage of a particular group, or if the rationale for it seems tenuous.); U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 175-76 (1980) (as long as the classification has some reasonable basis, it does not offend the Constitution simply because . . . in practice it results in some inequality and the rational-basis test does not change in theory or application just because the classification would undoubtedly seem inequitable to some members of a class (quoting Dandridge, 397 U.S. at 485)). Rational basis review must be applied with an unusually delicate touch here. Equal protection scrutiny will not be so demanding where [it] deal[s] with matters resting firmly within a States constitutional prerogatives. Gregory, 501 U.S. at 462 (quoting Sugarman v. Dougall, 413 U.S. 634, 648 (1973)). Because the Plaintiffs constitutional attack on North Dakotas definition of marriage targets an area that has long been regarded as a virtually exclusive province of the States, Sosna, 419 U.S. at 404, that definition is entitled to unusual deference. Bruning, 455 F.3d at 867 (stating rational basis review must be particularly deferential to state marriage laws which are the predominant concern of state government.). Deferring to North Dakotas constitutional prerogatives, Gregory, 501 U.S. at 462 (citation omitted), follows from the limits on judicial powerthat the Fourteenth Amendment gives the federal courts no power to impose upon the States their views of what constitutes wise economic or Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 29 of 50 17 social policy, Dandridge, 397 U.S. at 486. E. The challenged constitutional provision and laws are rational. Bruning and Baker dictate that this Court find that the challenged laws are rational. In Bruning, the Eighth Circuit held Nebraskas constitutional amendment limiting marriage to opposite-sex couples was rational. It wrote: [The States argument concerning the rational basis for its limitation on marriage to opposite-sex couples] is also based on a responsible procreation theory that justifies conferring the inducements of marital recognition and benefits on opposite-sex couples, who can otherwise produce children by accident, but not on same-sex couples, who cannot. Whatever our personal views regarding this political and sociological debate, we cannot conclude that the States justification lacks a rational relationship to legitimate state interests.
. . .
The package of government benefits and restrictions that accompany the institution of formal marriage serve a variety of other purposes. The legislature-or the people through the initiative process-may rationally choose not to expand in wholesale fashion the groups entitled to those benefits.
455 F.3d at 867-68 (citations omitted). The Eighth Circuit then held the challenged Nebraska constitutional amendment and other laws limiting the state-recognized institution of marriage to heterosexual couples are rationally related to legitimate state interests and therefore do not violate the Constitution of the United States. Id. at 871. The responsible procreation rationale for the Nebraska constitutional provision equally applies to N.D. Const. art. XI, 28 and N.D.C.C. 14-03-01 and 14-03-08. To borrow language from a Hawaii case: Here, opposite-sex couples, who can naturally procreate, advance the interest in encouraging natural procreation to take place in stable relationships and same-sex couples do not to the same extent. Thus, [North Dakotas] marriage laws are reasonably related to this legitimate state interest. Jackson, 884 F. Supp. 2d at 1114; see also In re Marriage of J.B. & H.B., 326 S.W.3d 654, 674, 677 (Tex. Ct. App. 2010) (Because Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 30 of 50 18 only relationships between opposite-sex couples can naturally produce children, it is reasonable for the state to afford unique legal recognition to that particular social unit in the form of opposite-sex marriage; The persons singled out and favored by Texas's marriage laws, namely opposite-sex couples, have such a distinguishing and relevant characteristic: the natural ability to procreate. The state's interest in fostering relationships that will serve children best is a legitimate interest within the state's authority to regulate. (quoting Hernandez v. Robles, 855 N.E.2d 1, 11 (N.Y. 2006)); Morrison v. Sadler, 821 N.E.2d 15, 35 (Ind. Ct. App. 2005) (stating at least one legitimate legislative goal at issue here is to encourage heterosexual, opposite-sex couples to procreate responsibly and to have and raise children within a relatively stable, committed relationship, because of the innate fact that opposite-sex intercourse frequently results in unintended children while same-sex intercourse never will); Andersen, 138 P.3d at 982 ([N]o other relationship has the potential to create, without third party involvement, a child biologically related to both parents, and the legislature rationally could decide to limit legal rights and obligations of marriage to opposite-sex couples.); Conaway v. Deane, 932 A.2d 571, 630-31 (Md. 2007) (applying rational basis and finding the inextricable link between marriage and procreation reasonably could support the definition of marriage as between a man and a woman only, because it is that relationship that is capable of producing biological offspring of both members (advances in reproductive technologies notwithstanding)); Standhardt v. Superior Court ex rel. County of Maricopa, 77 P.3d 451, 462-63 (Ariz. Ct. App. 2003) ([T]he only sexual relationship capable of producing children is one between a man and a woman. The State could reasonably decide that by encouraging opposite-sex couples to marry, thereby assuming legal and financial obligations, the children born from such relationships will have better opportunities to be nurtured and raised by two parents within long-term, committed relationships, which society has traditionally viewed as advantageous for children. Because same-sex couples cannot by themselves Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 31 of 50 19 procreate, the State could also reasonably decide that sanctioning same-sex marriages would do little to advance the State's interest in ensuring responsible procreation within committed, long-term relationships.). Importantly a rational basis that survives equal protection scrutiny also satisfies substantive due process analysis. Kan. City Taxi Cab Drivers Ass'n v. City of Kan. City, 742 F.3d 807, 809 (8 th Cir. 2013) (quoting Executive Air Taxi Corp. v. City of Bismarck, 518 F.3d 562, 569 (8 th Cir. 2008)). Thus, Bruning is binding precedent that N.D. Const. art. XI, 28 and N.D.C.C. 14-03-01 and 14-03-08 do not violate Plaintiffs equal protection and due process rights. As previously discussed, Baker is also binding. F. Other rational reasons exist for limiting marriage to opposite-sex couples.
1. The legislature could rationally believe it is beneficial for children to be raised by both a mother and a father.
Although Brunings holding that responsible procreation is a rational basis for limiting marriage to opposite-sex couples is binding on this Court, other rational reasons exist for North Dakotas challenged laws. For example, courts have upheld laws defining marriage as only the union of a man and a woman on the ground the legislature could believe traditional marriage promotes optimal child rearing. In Hernandez v. Robles, 855 N.E.2d 1, 8 (N.Y. 2006), the court held there are rational grounds on which the Legislature could choose to restrict marriage to couples of opposite sex. In its carefully considered decision, the court addressed both the responsible procreation rationale and the optimal child rearing rationale. It wrote: First, the Legislature could rationally decide that, for the welfare of children, it is more important to promote stability, and to avoid instability, in opposite-sex than in same-sex relationships. Heterosexual intercourse has a natural tendency to lead to the birth of children; homosexual intercourse does not. Despite the advances of science, it remains true that the vast majority of children are born as a result of a sexual relationship between a man and a woman, and the Legislature could find that this will continue to be true. The Legislature could also find that such relationships are all too often casual or temporary. It could find that an important function of marriage is to create more stability and permanence Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 32 of 50 20 in the relationships that cause children to be born. It thus could choose to offer an inducementin the form of marriage and its attendant benefits to opposite-sex couples who make a solemn, long-term commitment to each other.
The Legislature could find that this rationale for marriage does not apply with comparable force to same-sex couples. These couples can become parents by adoption, or by artificial insemination or other technological marvels, but they do not become parents as a result of accident or impulse. The Legislature could find that unstable relationships between people of the opposite sex present a greater danger that children will be born into or grow up in unstable homes than is the case with same- sex couples, and thus that promoting stability in opposite-sex relationships will help children more. This is one reason why the Legislature could rationally offer the benefits of marriage to opposite-sex couples only.
There is a second reason: The Legislature could rationally believe that it is better, other things being equal, for children to grow up with both a mother and a father. Intuition and experience suggest that a child benefits from having before his or her eyes, every day, living models of what both a man and a woman are like.
Id. at 7. See also In re Kandu, 315 B.R. 123, 146 (Bankr. W.D. Wash. 2004) (Authority exists that the promotion of marriage to encourage the maintenance of stable relationships that facilitate to the maximum extent possible the rearing of children by both of their biological parents is a legitimate congressional concern.); In re Marriage of J.B. & H.B., 326 S.W.3d at 677 (The state has a legitimate interest in promoting the raising of children in the optimal familial setting. It is reasonable for the state to conclude that the optimal familial setting for the raising of children is the household headed by an opposite-sex couple.); id. at 678 (The state also could have rationally concluded that children are benefited by being exposed to and influenced by the beneficial and distinguishing attributes a man and a woman individually and collectively contribute to the relationship.); Andersen, 138 P.3d at 983 ([T]he legislature was entitled to believe that providing that only opposite-sex couples may marry will encourage procreation and child-rearing in a traditional nuclear family where children tend to thrive.). Plaintiffs, of course, may dispute that it is better for children to grow up with both a mother and a father. In fact, there is no doubt they could even cite studies in support Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 33 of 50 21 of their position, while the State could cite studies that support the rationale that children benefit from being raised by both a mother and a father. And both sides of the debate could then criticize the others studies, methods, and conclusions. See, e.g., Jackson, 884 F. Supp. 2d at 1114-16 (noting conflicting evidence and both sides pointing out flaws in the other sides evidence). But that is not the test. At most, conflicting studies show the issue is debatable and that the legislature could rationally think one way or the other. See id. at 1111-14 (upholding traditional definition of marriage because parties conflicting evidence showed that the optimal parenting rationale was at least debatable); Hernandez, 855 N.E.2d at 8 (In the absence of conclusive scientific evidence, the Legislature could rationally proceed on the commonsense premise that children will do best with a mother and father in the home.); Andersen, 138 P.3d at 983 (stating the legislature was entitled to believe that providing that only opposite-sex couples may marry will encourage procreation and child-rearing in a traditional nuclear family where children tend to thrive); id. (stating it is not the province of this court to pass on the merits of the arguments and studies); Hernandez, 855 N.E.2d at 7 (Plaintiffs, and amici supporting them, argue that the proposition asserted is simply untrue: that a home with two parents of different sexes has no advantage, from the point of view of raising children, over a home with two parents of the same sex. Perhaps they are right, but the Legislature could rationally think otherwise.). Admittedly, a factual dispute exists regarding whether children benefit from being raised by both a mother and a father. That dispute, however, does not preclude judgment in State Defendants favor because, under rational basis scrutiny, empirical support is not necessary to sustain a classification. Beach Commcns, 508 U.S. at 315. Factual disputes that may be material in other civil cases generally have no relevance in a rational basis review. Vance, 440 U.S. at 110-11. Simply put, North Dakotas legislative choice is not subject to courtroom fact-finding and may be based on rational Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 34 of 50 22 speculation unsupported by evidence or empirical data. Beach Commcns, 508 U.S. at 315. 2. The legislature could rationally believe it is best to proceed with caution before fundamentally altering the nature of marriage.
It is well-settled that the ancient and ongoing tradition of marriage between a man and a woman resulting in the procreation and care of children inside that family unit has been both fundamental to our very existence and survival, Loving v. Virginia, 388 U.S. 1, 12 (1967), and the foundation of the family and of society, without which there would be neither civilization nor progress, Zablocki v. Redhail, 434 U.S. 374, 384 (1978) (quoting Maynard v. Hill, 125 U.S. 190, 211 (1888)). That explains, at least in part, why the man-woman definition of marriage has endured for so long, virtually unquestioned until very recent times. It also helps explain North Dakotas and the majority of other States attempt to protect the traditional definition of marriage by codification and constitutional amendment. North Dakota could have rationally concluded that changing the foundations of society by redefining marriage will likely cause changes in society itself. And it could also have rationally decided that approaching this issue cautiouslytaking a wait-and-see-approachmakes the most sense for North Dakota. No one can seriously question the fact that [p]ast changes in the understanding of marriage . . . have had far-reaching consequences. Windsor, 133 S. Ct. at 2715 (Alito, J., dissenting). For almost any such change, the resulting consequences and whether they are good or bad are not immediately clear and often depend on numerous variables. As Justice Alito pointed out, it sometimes takes years to understand the impact social changes have on children and society. Id. at 2715 & n.5. Specifically as to same-sex marriage, some respectable voices warn that it will seriously harm the institution of marriage and society, while others appear to hope that it does. Id. at 2715- 16 & n.6. Still others opine that same-sex marriage can strengthen a weakening Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 35 of 50 23 institution. Id. at 2715-16. But no one knows right now the precise impact same-sex marriage will have on traditional marriage, children, and society at large. Given the crucial role man-woman marriage has played in building society and the uncertainty surrounding the impact of same-sex marriage, North Dakota could rationally choose to proceed with caution. See, e.g., Sevcik, 911 F. Supp. 2d at 1016 (Because the family is the basic societal unit, the State could have validly reasoned that the consequences of altering the traditional definition of marriage could be severe.); Jackson, 884 F. Supp. 2d at 1117 ([I]t is not beyond rational speculation to conclude that fundamentally altering the definition of civil marriage to include same-sex unions might result in undermining the societal understanding of the link between marriage, procreation, and family structure.); Andersen, 138 P.3d at 1005 (J.M. Johnson, J., concurring in judgment) (Before redefining a social institution [like man-woman marriage], the legislature should consider ramifications flowing from all three . . . couple communities [, i.e., male couples, female couples, and male-female couples,] and the resulting impact on the social fabric and on children.); id. at 1006 (it is rational that [the] legislature insists upon compelling evidence before making a sweeping alteration in marriage.). One of the advantages of federalism is that it allows States, if its citizens choose, to adopt novel social and economic experiments without risk to the rest of the country. New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting). No society has yet had a generations worth of experience permitting same-sex marriage. Other States experience with same-sex marriage could provide valuable practical data about the effects of same-sex marriage. North Dakota could rationally decide to wait until it obtains more information about the effects of same-sex marriage before deciding to permit it in North Dakota. By making clear that same-sex marriage is not permitted in North Dakota, and by declining to recognize out-of-state same-sex marriages in North Dakota, the challenged laws avoid the unforeseen consequences of a sudden and dramatic change Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 36 of 50 24 to the definition of marriage. They preserve for the people of North Dakota the ability to critically evaluate the States marriage laws and to learn over time from the experiences of other States. It would be rational for North Dakota to take such an approach regarding redefining the fundamental institution of marriage. As noted above, under rational basis review, it is constitutionally irrelevant what actually motivated the legislature to pass the challenged laws. Beach Commcns, 508 U.S. at 315. The Constitution does not demand for purposes of rational-basis review that a legislature or governing decisionmaker actually articulate at any time the purpose or rationale supporting its classification. Nordlinger, 505 U.S. at 15. The only question is whether a purpose may conceivably or may reasonably have been the purpose and policy of the relevant governmental decisionmaker. Id. (quoting Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522, 52829 (1959)). As demonstrated, [t]here can be no doubt that there exists a rational basis for the state to limit the definition of marriage to exclude same-sex relationships. Singer v. Hara, 522 P.2d 1187, 1197 (Wash. Ct. App. 1974). For this reason, Plaintiffs equal protection and due process claims must be dismissed. 7
III. There is no constitutional right to same-sex marriage. Even if Bruning and Baker were not binding, which they are, their rejection of a claimed constitutional right to same-sex marriage is still constitutionally correct. The Plaintiffs invoke the much-criticized doctrine of substantive due process to argue that N.D. Const. art. XI, 28 and N.D.C.C. 14-03-01 and 14-03-08 violate the Due Process Clause. Because of its reluctan[ce] to expand the concept of substantive due process, Washington v. Glucksberg, 521 U.S. 702, 720 (1997) (quoting Collins v. City
7 The Tenth Circuit assumed fostering a child-centric marriage culture that encourages parents to subordinate their own interests to the needs of their children; (2) children being raised by their biological mothers and fathersor at least by a married mother and fatherin a stable home; [and] (3) ensuring adequate reproduction were compelling compelling reasons for traditional marriage laws. Kitchen, 2014 WL 2868044, at *22. Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 37 of 50 25 of Harker Heights, 503 U.S. 115, 125 (1992)), the Supreme Court has carefully limited the standard for identifying fundamental rights protected by the Due Process Clause. The Courts established method of substantive-due-process analysis has two primary features. Id. First, the Due Process Clause provides protection only to those fundamental rights and liberties which are objectively, deeply rooted in this Nations history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed. Id. at 720-21 (citations omitted). Our Nations history, legal traditions, and practices thus provide the crucial guideposts for responsible decisionmaking that direct and restrain [judicial] exposition of the Due Process Clause. Id. at 721 (quoting Collins, 503 U.S. at 125). Second, identification of fundamental rights require[s] . . . a careful description of the asserted fundamental liberty interest. Id. (quoting Reno v. Flores, 507 U.S. 292, 302 (1993)). This reluctance is based on the Courts recognition that under our constitutional system of government some issues are properly decided, not by judges, but in the arena of public debate and legislative action. Id. at 720. Judicial recognition of a new right place[s] the matter outside the arena of public debate and legislative action. Id. Consequently, courts exercise the utmost care whenever [they] are asked to break new ground in this field. Collins, 503 U.S. at 125. Otherwise, the rights protected by the Due Process Clause [can] be subtly transformed into the policy preferences of the [court]. Glucksberg, 521 U.S. at 720. As explained by the Ninth Circuit Court of Appeals: [W]hen a right is not rooted in our constitutional text, traditions, or history, our authority as judges is at its end. We must then leave the task of identifying and protecting new rights where the Constitution leaves itwith the political branches and the people. Log Cabin Republicans v. United States, 658 F.3d 1162, 1170 (9 th Cir. 2011).
Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 38 of 50 26 A. The right to marry does not include the right to marry a person of the same gender.
The careful description of an asserted fundamental right must be precise and not overly broad. In Reno v. Flores, 507 U.S. 292 (1993), the Supreme Court determined the right at issue in a challenge to a regulation governing release of detained alien juveniles was not the right to be free from physical restraint, but was the narrower alleged right of a child who has no available parent, close relative, or legal guardian, and for whom the government is responsible, to be placed in the custody of a willing-and-able private custodian rather than of a government-operated or government-selected child-care institution. Id. at 302. Similarly, in Glucksberg the Court criticized a lower federal court for broadly defining the claimed right as a right to die, when the right at issue was really the asserted right to commit suicide and to have assistance in doing so. 521 U.S. at 722-23. Plaintiffs asserted right to marry the unique person of ones choice, Doc. 19 145, properly described, alleges a fundamental right to marry someone of the same sex. See In re Marriage of J.B. & H.B., 326 S.W.3d at 675 (concluding the precise rights claimed by appellee should be defined as the right to marry a person of the same sex, not as the right to marry whomever one chooses); see also Kitchen v. Herbert, No. 13-4178, 2014 WL 2868044, *36 (10 th Cir. June 25, 2014) (Kelly, C.J., dissenting) (stating same-gender marriage is a very recent phenomenon and the case is better understood as an effort to extend marriage to persons of the same gender by redefining marriage; [I[t is entirely appropriate for the State to characterize the right sought as one of same-gender marriage and focus attention on its recent development.). No such fundamental right exists. It is undisputed that marriage as traditionally defined is a fundamental right. See Loving, 388 U.S. at 12 (marriage is a fundamental freedom that may not be restricted by invidious racial descriptions); Glucksberg, 521 U.S. at 719 (citing Loving as establishing a fundamental right to marry). But Plaintiffs Complaint goes further by Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 39 of 50 27 alleging a fundamental right to marry a person of the same sex, a right or liberty undeniably not deeply rooted in this Nations history and tradition. Supreme Court decisions touching on the fundamental right to marry have always involved opposite-sex couples, which is deeply rooted in this Nations history and tradition. See Maynard v. Hill, 125 U.S. 190, 211 (1888) (Marriage is the foundation of the family and of society, without which there would be neither civilization nor progress.); Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942) (Marriage and procreation are fundamental to the very existence and survival of the race.); Zablocki, 434 U.S. at 386 ([A] decision to marry and raise the child in a traditional family setting must receive . . . protection.). When the Supreme Court has spoken of a fundamental right to marry, it had in mind this universal historical definition. Marriage defined as the relationship between a man and a woman was reflected in prominent dictionaries from the time of the framing and ratification of the Fourteenth Amendment. See, e.g., Noah Webster, Etymological Dictionary 130 (1st ed. 1869); Joseph E. Worcester, A Primary Dictionary of the English Language 176 (1871); John Bouvier, A Law Dictionary Adapted to the Constitution and Laws of the United States 105 (12 th ed. 1868). Indeed, [u]ntil a few decades ago, 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. Hernandez, 855 N.E.2d at 8. See also Standhardt, 77 P.3d at 458 (rejecting argument the freedom of choice to marry is unrestricted, encompassing the right to marry anyone, including a same-sex partner, because [i]mplicit in Loving and predecessor opinions is the notion that marriage, often linked to procreation, is a union forged between one man and one woman). When Plaintiffs broadly invoke the freedom to marry they cannot escape the history and meaning of the right which is to enter a legal union with a person of the opposite gender. Plaintiffs asserted right to marry a person of the same gender is a Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 40 of 50 28 novel right not deeply rooted in this Nation's history and tradition. B. Same-sex marriage is not deeply rooted in this Nation's history and tradition.
Substantive due process dictates that [a] fundamental right or liberty interest is one that is deeply rooted in this Nations history and tradition and implicit in the concept of ordered liberty. Seegmiller v. LaVerkin City, 528 F.3d 762, 767 (10 th Cir. 2008) (quoting Chavez v. Martinez, 538 U.S. 760, 775 (2003)). Without these rights, neither liberty nor justice would exist. Seegmiller, 528 F.3d at 767 (quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937)). Is the right to marry a person of the same sex deeply rooted in this Nation's history and tradition? Plainly, it is not. In re Marriage of J.B. & H.B., 326 S.W.3d at 675. Far from being objectively, deeply rooted in this Nations history and tradition, same-sex marriage was unknown in the laws of this Nation before 2003. 8 See Goodridge v. Dept of Pub. Health, 798 N.E.2d 941, 989 (Mass. 2003) (quoting Moore v. City of E. Cleveland, 431 U.S. 494, 502 (1977)). Since then a dozen States have approved same-sex marriage through the exercise of [their] sovereign authority within our federal system . . . . Windsor, 133 S. Ct. at 2692. But these very recent developments among a minority of States hardly transform same-sex marriage into a deeply rooted historical and traditional right. In sum, there is no long history of the claimed right. The mere novelty of such a claim is reason enough to doubt that substantive due process sustains it. Flores, 507 U.S. at 303. To declare the due process right sought by the Plaintiffs, this Court would have to reverse centuries of legal doctrine and practice, and strike down the considered policy choice of almost every State. Glucksberg, 521 U.S. at 723 (If a thing has been practiced for two hundred years by common consent, it will need a strong case for the Fourteenth Amendment to affect it. (quoting Flores, 507 U.S. at 303)). Here, just as in
8 Even abroad, no foreign nation allowed same-sex marriage until the Netherlands in 2000. See Windsor, 133 S. Ct. at 2715 (Alito, J., dissenting). Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 41 of 50 29 Glucksberg, [t]he history of [the asserted right] in this country has been and continues to be one of the rejection of nearly all efforts to permit it. That being the case . . . the asserted right . . . is not a fundamental liberty interest protected by the Due Process Clause. Id. at 728; see also Wilson, 354 F. Supp. 2d at 1307 (holding the right to marry a person of the same sex is not a fundamental right under the Constitution); In re Kandu, 315 B.R. at 140 (Employing the analysis set forth by the Supreme Court for purposes of identifying fundamental liberties, there is no basis for this Court to unilaterally determine at this time that there is a fundamental right to marry someone of the same sex.); Standhardt, 77 P.3d at 459 (stating same-sex marriages are neither deeply rooted in the legal and social history of our Nation or state nor are they implicit in the concept of ordered liberty); Dean v. Dist. of Columbia, 653 A.2d 307, 333 (D.C. 1995) (The question, then, is whether there is a constitutional basis under the due process clause for saying that this recognized, fundamental right of heterosexual couples to marry also extends to gay and lesbian couples. The answer, very simply, is No.); Baehr v. Lewin, 852 P.2d 44, 57 (Haw. 1993) (Applying the foregoing standards to the present case, we do not believe that a right to same-sex marriage is so rooted in the traditions and collective conscience of our people that failure to recognize it would violate the fundamental principles of liberty and justice that lie at the base of all our civil and political institutions.); Jones v. Hallahan, 501 S.W.2d 588, 590 (Ky. Ct. App. 1973) (We find no constitutional sanction or protection of the right of marriage between persons of the same sex.); Conaway, 932 A.2d at 624-29 (holding same-sex marriage is not so deeply rooted in Maryland or the country as a whole that it should be regarded as a fundamental right); In re Marriage of J.B. & H.B., 326 S.W.2d at 675-76 (holding the right to legal recognition of a same-sex marriage is not a fundamental right for equal-protection purposes); Andersen, 138 P.3d at 979-80 (holding the fundamental right to marry does not include the right to marry a person of the same sex). Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 42 of 50 30 Windsor offers no help to the Plaintiffs. Both majority and dissenting members of the Court conceded the novelty of same-sex marriage. See Windsor, 133 S. Ct. at 2689 (stating until recent years marriage between a man and 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); id. at 2696 (Roberts C.J., dissenting) (DOMA retain[ed] the definition of marriage that, at that point, had been adopted by every State in our Nation, and every nation in the world); id. at 2706-07 (Scalia J., dissenting) (noting that the majority opinion does not argue that same-sex marriage is deeply rooted in this Nations history and tradition, a claim that would of course be quite absurd (quoting Glucksberg, 521 U.S. at 720-21)); id. at 2715 (Alito J. dissenting) (It is beyond dispute that the right to same-sex marriage is not deeply rooted in this Nations history and tradition.). But Windsor does identify a practice deeply rooted in our constitutional traditionthe historic and essential authority of the states to define the marital relation . . . . Id. at 2692. The power to define marriage, the Court said, 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. [T]he states, at the time of the adoption of the Constitution, possessed full power over the subject of marriage and divorce . . . . Id. at 2691 (citations omitted). This power, the Court said, was of central relevance to the outcome of Windsor. Id. at 2692. Thus, far from recognizing a deeply-rooted right to same-sex marriage that trumps contrary state definitions, Windsor reaffirmed the long- established authority of states (including North Dakota) to define marriage. Failing both elements of the Glucksberg standard, Plaintiffs asserted right to marry a person of the same sex is not entitled to heightened protection under the Due Process Clause. See 521 U.S. at 720-21.
Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 43 of 50 31 IV. The challenged provisions do not discriminate based on gender. Plaintiffs attempt to avoid rational-basis review by arguing that the man-woman definition of marriage constitutes gender discrimination, see Doc. 19 135, which would, if true, require heightened (but not strict) scrutiny, see City of Cleburne, 473 U.S. at 440-41. Plaintiffs might have a point if North Dakota law actually treated the genders differently, say, by forbidding a man from marrying another man while allowing a woman to marry another woman, or vice versa. But the North Dakota constitutional provision and statutes do not do that. The provisions are generally and neutrally applicable to both genders. Neither a man nor a woman may marry a person of the same sex. Thus, there is no gender discrimination because the laws treat men and women equally. As explained by one federal court: The laws at issue here are not directed toward persons of any particular gender, nor do they affect people of any particular gender disproportionately such that a gender-based animus can reasonably be perceived. . . . [H]ere, the burden on men and women is the same. The distinction might be gender based if only women could marry a person of the same sex, or if only women could marry a transgendered person, or if the restriction included some other asymmetry between the burdens placed on men and the burdens placed on women. But there is no distinction here between men and women . . . .
Sevcik, 911 F. Supp. 2d at 1005; 9 see also Jackson, 884 F. Supp. 2d at 1098 (citing cases and noting agreement with the vast majority of courts considering the issue that the traditional definition of marriage does not constitute gender discrimination.). V. Plaintiffs right to travel claim fails to state a claim. A. The right to interstate travel embraces three components. The right to interstate travel is a fundamental right recognized by the United States Constitution. The Eighth Circuit in Minnesota Senior Federation v. United States,
9 State Defendants citation of this part of the courts analysis does not mean State Defendants agree that the intent behind North Dakotas marriage laws is to prevent homosexuals from marrying. See 911 F. Supp.2d at 1005. Significant distinctions exist between North Dakotas marriage laws and Nevadas marriage and domestic partnership laws. See id. at 1000 (summarizing Nevadas marriage and domestic partnership laws).
Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 44 of 50 32 273 F.3d 805, 809 (8 th Cir. 2001) described the right as follows: Although the word travel is not found in the Constitution, the Supreme Court has frequently recognized the constitutional right to travel from one State to another. Saenz v. Roe, 526 U.S. 489, 498, 119 S.Ct. 1518, 143 L.Ed.2d 689 (1999) (quotation omitted). Because travel is a fundamental right, any classification which serves to penalize the exercise of that right, unless shown to be necessary to promote a compelling governmental interest, is unconstitutional. Shapiro v. Thompson, 394 U.S. 618, 634, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969). In Saenz, 526 U.S. at 500, 119 S.Ct. 1518, the Court recently reviewed its many right-to-travel cases and concluded that this right
embraces at least three different components. It protects the right of a citizen of one State to enter and to leave another State, the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State, and for those travelers who elect to become permanent residents, the right to be treated like other citizens of that State.
273 F.3d at 809. A State law does not burden the right to interstate travel unless it affects a component of the right. Saenz v. Roe, 526 U.S. 489, 500 (1999). The first component of the right, the right to move from State to State, is affected when a statute directly imposes an obstacle on travelers. Id. at 500-01. The second component, the right to be temporarily present in a second State, is protected by the Privileges and Immunities Clause of the United States Constitution (art. IV, 2, cl. 1). Toomer v. Witsell, 334 U.S. 385, 395-96 (1948). 10
The third component of the right to interstate travel, the right to be treated like other citizens of the second state, is protected by the Equal Protection Clause of the Fourteenth Amendment. Saenz, 526 U.S. at 502-03. This right is affected when a State law places some burden on citizens of other States who move to the new State, but not on State residents. It is not a right to live where you want. Doe v. Miller, 405 F.3d 700, 713-14 (8 th Cir. 2005).
10 Plaintiffs Complaint does not allege a violation of this component of the right to interstate travel. See Doc. 19 153-55. Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 45 of 50 33 B. The challenged provisions do not violate the right to travel. With regard to the first component of the right to travel, the Eighth Circuit has rejected as a matter of law a fundamental right to travel claim when a statute does not directly address or impair free interstate movement. Doe, 405 F.3d at 712. The Doe Court rejected the claim that state laws restricting the locations where a registered sex offender could reside were an unconstitutional violation of the right to travel. The Court held that statutes that place no obstacles to free ingress and regress to or from the State, and treated nonresidents visiting or moving into the State no differently that current residents of the State, did not infringe on the right to interstate travel. Id. The Eight Circuit stated: That the statute may deter some out-of-state residents from traveling to Iowa because the prospects for a convenient and affordable residence are less promising than elsewhere does not implicate a fundamental right recognized by the Courts right to travel jurisprudence.
Id. The challenged provisions place no obstacles to free ingress and regress to or from North Dakota. Accordingly, they do not violate the first component of the right to interstate travel. As stated in Doe, a statute that treats nonresidents moving into a State no differently than current residents of the State does not violate the third component of the right to travel. Id. This means the fact State-provided benefits, such as those associated with a States marriage laws, are different between States does not establish a claim based on the fundamental right to interstate travel unless the laws treat nonresidents moving into a State differently than current residents of the State. In Califano v. Gautier Torres, 435 U.S. 1 (1978), a right to travel equal protection claim was made because Supplemental Security Income benefits plaintiffs received while residing in Connecticut, Massachusetts, and New Jersey were terminated when they moved to Puerto Rico. Id. at 2-3. Rejecting the claim, the Supreme Court Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 46 of 50 34 emphasized that the right of interstate travel must be seen as insuring new residents the same right to vital governmental benefits and privileges in the States to which they migrate as are enjoyed by other residents. Id. at 4 (quoting Memorial Hosp. v. Maricopa County, 415 U.S. 250, 261 (1974)). The Court unequivocally rejected the position that the Constitution requires that a person who travels to [another State] must be given benefits superior to those enjoyed by other residents of [the new State] if the newcomer enjoyed those benefits in the State from which he came. Id. It wrote: This Court has never held that the constitutional right to travel embraces any such doctrine, and we decline to do so now. Id. The Eighth Circuits decision in Minnesota Senior also directly addressed this component of the right to interstate travel. It concerned a challenge to the differences in Medicaid benefits available in different States. In Minnesota Senior, the Eighth Circuit affirmed dismissal of the case: Here, [Plaintiff] would be treated equally with other Minnesotans if she moved there; she is deterred from moving because she would be voluntarily giving up more generous benefits available in Florida. 273 F.3d at 810. Thus, the fact that different benefits are available in one State versus another is not sufficient to state a claim based on the right to travel. The challenged North Dakota provisions apply equally to North Dakota residents and to those who move into North Dakota to become a resident. The fact North Dakotas marriage laws are different from the marriage laws of some other States does not establish a viable claim that the challenged provisions violate the right to interstate travel. There is no claim that any of the challenged provisions treat any of the Plaintiffs differently from any other North Dakota resident. VI. North Dakota may lawfully deny recognition of same-sex marriages performed elsewhere.
A. Federal law authorizes North Dakota to deny recognition to same-sex marriages.
Section 2 [of DOMA], which has not been challenged here, allows States to Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 47 of 50 35 refuse to recognize same-sex marriages performed under the laws of other States. Windsor, 133 S. Ct. at 2682-83. Section 2 of DOMA provides: No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.
28 U.S.C. 1738C. This wholly unremarkable measure codifies what has always been federal law: one state may reject a marriage performed in another State when that marriage violates the public policy of the forum state. B. The Constitution does not require North Dakota to recognize same-sex marriages contrary to its public policy.
[T]he Full Faith and Credit Clause does not require a State to apply another States law in violation of its own legitimate public policy. Nevada v. Hall, 440 U.S. 410, 422 (1979). Full faith and credit . . . does not . . . enable one state to legislate for the other or to project its laws across state lines so as to preclude the other from prescribing for itself the legal consequences of acts within it. Id. at 423-24 (quoting Pac. Employers Ins. Co. v. Indus. Accident Commn, 306 U.S. 493, 504-05 (1939)). Even before DOMA, it was well-settled that a State need not recognize out-of- state marriages that are illegal if performed in that State. This is because the Full Faith and Credit Clause does not compel a state to substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate. Franchise Tax Bd. v. Hyatt, 538 U.S. 488, 494 (2003) (quoting Sun Oil Co. v. Wortman, 486 U.S. 717, 722 (1988)). North Dakota law unambiguously forbids recognition of same-sex marriages. See N.D. Const. art. XI, 28; N.D.C.C. 14-03-01, 14-03-08. Because North Dakotas public policy prohibits the recognition of same-sex marriages, wherever performed, the Full Faith and Credit Clause does not obligate North Dakota to recognize Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 48 of 50 36 a same-sex marriage performed in another state or country. See Wilson, 354 F. Supp. 2d at 1303-04 (holding Florida is not required to recognize or apply Massachusetts same-sex marriage law because it clearly conflicts with Florida's legitimate public policy of opposing same-sex marriage); In re Marriage of J.B. & H.B., 326 S.W.3d 654 (State law proscribing consideration of a petition for divorce by a party to a same-sex marriage performed elsewhere did not violate Equal Protection Clause). CONCLUSION Defendants Jack Dalrymple, in his official capacity as Governor, Wayne Stenehjem, in his official capacity as Attorney General, Ryan Rauschenberger, in his official capacity as Tax Commissioner, and Terry Dwelle, in his official capacity as State Health Officer, respectfully request that this Court dismiss with prejudice Plaintiffs First Amended Complaint for Permanent Injunction and Declaratory Relief (Doc. 19). Dated this 1 st day of July, 2014.
State of North Dakota Wayne Stenehjem Attorney General
By: /s/ Douglas A. Bahr Douglas A. Bahr Solicitor General State Bar ID No. 04940 Office of Attorney General 500 North 9 th Street Bismarck, ND 58501-4509 Telephone (701) 328-3640 Facsimile (701) 328-4300 Email dbahr@nd.gov
Attorneys for Defendants Jack Dalrymple, in his official capacity as Governor, Wayne Stenehjem, in his official capacity as Attorney General, Ryan Rauschenberger, in his official capacity as Tax Commissioner, and Terry Dwelle, in his official capacity as State Health Officer.
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CERTIFICATE OF SERVICE Case No. 3:14-CV-57 I hereby certify that on July 1, 2014, the following document: MEMORANDUM IN SUPPORT OF MOTION TO DISMISS was filed electronically with the Clerk of Court through ECF, and that ECF will send a Notice of Electronic Filing (NEF) to Joshua Newville, Tom Fiebiger, and Scott Porsborg.
/s/ Douglas A. Bahr Douglas A. Bahr Solicitor General State Bar ID No. 04940 Email dbahr@nd.gov
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