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Fall Nr. 12-17668
UNITED STATES COURT OF COURT FOR THE NINTH CIRCUIT
BEVERLY SEVCIK, et al., Plaintiff-Appellant, Plaintiff-Appellant, v. GOVERNOR BRIAN SANDOVAL, et al., Defendant-Appellant, Defendant-Appellant, and COALITION FOR THE PROTECTION OF MARRIAGE, Intervenant-Defendant-Respondent. Intervener-Defendant-Respondent.
On Appeal of the US District Court for the District of Nevada Case No. 2:12-CV-00578-RCJ-PAL The Honorable Robert C. Jones, District Judge
BRIEF RESPONSE FROM DEFENDANT-AP DEFENDANT-COMPLICATIONS-PELLEE COALITION FOR MARRIAGE PROTECTION
Monte Neil Stewart Craig G. Taylor Daniel W. Bower STEWART TAYLOR & MORRIS PLLC 12550 W. Explorer Drive, Suite 100 Boise, ID 83713 Tel: (208) 345-3333 Attorneys for Complainants
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COMPANY DISCLOSURE STATEMENT
Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, the Defendant Appellee Coalition for the Protection of Marriage declares that it is a Nevada non-profit corporation in good standing and that it has no shareholders. are holder.
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TABLE OF CONTENTS page
CORPORATE CORPORAT E DISCLOSURE DISCLOSURE E STATEMENT E STATEMENT T ........................ ........ ... ................................... ............ .. ............ ......... ii TABLE OF AUTHORITIES AUTHORITIES IES ......... ........ .... ..................... ....................... .... ..... ................................ ........ ..... ............ .........vi-xviii INTRODUCTION INTRODUCTION ................. ....... .......................... ........ ........ ......... ................................. .. ...... ............................ .................. .... ................................ 1 DECLARATION OF JURISDICTION JURISDICTION.......... ION..... ....................... ...................... . ....... .................................. .... . ........................ .......... 10 EXPLANATION EXPLANATION OF PROBLEMS...... PROBLEMS... . .................. ................................ ..... ................................... .......... ................... .... .... ............... 10 ADDENDUM OF THE RELEVANT RELEVANT NT AUTHORITIES IES ................ .. ........ .......................................... ................ ...................... 11 EXPLANATION EXPLANATION OF THE CASE ...... . ..... .......................... ................... ..... .......... ................................. . ..... ........................................ 11 SUMMARY OF ARGUMENTATION . ....... ....................... .................. ....... .......................................... . ...... .................... .......... 16 ARGUMENT ARGUMENT ........... ....... ................................. .......... ...... ............................................ ....... ... ........................................ ........ ..................... ..................... ..... 17 I. RELEVANT ELEVANT
AND STABLE LEGAL FACTS SHOW THAT
SOCIETY HAS GOOD REASONS TO MAINTAIN “THE UNION OF A MAN AND A WOMAN” AS A CORE ESSENTIAL OF THE MARRIAGE INSTITUTION ........................................ ................................... .............. ....................................... ........... .................................................. ........ ...................... 17
A. When the parties present competing legislative facts or statutes, the courts turn to those chosen by the government decision-maker. ................ ................................. . ................................. ................ ................. ................................ ................................. ............. 18 B. The "unio "union of a man and woman" means to be at the core of the Nevada institution of marriage, offers valuable social benefits ........................ ..... ... ....................... ...................... ... ........... ................................... ..... ................................ ............. ... 26
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1. The institution of man-woman-woman marriage maximizes the likelihood that children will have both mother and father in their lifetime, an arrangement that has proven to have the best lifetime outcomes on a variety of indicators of human thriving -Results................. it............................ .. ....................... ................ ... .............. ................................. ... .... 34 34 a. The importance of the man-man-woman-woman in marriage furthers Nevada's vital interest in maximizing the number of children reared by its own two biological parents...... ...... .... .................. ...................... .......... .. .................................. .... .......... .......... ....... 35 b. The importance of man-man-woman-woman in marriage furthers Nevada's vital interest in maximizing the number of children raised by parents who can offer them at least the benefits of gender complementarity...... ...... .. .... .... 42 42 c. The male-female M means being able to live in marriage minimizes the fat fatherlessness in children's lives, a condition that is particularly challenging for the well-being of children in general. ................. ................................ .. .................................. .............. ................................................... ..... .. ................ 46 2. Man-woman marriage protects freedom of religion ..... ..... ........ ........................ .................... ...... ......... 51 C. Plaintiffs' limited view of what marriage is does not negate the legal facts showing that the institution is much broader and deeper in its nature and purposes. ................................. ................ ................... 56 II. WHAT
MARRIAGE SHOULD BE IS A DECISION THAT MUST BE
EXIT THE DEMOCRATIC PROCESSES, ESPECIALLY WHEN THESE PROCESSES ARE FAIR AND OPEN AND WHERE GENDERLESS
MARRIAGE
advocate
ARE
EFFICIENT
.................................... 61 USE VERY SUBSTANTIAL POLITICAL POWER. .................................... III.
NEVADANES HAVE RIGHTLY VALUED THE INTERESTS IN THE MARRIAGE LAWS OF NEVADA. .................................................. .... .......... 64 IV. BAKER V.N N ELSONBINDS JOINS THIS COURT TO RULE AGAINST THE PLAINTIFFS. ....................................... ... ...... ................... ................... ............ ....................... . ................................ ................ 67 VW INDSOR SUPPORTS INDSOR SUPPORTS THE MARRIAGE LAWS OF SNEVADA........................................ ... ..... ................... 68
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A. Windsor reviewed a law substantially different in motivation, authority, operation, and consequences from Nevada's Marriag Marriagee Laws. ................ ................................. . ................................. ................ ................ ................. 68 B. Plaintiffs erroneously invite this C court to make the same mistake as the congress made with DOMA and the Windsor corrected........ corrected........................ ........ .... ...................... ........................ ................................................... ........ .......... ........... .... 72 C. Plaintiffs expose the discrimination by DOMA, which was found unconstitutional in Windsor was erroneously equated with Nevada's fundamentally different decision to preserve the institution of marriage between a man and a woman ........ ...................... .... ........................ ...................... ... ..................... .. .. 74 D. Plaintiffs misinterpret Windsoras as recognizing a free-standing, free-standing substantive procedural right to "equal dignity," that the judicial imposition of a sexless E heregimes requires ... .... ................................... ...... ....................... ................ ....... .......... ................................ .. ..... ...... 77 Plaintiffs in E. misinterpret Windsoras by basing a "right" to a sexless marriage on "harms" to same-sex same-sex couples and the children associated with their relationship relationships.... .... ...................................... ... ......... ..... .... 79 VI. THERE
THERE IS NO FUNDAMENTAL RIGHT TO GENDERNESS
................................. ................ . ................ ................................. . ................................ ................. . ...... .... MARRIAGE REGULATIONS .................
86
VII. THERE IS NO LEGAL OR FACTUAL BASIS FOR THE APPLICATION OF AN “ENHANCED TEST” IN THIS CASE ................................. ....... ....................................... .. . ....................... ....... 93 VIII. THE MARRIAGE LAWS OF NEVADA DO NOT CONSTITUTE SEX ....... ................... ......... ...................... .... ........................ .......... ............ ...................... ...... ..... ..... .. 97 DISCRIMINATION ................IX. MARRIAGE LAWS OF NEVADA
ARE NOT THE RESULT OF
ANIMUS AND THE MERE DESIRE TO DAMAGE......................................... .................................................. ... ........... ............. 99
X.NEVADA'S DPA STRENGTHENS THE CONSTITUTIONALITY OF NEVADA'S MARRIAGE LAWS RATHER THAN UNDERMINING ................................................. ..... .......... ................ 101 CONCLUSION CONCLUSION ................ ................................................... ............ ............. ......................... .......... .. ................................. ..... ............ ................ ................ 103 B.C
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TABLE OF AUTHORITIES Cases of the United States Supreme Court
Baker gegen Nelson Nelson, 409 US 810 (1972)................. .................... ............... ................................... ................................. ................ ............. ............ 15, 16, 67 Bd. of Regents v. Roth, Roth, 408 US 564 (1972)................. ................... ................ .................................. ................................................................. ................... .........................81 ..... ...81 Dandridge gegen Williams Williams, 397 US 471 (1970)................. ................ ................................................... .... .................................... ............ ....... .. 8, 19, 80, 81, 84 Dred Scott v. Sanford Sanford, 60 U.S. (19 How.) 393 (1857) ....... ....... ................. ................................. .. ................................... ............. .................... ...................66 ...66 FCC gegen Beach Commc' ns, Commc'ns, Inc. Inc., 508 U.S. 307 (1993)................................. ................... ................................ ..................................................... ........... ......................... ................... 22, 23 FCC gegen Nat' l Nat'l Citizens C Comm. omm. für Br Broadcasting oadcasting, 436 U.S. 775 (1978)................. ...................... ............. ................................... .. ................................ .................. ................ .........................21 ........ 21 Frontiero gegen Richardson Richardson, 411 U.S. 677 (1973)................. ................... ................ .................................. ................................................................. ................... .........................96 ..... ...96 Grutter v. v. Bollinger Bollinger, 539 U.S. 306 (2003)................. ................... ................. ................................. .. .................................. .................. ............... ............ 24, 25, 44 Heller v. Doe, Doe, 509 U.S. 312 (1993)..... ............ ................................... ... ................................ .................. ................ .................................. ................... 22, 23 Hicks gegen Miranda Miranda,, 422 US 3 32 (1975)................. ............................. ...... ................................... ......... ......................... ......................... .........................68 ........68 Hollingsworth gegen Perry Hollingsworth Perry ,, 133 S.Ct. 2652 (2013) .................................................. ..................................... ............ ...................... ............................ ....... ......................15 .....15 Kadrmas v. Dickinson Dickinson Pub. Sc Schs. hs.,, 487 US 450 (1988)................. ....................... ............ ................................... ... ......................... ................... .........................23 ........23 vi
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Lawrence v. Texas Texas, 539 US 558 (2003)................. .................... .. ............. ................................... .. ....................... ................ ... ...................................90 ...... ..90 Lochner versus New York, 198 U.S. 45 (1905)................ ................... ......... ...... ................................... ......... ........................ .......... .......... ....... .................................66 ... ...... ..66 Loving v. Virginia Virginia,, 388 U.S. 1 (1967) ................ .................. ................................... ............... ...................................... ........... . .................................................. ....... 6, ..........6, 90 Massachusetts Vol. by Ret. v. Murgia Massachusetts Murgia,, 427 US 307 (1976)................. .................... .. ............. ................................... .. ....................... ................ ... ....................................... ... .. .....8 McConnell vs. FEC FEC, 540 U.S. 93 (2003)................ ................ .............. ... ................................. ... ........... ..................................... ............. ........ ............................fifteen ...........15 Otis v. Parker, 187 U.S. 606 (1903)................. .......... ............... .......... ......................... .......... ..... ....................... ...... ............... ....... ...................... ...46 ........46 Planned Parenthood Parenthood of South Southeastern Eastern Penn pennsylvania sylvania v. Cas Casey ey, 505 U.S. 833 (1992)................ ... ............................. ...... ............ ................................ .......................... ....... ................. ..... ............ .........................90 ....... .90 Romans BC Evans Evans, 517 US 620 (1996)................. ........................ ........... ................................... .... ................................ ................. .. ........................................16 ....... .16 San Antonio Indep. sh Dist. v. Rodgriguez, 411 U.S. 1 (1973)................ ........................ ...... ................................... ....... ....... .................. ....................... ....... .... ................................ ...... ........ ..8 Shelby County, Alabama v. Holder, 133 S. Ct. 2612 (2013) ..................................... .... ..................................... ......... ... ...................... ......................... ... ....... ......................73 .....73 Sosna v. Iowa, Iowa, 419 US 393 (1975 ). ................ ................................. ................................. ................ ................... ............................... . .... .........................75 ........75 Tully v. Griffin, Inc., Inc., 429 U.S. 68 (1976) ............................................ ...... ...... ................................... ... ...... ....................... ................... ...... ...........................................68 .. ........68 Turner Broadcasting Sys., Inc. v. FCC, 512 U.S. 622 (1994)................. ................ ............. ...................................... .... ........ ............................ ............ .......... ............ .........................21 .. ......21vii
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Turner v. Safley, Safley, 482 U.S. 78 (1987)..... ..................... ......... .... ................................... .. ......... ....................... .................. ......... .......................90 ..... ......90 Vance v. Bradley, Bradley, 440 U.S. 93 (1979)................ ................ ................ ... ................................ ............... ...................................... ........... . ........................ ..................... .... 22 , 24 United States v. Virginia, Virginia, 518 US 515 (1996)................. .................. ................. ................................ .. .................................. .............. .... ............... ............ 18, 44, 46 United States vs. Windsor, 133 S. Ct. 2675 (2013) ..................................... .... ..................................... ......... ... ...................... ......................... ... .... .............. passim Washington v. Glucksberg, 521 U.S. 702 (1997)................. ... .......................... ...... .................. ................. ......... ........................ .......................... ....................................... .. passim Williams vs. North Carolina, Carolina, 317 U.S. 287 (1942)................. ................ ............ ....................................... .... ....... ....................... ............ ......... ............. ................... 26, 71 Zablocki v. Redhail Redhail, 434 US 374 (1978) .... ............ ................................ ..... ................................... ......... ..... ................... ....................... ..... .... ................... 86, 90
Cases of the United States Court of Appeals
Bin. Civil Liberties Liberties Union of Nevada v. Lo Lomax max,, 471 F.3d 1010 (9th Cir. 2006) ......................... .. .................................................. .... ................................ .................... ..............12 ................12 Compassion in Dying v. Washington, Washington, 79 F.3d 790 (9th Cir . 1996) .................... ................... ......................... ......................... ...................................... ......... ... 20, 66 Dunigan gegen City of Oxford, M Mississippi ississippi,, 718 F.2d 738 (5th Cir. 1983) .................... ......................................... ..................................................... ........... .........................19 .................19 High Tech Gays v. Def. Indus. Sec Sek.. Clearance Office ce,, 895 F.2d 563 (9th Cir. 1990) ................. ........... ........................ .......................... ........................................ ........ ............. .... 18, 95 Marshall v. Sawyer, 365 F.2d 105 (9. Cir. 1966) .............. ............... ................................... ........... .................................... ..... .........................18 .................18 viii
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Massachusetts vs. U.S. Department of H Massachusetts Health Ealth & Human S Servs. evs.,, 682 F.3d 1 (1st year 2012) ................. ................. ................. ................................ ................................. ................ .................67 ................67 United States v. California Mobile Home Park Mgmt. Co., Co. , 107 F.3d 1374 (9. Cir. 1997) ......................... ...... ...... ................................ ............ ...... ................ ............................ ...... 15 ................15 United States of America Juvenile Male, Male, 670 F.3d 999 (9th Cir. 2012) ..... ........................ ..... ..................... ................... .......... ...................... .... ........................ .. ......... passim
Cases in the United States District Court
In re Kandu, Kandu, 315 B.R. 123 (W.D. Wash. 2004)................. .......................... ........................................ ........ ......................... ......................97 . ....97 Jackson gegen Abercrombie Abercrombie,, 884 F. Supp. 2d 1065 (D. Haw. 2012) .......................................... ...................................................... .......... ................ ......... passim Libertarian Nat'l Nat'l Comm., Inc. gegen FEC, 930 F. Supp. 2d 154 (D.D.C. 2013) .................................................. ...... ................................... ......... ......................... ...................18 ..18 Stint v Orange, Orange, 374 F. Supp. 2d 861 (C.D. Cal. 2005) .......................................... ..................................................... ........... .........................97 .................97 Wilson v. Ake, Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005) .......................................... ....... .................................. ......... ......... ....... 86, 97
State cases
Andersen gegen King King Cnty. Cnty.,, 138 S.3d 963 (Wash. 2006) ......................... ..... ......................................... ....... ......................... ......................... .... .......... 87, 97 Ass'n of Nat'l Nat'l Advertiser Advertisers, s, Inc. v. FTC, 627 F.2d 1151 (D.C. Cir. 1979) . ................ .................................. ................................. ................ ......................................19 ...... ..19 Baehr v. Lewin Lewin,, 852 S.2d 44 (Haw. 1993) ................... ........... .......................................................... ....... .................................. ......... .........................86 .................86 ix
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Baker v. Vermont Vermont, 744 A.2d 864 (Vt. 1999) ................ .................. . ......................................... ................................ ................ . ................ ...................97 ...97 Conaway v. Deane, Deane, 932 A.2d 571 (Md. 2007) .......................... .............. ... ................... ...................... ......... .................................... .... ......... ...... 86, 97 Dean v. District of Columbia Columbia, 653 A.2d 307 (D.C. 1995) ............... ....... ... ....................................... .... ....... ......................... ................... ..... .................................86 ....... ....86 Goodridge v. Dep' t of Pub. Gesundheit Gesundheit,, 798 N.E.2d 941 (Mass. 2003) ................. .................... ................................................. . ........................ ......... 26, 41, 56, 61 Hernandez v. Robles Robles,, 855 N.E.2d 1 (NY 2006)................. ..................... ............. ....... .............................. .... ......... ........................ ............. ............. .......... 87, 97 In re Ehe Ehe Fälle Fälle,, 183 P.3d 384 (Cal. 2008) .................. .. ................................................ ................. ................................ .................. ... ............................ ......97 ............ .....97 King v. Vol. the Regents Regents of the Univ. of Nevada, Nevada, 200 P.2d 221 (Nev. 1948) ................. ................. . ................ ................................. . ................................ ................ .. ..............103 ..............103 Lewis v. Harris Harris, 908 A.2d 196 (N.J. 2006) . ........................ ........................ ................. ................................ .. ................................ .............. .... ...........86 ........86 Morrison v. Sadler, 821 N.E.2d 15 (Ind. Ct. App. 2005) ........... .... .................... ........................ ...................... .... ........................ ...... ...................86 ..86 Singer v. Hara, Hara, 522 P.2d 1187 (Wash. App. 1974) .. ................................ .......... ..... ..............................97 ... ..............97 Standhardt v. Great. Ct., Ct. , 77 P.3d 451 (Ariz. Ct. App. 2003)................ ................... ................................................. . ................................. ................ ....86 .....86 Van Sickle v. Haines, Haines, 7 Nev. 249 (1872) ......... ......... ...................... ...... ...................... ...... ...................... ............. ......... ......................... ... ...................... ......11 ..............11 Varnum v. Brien, Brien, 763 N.W.2d 862 (Iowa 2009) ...... ....... ................ ......... ........................ ........................ ........ ................ ................. ......... .............41 .....41
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foreign cases
Hyde v. Hyde, Hyde, (1866) 1 L.R.P. & D. 130 .................................. ............ .......................................... ........... ....................11 ..............11
Article 1 U.S.C. Article 7 ..................................... ..... . ....................... ................... ......................................... . ................................. ................ ...........69 ...........69
28 U.S.C. § 1983 ........ ....................... ............. .. ................... ....................... ................................................... ...... ........... ......................... ........ .................13 . .......13 Defense of Marriage Act, pub. L. No. 104-199, § 3, 110 Stat. 2419 (1996) ..................................... ..... .................................................. .......... ................... ..................... ....... .................................... ......... ..................... ................69 Territorial Laws of Nevada , Part 2:33:1861 ................ ........................... ....... .. ........................ ......... ......... ....... ........11 Nev.Stat. § 88 (1876) (1876) ................... ....................... .. .......... ................................... ... .................................................. .......... .........................11 ........11 Nov. Rev. Stat. § 122.020 ................ ................................ .. . ................................ ................. ................ ................................. . .............. 11, 53 Nov. Rev. Stat. §§ 122A.040 ......... ................................ ... . ....................................... ... ................ ................................ .. ..13 ................13 Nov. Rev. Stat. § 122A.100(1)( 122A.100(1)(a)(1)......... a)(1)........ ........ .... .................................. .... ........ ........................ .................... ...... ..13 ...........13 Nov. Rev. Stat. § 122A.200(1)(a) .................................... .... .. .......................................... ..... . .................................................. ....... ....13 ........13 Nov. Rev. Stat. § 122A.510 ..................................... ................................................... ........ .......... ....................... ....... .................. .. ...... 13, 10 102 2
Constitutional Authorities Constitutiona
New const. Art. Art. I, § 21 ................ ................................ .... .... ................................... ....... ................................................... ............ ....... ................... 11, 12 Nev.Const. Art. Art. XIX, § 2(1)................. .......................... .......................................... ....... . ........................ ........................ . ........12 ................12 Nev.const. Art. Art. XIX, § 2(4)................. .......................... .......................................... ....... . ........................ ........................ . ........ ................ 12
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Rules
Rule 28-2.7 of the Ninth Circle .................... .................... ................................................. . ................................. ................. .................11 ................11
Andere Autoritäten 3 W. Cole Durham & Robert Smith,Religious Smith,Religious Organizations Organizations and nd the Law Law§§ §§ 14:20 bis 14:30 (2013) ............. .......................................................... ................................. ................ .................................................. ..... ..... 51, 52
Adam J. MacLeod, No MacLeod, No Interest Interest in Fathers Fathers, Public Discourse, 14 January 2014, http://www.thepublicdiscours http://www.thepublicdiscourse.com/2014e.com/2014/01/ 11034/........................ ..................... .. ...................48 .................48 Alan Duke,Hawaii Duke,Hawaii becomes 16 states to legalize same-sex same-sex marriage, CNN.com, Nov. 13, 2013, http://www.cnn. http://www.cnn.com/2013/11/12 com/2013/11/12/us/hawaii-same-s /us/hawaii-same-sexexmarriage/ ........... ...... ................................... ......... .......................... ........................ .......... .................................. ...... ...................... ...................... ...63 .. ......63 Alan Wolfe, The Malleable Estate: Estate: Is Marriage Happier Than Ever? Ever?,, Slate, May 17, 2005, http://www.s http://www.slate.com/late.com/id/2118816 ..... .......... ............ .................................. .... .....................58 ........58 Andrew Sullivan,Recognition Sullivan,Recognition of Same-Sex Marriage riage,, 16 Quinnipiac L Rev .13 (1996) .................. .......................... . ....................................... ........ ... ....................... ........................ ... ....... .................................. ...... ... ......................31 ..............31 Angela Bolt, make Bolt, make wedding dresses Dresses come in lavender ? The Pros-Prospects and Implications of Same-Sex Marriage,, 24 Soc. Theory & Practice 111 (1998).........31 Brenda Hunter, The Power of Motherly Love: Transforming Mother and Child (1997) ................. ................................. ................ ................. ................................ .. .................................. .............. .... ................... ........................... ..... .43 ..............43 Brian Bix, Reflections Bix, Reflections on the Nature Naturee of Marriage Marriage, inRevitalizing inRevitalizing the Institution of Marriage for the Twenty-First Twenty- First Century: tury: An Agenda for Strengthening Strengthening Marriage Marriagee 112 (Alan Hawkins et al. eds., 2002).................. 2002). ....................... ......................... .......................... .......... 92, 93 Bruce J. Ellis et al. al., Does Father's Absence Put Daughters at Particular Risk for Early Sexual Activity and Teenage Pregnancy?, Pregnancy?,74 Child Dev. 801 (2003) .......47 Cass R. Sunstein, Foreword: Sunstein , Foreword: Leaving Thin Things gs Undecided, 110 Harv. L. Rev. 4 (1996) ........................ .................. ........................ .......................... .......................................... ....... . ........................ ..................... .. .. 29 , 46 xii
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Chai R. Feldblum, Moral Feldblum, Moral Conflict and Conflict Conflicting ing Liberties Liberties, in Same-Sex Marriage and Religious Liberty: Emerging C Conflicts onflicts 123 (Douglas Laycock et al. Hrsg., 2008) ....... ........................................ .......... ........................ .......................... .......................................... ....... .......................... ........................ ... .......... 51, 52 Daniel Cere, War of the Ring, in Divorcing Marriage: Unveiling the Dangers in Canada's New Social Experiment 9 (Daniel Cere & Douglas Farrow eds., 2004) .. .......................................... ..... .......................................................... ................................................. .. ......................... ................... ...............31 ................31 David Blankenhor Blankenhorn, n,Vaterloses Vaterloses Amerika Amerika(1995) ... ................................................. .. ......................... .. ............ 43, 47 David Blankenhor Blankenhorn, n, The Future of Marriage Marriage(2007) ............... .... ......................... ............ 30, 38, 58, 90 David Popenoe,Life Popenoe,Life Without Ohne Vater: Überzeugende neue Beweise dafür, dass Vaterschaft und Ehe unverzichtbar sind. Unverzichtbar für das Wohl von Kindern, Kindern und der Gesellschaft (1996). .......................................... .......... ......................... ......................... .......................................... ....... .............. .... 43, 47 Deborah A. Widiss, Ändern der Ehegleichung, Gleichung, 89 Washington U.L. Rev. 721 (2012) .......................................... .... ................................... ........... .......................................................... ....... .................................. ......... ................31 ........31 Devon W. Carbado, Straight Out of the Closet, 15 Berkeley Women's L.J. 76 (2000) ..... ............ .................................. .... ................................ .................... ................................................. .. ................................ .................. .............31 ..............31 Douglas Farrow, Kanadas romantischer Fehler, Fehler, bei der Ehescheidung: Enthüllung der Gefahren in Kanadas neuem sozialen Experiment 1 (Daniel Cere & Douglas Farrow Hrsg., 2004) ... .................... ............... ................................................... ... ................................................ ...............31 ...........31 Douglas W. Allen, High Allen, Highschool-Abschluss zählt zu den Chi 11 Review of Economics of the Household 635 (2013) ..................40 Haushalte .......... ........40 Eerik Lagerspetz, On the Existence of Institutions Institutions, in On the Nature of Social and Institutional Reality 70 (Eerik Lagerspetz et al. Hrsg., Hrsg., 2001) ................. ......................... 27 ........27 Eerik Lagerspetz, The Opposite Mirrors: Mirrors: An Essay on the Co Conventionalist nventionalist Theory of Institutions (1995) ......... .. ................................ .................... ................................................. .. ..........................27 ..............27 E.J. Graff, Retying Graff, Retying the Knot Knot, The Nation, 24. Juni 1996, um 12 Uhr ......................... ..... .........................31 .....31 Elrini Flouri & Ann Buchanan, Buchanan, Die Rolle der väterlichen Beteiligung an der späteren psychischen Gesundheit von Kindern , Gesundheit,26 26J. Adoleszenz Adoleszenz63 (2003) ......................... ................ ................................ .................... ........47 ...........47 xiii
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Gary J. Gates, LGBT Gates, LGBT Parenting Parenting in the United States, The William Williamss Institute, UCLA School of Law (Februar 2013), http://williamsinstitute.law. http://williamsinstitute.law.ucla.edu/wpucla.edu/wpcontent/uploads/LGBT-Paren content/uploads /LGBT-Parenting.pdf ting.pdf ............... ................................ .................. ................ .................................. 50 ................50 Gregory Ace u. al., The Moynihan Report Revisited,6 Urban Institute 1 (2013), verfügbar unter http://www. http://www.urban.org/Uploade urban.org/UploadedPDF/412839-The dPDF/412839-The-Moynihan-MoynihanReport-Revisited.pdf Report-Re visited.pdf ........... ..................................................... ........... ........................ .......................... ........................................ ........ .................47 ........47 Helen Reece,Scheidung Reece,Scheidung mit Verantwortung Verantwortung (2003) ........... ........................................................ ..... ................................ .................... ..27 .....27 Hausanhörung über gleichgeschlechtliche Ehe Ehe Resu wieder aufgenommen Samstag Samstag,, khon2.com, 1. Nov. 2013, http://www.khon2.com/news/ho http:/ /www.kho n2.com/news/house-hearing-onuse-hearing-on-same-sex-m same-sex-marriage-resum arriage-resumesesSaturday ............... ................................. ................. ................. ................................. .. .................................. .................. .................... ................................. ......53 ...........53 John Locke, Second Treatise of Government (Richard (Richard H. Cox ed., 1982) (1690) ......... ........................................ ........ .......................... ........................ .......... .................................. ...... ...................... ...................... .........29 ..............29 John Rawls, The Idea of Public Reason Revisited, 64 U. Chi. L. Rev. 765 (1997) ................. ......................... .......................................... ....... ......................... ......................... ........... .................................... ..... ..........................65 ..............65 John Rawls, Politische Rawls, Politischer Liberalismus Liberalismus (1995) .................................................. ................................. ................. .................65 ................65 John R. Searle,Making Searle,Making the Social Social World: Die Struktur der menschlichen Zivilisation (2010) ........... Zivilisation .................................. .. ................................ .................. ................ .................................. ......................... .......... 27, 29 John R. Searle, Die Konstruktion sozialer Realität (1995) .................................................... ... .......... 26, 27 Joseph Raz, Die Moral der Freiheit Freiheit (1986) ..... ..... .......................... ..................................... ............ ... 29, 31 Jonathan Culler,Literary Culler,Literary Theory: Theory: A Very Shor Shortt Introduction Introduction(1997) ......... ......... ...........45 .....45 Jonathan Vespa u. al.,America's al.,America's Families Families and Living A Arrangements: rrangements: 2012 2012,, U.S. Census Bureau, U.S. Dept. of Commerce (Aug. 2013), http://www.census.gov/prod/ http: //www.cens us.gov/prod/ 2013pubs/ p20-570.pdf ................................ .........50 .......................................... .50 Judith Stacey,In Stacey,Im Namen der Familie: Familie: Überdenken der familiären Werte der Familie im Zeitalter der Postmoderne (1996) ......... ..... ......................... ......................... .......... .................................. ...... .......................................................... .31 .....31 Kate Millet, Sexualpolitik (1977)................................. ................................................. ... ................................................ .........45 .....45 xiv
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Katharine K. Baker, Bionormativity Baker, Bionormativity and the Construction Construction of Parenthood Parenthood, 42 Ga. L. Rev. 649 (2008) ............... ....... ......................... ......................... .......................................... ....... ......................... ......................... ...........36 .................36 Katherine K. Young & Paul Nathanson, The Future of an Experiment, in Divorcing Marriage: Marriage: Die Enthüllung der D-Gefahren-Ärger in Ca Canadas nada's New Socia Sociall Experiment 48 (Daniel Cere & Douglas Farrow Hrsg., 2004) ................... ..... ..........................31 ...........31 Kenji Yoshino, The New Equal Protection, Protection, 124 Harv. L. Rev. 747 (2011).............95 Ladelle McWhorter, Bodies McWhorter, Bodies and Pleasures: Pleasures: Foucault and th thee Politics of S Sexual exual Normalization Normalization (1999). .......................................... ..... .................................................... .......................................... ....... .....................31 ...........31 Leonard Sax, Warum Geschlecht wichtig ist: Was Eltern und Lehrer darüber wissen müssen Emerging Emerging Science of Sex Differences Differences (2005) .......... ............................ ......................43 ...........43 Linda C. McClain, Der Ort der Familie : Familien: Fostering C Capacity, apacity, Equality, and Responsibility Responsibi lity (2006) ................ ................ ................. ................................. ................................................................. ................... .........................56 ..... ...56 Maggie Gallagher, (Wie) wird die Homo-Ehe die Ehe schwächen a Social Institution: Institution: A Reply to A Andrew Andrew Kop Koppelman pelman,, 2 U. St. Thomas L.J. 33 (2004) ...................... ......................................... ........ ................................... ....... ......................... ......................... ........... ........................9, .......9, 31 Malia Zimmerm Zimmermann , an,Experts Experts say hawaii's hawaii's g gay ay ehe billl am schlimmsten beim Schutz der Religionsfreiheit, Freiheit, Hawaii Reporter, 30. Okt. 2013, http://www.hawaiireporter.com http://www.hawa iireporter .com/experts-say-haw /experts-say-hawaiis-gay-m aiis-gay-marriage-bill-wor arriage-bill-worst-atst-atprotecting-religious-freedom protect-religious-freedom/123 /123 ................................. ................ ................................................... ................... ......................63 .....63 Mark D .Regnerus,Parental Regnerus,Parental Gleichgeschlechtlich Gleichgeschlechtliche Beziehungen, Beziehungen, Familiäre Instabilität, Instabilität und spätere Lebensergebnisse für erwachsene Kinder: Antworten auf Kritiker der neuen Familienstrukturen Strukturstudie mit zusätzlicher A-Analyse, 41 Soc. Wissenschaft. Forschung 1367 (2012) ...................................... ........ ................................................ .... ................................ .................... ................................................. .. ................... .... 40, 43 Marc D. Stern, Same-Sex Marriage and the Churches, Same-Sex Marriage Churches,in inSame-Sex and Religiös Religiös Li Liberty: berty: Emerging C Conflicts onflicts 1 (Douglas Laycock et al. Hrsg., 2008) ......... ............ ................... ................................ .... ................................... ........... .......................................................... ......................................51 ......... ........51
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Matthew B. O'Brien, Why Liberal Neutrality Prohibits Same-Sex Marriage: Rawls, Political Political Libera Liberalism, lism, and the F Family amily, 1 Brit. Jam. Legal Stud. 411 (2012) ............................................ ....................................................... .......... ........... ............................. ....................... ....... .............. ........... ...... 29, 30, 35, 37, 40 Monique Garcia, Signed & Sealed: Illinois 16 16th State to Legalize Gay Marriage, Chicago Tribune, 21. Nov 2013, http://www.chicagotrib http://www.chicagotribune.com/news/une.com/news/chiillinois-gay-marriage-bill-s illinois-gay-marriage-bill-signing-201311 igning -20131120.0.4464600.s 20.0.4464600.story story ............ ...................... ...............63 ...........63 Monte Neil Stewart, Eliding Stewart, Eliding in Washington Washington and California, California, 42 Gonzaga L. Rev. 501 (2007) ................ ........... ................... ....................................... ........... ....................... ........ ............. ........................... 27, 62, 64 Monte Neil Stewart, Sexless Marriage, Institutional Realities, an d Judicial Elision Elision, 1 Duke J. Const. L. & Pub. Pol'y 1 (2006) .......................................... . ...26 ................26 Monte Neil Stewart, Judicial Stewart, Judicial Redefinition Redefinition of Marriage Marriage,, 21 Can. J.Fam.L.11 (2004) ........................................ .. .... ................................... ......... .................................................. .......... .................... 27, 40, 46, 79, 93 Monte Neil Stewart, Marriage Stewart, Marriage Facts Facts, , 31 Harv. JL & Pub. Pol'y 313 (2008) ................ .......................... ........................................ ........ .. ........................ ........................ .. ........................................ ......... . .... 9 9,, 30, 57, 58 Monte Neil Stewart, Marriage, Stewart, Marriage, Fundamental Fundamental Prem Premises, ises, and the California, Connecticut, and Iowa Supreme Courts, Courts, 2012 BYU L. Rev. 193 ................ ................................ .. ................................... ............ .. ................... ............................ .. .... ......................... ...... 32, 37, 54, 58 Monte Neil Stewart & William C. Duncan , Marriage Duncan, Marriage and the Betrayal Treason of Perez and Loving, 2005 BYU L. Rev. 555 ......................... . ....................................... ....... .. ....................... ....................... .. ......90 ..............90 Nan D. Hunter, Hunter, Marriage, Law, and Gender: A Feminist Inquiry, Inquiry,1 Law & Sexuality 9 ... .............. ................................. ... .. ................................... .......... ... ..................... .......................... ... ..................................... ........ ..... .........31 .....31 Nancy F. Cott, The Power of Government in Marriage, Marriage , 11 The Good Society 88 (2002) ..... ..... ....... .................................. .... ..... ....................... ................... ... .............................................. .. .. ................................ .................. .. ...........29 ..............29 Peter A. Hall & Rosemary C.R. Taylor,Political Taylor,Political Science and the Three New Institutionalisms Institutionalisms,, 44 Pol. Breed. 936 (1996) ....... ........................ ............... .................................................. ...32 ..................32 Press Release, Office of the Press Secretary, White House, President, President Obama Obama Launches National Conversation on the Importance of Portance of Father Fatherhood and Per Personal Responsibility Responsibility (June 19, 2009), http://www.whitehouse. http://www.whitehouse.gov/the-pressgov/the-pressxvi
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office/president-obama-launches-national-c office/president-obama-launches-the-national-talk-in-conversation-meaning-fatherhoo-portance-fatherhoodand-personal-rr .......... ... .. and-personal.......................................... .................................................. ..... ...... ................................... .... ..... ....................... ...................47 ..47 Press Release, Retail Association of Nevada,RAN Nevada,RAN Poll Shows Shows Neva Nevadans dans Optimistic about State's Economy, but Recovery Not Felt by Most Households Households (Oct. 2013), http://www.rannv.org/docum http://www.rannv.org/documents/23/Poll ents/23/Poll ReleaseRANOct2013Final.pdf RANOct2013F inal.pdf...... ....... ... ........................ ....................... ... ....... .................................. ...... ... ....................... ...................... 63 . ....63 Richard E. Redding, Politized Redding, Politized Science Science,,50 Soc'y 439 (2013) . ................................................41 . ............41 Richard R. Clayton, The Family, Marriage, and Social Change Change (2nd ed. 1979) ............... ................. ................. ................ ................ .................. ................ ................................. ................ ................................................. . ......27 .....27 Richard W. Garnett, Pierce PierceSer seriously: iously: The Fam Family, ily, R Religious, religious education and and harm to C children hildren,, 76 Notre Dame L Rev 109 (2000) ..............29 Ruth Bader Ginsburg,Ratification Ginsburg,Ratification of the Equal Rights Amendm Amendment: ent: A Question of Time,, 57 Tex. L. Rev. 919 (1979)................................. Time ....... . ..................................... ...... ....... ............... ......................99 .....99 Ryan T. Anderson, Clashing Claims, Claims, National Review Online, August 23, 2013, http://www.nationalreview.com http://www.nationalreview.com//article/356539/cla article/356539/clashing-claims-ryshing- claims-ryan-tan-tanderson#! ........................ .......................... ....................................... . ................................. ................ ................. .......................... ...... . ... 52, 53 Scott Yenor, Family Yenor, Family Politics: Politics: The Idea of M Marriage ariage in Modern Political Thou Thought ght (2011) ................ ................................. ................ ................. ................................ .. .................................. .............. .... ................... ........................... ..... .57 ..............57 Sean Whaley,Nevada Whaley,Nevada Legislature Legislature foretre re resolution solution for homo marriage,, Las Vegas Review Journal, May 23, 2013, http://www. r http://www.reviewjournal.com eviewjournal.com/news/nevada/news/nevadalegislature/nevada-legislaturelegislature/n evada-legislature-advances-gay advances-gay-marriage-resolu -marriage-resolution tion .... ........... .........................63 ........63 Sh Erif Girgis et al., what is marriage? Husband and Wife: A Defense (2012) ............................................ . .......... .................................. ..... ...................... ...................... ..... ................................. ......... ... 31, 51, 56 , 90 Shulamith Firestone, The Dialectic of Sex: Sex: The Case for Feminist Rev Revolution olution (1970) ................ ... ......... ................ ................... ............... .......................... . ................................. ................ ................................................45 . .............45 Stephanie Coontz,Marriage, Coontz,Marriage,A Story: From Obedient Obedience to Intimacy, or, or How Love Conquered Marriage Conquered Marriage(2005)..... ................. .................................. ................................................... .....................58 .................58 xvii
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The Feminists: A Political Organization Organization to Annihil Annihilate Sex Roles Roles,,in Radical Feminism 368 (Anne Koedt et al. eds., 1973) ......... .......... ................ .................................. ......................45 ...........45 Der neue Institutionalismus der Institutionalismus in Organizati Organizati onal Analysis Analysis,, (Walter W. Powell & Paul J. DiMaggio Hrsg., 1991)......... 1991)................ ........................................ ........ .......................... ........................ .......... ................................. ....... ......... 32 Thomas B. Stoddard, Why Gay People Should Seek the Right to Marry Marry,,Out/Look Nat'l Gay & Lesbian Lesbian Q., Fall 1 1989, 989, at 19 .. ................................................. ... ......................... ................... .........30 ...........30 Thomas M. Messner, The Heritage Foundation, Same-Sex Marriage and the Threat to Religious Liberty(2008), Liberty(20 08), http://www.heritage.org/research http://www.heritage.org/research/reports/200 /reports/2008/10/same-sex-m 8/10/same-sex- die ehe-und-die-ehe-und-die-bedrohung-der-religionsfreiheit die-bedrohung-der-religiösen-freiheit .... ..................... .. ................................ .................. ................ .................................. ........................ ....... 52, 53 Victor Nee, Quellen des Neuen Institutionalismus, Institutionalismus, in The New Institutionalis Institutionalism m Sociology 1 (Mary C. Brinton & Victor Nee Hrsg., 2001) .......................... ..........................32 .....32 Victor Nee & Paul Ingram Ingram,, Embeddedness and Beyond: Institution Institutions, s, Exchange, and Social Social Structur Structuree, in in The New Institutional in Sociology 19 (Mary C. Brinton & Victor Nee eds., 1998) ............ .... ............................................ .................... ...................26 ...26 Wendy D. Manning & Kathleen A. Lamm, Lamm, Adolescent Adolescent Well-Being in zusammenlebenden, verheirateten und alleinerziehenden Alleinerziehenden-Familien Familien,65 J. Marriage and Fam. 876 (2003) ......... 47
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INITIATION
For twenty years now, this nation has had a discussion about the public meaning and social purposes of marriage. The question is whether marriage will continue as the union of a man and a woman, and therefore as an institution directed toward certain great social purposes, many of which involve a man and a woman united in procreation, procreation, nurturing , and raising children. Or whether marriage will be torn from its old social purposes and turned into a government-supported celebration of the private desires of two adults (regardless of gender) to unite their lives sexually, emotionally, and socially so long as those personal desires endure. As is proper among a self-governing, self-governing people, the most important part of this discussion took place in electoral campaigns that led to elections that determined the issue. In elections on the marital issue in Nevada and many other states, general and collective wisdom fell in favor of preserving and maintaining male-female-male-female marriage. The majority of an informed and thoughtful electorate had strong and worthy reasons for voting. This majority felt that a child's formative years benefit from the presence of a mother and father. They understood that the institution of marriage between a man and a woman affirms the child's interest in knowing and being raised by his own birth mother and father.
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They found that of all child-rearing styles, the married mother-father pattern had the best outcomes for children and society. society. They understood that since fatherlessness clearly leads to social ills, the male-female-male-female institution has an important role to play in teaching and promoting fatherhood. Good. At the same time, this majority of voters felt that a sexless marriage regime would formally deny the child's interest in knowing and being raised by their own birth mother and father, and counteracting the ideal that every child would benefit from the presence of both one Mother and a father will denigrate the intact, biological, married family as the gold standard for life in the United States, will also denigrate the need for fathers in the home, and, as disturbing as any dark cloud on the horizon, religious freedoms will continue Sections of the believing peoples of our country and their churches will be hostile, with all those who are opposed to sexless marriage for reasons of conscience being pushed out of the public eye and into the very fringes of culture. Frustrated in the free, open, democratic process - for now - advocates of sexless marriage went to court claiming that the majority, without just cause, denied them a constitutional right - the right to change the meaning of marriage, meaning of a man's union and a woman to the union of two persons regardless of sex. After all, these grown adults can't have their ts
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Wishes granted unless and until the law makes that exact change; You cannot be legally married until the law redefines marriage; and they cannot be married socially and culturally until the tremendous power of the law effectively suppresses the competitive importance of male and female. This great constitution-changing constitution-changing project, supported by many of the nation's elites, was built on a series of falsehoods - because it had to be, there was no alternative. untruths. The most essential and fundamental false falsity in the proponents' narrative is that marriage is nothing more than a close personal relationship between two adults, aimed - as an act of free choice - at satisfying their personal emotional, emotional and psycho-psychological conditions, medical and sexual purposes, with the social goods of marriage being security for adults (and possibly children associated with the relationship), economic protection, and public affirmation of commitment. This description of marriage is correct so far; The material falsehood lies in imagining nothing but. as. Marriage is marriage is actually much more than what proponents of sexless marriage can let on. It is a vital social institution with broad additional public purposes and social benefits - purposes and goods felt, understood and perceived by the vast majority of Nevada voters and noted above. In these additional public-law purposes, and thus social benefits, are found the valuable and compelling societal (and thus state) interests that are upheld
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Man-woman marriage against any constitutional attack, regardless of the degree of judicial scrutiny. Another key untruth in the proponents' story is that gay men and lesbians as a group are so politically powerless that the courts must come to their rescue against an unfeeling, unfeeling, or even malevolent majority. The apparent falsity of this claim should embarrass her. Hawaii's marriage case, Jackson Jackson v. Abercrombie Case, 12-16995 — which was previously combined with this Ninth Circuit case for information and hearing — had only recently been debated by a massive show of political power, when the Hawaiian legislature faced strong opposition from Proponents of marriage between men and women voted to redefine marriage as the union of two people regardless of gender. In Nevada in 2009, more than two-thirds of the two chambers of the state legislature overruled the then-governor's veto and enacted full domestic partnership partnership legislation. Then, in the spring of 2013, for the first of two required times, the Nevada legislature passed a joint act repealing the 2002 amendment to the state constitution, which defines marriage as the union of a man and a woman. Woman. In addition, genderlessness and marriage advocates proclaim that, based on legislative and public opinion polls, the legislature will re-enact the joint resolution in spring 2015, raising the issue in the November 2016 general election, which won a strong majority
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of voters will embrace it, paving the way for an immediate redefinition of marriage in Nevada. Nevada. Yet plaintiffs still claim the "politically impotent" untruth in this court is attempting to short-circuit the free, open, and democratic process. Another important untruth is that in perpetuating male-female-male-female marriage, the majority were motivated by animus - malevolence, malevolence and a mean spirit towards and a mere desire to harm gay men and lesbians. lesbians The "proof" of this lie is an argument built on the first lie, that marriage is nothing more than a close personal relationship. Relationship. The argument is as follows: Since marriage is nothing more than what the close personal relationship model allows, allowing same-sex couples to marry will not affect marriage at all, but will strengthen it and society will not provide valuable valuable social goods lose that are now provided by marriage. There is no downside. (How will letting Ad Adamam and Steve marry harm your marriage?) Since there are no downsides, the majority have no compelling reason to discourage same-sex couples from getting married. Hence their motive must be animus; there is no other possible explanation. explanation. But - take away the blindfold of the first untruth, and the fair and honest person sees at once that there is very likely much that is good and even essential to society that will be lost if the law abolishes the institution of man-woman marriage suppressed. Institution. Wanting to preserve the good and wanting to preserve the essential
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such a loss is a rational, intelligent, compelling compelling reason for majority decision as it did. This reality refutes the lie of the animus. The story of sexless marriage advocates also relies on several misleading strategies. One such strategy is to argue that just as white supremacists grafted anti-miscegenation anti-miscegenation rules into the institution of marriage and were rightly rejected by the Supreme Court in Loving in Loving1, so homophobes have grappled with laws like Nevada's The 2002 Marriage Amendment grafted the man-woman meaning to marriage and should also be rejected by this court. Court. At first glance, this strategy is just stupid, because of course the union of man and woman has been a central, constitutive meaning of the institution of marriage, which can be found in practically every society, since prehistory. Prehistory. Nevada's Mar Marriage Amendment Amendment did not add that institutionalized d-meaning was to be institutionalized, but attempted to protect and preserve them and the valuable social benefits that came from them. Upon closer inspection, this strategy reveals something deeply disturbing. White supreme supremacists acists grafted the anti-miscegenation ti-miscegenation rules into the institution of marriage—thereby changing marriage as it had existed in common law and through the millennia—to bring that institution into the new and strange role of marriage inculcating white supremacist teachings in the consciousness of the general public. in general. Due to the profound basic knowledge of teaching, learning, designing, learning and 1
Love vs. Virginia Virginia, 388 US 1 (1967). 6
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In order to transform the transformative power that basic social institutions like marriage hold over us all, this evil strategy has undoubtedly worked for decades. Question: Where do you see today a similarly massive political effort to fundamentally transform the institution of marriage, to bend it into a new and alien role, a role that is importantly at odds with its old and essential roles? Answer: The sexless marriage movement. The big difference, of course, is the immoral orality of the effort to advance white supremacist dogma compared to the morality of the effort to advance the social welfare and individual worth of gay men and lesbians. Whether this moral moral goal carries sufficient weight to justify such bending and changing of the institution of marriage is for the free, open, democratic process to decide. Certainly, comparing laws protecting the meaning of marriage between a man and a woman with laws against miscegenation is a false analogy that provides no basis for any court to order the redefinition of marriage. Another key strategy of sexless marriage advocates is to pick a few phrases from Windsor2 and then declare that on the basis of those phrases the constitutional constitutional contest is over - in their favour. Pro-opponents use this strategy to try to get the courts to ignore both the forceful language and ideas at Windsor, which clearly supports the opposite conclusion and much of the Supreme Court's established jurisprudence that the selective 2 of the proponents disagree
United States vs. Windsor, 133 S. Ct. 2675 7 (2013).
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Reading of Windsorbut but consistent with this d decision read in its entirety. This jurisprudence, exemplified by such cases as Aass Glucksberg3 and the San Antonio Independent School School District,4 teaches that the Supreme Court generally refuses to constitutionalize large socio-political constitutionalization debates, such as public education funding, and thus out of the democratic process take out the elderly 6 and the poor 7 and assisted suicide 8 and will do the same with the great debate about the public meaning and social purposes of marriage. A third misleading strategy used by proponents of sexless marriage is to try to talk a lot about homosexuality and gay men's and lesbian life and very little about marriage in this and similar cases. Before. However, this case is very much about marriage. In this case, it is crucial to properly understand what marriage is. Equally important, however, is to see what their arguments are about what marriage should be. His. The All About Gay Men and Lesbians strategy, apart from its emotional, emotional, and rhetorical uses, obscures that the public-public debate about marriage is in large part a debate about what marriage should be—a debate about two competing models, what marriage. Because the public debate is very much about 3
Washington v. Glücksberg, 521 US 702 (1997). San Antonio Indian sh Dist. v. Rodgriguez, 411US1 (1973). 5 ID card. 6 Massachusett Massachusetts Vol. by R. Ret. etc. v. Murgia Murgia, 427 US 307 (1976). 7 Dandridge v. Williams Williams, 397 US 471 (1970). 4
8
Glucksberg, 521 US 702.
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What marriage should be, this case is easily solved here. here. No official sees the Constitution as empowering federal judges to rule on matters like marriage. Our whole history as a self-governing, self-governing people cries out that such an issue must be decided through our democratic processes and that judges not usurp that role. More than a decade ago, Nevadans engaged in a major public debate about marriage—what it is and what it should be—and resolved that debate through their free, open, democratic process. Now they rejoin this Deb debate, ate, and just as before, they will resolve it through the same democratic process when the judges of that court resist the siren song to resolve it first, by giving Nevada their personal views on the good imposition. ************ Legally literate people who discuss and resolve marital issues may not always know as much about marriage as they think they do because they operate under the mistaken understanding that marriage is a legal marriage to build. It is not (although the law, like other institutions, institutions, certainly interacts with the institution of marriage). Institution). The social interests that constitutionally limit marriage to the union of a 9th
Siehe SeeMaggie Maggie Gallagher, (How) Will Gay Marriage Weaken Marria Marriage as a Social Institution: A Reply to A Andrew Andrew Kop Koppelman Pelman, 2 U. St. Thomas L.J. 33, 34 (2004); siehe auchMonte auchMonte Neil Stewart,Marriage Stewart,Marriage Facts Facts,, 31 Harv. JL & Pub. Pol’y 313, 317 (2008) („Marriage Facts“). Fakten").
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Man and woman exist in the nature, structure and functioning of marriage in our society. So in order to be right in this case, our C-Court has to learn about marriage at a deep, not superficial, superficial level. A main purpose of this briefing is to facilitate this formation. PLACE OF JURISDICTION
The coalition accepts the opening brief's statement of jurisdiction. place of jurisdiction. EXPLANATION OF THE PROBLEMS
1. Whether the Equal Protections Clause of Nevada's Fourteenth Amendment requires that Nevada change its definition of marriage from the union of a man and a woman to the union of two. 2.
Whether the Fourteenth Amendment's due-due-process clause requires the amendment
Nevada to change its definition of marriage from the union of one man and one woman to the union of two.10 10
The plaintiffs' complaint challenged Nevada's Marriage Code Excerpts solely on the basis of the Fourteenth Amendment's Recor Foundation of the Equal Protections Clause. Record (“ER”) 718–22. 22. It made no substantive due process claims, claims, statements of fact noted and acknowledged by the parties and the District Court at various points in the proceedings below. E.G. ER 665. However, plaintiffs are now bringing plaintiffs before this court and have fully presented a substantive right to due process. claim. The three defendants defending here (the Governor, Clerk-Recorder Glover and the Coalition), after thorough discussion between their respective counsels and much considered deliberation, have jointly decided (1) to grant no objection to the plaintiffs' course with respect to their factual due process claim to (2) explain that issue in their respective letters of reply, pleadings and (3) urge this court to address and resolve the merits of plaintiffs' due process, Claim 10, on the merits. The coalition adopts the
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ADDENDUM OF THE COMPETENT AUTHORITIES
Pursuant to Ninth Circuit Rule 28-2.7, the Coalition has reproduced relevant constitutional and statutory provisions in an Adde Addendum ndum attached to this Reply Letter. STATEMENT OF THE CASE
Since attaining statehood, Nevada's legal definition of marriage has always been limited to the union of a man and a woman, first through the constitutional adoption of common law,11 then through express statutory language,12 and finally through express constitutional amendment,13 the definition has therefore always been the most widely used public meanings that, along with other widespread public meanings, make up Nevada's vital social institution of marriage. Before. The Coalition for the Protection of Marriage (“Coalition Coalition”) is a Nevada non-profit corporation organized to protect the institution of male-female-male-female marriage
Explanation of the reasons for this decision, which are set out in the letters of reply from the other defendants. 11 Van Sickle v. Haines, Haines, 7 Nev. 249, 285–86 (1872), explains how Nevada's constitution adopted the common law of England. The established, well-established, common-onlaw definition of marriage is found in Hyde in Hyde v. Hyde, Hyde, (1866) 1 L.R.P. & D. 130, 134 (Lord Penzance): "[M]arriag "[M]arriagee . . . allowed to . . . be defined as the voluntary lifetime union of a man and a woman to the exclusion of all others." Other." 12 The 1861 statutes of the Territory of Nevada relating to marriage were specifically and expressly limited to "one man and one woman." Part 2: 2:33:33:1861. The same restriction on marriage was established in the statutes of Nevada in 1876, Nev. Stat. § 88 (1876), and is substantially the same today, Nev. Rev. Stat. § 122.020. 13
Nev. Disadvantages const. t. Art. I, § 21.
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among other things by using the initiative procedure. The citizens of Nevada reserved for themselves the power to legislate through initiative. New const. Art. XIX, § 2(1). Through the S State petition process, they can put qualified initiatives to change the Constitution on a statewide general ballot. ID. ID. If a constitutional initiative receives voter approval in two consecutive general elections, the initiative is passed, adopted, and the Nevada constitutional initiative is amended. New const. Art. XIX, § 2(4); see 2(4); see also Am. Am. Civil Liber Liberties Ties Union of N Nevada evada v. Lomax Lomax,, 471 F.3d 1010, 1012 (9. Cir. 2006). Led by the Coalition, the people of Nevada followed this process up to the 2000 and 2002 general elections to amend the Nevada Constitution by adding these words: "Only marriage between a male and a female shall be recognized and entered into." State." Nev.Konst. Art. I, § 21 ("Marriage change"). Change"). In both 2000 and 2002, the "Yes" vote was just over two-thirds of all votes cast for the ballot initiative. 14 As noted above, the Marriage Amendment did not change the Nevada definition of marriage in Nevada. However, it gave the male-female importance of the institution of marriage the highest degree of protection that Nevada voters could offer.
14
In 2000, 69% voted for the M-marriage amendment. the 2002 vote,
67% Dist. Kt. D Dkt. ct. 30-1 at 2 ¶5 (A (Affidavit Richard Mangold Ziser) Ziser).. 12 of Ri
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In 2009, the Nevada legislature enacted the Nevada Domestic Partnership Act ("DPA"), Nev. Rev. Stat. §§ 122A.010 to .510. ("DPA") .510. The DPA authorizes a "social contract" between two people "in an intimate and committed relationship of mutual caring" without regard to gender. Nev. Rev. Stat. §§ 122A.040, 122A.100(1)(a)(1). 122A.100(1)(a)(1). It goes on to say: “Domestic partners have the same rights, protections and benefits and are subject to the same legal responsibilities, duties and obligations. . . as granted and imposed on spouses.” Nev. Rev. Stat. § 122A.200(1)(a). 122A.200(1)(a). In accordance with the Marriage Amendment Amendment, the DPA specifically provides that a domestic partnership "is not a marriage." Nev. Rev. Stat. § 122A.510. Although the D DPA PA is available for male-female couples, it has undoubtedly been enacted on a very large scale in favor of same-sex couples. The plaintiffs are eight same-sex couples, all residents of Nevada, Nevada. a. Four of the couples married in jurisdictions other than Nevada. The other four couples want to get married in Nevada. ER700-03. 03. Appeal to 28 U.S.C. § 1983, plaintiffs commenced this civil action against the Governor of Nevada and the clerks of Washoe County, County, Clark C County, ounty and Carson Carson City, alleging that Nevada's Marriage Amendment and similar state statutes (collectively, "Marriage Laws") violated the Fourteenth Amendment to the Constitution by preventing some of the Pla plaintiffs' intiffs from marrying under the color of Nevada law, and
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by withholding Nevada's withholding Nevada's recognition recognition of foreign marriages, marriages, rest of rest. t. ER 695–724. The unmarried plaintiffs of Plai seek, as their ultimate relief, to marry in Nevada with the sanction of the state; the plaintiffs with foreign marriages to have Nevada recognize those marriages. Complain. ER 723. Such facilitation requires that Neva Nevada change (or be forced to change) its definition of marriage from the union of a man and woman to the union of two persons without regard to sex. When the plaintiffs brought this lawsuit, the coalition successfully intervened and became a party defendant. The plaintiffs rightly acknowledge that their objection to the coalition's application for intervention under rule 24, application for opening letter under 7 but say somewhat misleadingly and misleadingly that they have "reserved the opportunity to reconsider the matter at a later date if necessary" when in fact their attorney has said that "plaintiffs would retain the right of plaintiffs." to contact the Court if it turns out there are problems or delays in scheduling that we do not anticipate.” quoting.” ER 666. There were no scheduling problems or unexpected delays. More importantly, the plaintiffs on appeal did not challenge the coalition's status as a defendant by intervening. Intervention. Accordingly, the Coalition is a full party, not a second-class party, to this civil action, and it would be just as wrong for this court to ignore, evade, or rule out any argument properly presented by the Coalition as it would be to do the same thing in connection with an argument that is brought forward by the plaintiffs or the
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Governor or scribe-recorder scribe-recorder Glover. That is the logic and teaching of the Rule 24 case law. See e.g. B. ., United States v. California Mobile Home Park Mgmt. Co., Co., 107 F.3d 1374, 1378 (9th Cir. 1997) ("[I] ("[I]Intervening Intervening Parties shall have full party status in the litigation commensurate with the grant of the ).15 Three defendants were actively defending themselves (and are actively defending themselves) in the Circuit Court: the Governor, Carson Carson City Clerk-Rec Clerk-Recorder Order Alan Glover, and the Coalition Washoe Cou County nty and Clark County elected to remain fieldside The active parties filed various disposition motions and in an order dated November 26, 2012 the District Court (Chief Judge Robert Clive Jones) ruled all of them with the following ruling:
Baker's claims against the plaintiffs were settled at the District Court level by Baker Nelson, 409 U.S. 810 (1972) (mem.) except to the extent that they rely on Nelson
fifteen
The article in part III position is not an issue. InMcConnell InMcConnell, ,540 U.S. 93 Coalition's (2003), for other reasons from Citizens by Unitedv.v.FEC FEC 558 U.S. 310 (2010), the Supreme Court, after determining that there was a case or controversy based on the original respondent's personal interest, allowed the intervener to "piggyback" on the existing dispute without to show his own independent personal part. ID. Id.at at 233. In any event, the Coalition has demonstrated that it had four adequate, separate and independent bases for its own Article III position. Stand. Dist Ct. dct. 30 at 13-15 & 3030-1 1 at 22-6. 6. (All references to "Dist. Ct. Dkt." are to filings filed with the District Court.) t.) One of these, the status of the coalition coalition as a proponent of altering marriage, was subsequently rejected by the reasoning in Hollingswor in Hollingsworth th v. Perry Perry,, 133 S.Ct. 2652 (2013), but the other three bases remain valid.
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Roman v. Evans Evans, 517 U.S. 620 (1996), which the court found to be based on a different theory from the equal protection and due process theories put forward in Baker. ER 9-12; 12; however, in the interest of legal economy, the District Court agreed to consider all of the arguments put forward by the plaintiffs at the time;
The rationale test is the appropriate level of judicial scrutiny for plaintiffs' claim for equal protection of sexual orientation. I am. ER 13:16-29; 29;
Because they serve legitimate societal (and thus state) interests, the interests of Nevada, Nevada marriage laws do not violate unconstitutional sexual orientation or discrimination. nation. HE 30-41. 41
Marriage laws treat men as one class and women as one class because marriage in Nevada does not constitute unconstitutional sex discrimination. on. HE 14-16. After all of the plaintiffs' claims were settled, the district court entered a final hearing
Judgment given on December 3, 2012. ER 1. Plaintiffs filed their appeal waiver on the same date. HE 43-45. 45. SUMMARY OF ARGUMENTATION
Nevada's Marriage The Marriage Laws of Nevada have as their purpose and effect the preservation and maintenance of male-female-male-female meaning at the core of marriage-marriage-instituti-institution on this 16th
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has always played an important role in Nevada Nevada society. The assessments, ducks, perceptions, and understandings of Nevada voters and a broad and deep scholarly work on social institutions combine to support the conclusion that materially and even uniquely, this core meaning of woman offers several valuable advantages and that if the law were to oppress them this meaning (as is required for same-sex couples to marry or have their foreign marriages recognized), then over time these advantages will diminish and then probably be lost altogether those valuable social advantages - around the meaning man-woman-man -Preserve woman at the core of the institution of marriage. Institution. The reality and validity of these reasons defeat all of the plaintiffs' constitutional challenges and certainly negate the animus libel. ARGUMENT I. REGARDING ELEVANT LEVANT AND STABLE LEGAL FACTS SHOW THAT SOCIETY HAS GOOD REASONS TO PRESERVE "THE UNION OF A MAN AND A WOMAN" AS A CORE ESSENTIAL OF THE MARRIAGE INSTITUTION.
The final question here is whether the state of Nevada has good enough reason to preserve "the union of a man and a woman" as the core meaning of the institution of marriage. Institution. That is the final crucial question of whether the theory is due process or equal protection and, if equal protection, whether the theory is sexual orientation
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Discrimination Discrimination or discrimination based on sex. n.16 The default standard of what constitutes good enough disadvantages may vary between theories,17 but the ultimate problem is the same. A. When parties present competing legal facts, s the courts follow those chosen by the government decision-maker.
The reasons for maintaining male-female marriage are in the realm of legislative fact, not judicial fact. "Adjudicative "Adjudicatory facts are facts about the parties and their activities. . . , usually answering the questions of who did what, where, when, how, why, with what motive or intent” — the kinds of “facts that go to the jury in a jury trial” or to the Fact Finder in a Court Proceeding. Marshall v. Sawyer, 365 F.2d 105, 111 (9th Cir.1966) (citing Kenneth C. Davis, The Requirement of a Trial-Type Hearing, 70 Harv. L. Rev. 193, 199 (1956)) (internal quotation marks omitted ).18 "Legal facts", on the other hand, "do not normally concern [only] the immediate parties, but are general facts that help the arbitral tribunal to decide questions of law, principle and discretion." ID. "Legislative facts are 'general facts which assist the arbitral tribunal in deciding matters of law and principle,' are 'without reference to particular parties', and 'need not to be developed through evidentiary hearings.'" Hearings.'" Libertarian Libertarian 16
Compare Compare United States v. industry Clearance Office, Office, 895 F.2d 563 (9. Cir. 1990) (discrimination based on sexual orientation) and United States v. Sec. Virginia, Virginia, 518 U.S. 515 (1996) (discrimination based on sex discrimination). Ion). 17 See nautical note footnote 16 16 above. 18
We are not aware of any disputed adj adjudicative udicative facts in this case. see 18
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Nat'l Comm., Comm., Inc. v. FEC, 930 F. Supp. 2d 154, 157 (D.D.C. 2013) (cited (cited Friends of the Earth v. R. Reilly eilly,, 966 F.2d 690, 694 (D.C. Cir. 1992) andAss'n andAss'n of Nat'l Advertisers, Advertisers , Inc. v. FTC, 627 F.2d 1151, 1161-6262 (D.C. Cir. 1979)) A legislative fact "is a matter of social factors and events..." Dunigan v. City of Oxford, Mississippi, Mississippi, 718 F.2d 738, 748 n.8 (5th Cir. 1983. Certain legislative facts cannot be contested or contested; many presented in this reply letter fall into this category. But sometimes they are legitimate legislative facts, that is, informed and thoughtful people disagree on the validity of a proposed legislative fact.In such cases, the courts do not intervene to declare one view true and the concurrent competing view false.When the legislative fact is quite contentious, the courts yield vi elmore on the decision of the government decision maker from eral strong reasons. Reasons. First, the courts understand and appreciate the phenomenon of collective collective wisdom. Our democratic ethos privileges the reasonable agreements and conclusions reached by the people through our democratic processes - the chosen legislative facts - not this or that elite, no matter how confidently claimed. See e.g. B. Dandridge, Dandridge v. Williams Williams, 397 U.S. 471, 487 (1970) ("We do not decide today that the Maryland ordinance is wise, that it best meets the relevant social and economic goals that Maryland best meets, that it ideally materializes, or that a more just and humane system is not could be developed
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Claims to morality and intelligence are made by opponents and supporters of almost all measures. . . . [T]he constitution does not authorize this court to question state officials. . . . . ). . . ). A Washington state case asserting the right to assisted suicide is a striking example of this preference for the causes selected by our democratic-democratic processes. se. The state banned assisted suicide. The court declared this ban en banc unconstitutional. Compassion in Dying v. Washington,, 79 F.3d 790, 798 (9th Cir. 1996) (en Washington (en banc).) In doing so, it has rejected some of the state's assessments of social and societal practices and their li For example, the state asserted an interest in protecting integrity and ethics of the medical profession, but this Court concluded that "the integrity of the medical profession [is not] threatened or would be threatened in any way [doctor [physician-assisted suicide], 'suicide]', despite opinions to the contrary by the State and those responsible." Observer of the Medical Profession, Id. Id. at 827. As another example, ple claimed the state claimed an interest in protecting vulnerable groups — including the poor, the elderly, and the disabled — from abuse, neglect, and error, this court dismissed however, the state's concerns that underprivileged individuals might be pressured to become doctors sis medically assisted se Assassination Suicide as "ridiculous at first sight." Id. Id.at at 825. On these two and similar counts, the Supreme Court flatly opposed replacement by this Court
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assessments of the relevant social practices and their likely impact on those of the state and unanimously overturned the judgment of that court. Washington vs Glücksberg, 521 U.S. 702, 728-3636 (1997). The Supreme Court has favored the reasonable agreements and conclusions reached by the people through democratic processes - the chosen legislative facts. processes. Second, many legislative facts, often the most important ones, are in fact predictions of what will happen in society in the future, given this or that current act of government. Given the complexity of human society, society, a reasonable prediction should not be accepted as an objective "truth" in the face of an opposite but still rationally made prediction. iction. E.g. Example: FCC FCC v. Nat'l Citizens Comm. for Broadcasting, 436 U.S. 775, 813-14 14 (1978) ("However, as far as statements of fact were concerned ... they were primarily evaluative or predictive in nature ... In such circumstances full full factual support in the records for the ... judgment or prediction is not possible or required; "a prediction of the direction in which the future public interest lies necessarily requires deductions deductions ...') (citation .'") (citing FPC FPC v. Transcon. Transcon. Gas P Pipe ipe Line Corp. Corp., 365 U.S. 1 , 29 (1961)); Turner Broadcasting Sys., Inc. v. FCC, 512 U.S. 622, 665–66 66 (1994) (Kennedy, J., Plural Opinion) Opinion) (noting that ""[s]ound [s]ound pol policymaking often often requires legislators to predict future events and the probable Anticipate the impact of these events
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conclusions and conclusions for which full empirical support may not be available" and emphasizing "considerable consideration" to the government decision-maker in such situations). situations). Third, the courts understand the limits of their own competence. “It does not matter that the [legislative] facts can be disputed or their effect can be disputed by arguments and opinions of serious and serious strength. It is not within the jurisdiction of the courts to arbitrate such discrepancies.” Vance v. Bradley, Bradley, 440 U.S. 93, 112 (1979) (citing Rast (citing Rast v. Van Deman & Lew Lewis is Co. Co., 240 U.S. 342, 357 (1916)) (internal quotation marks omitted). When reviewed on a rational basis, the dispute between competing legislative facts run rather one-sided and lopsided against the government's decision, and the government's will will still prevail, which might provide a rational basis for it See e.g., FCC v. Beach Commc'ns, Inc., e.g., Inc., 508 U.S. [t]he onus is on the one who challenges the legislative order to deny every possible basis that might support it[.]" it[.]" Heller v. Doe, Doe, 509 U.S. 312, 320 (1993) (cited (cited Lehnhausen Lehnhausen v. Lake Lake Shore Auto Auto Parts Co., 410 U.S. 356, 364 (1973)) If any basis is even minimally disputed, Co. minimally disputed, plaintiffs lose plaintiffs. The government, however, has no duty, " to produce evidence to support that
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Rationality Rationality of a legal classification. Classification."" Id. "[A] statute decision is not subject to a finding of fact in the courtroom and may be based on rational speculation unsupported by evidence or empirical data." Beach Commc' Commc'ns, ns, 508 U.S. at 315. Furthermore, even if all of the accused fail to articulate the necessary rationale, a court will uphold the contested government action if it can identify rationale for itself. See e.g. e.g. B. Kadrmas v. Dickinson Pub. Schs., Schs., 487 U.S. 450, 463 (1988). This established law has implications for the jurisprudence in summary judgment. Jurisprudence. As the District Court correctly noted in the Hawai'i Marriage case: Case: Disputing facts which might normally summarize other civil matters will not generally preclude a factual review. Review. That is, the question before this court is not whether the legislative facts are true, but whether they are "at least arguable." Jackson vs. Abercrombie Abercrombie, 884 F. Supp. 2d 1065, 1105 (D. Haw. 2012) (citations omitted). Even if the level of judicial scrutiny is tightened (and in which case there is no basis for applying any level of scrutiny other than rational basis verification), the courts will still not intervene to declare a well "true" or " wrong” - contested legislative fact, but instead uses the legislative fact chosen by the government decision-maker. The reasons for such judicial consideration—the limits of court jurisdiction, the uncertainty of predictions about societal consequences, and the wisdom of
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Respect for democratically made decisions between competing legislative facts - still exist. Even if the courts, under heightened scrutiny, may not accept some minimally plausible legislative facts invoked in support of the contested government action, they will resort to soundly supported legislative facts even when “serious arguments and opinions oppose it. It is not within the courts' jurisdiction to arbitrate such inconsistencies.” Inconsistency.” Vance Vance, 440 U.S. at 112 (citing Rast (citing Rast, 240 U.S. at 357). All of this is explained by Grutter v. Bollinger, 539 U.S. The existence of racial racial classifications Plaintiff in this case objected to the University of Michigan's consideration of race and ethnicity Law School in their admissions decisions, specifically considering in favor of applicants from three underrepresented d Minori minority groups: Blacks, Hispanics, Ipanics, and Native Americans (emphasis added) This is the legislative fact chosen by government decision-makers, but it was a vigorously contested legislative fact, many able voices convincingly arguing for precisely the opposite legislative fact, that the diversity sought was uneducational
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Benefit and even harm to those who are meant to benefit. 19 Nevertheless, the Supreme Court majority, explicitly and unabashedly, unabashedly "returned to the conclusion of the law school that its racial experiments lead to educational advantages." .” In the majority's own words: Words: We submit to the Law School's pedagogical judgment that such diversity is essential to its educational mission. The Law School’s School’s assessment that diversity will indeed bring educational benefits is echoed by respondents and their friends. friends Our examination of the law school's asserted interest is no less rigorous to accommodate complex pedagogical judgments in an area that lies primarily in the subject matter of the university. University. Id.at Id. at 328. Based on this deferral of deference to the government decision-maker's decision of a controversial legislative fact (and, necessarily, necessarily, dismissing opposing assessments), the court upheld the law school admissions program. The court did not anoint one assessment as "true" and the opposite assessment as "false." "NOT CORRECT." It shifted to the decision of the government decision maker. Selection. 19
Thomas as Marshale arranged these Vo votes and added his own, declaring: By contrast, Judge Thom. The court's deference to the law school's conclusion that its racial experiments result in educational benefits will, if honored, have serious collateral damage with consequences. sequences. The court relies heavily on social science evidence to justify its deference. erence. However, the Co Court never acknowledges the mounting evidence that racial (and other species) heterogeneity actually impairs learning among black students. 539 US at 364 (Thomas J., differing) (citations omitted). 25
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These well-established legal principles are of great importance in this case. Here the plaintiffs, their experts, and their amici amicif fail to do two things: first, they do not even contest many of the legislative facts supporting Nevada's decision to maintain the institution of man-woman marriage, and, second, what As for the rest of these supporting legislative facts, they deny the reality that people's assessments are being reasonably and even robustly supported. B. The meaning "union of a man and a woman" at the core of the Nevada institution of marriage provides valuable social benefits.
The following well-supported legislative facts support Nevada's Th Marriage Laws against all constitutional challenges: Marriage is a vital social institution, 20 and, like all social institutions, is constituted by a unique web of shared public meanings. 21 Many of these meanings reach the level of norms.22
20
E.g. For example, Williams v. Northmore Carolina Carolina, US 287, 303 as (1942) marital relationship a fundamental institution, 317 in our civilization anyone ("[T]he other."); Goodridge v Dep't of Pub. Health, Health, 798 N.E.2d 941, 948 (Mass. 2003) (“Marriage (“Marriage is a vital social institution.”) Institution”). 21 See e.g. e.g. B. John R. Searle, The Construction of Social Reality Reality32 (1995) ("Searle, Construction"); Construction ”);Supplemental Excerpts of Record (“SER”) 140; 140; see also Monte Neil Stewart, Genderless Marriage, Institutional Institutional Realities, and Judicial Elision Elision, 1 Duke J. Const. L. & Pub. Pol'y 1, 8-28 (2006) (“Institutional Realities Realities”). "). 22 See e.g. e.g. B. Victor Nee & Paul Ingram, Embeddedness Ingram, Embeddedness and Beyond: Institution Institutions, s, Exchange, and Social Social Structure Structure, in in The New Institutionalism in Sociology19 (Mary C. Brinton & Victor Nee eds ., 1998) (" An institution is a web of interrelated norms - formal, formal and informal - governing - regulating socio-social relations.") Relationships"). 26
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The institution of marriage profoundly affects the individual; Institutional meanings and norms teach, shape, and transform individuals, providing identities, purpose, purposes, practices, ideas, ideals, business, and a moral/ethical compass to navigate the institutional realm. Realm.23 Just as a society creates and maintains its institution of marriage (through the use of language24), a society can transform it. Since marriage is constituted by the sharing of common and public meanings, it is bound to be altered when those meanings change or are no longer sufficiently shared. That's the only way marriage can be 25
changed. When conjugal marriage institutes formerly institutionalized public meanings and norms that are no longer adequately shared by a society, by whatever means and for whatever reason, the institution disappears.26 This is known as deinstitutionalization. A new institution with different public meanings and norms
23
Siehe z. B. z. B. Helen Reece, Divorcing Reece, Divorcing Responsibly Responsibly185 185 (2003); SER 140; Monte
Neil Stewart, Stewart, Judicial Judicial Redefini Redefinition Richard of Marr Marriage iage, 21 Can. J. Fam. L. 11 (2004) und („Judicial Redefinition Redefinition“); ”); siehe siehe auch Richard sowie R. Clayton, The Family, Marriage, Social Change19, Change19, 22 (2. Aufl. 1979); Monte Neil Stewart, Eliding Stewart, Eliding in Washington und Kalifornien, Kalifornien, 42 Gonzaga L. Rev. 501, 503 (2007) („Eliding“). “). 24 Siehe Searle, Construction Construction, oben in Fußnote 21, 21, S. 32; John R. Searle, Making Searle, Making the Social World: World: The Structur Structuree of Human Human n Civilizati Civilization on90 (2010) („Searle, Soziale Welt“). “). 25 Siehe z. B. Eerik Lagerspetz, The Opposite Mirrors: An Essay on the Conventionalist Conventionalist Theory of Institution Institutions28 (1995); Eerik Lagerspetz, On the Existence of Institutions Institutions, in On On the Nature of Social and Institutional Reality 70, 82 (Eerik Lagerspetz et al. Hrsg., 2001). 26
See e.g. e.g. B.id. I would.;; Searle, Construction Construction, supra, note 21, 21, at 117. 27
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may take the name of the previous institution (“marriage”), but (“marriage”), but it will be a different institution. Across all ages and cultures, the union of man and woman has almost always been central to the institution of marriage.27 The meaning of marriage as man and woman offers many valuable social advantages, materially and even uniquely, which we shall discuss later . A society can have only one social institution called "marriage." Marriage.” Society cannot have both “the union of a man and a woman” and “the union of two persons”—persons—simultaneously as common, central, constitutive meanings of the institution of marriage, any more than it can have Monogamy as core meaning, if it also allows for polygamy. Polygamy. One meaning inevitably displaces the other, or at least excludes it. Given the role of language and meaning in constituting institutions that constitute and sustain, two 'coexisting' social social institutions known society-wide as 'marriage' or 'marriage' amounts to a factual impossibility. Impossibility. Therefore, every society must choose either to retain male-female marriage or to legislate to replace it with a radically different sexless marriage regime (the latter.)
27 28
See e.g. e.g. B. SER 19-20, 20, 524-34. 34. A society actually has a third possibility: no normative marriage at all.
Many of the most influential proponents of sexless marriage rightly and happily 28
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Although the law did not create the institution of male-female marriage,29 it has the power to de-institutionalize it by suppressing the shared public meanings that constitute it.30 The power of the law derives from its expression - or educational function, reinforced by his authoritative voice.31 Regarding the institution of marriage, guardianship, the plaintiffs seek to use the power of the law to suppress the meaning of man and woman, replacing them with the meaning of replaced by any two people. (That's the only way they can "marry" in any understandable, understandable sense.) The reach of this power to quell oppression is wide and sufficient, especially given that, once redefined, the old meaning as "unconstitutional." ' and the mandate imposing the new meaning would be seen as a defense of an important 'right'. right." Under these circumstances, repression would be a constitutional imperative.
see that this naturally leads to no normative normative institution of marriage arising at all. For a clear example of high-level advocacy for this, see SER 690-716. 716. 29 Marriage between a man and a woman is undoubtedly a pre-political institution. See e.g. e.g. B. John Locke, Second Treatise of Government47 47 (ed. Richard H. Cox, 1982) (1690); see also SER 497-523; Searle, 523; Social World, supra note 24, 24, at 86; also and Richard Garnett, Pierce Taking Seriously: The Family, Religious Education, HarmW. to Children,, 76 Notre Dame L. Rev. 109, 114 n.29 (2000) (the provisions of the Children Act governing marriage no more “created” the institution of marriage than the rule against eternity “dirt " created). Dirt). 30 See e.g. B.., SER 59, 93, 140-41; 41; Nancy F. Cott, The Power of Government in Marriage, 11 The Good Soc' Marriage Soc'y 88 (2002). 31 See e.g. e.g. B. Joseph Raz, The Morality of Freedom162 Freedom162 (1986); Cass R. Sunstein, Foreword: Leaving Things Undecided, 110 Harv. L. Rev. 4, 69-71 71 (1996); Matthew B. O'Brien, Why Liberal Neutrality Prohibits Same-Sex Marriage: Rawls, Political Liberali Liberalism, sm, and the F Family amily, 1 Brit. Jam. Legal Stud. 411, 413–
15 (2012); see (2012); see also SER also SER 59, 93, 140-41, 41, 683-89. 89th 29th
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Sexless marriage is a fundamentally different institution from man-woman-man-woman marriage.32 Although there is undue overlap between the two possible "marriage" institutions, the importance lies in the divergence. which is evident in the nature of the respective welfare services of the two institutions and also in the respective norms, norms, ideals and practices of the institutions of the two institutions. (This differential divergence is explained in more detail below.) The radical difference between the two institutions could not be otherwise: Generate fundamentally different meanings when reinforced by institutional power and influence, divergent social identities, aspirations, projects, and behaviors, and thus different welfare benefits.33 Well-informed observers of marriage, regardless of their sexual, political, or theoretical orientation, consistently recognize the magnitude of the differences between the two possible institutions of marriage.34 The reality is that the importance of marriage is changing changed to 32
See, ., - ., O'Brien, O'Brien, supra, footnote 31, 31, at 413-15; fifteen; Stewart,Marriage Stewart,Marriage Facts Facts,,supra note note 9, 9, at.g 323 24. 24. 33 See e.g. B. z to be made even longer) with Lambda Legal Defense and Education Fund executive director at the time Thomas Stoddard arguing that "broadening the concept" of marriage "would inevitably turn it into something new." Thomas BB Stoddard, Why Gay People Should Seek the Right to Marry, Marry, Out/Look Nat'l Gay & Lesbian Q., Fall 1989, p. 19. Also, e.g. B. David Blankenhorn, The Future of Marriage Marriage167 167 (2007) (“Future Future”)” (“I don't think there can be much doubt that this post-post-institutional view of marriage represents a radical redefinition Redefining Both sides of the divide – those who support gay marriage and those who don't – recognize this 30
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that of "every two persons" will profoundly and fundamentally change the institution of prof, if not immediately then certainly over time, as the new meaning in texts, in schools and in many other parts of the public square is prescribed and voluntarily imposed by the media is published and other institutions, institutions, with society, especially their children, causing them to lose the ability to see the meaning of the old institution. None of the plaintiffs, the plaintiffs, their experts or their amici amicinegate dispute these legislative facts
Wirklichkeit."); Daniel Cere, War of the Ring, in inDivorci Divorcing ng Marr Marriage: iage: Unveiling the Dangers in Canada’s New SocialMarriage“); Experiment 9, 11–13 13 (Daniel Canada’s Cere & Douglas Farrow eds., 2004) („Divorcing Marriage“ ); Douglas Farrow, Romantic Mistake,, inDivorcing Mistake inDivorcing Marriage, oben, oben, bei 1–5; 5; Ladelle McWhorter McWhorter,,Bodies and Pleasures: Foucault and the he Politics of Sexual Norm Normalization 125 125 (1999); Raz, supranote supranote31, 31,at bei 393; Judith Stacey, Stacey, In The Name of the Family: Rethinking Family Values in the Postmodern Postmodern Age126 126–28 28 (1996); Sherif Girgis et al., Was ist die Ehe? Man and Woman: A Defen Defense se54 54–55 55 (2012); Katherine K. Young & Paul Nathanson, The Future of an Experiment, in Divorcing inDivorcing Marriage, oben Ehe, oben, S. 48–56; 56; Angela Bolt, Do Bolt, kommen Brautkleider in Lavendel Lavendel? ? The Prospect Prospectsss and Implications of the Same-Sex March Marriage riage,, 24 Soc. Theorie & Praxis 111, 114 (1998); Devon W. Carbado, Straight Out of the Closet, 15 Berkeley Women's L.J. 76, 95– 96 Gallagher, Gallagher, oben, Fußnote 9, bei 53 („Viele des gleichen Geschlechts (2000); die Ehe erkennt an, dass einige unserer gesamten Unterstützer rücksichtsvoll sind Verständnis der Welt ist in dieser rechtlichen Umgestaltung der Bedeutung der Ehe verpackt.“); rage.”); E.J. Graff, Retying Graff, Retying the Knot Knot, The Nation, 24. Juni 1996, Seite 12; Nan D. Hunter, Marriage, Law, Law, and Gender: A Feminist Inquiry Inquiry,, 1 Law & Sexuality 9, 12–19 19 (1991); Andrew Sullivan, Recognition Sullivan, Recognition of Same-Sex Marr Marriage iage,, 16 Quinnipiac L. Rev. 13, 15–16 16 (1996). 35 Befürworter der geschlechtslosen Ehe versuchen manchmal zu bestreiten, dass die geschlechtslose geschlechtslose Ehe eine grundlegend andere institutionelle Institution ist als die Mann-Frau-Ehe, aber ihr „Gegenargument“ wird von Zweckmäßigkeit getrieben; Aufgrund ihrer Notwendigkeit, das Argument, das wir hier vorbringen, zu unterdrücken, haben Befürworter in ihren öffentlichen Erklärungen „die Auswirkungen der Änderung, die sie anstreben, sorgfältig minimiert“. Deborah A. W. Widiss, idiss, Changing the 31
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Opinion that "[t]here"[t]here provides no scientific support for the notion that allowing same-sex couples to marry would harm opposite-sex relationships, relationships, or M-marriages. arrivals The facts affecting the quality, stability, and longevity of opposite-sex relationships would not be affected by same-sex marriages.” ER 306. There is a major blind spot in this view, however. Peplau ignores or ignores the tenets of the "new institutionalism" in the social sciences, which focus on the role of social institutions in shaping social behavior through pervasive public meanings that shape and transform individuals in profound ways, and does not engage with the themes discussed in this section and certainly does not deny the social institutional realities of marriage set forth.37
Marriage Equation Equation,, 89 Washington U.L. UL Rev. 721, 7 778, 78, 781 (2012) (2012). The pro-proponents' "counter-argument" also rests on a rather narrow and factually inaccurate view of male-female marriage in the American experience. iez. In subsection C. below we demonstrate the factual inaccuracy of this view Hall & Rosemary CR Taylor, Political Science Science and the Three New New Institutionalisms, 44 Pol. Stud. 936 (1996) Victor Nee, Sources of the New Institutionalism Institutionalism, in The inThe New Institutional Institutionalism in Sociology 1 (Mary C. Brinton & Victor Nee eds., 2001); 2001); see also Monte Neil Stewart et al., Marriage, al., Marriage, Fundamental Premises, and the California, Connecticut, Connecticut, and Iowa Supreme Courts, Courts , 2012 BYU L. Rev. 193, 204 (“Fundamental Premises”) Premises ”).. 37 Peplaus Peplaus' blind spot in relation to societal institutional realities manifests itself in other ways as well. An example is their reliance on Div divorce data from Mas Massachusetts Sachusetts in the few years immediately prior to and immediately after the commencement of court-ordered sexless sexless marriage there in 2004. ER 322-23. 23. Your point is that the sky isn't falling now that Massachusetts has a sexless sexless marriage regime. e. But the undeniable reality of institutional momentum clearly invalidates this point. 32
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The man-woman meaning at the core of the institution of marriage affects people and guides their behavior now and for generations to come in ways that are positive and beneficial to children in general, to the adult community in general, and to our nation's religious commitments freedoms. The social institutional realities recognized and chosen by Nevada and its citizens clearly teach that if the law were to suppress this importance, the easily predictable consequence would be first the reduction over time and then the loss of the valuable social benefits that this importance exhibits Uniquely, a sexless marriage regime counteracts these benefits. The benefits to children discussed here arise from the historic success of marriage in maximizing the number of children who know and are raised by their own mother and father. These benefits generally include better lifelong outcomes in psychology, emotion, body, education, employment, marriage, and other social areas. rich. Attempting to dispute the actual reality of these benefits, proponents of sexless sexless marriage advance a counter-argument that boils down to the following: “Men and women are interchangeable. interchangeable. A child does not need both a mother and a father. Those who believe otherwise are fanatics.” Something so massive and ubiquitous in our society and humanity as the institution of male-female marriage, like a giant ocean-going ship, does not hold or turn in a short space or a short time. Time. With an institution as fundamental and entrenched as marriage, one has to think in decades to see the full impact of shifts in public meaning.
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Allow a judge to buy such a counter-argument—given the robust, democratically elected legal facts against it. Other legislative facts listed below show the tendency of sexless marriage regulations to conflict with and even destroy the religious liberties of a large segment of our nation's believers and their churches. A court-ordered change in the definition of marriage would inevitably lead to a multitude of conflicts between freedom of religion and freedom of religion for persons who oppose sexless marriage on religious grounds. Found. Another valuable advantage of man-woman marriage at stake here is the protection of these religious freedoms. it.
1. The institution of male-female-male marriage to maxims of the lilikeli hood this child will have both the mother and the father theii r lilive ves, s, an ar angeme ent that, that, on a wi wide range of indica indicato tors of human human fflour lourii shing shi ng,, h ha as bee show shown n to achieve the best lifetime results. Man-woman man-woman marriage teaches an important set of norms and ideals: Ideals: of a child who knows and is raised by his mother and father, of a child who is raised by parents who give at least something Its benefit lies in gender complementarity and in a child experiencing a father and not fatherlessness in the complementarity of the home. As a powerful social institution, the teachings of male-female-male-female marriage will make the realization of these ideals more likely. The teachings of sexless marriage contradict all of these norms and ideals. Because it will completely replace the old institution, the opposing doctrine of sexless marriage
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make the realization of these ideals less likely; in fact, the ideals are no longer socially sanctioned at all, but rather viewed as discredited relics. iks. Therefore, this case will determine whether our society will maximize or minimize the benefits of a child who knows and is raised by his mother and father, experiences gender complementarity in the home of his childhood and adolescence, and is spared fatherlessness and the evils associated with it . Fatherless Nevada has chosen to maximize these benefits. For most Ne Nevadans, Vadans, marriage is primarily about the welfare of the children and not primarily about 38
the satisfaction of adults' emotional needs or the reinforcement of adults' private choices. The Constitution allows Nevada to maximize these benefits. a. Man-woman-man-woman meaning in marriage promotes marriage promotes Nevada's vital interest in maximizing the number of children raised by its own two biological parents. Common sense and recent social science teach that knowing and being educated by his mother, father is a source of strength and prosperity for the child. This ideal of a child knowing and being raised by his or her biological parents - with exceptions justified only in the child's best interests, not to satisfy any adult's desires - is relevant to 38
O'Brien, O'Brien, supra, footnote 31, 31, conducts a thorough examination of the alleged "public reasons" put forward to support one or the other possible marriage institution and concludes that there is no valid "public reason". upholds sexless marriage, but that maximizing the benefits of a child knowing and being raised by his mother and father is a valid "public reason" to uphold man-woman-woman marriage. 35
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Children.39 Prof. Katharine K Children. K. Baker recognized this in her analysis of bionormativity—that is, the norm that parental rights and responsibilities conform to biological parenthood. Parenting.40 She recognized that the interests served by this norm must be analyzed separately for state, parents, parents and children. Children.41 Children Children's interests in bionormativity Bionormativity differ from those of the state and those of the parents; Children "appear to have the greatest potential interest in the biology of biological parenting."42 Professor Baker Baker explains that this may be because there are "psychological benefits associated with being raised by one's biological parents."43 A recent study confirms Prof. Baker's suggestion about the "psychological benefits of being raised by one's biological parents". This study was "the first attempt to learn about the identity, kinship, welfare, welfare, and social justice experiences of young adults conceived through sperm donation."44 representative resentment sample of 485 adult adults, ages 18-45, who stated that her mother used a sperm donor to conceive her and, as a comparison group, 562 young adults adopted as infants and 563 young adults raised by their biological parents. The study found that, on average, young people aged 39
Siehe z. B. z. B. SER 438–78, 78, 717–38; 38; vgl. SER 77. Katharine K. Baker, Baker, Bionormativity Bionormativity and and the Construction Construction of P Parenthood arenthood, 42 Ga. L. Rev. 649, 682–91 91 (2008). 41 Ebd. bei 682. 42 Ebd. Ausweis. 43 Ebd. Id.at bei 686. 40
44
SER304.
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Adults conceived through sperm donation “suffer more, are more confused, and feel more isolated from their families.”45 Among other negative results, after accounting for socioeconomic factors, the study found that offspring from sperm donors was significantly more common than their peers, who were raised by their biological parents, to have criminal record, substance abuse, depression, depression and 1.5 times more likely to have mental health problems.”46 Husband-wife Husband-wife supports a marriage not only the children's birthright, with their mothers and to be connected to fathers is the indispensable social predicate predicate for 47
to have that birthright, meaning and reality. Where man-woman-woman marriage is a strong social institution, a child is much more likely to know and be raised by the man and woman whose sexual union created it precisely because the parents are married. married. Where the institution is weaker, such an outcome is less likely. Where the marital ethos is weak or non-existent, a child knowing and being raised by his mother and father is mere coincidence.48 A sexless marriage regime is not only neutral to the child's interest in bonding with his birth parents ; for reasons of public order and with effect from 45
ID. ID. ID. at 306, 338-39. 39. For a more complete summary of the study's findings, see O'Brien, supranote supranote 31, 31, at at at at at at at at at at at at at at at at at at at at at at at at at at at at at at at at at at at against O'Briens, s O's ss ss : sssssss an 3 an n nnnnnnnnnnnnnnnnnnnnnnähndenl 48; see also SER 546-76. 76. 47 See e.g. e.g. B.SER 58, 93; Stewart, Stewart, Fundamental Fundamental Premises, Premises, supra, note 36, 36, at 243–56. 46
48
ID. ID.
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Law, it thwarts that interest.49 “Legalization Legalization of same-sex marriage, though sometimes viewed as a small change affecting few people, becomes the terrifying prospect of fundamentally breaking the legal institution of marriage from the ground up Connections to biological parenting.”50 This prospect is a reality in Canada; the same bill that redefined marriage as the union of two persons also included, in order to maintain system coherence, a provision that legally ended the concept of “natural parenthood” and replaced it with the concept of “legal parenthood” ( Die A child's parents are those whom the state designates as parents).51 After the implementation of sexless marriage, a child who knows and is brought up by his biological parents will not be the result of cultural, political and institutional aspirations and goals, but very likely a pure coincidence. Same-sex marriage would require us, both in law and culture, to deny the dual parentage of the child. . . . It would legally and formally require us to take back the greatest promise of marriage to the child—the promise that, to the extent society allows, I will be loved and raised by the mother and father who made me. . . . But a society that advocates same-sex marriage can no longer collectively embrace that norm and must take specific steps to reverse it. One can believe in same-sex marriage. It can be believed that every child deserves a mother and a father. You can't believe both.
49
See e.g. e.g. B. SER 163-66, 66, 182-297; 297; Blankenhor Blankenhorn, n,Future Future,,above footnote 34, 34,at at 201. SER 213. 51 SER 191–9 92. 2.
50
52
Blankenhorn,Future Blankenhorn,Future,,supra note note34, 34, at at 201. 38
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Additional benefits maximized by the ideal of married mother-father parenting that are vital to a child's, and therefore society's, well-being include physical, mental and emotional health and development; academic achievements and level of education; and avoidance of crime and other forms of self- and other destructive behaviors such as substance abuse and high-risk sexual behavior. t. To maximize the possibility of achieving these outcomes in society at large, the optimal form is for children to be raised by married mothers and fathers.53 This is a contentious point; Proponents of sexless marriage argue that child-rearing outcomes for same-sex couples are just as good, as various st studies have shown. udies. In context, they say that it is not the man-woman meaning at the core of the institution of marriage that materially contributes to this social good (the optimal way of raising children); rather, that social good comes from the caring of two loving, mutually committed adults; Therefore, de-institutionalizing male-female marriage and replacing it with a sexless marriage regime will not lead to a reduction or loss of this social good. The plaintiffs, most of their experts, and many of their amici amicimake are making quite a massive effort to persuade this court to declare their "no differences" legislative facts "true." However, there are strongly supported legal facts about the
53
See e.g. ., SER 1-181, 181, 479-96, 96, 535-60, 60, 577-84, 84, 593-617. 617. 39
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Opposite. The social science sees m married married mother-father as the type of child-rearing with the best results for the child o on n very important important measures. "The intact, biologically married family remains the gold standard for family life in the United States, inasmuch as children in this type of family are most likely to prosper economically, economically, socially, and psychologically."54 In contrast, various social science studies have made the claim "no difference." between child-rearing by married mothers and fathers and child-rearing by same-sex couples, proponents of sexless marriage have urged courts to declare “no differences” assessments “true.” That's right." All 54
SER 11. Male-female marriage is the most effective means yet devised by mankind to maximize the level of private welfare afforded to the children conceived through passionate, heterosexual mating. See e.g. e.g. B.SER 49-86; 86; 101; 585-92; Stewart, Judicial Stewart, Judicial Redefinition Redefinition, supra note 23, pp. 44-52. 52. In addition to providing for physical and bodily needs, such as food, clothing, miscellaneous, and shelter, the term “self-care” includes opportunities such as education, play, work, and discipline, as well as intangibles such as love, love, respect, and security. Security. The effective provision of private care for children in general is among the most significant of the social benefits bestowed by male-female-male-female marriage and forms the deep deep logic of marriage. See Stewart, Stewart, Judicial Judicial Redefinition Redefinition, supra note 23, 23, pp. 44-46. 46. 55 Douglas W. Allen, Allen, High school graduation rates among children from same-sex households, 11 Review of Economics of the Household 635 (2013); Mark D. Households Regnerus, parental Regnerus, parental same-sex relationships relationships, hips, family in instability, stability, and later consequences in life for adult C children: children: ans answering critics of the new family structure structures res study with additional analysis, analysis, 41 Soc. Science. Research 1367 (2012); SEB 618-53. 53. For good summaries of the latter two studies, see O'Brien, O'Brien, supra, footnotes 31, 31, at 443-45, and Jackson and Jackson v. Abercrombie Abercrombie,, 884 F. Supp. 2d. 1065, 1115 (D. Haw. 2012); see also SER 654-82. 82
40
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American appellate courts, with the exception of One56, have rejected this; they have instead heeded Judge Sosman's persuasive warnings that the "[I]npretation" [I]npretation of the data collected through these studies is then clouded by the personal and political beliefs of the investigators "investigators" and that "most utterly neutral and rigorous application of scientific principles in this area would be constrained by the limited observation period that was available.”57 The claims of various professional organizations posing as amici amiciin in support of the plaintiffs are no better than the studies from which they purportedly originated . derived. As a matter of good science, these assertive claims cannot replace otherwise underdeveloped, underdeveloped, or inadequate studies. it. In our transition to good science, we long ago abandoned the notion that invoking the name of Aristotle (or that of the American Psychological Association) ended the inquiry; We abandoned that notion because the only test must be what science itself reveals. As previously shown, the studies underlying the organizations' claims are hotly contested. Furthermore, Prof. Nancy Cott's Opinion is of no help to the plaintiffs' position. Position. Prof. Cott's attempt attempted to challenge man-woman-woman marriage 56
Siehe Varnum v. Brien, Brien, 763 N.W.2d 862, 873–74, 74, 899 n.26 (Iowa 2009). Goodridge gegen Dep’t of Pub. Health, Health, 798 N.E.2d 941, 979–80 80 (Mass. 2003) (Sosman, J., abweichend); accordRichard Richard E. Redding, Politized Redding, Politized Science Science,, 50 Soc’y Soc’y 57
439 (2013) (analysis of the reactions to the Regnerus study). 41
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Institution as the provider of the optimal form of child-rearing even affirms the continued validity of this achievement. Prof. Cott says: “The notion that the primary purpose of marriage is to provide an ideal or optimal framework for raising children has never been, and cannot be isolated from, the primary reason for the state structuring of the institution of marriage in the United States the state's interest in marriage today.”58 Note the careful limitation to “principal purpose,” “primary mover,” “about,” and “principal cause.” Prof. Co. Cott does not deny that the maintenance of optimal child-rearing (through the maintenance of the institution of husband-wife marriage) continues to be an important, even imperative, imperative, societal concern. Any dispute as to whether the interest is "principal" or "primary" is irrelevant to this court's constitutional analysis; what matters is that the interest is genuine, valuable, and enduring. b. Man-man-woman importance in marriage furthers Nevada's vital interest in maximizing the number of children raised by parents who can at least offer them the benefits of gender complementarity. The institution of man-woman marriage strongly teaches the social ideal and model of a child being raised by a man and a woman, even in the absence of full or partial biological ties. Thus, the male-female meaning "eaning" maximizes the number of children who receive the benefits of gender complementarity in their upbringing. These benefits are real. real. Even if children are not raised by their own married biological father and mother, children living with a married biological father and mother are 58
IS 269.
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Mothers and fathers of whom one is an adoptive parent perform (again, on average) almost as well as children raised by both birth parents.59 Research also shows that, for whatever reason, mothers and fathers60 tend, on average, to raise diverse parents and thus make unique contributions to the overall development of the child.61 The psychological literature on child development has long recognized the crucial role that mothers play in their children's development. Development. 62 Recent research also shows the crucial role fathers play in their children's development.63 In short, gender diversity or complementarity Complementarity among parents – what one scholar has termed “gender parenting” – offers important advantages 59
See Regnerus, Regnerus, supra, note 55, 55, at 1367. For example, some researchers have concluded that males and females have significant innate differences arising from differences in genes and hormones. According to these researchers, these biochemical differences show up in the development of male and female brain anatomy, psyches, and even learning styles. Leonard Sax, Why Gender Matters: What Parents and Teachers Need to Know SeeLeonard See 60
About the styles Emles Emerging Science Sex ex Differences Differences (2005). (2005). But whether differences in parenting styles are the result of inherent gender differences or other factors, there's no question that fathers tend to parent differently than mothers. 61 ibid.; ; David Blankenhorn, Fatherles Blankenhorn, Fatherless America (1995). (1997). 63 See e.g. B. David Popenoe, Life Popenoe, Life Without Father: Father: Compelling N New ew Evidence t that hat Fatherhood & Marriage are Indispensabl Indispensablee for the Good of C Children hildren and Society Society 146 14 6 (1996). Supports the idea that gender education is important to human development and that fathers' contribution to child rearing is unique and irreplaceable
ID. ID.
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for children. Accordingly, Nevada and its residents have understandably and understandably chosen to retain this social institution in the most effective way to maximize the number of children receiving these benefits. In the context of these discussions about forms of child-rearing, our point must not be misunderstood. misunderstood. We do not claim that the individual ideal parents in same-sex ex-couples are in any way "inferior" as parents to the individual parents involved in married mother-father-mother-father parenting. Rather, the point is that the combination of male and female parents is likely to draw on the strengths of both sexes in a way that cannot occur with a two-woman or two-woman combination, and that this gender-specific, mother-father parenting model offers children important advantages. Children. That this would be the case is hardly surprising. G. Society has long recognized that diversity in education brings a multitude of benefits to students. See, see, e.g. B. Grutter v. e.g. v. Bollinger Bollinger, 539 US 306 306 (2003). If this is true of education, then why not of parenting? And as the Supreme Court has taught: “The two sexes are not interchangeable; a community composed exclusively of one [gender] differs from a community composed of both "both" and "[i]inherent". . . .” .” United States v. Virginia Virginia,, 518 U.S. 515, 533 (1996) (citing Ballard (citing Ballard v. United United States,, 329 U.S. 187, 193 (1946)) (internal (internal citation m marks Archen omitted). And, again male-female male-female
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Marriage effectively teaches the norm and ideal of gender complementarity in child rearing, while sexless marriage counteracts them. Plaintiffs cannot and cannot deny these strongly supported legislative facts regarding gender complementarity. complementarity. Faced with this argument in support of male-female marriage, opponents revert to the notion that men and women are interchangeable, or at least that the law should not allow official recognition of differences between the two sexes.. This notion only makes sense to humans who have accepted a particular theory of gen gender put forward by radical social constructivists, and the logical extension of that theory into a "legal" principle that the law can never classify on the basis of gender.65 These are people at the extreme extreme constructivist end of the essentialist/constructionist/constructionist spectrum. Adherents of the radical social-constructive position more or less take it as their project to deconstruct the “gender” differences between men and women66 and advance this project by arguing that the law does not make gender distinctions at all.67 65
For the information set out in this paragraph, see generally SE SER R 739-42. 66 See See e.g. B. Jonathan Culler, Literary Culler, Literary Theory: Theory: A Very Shor Shortt Introducti Introduction on 97 97-101 101 (1997); The Feminists: A Political Organization Organization to Annih Annihilate ilate Sex Roles, Roles, in Radical Feminism 368, 368–69 69 (Anne Koedt et al. eds., 1973); Shulamith Firestone, The Dialectics of Gender: Arguments for F Feminist Eminist Revolution Revolution11 11 (1970). 67 See See e.g. B. Kate Millet, Sexual Politics33 Politics33-36 36 (1977). (1977). Proponents of sexless marriage attempt to draw radical socially constructive conclusions because they are 45
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By making marriage amendment part of their constitution, Nevada voters refused to accept the gender theory of radical social constructivists. Equally important, the Supreme Court declined to accept it. See Virginia, Virginia, 518 U.S. 515.68 It would be unconstitutional to do otherwise. ise. See e.g. B. Otis v. Parker, 187 U.S. 606, 608–09 09 (1903) (Justice (Justice Holmes' warning against the tendency of judges, consciously or unconsciously, unconsciously, overtly or covertly, to read social theories into the constitution: "Otherwise a constitution, instead of only relatively basic rules of law, would embody, as commonly understood by all English-speaking communities, communities, becoming a partisan of a particular set of ethical or economic opinions . . . ." . c) The importance of husband and wife in marriage minimizes fatherlessness fatherlessness in the lives of children, a State that is particularly challenging for the well-being of children in general House announced it would launch "a national conversation about fatherhood and personal responsibility. The conversation began with an event celebrating five outstanding outs for standing g fathers. The President." explained:
argue that there is no defensible basis under equality jurisprudence for marriage between a man and a woman, given the "fact" that there are no differences between men and women that matter (or should matter) in the eyes of the law ). 68 To analyze the Supreme Court's refusal in United States v. Virginiato Virginia to accept the gender theory of the radical social constructivists, see, for example, Sunstein, supra Sunstein, supra footnote 31, 31, at 76; Stewart, Stewart, Judicial Judicial Redefinition Redefinition, supra, footnote 23, 23, at, pp. 92–95.
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When fathers are absent - when they relinquish their responsibilities to their children - we know the damage done to our families. Children who grow up without a father are more likely to drop out of school and end up in prison. They are more likely to have substance abuse problems, run away from home, and become teenage parents by age 69
itself. The President also emphasized the positive, saying, "We all know the difference that responsible, dedicated, dedicated fathers like these [the five outstanding fathers] can make in a child's life."70 Extensive studies have confirmed that fathers are essential to this the enterprise of raising children.71 And the cost of measures to progressively loosen the number of fatherless fatherless families has proved very high.72
69
Press Re Release, lease, Off Office ice of the He Pres Presss Secretary Secretary, y, The White Hou House, se, President Obama Launches National Conversation on Importance of Fatherhood and Personal Responsibility Responsibility (Juni (19. Juni 2009), http ://www.w http://www.whitehouse.gov/the-pr hitehouse.gov/the-pressessoffice/president-obama-launc office/presid ent-obama-launches-national-co hes-national-conversation- Im nversation-Wichtigkeit-Vaterschaft-Portanz-Vaterschaftund-persönliche-R. 70 Id. Id. 71
See e.g. e.g. B. Popenoe, Popenoe, supra, note 63; 63;Blankenhorn,Blankenhorn,Fatherless Fatherless,,supra note note61 61;;; Wendy D Manning & Kathleen A Lamb, Adolescent Well-Being Well-Being in Cohabiting, Cohabiting, Married, and Single-Parent Families, 65 J. Marriage and Fam. 876 (2003); (2003); Elrini Flouri & Ann Buchanan, The Buchanan, The role offather offather engagement engagement in children's later mental health,,26 health 26J. Adolescence Adolescence63 (2003) (concluding 'Paternal involvement at age 7 protects against psychological maladjustment in adolescents', 'even when maternal involvement is controlled). 72 See e.g. e.g. B. Note Note 71 71 above; above; Gregory Ace et. al., The Moynihan Report Revisited,6 Urban Institute 1 (2013), available (2013), available at http://www.urban.org/UploadedPDF/412839-The-Moynihan-Report 412839-The-Moynihan-Report - Revised. - Revised.pdf; pdf; Bruce J. Ellis et al. al., Does Father's Absence Put Daughters at Special Risk for Pregnancy or Early Sexual Activity and Teena Teenage Ge?,,74 Child Dev. 801 (2003). Pregnancy?
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The institution of man-woman-man-woman marriage teaches and honors the role of the "father" and prepares men to fulfill it. A genderless marriage regime with Parent A and Parent B removes the office and role of the "father" from the law and instead teaches that the gender of the parents doesn't matter. Therefore, under such a regime, the law can no longer promote fatherhood and honor or teach that the discharge of one's duties is generally good for children.73 ************ Male-female male-female on Marriage teaches the norms and ideals of a child knowing and being raised by his mother and father, as well as gender complementarity, complementarity in child rearing, and responsible fatherhood. Fatherhood. To the extent that a society realizes these norms, norms, and ideals, children generally fare better, thrive better, and have better lives. There is no mystery and there should be no confusion about the purposes of Nevada Marriage Laws in Nevada. Nevada preserves the man-woman meaning in its marriage institution to powerfully reinforce these norms and ideals. Man-woman marriage teaches and elevates them, and sexless marriage necessarily does the opposite. Thus, a man-woman-man-woman marriage maximizes the realization of these norms, norms and ideals for the enduring benefit of the children in general. 73
The dilemma of those who seek to promote fatherhood while at the same time promoting sexless sexless marriage is analyzed in A Adam dam J. MacLeod, MacLeod, No No Interest in in Fathers,, Public Discourse, January 14, 2014, http://www.thepublicdisc Fathers http://www.thepublicdiscourse.com/2ourse.com/2014014/01/11034/.
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With full constitutional authority, authority, by enshrining the meaning of husband and wife, a state can teach that marriage is and should be primarily about what is good for children in general, not what is good for them desires and private decisions of adults. Because Nevada's means and ends are entirely legitimate, highly intelligent, and persuasive, there is no constitutional error in its marriage laws. Nor can the constitutionality of marriage laws be attacked rationally by pointing to the children in households of same-sex couples. s. Like most states, N Nevada Evada is involved in two major but distinct child welfare efforts. First, by preserving the importance of husband and wife in marriage, it seeks to maximize the number of children across the generations who are known and raised by mother and father, who have the benefits of gender complementarity in their upbringing and who are spared the suffering of fatherlessness. fatherlessness. Second, Nevada seeks in various ways (including DPA (including DPA)) to protect the current welfare of individual children found in various circumstances. As for the second major endeavor, Nevada's venture, the laws of Nevada, including the D DPA, PA, provide equal financial resources and other material benefits to the children in the same same-sex E-sex couples and households on an equal basis that Nevada's various statutory programs provide to children in general. general. Plaintiffs cannot point to any Nevada-administered program that does otherwise, although they blame marriage laws
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“Deprive” children in households of same-sex couples from access to state benefits provided to children in households of married couples. This debt is derived from the items set out in Section V.D. VD under. But this misplaced guilt perfectly underscores the wisdom of Nevada's choices with its two major but distinct child welfare efforts. In order to maximize the benefits to children and children in same-sex couple households from its second endeavour, Nevada must (plaintiffs argue) abandon and reverse its first endeavour--stop using the institution of male-female marriage to secure the To emphatically teach norms and norms ideals of a child knowing and being raised by his mother and father, gender complementarity in child rearing, and responsible fatherhood. Nevada must (the Pla plaintiffs argue) suppress and suppress this institutional arrangement by instituting a sexless marriage regime that contradicts these norms and ideals. But given the huge disparity in the number of n children associated with same-sex couple households and all other children74, Nevada's first concern is to minimize rather than maximize the utility to children in general when it fails them and undoes - and that is neither the one nor the other rational nor moral. 74
The latest data indicates that approximately 125,000 households of same-sex couples in the United States have children. Gary J. Gates, Gates, LGBT LGBT Parenting Parenting in the United States, The Williams Institute, UCLA School of Law (February 2013), http://williamsinstitute.law.ucla.e http://william sinstitute. law.ucla.edu/wp-content/uploa du/wp-content/uploads/LGBT-P ds/LGBT-Parenting.pdf. arenting.pdf. In contrast, nearly 25,000,000 households have a married mother and father, Jonathan Vespa et. al., America's al., America's Families Families and Liv Living Arrangeme Arrangements nts:: 2012, 2012, U.S. Census Bureau, U.S. Dept. of Commerce (Aug. 2013), http://www.census.gov/prod/ http://www.census.gov/prod/2013pubs/ p20-570.pdf, while over 10,000,000 households with children have no father and in over 3,000,000 no mother is present, id. I would. 50
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The same analysis applies with equal strength and cogency to plaintiffs' argument that the Fourteenth Amendment compels Nevada to abandon and reverse its initial child welfare efforts in order to prevent the harm or "stigmatization" of children in same-sex couple households to decrease. 75 Because of the imperative importance of the benefits sought from Nevada's first child welfare venture for the greatest number of children, the Nevada Constitution does not require the abandonment of that venture.
2. Marriage between a man and a woman protects religious freedoms. Informed and thoughtful observers on both sides of the marital issue agree that the imposition of a sexless marriage regime by law (particularly constitutional law) over time will materially impair, restrict, and otherwise violate the religious freedoms of religious organizations and people of faith whose religious endowments the man - Support women's marriage and oppose sexless marriages.76 This acknowledged acknowledgment of negative impacts on religious freedoms is
75
We address the legal defects in Plaintiffs' "damage"-"damage" argument in Section V.E. under. 76 See e.g. e.g. B. 3 W. Cole Durham & Robert Smith, Religious Smith, Religious Organizations Organizations a and nd the Law§§ Law §§ 14:20 to 14:30 (2013); Girgis, Girgis, supranote footnote 34, 34, at 62-64; 64; compare compare Marc Marc D. Stern, Same-Sex Marriage and the Churches, Churches, in inSame-Sex Same-Sex Marriage and Religious Liberty: Emerging Conflicts 1–58 58 (Douglas Laycock et al. eds., 2008) with Chai Chai R Feldblum, Morals Feldblum, Moral conflict Conflict and conflicting freedoms, conflicting freedoms, in same-sex marriage and freedom of religion 123–56. 56
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is reflected in the writings of proponents of sexless marriage77 and those who are neutral on the marriage issue but concerned about upholding religious liberties.78 These adverse impacts on religious liberties matter to Nevada and our nation to a very large extent, because their population, to a very large extent, adhere to religions that strongly oppose sexless sexless marriage. Therefore, the potential for religious conflict is enormous.79 Adverse effects of a sexless marriage regime on churches' religious freedoms include increased liability in private anti-discrimination proceedings and a range of state penalties such as disqualification from state entities, ineligibility for government contracts and licenses, and withdrawal of tax-exempt status.80 The adverse effects of covenants on individuals' religious liberties include numerous federally authorized federally authorized sanctions—either directly imposed by the government or as a result of private antidiscrimination antidiscrimination lawsuits—for conscientious objection and
77
E.g., Feldblum, supra Feldblum, supra note note 76, 76, at 123–56. 56. Ex. B. Durham & Smith, supra Smith, supra note note 76, 76, §§ §§ 14:20-14:23, 14:23, 14:25-14:30. 14:30. 79 This reality stands in sharp contrast to the reality of a small, tiny minority of religious believers — concentrated in a relatively small part of the country — whose religious views once misrepresented male-female interracial marriage. 80 e.g. Ex.,,id. For specific, concrete examples of these conflicts see Thomas M. Messner, The Heritage Foundation, Same-Sex Marriage and the Threat to Religious Liberty Liberty (2008), http://www.her http://www.heritage.org /resea itage.org/research/reports/rch/reports/2008/10/sam 2008/10/sameesex-marriage-and-the-threat-tosex-marriage-a nd-the-threat-to-religious-li religious -Liberty, Berty and Ryan T. Anderson, Clashing Claims, National Review Online, August 23, 2013, http://www.natclaims http://www.nationalreview.com ionalreview.com// 78
article/356539/clashing-claims article/356539/clashing-claims-ryan-t-anders s-ryan-t-anderson#!. an#!. 52
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the refusal to provide services related to such activities as marriages and housing for same-sex couples.81 Same-sex couples in Nevada, including the plaintiffs, have never had the “right” to marry in Nevada, that is, to have the law imposed on them state a sexless marriage regime.82 Accordingly, this is not a case in which the judicial task is to challenge the religious freedoms of people and faith communities on the one hand against the right to sex couples to marry couples. Rather, the question is whether Nevada has good enough reason to preserve male-female marriage. Before. If this is the case, same-sex coup couples have no right to marry at all. In such a case there is simply no balancing of competing rights to be made because there are no competing rights. What matters, then, is to demonstrate the robust legislative fact that upholding male-female marriage protects religious liberties from the high likelihood of degradation and loss. That alone is a good enough reason for choosing Nevada's Nevada. Selection. Plaintiffs argue that a sexless marriage regime will not interfere with religious freedoms because "no religion will be required to change its religious policies or practices in relation to same-sex couples, couples, and no religious religious official will be required to perform a marriage contrary to his." or close to their religious religion 81
See note80 80supra note. above.
82
Siehe z. B.z. B. Nev. Rev. Stat. § 122.020.
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Beliefs[.]"" Opening Br. Beliefs [.] Br.at 85 (cite in (cite in relation to marriage marriage cases cases, 183 P.3d 384, 451–52 (Kal. 2008)). But to say that a sexless SS marriage regime will not adversely affect religious practice A or B is no evidence that it will not adversely affect religious practice C or or D. Plaintiffs have argued about the adverse impact of covenants on religious liberties that we in the District Court and again found silent here - adverse repercussions which even strenuous but intellectually honest proponents of sexless marriage have openly acknowledged as very likely. Therefore it can hardly be said that the plaintiffs have demonstrated a contrary legal fact. They have certainly not the strongly supported negated supported legislative facts regarding religious liberty rights that he set out here re.83 ********** When Nevada's civic electors went to the polls in 2000 and 2002, they had to make a decision about the norms and ideals of a child who knows and is raised by their mother and father and embraces both gender complementarity and responsible fatherhood as fatherhood and the experienced further societal ideal of protection from the reduction and loss of religious liberties and conscience privileges. Conscience. Proponents of sexless marriage argued, as always, that none of 83
Plaintiffs also rely on the religious liberties “analyses” of the California, Connecticut and Iowa Superior Courts in their respective sexless marriage cases, Opening Br. at 85, without acknowledging or otherwise addressing the material defects found in those analyses to get. See Stewart, Fundamental Premises Premises, supra, footnotes 36, 36, at, pp. 263-74. 74. 54
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that those benefits would be impaired or diminished, that the marriage of Adam and Steve would not harm an individual's marriage or marriage in general, that there would be no harm, that there would be no disadvantages, that there would be no social, cultural or political political price to be paid. Those were their legislative facts, and Nevada's citizen voters didn't buy them. They chose, as was within their rights, to believe the opposite and supported the legislative facts presented above. Now the proponents of sexless sexless marriage are asking the King of this Co Court to ignore or otherwise reject these democratically elected legislative facts, accept contrary legislative facts (in the few places where some are presented) and on that basis say, that Nevada does not have sufficiently good reasons to preserve the institution of male-female marriage. Institution. But established federal law does not permit such a judicial remedy. In these circumstances, this court must rely on the legislative facts selected by the government's authorized decision-makers—the citizens of Nevada themselves. These legislative facts all indicate that male-female-male-female marriage maximizes valuable benefits—for children, for adults, and for society at large.
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C. Plaintiffs' narrow view of what is in marriage does not negate the legal facts, which show that the institution is much broader and deeper in nature and purposes.
What we call the general description of marriage encompasses the social realities outlined above: the understanding that "the institution of marriage was created to direct heterosexual intercourse into a structure conducive to the rearing of children"; rearing;" "that marriage is essentially the celebration of a total, exclusive, enduring union, intrinsically geared to generating new life, life, even if it does not always do so; so;"" and that "marriage considered as an institution ... inextricably linked to procreation and biological kinship."84 The breadth of kinship. The description also includes an understanding that the social goods of marriage are "love and friendship, security for adults and their children, more economical Protection and public affirmation of the obligation, obligation"85 in addition to those described above. In contrast to the broad description of marriage, the narrow view underlying all major arguments in favor of sexless marriage limits its description of the goods of marriage to love and friendship , safety for adults and their children, economic 84
United States vs. Windsor, 133 S. Ct. 2675, 2718 (2013) (Alito, J., differing) (citations omitted). For a more detailed explanation of the broad view of marriage, marriage, see Goodridge v. Department of Pub. Health, Health, 798 N.E.2d 941, 995-96 96 (Mass. 2003) (Cordy, J., differing) and Girgis, supra Girgis, footnotes 34, 34 at 23-36. 36. 85 Linda C McClain, The Place of Families: Families: Fostering C Capacity, apacity, Equality, and Responsibility Responsibility6 6 (2006).
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Protection and public confirmation of commitment. ent. This narrow description results from the narrow view's adherence to what scholars refer to as the "close personal relationship" relational model of marriage, where "marriage is viewed primarily as a private relational relationship between two persons, people, whose primary primary purpose is to please the adults who enter it. Before . . . and children are not truly connected.”86 This view refers to a relationship “that has been stripped of any goal beyond the intrinsic emotional, psychological, or sexual satisfaction that the relationship currently brings to the [two adult] people involved. 87 The narrow view "tends to deprive marriage of characteristics that reflect its status and importance as a social institution."88 The narrow view insists that marriage is no more than what the narrow view describes .89 86
SER 144. SER 145. Vgl. Scott Yenor, Family Yenor, Family Politics: Politics: The Idea of M Marriage arriage in M Modern odern Political Thought Thought5 5 (2011): 87
The more autonomy advocates emphasize individual choice, the more marriage and family life are prevented from fulfilling serious public purposes. purposes. . . . Modern advocates of autonomy and personal independence distort the gratifications of marriage into personal personal gratifications. ns. They underestimate how truly satisfying conjugal love creates interdependence that limits human autonomy and fail to see how satisfying marriage and family life are because they involve that love and dependency. 88 SER 144. 89
See Stewart, Stewart, Marriage Marriage Facts Facts, supra, footnote 9, 9, at 337. 57
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The battle between the broad description and the narrow view is a battle between competing legislative facts, ts, with those supporting the broad description clearly the stronger.90 Careless, popularizing "scholars" only - to whom plaintiffs rightly draw do not claim - claim that the narrow view, a relatively recent phenomenon in our society, has overcome and suppressed the wide view with its emphasis on children, family responsibilities and interdependence.91 That the wide description of marriage is a strongly supported legal fact , which is very important in solving the marital question, since the narrow vision 92
underlies every argument made by proponents of sexless marriage. These arguments invariably ignore broad description (while at the same time generally obscuring their essential reliance on the narrow view per se) because fair recognition of broad description is fatal to these arguments.93 Plaintiffs' only serious effort to establish factual accuracy Accuracy of the narrow view and thus negate negate the broad descriptio description n falls far short. This effort is 90
See e.g. B. Stewart, Marriage Stewart, Marriage Facts Facts, footnote 9, 9, at 350. See Stephanie Stephanie Coontz, Marriage, Coontz, Marriage, A A History: From Obedience to Intimacy, or How Love Conquered Conquered Marriage Proposal (2005). (2005). Critics from across the spectrum have questioned Coontz's work. See e.g. B. Alan Wolfe, The Malleable Estate: Is Marriage More Joyful Than Ever?, Ever?, Slate, 17 May 2005, http://www.s http://www.slate.com/late. com/id/2118816; Blankenhorn, Future Blankenhorn, Future,, supranote footnote 34, 34, at, pp. 236, 239–40 ("Coontz has made a career of arguing that her own philosophical predilections and the laws of historical inevitability are one and the same .") . 92 See Stewart, Stewart, Fundamental Fundamental Premises Premises, supra, footnotes 36, 36, at, pp. 197–211. 211. 91
93
See ID. I would.
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the testimony of Prof. Prof. Nancy Cott. Although Prof. Cottott lists aspects of marriage that are common to both the narrow and broad descriptions, she does not assert that contemporary marriage is limited to these aspects or that the additional aspects of marriage are ignored by the narrow view, but by the broad description are factually incorrect. This is particularly telling as the additional additional aspects were detailed in our Magistrate's Court Records and other relevant literature before Prof. Prof. Cott prepared her statement. Explanation. Furthermore, while Prof. Cott notes that marriage is an evolving and changing institution, Prof. Cott does not claim that the changes have eliminated the additional aspects of marriage contained in the broad description. Designation. Their statements contain only other institutional meanings and practices than these additional aspects. ts. The best Prof. Cott says regarding the validity of these additional aspects is that "the exclusion of same-sex couples from equal marriage rights is contrary to the direction of historical change in marriage in the United States." 94 This statement carefully avoids saying that "historical change" has overtaken and eliminated the additional aspects of marriage in the broad description. Before. These aspects are enduring, valuable, and important components of contemporary American marriage—and fully support the constitutionality of man-woman-man-woman marriage. Lonliness.
94
IS 264, 281.
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Another aspect of the plaintiffs' treatment of our presentation of what marriage is deserves comment. Comment. Plaintiffs' laboratory called our account "unfounded private opinion that marriage equality taints the institution of marriage." Opening Br. Br.at 16. What is meant by "private view"? It probably means nothing more than "the view of people who disagree with us." There is certainly nothing "private" in the broad description of marriage, or in the literature of the new institutionalism, or about the institution of marriage itself "Private. There are no "private" social-social institutions, because social institutions are formed by and only by networks of widely shared public shared public meanings, and when these public meanings are no longer shared widely enough, the institutions cease. More importantly, more importantly, it is the flagrant flagrant lie to call “unfounded” the careful account given here of the detrimental effects on the valuable social benefits of marriage, which likely stem from the legal suppression of the importance of husband and wife at the core of the institution Result. Institution. Tossing around these false lies is an ak t of despair. Plaintiffs have long known of the Coalition's intended defense against the Marriage Laws - the same defense set out in this Section I -. The Coalition's Motion for Intervention Intervene was the second substantive filing in this lawsuit (right after the Complaint), Dist. Kt. Dkt. 30, and it detailed the defense. Id.at Id. at 7–11. 11. And much earlier, in November 2003, three well-respected members of the Massachusetts Supreme Court adhered to the Social
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institutional defense of man-woman marriage.95 Despite all the time it took the plaintiffs, their five experts, and their seventeen amici amici to put forward a responsible counter-proposal to this defense, they were unable to do so. They have simply failed to address the socio-institutional case for male-female marriage in an intellectually rigorous, rigorous, and honest manner. It's a startling and revealing Ph phenomenon, nomenon, one that's underscored by the tossing about of "baseless" falsehood. or II. WHICH MARRIAGE SHOULD BE, IS A DECISION THAT MUST BE LEFT TO DEMOCRATIC PROCESSES, ESPECIALLY WHEN SUCH PROCESSES ARE FAIR AND OPEN AND WHERE GENDERLESS MARRIAGE APPLICANTS EFFECTIVELY EXERCIS VERY SUBSTANTIAL POLITICAL POWER.
Plaintiffs and other proponents of sexless marriage want marriage to be changed from what it is into something else to make it helpful to their personal, social, and economic aspirations and status. Status. The argument is that marriage should have the core meaning of "the union of two persons without regard to sex" in order to improve and advance the situation of gay men and lesbians and any children associated with their relationships. Relationships. The political question (for almost everyone) is not whether such improvement and advancement is a good goal in the abstract; it is. The real political question is what the price of such a profound and thorough redefinition of marriage is. Proponents of sexless marriage say there is none, there is no harm or disadvantage, only benefit. The majority of voters in N Nevada evada and in large 95
Goodridge v Dep't Dep't Pub. Health, Health, 798 NE2d 941, 983–1005 1005 (Mass. 2003)
(Cordy, J., different). deviating). Judges Spina and S. Sosman Osman joined the opposition. dissent. 61
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the majority of other states have so far come to a different conclusion; in previous elections they chose, as was their right, to give credence to the conflicting legislative facts set out in the previous section, which actually point to rather high social costs.96 It is definitely a matter for the democratic process, not the courts, to do this to answer this question of what marriage should be, and to resolve the issue of social costs. E.g. B. Washington v. Glucksberg, 521 U.S. 702, 735 (1997) ("Throughout") Across the country, Americans are engaged in a serious and profound debate about the morality, legality, and practicality of physician-assisted physician-assisted suicide. Our length of stay permits that debate to continue, as to how it should be the case in a democratic society.This approach of eschewing democratic processes is particularly persuasive when, as now, those processes are conducted in a fair and open manner and where, as in Nevada and elsewhere, supporters of sexless marriage are present wield very considerable political power We have previously described the political situation in Nevada, where the state legislature initiated the process to repeal the marriage amendment, and in Hawaii, where the legislature voted to redefine marriage
96
The evidence suggests that those whose own lives and neighborhood lives reflect the practices and norms of the narrow personal relational model of marriage, the narrow view generally support sexless marriage politically, while those whose own lives and neighborhood lives reflect these practices and Norms of broad description of marriage are generally not. See Stewart, Stewart, Eliding Eliding, footnote 23, p. 23, p. 534.
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the union of two persons without regard to sex.97 We also note that, at the time of writing this Letter of Response, the legislature and the governor of Illinois converted the legal meaning of marriage in that state into the union of two persons without regard to sex .98 It is true that the great public debate about marriage - what it is and what it should be - is conducted and resolved in a free, open and democratic process. Nevadans are entering this hat debate again, and just as before, they will resolve it through their free, open, democratic process when the judges of this Court 97
For an overview of matters in H Hawaii, awaii, see, for example, Example, Alan Duke, Duke, Hawaii Hawaii becomes 16th state to legalize same-sex marriage, Marriage, CNN.com, Nov 13, 2013, http : //www.cnn.com/2013/11/12/ http://www.cnn.com/2013/11/12/us/hawaii-sameus/hawaii-same-sex-marriage/ sex-marriage/ ( summarizing) (summary);; House hearing on marriage resumption for same-sex marriages continues Saturday Saturday khon2.com 1 Nov 2013 http://www.khon2.com/news/ho http://www.khon 2 .com/news/house-hearing-on-sam use-hearing-on-same-sex-marriage-r e-sex-marriage-resumesesaturday (emphasis added for extensive hearing); Malia Zimmerman, Experts Say Hawaii's Proposed Gay Marriage Bill in Hawaii Is the Worst Penalty for Protecting Religious Freedom, Hawaii Reporter, Oct. 30, 2013, http://www.hawaiirepor http://www.hawaiireporter. com/expert ter.com/experts-says-sayhawaiis-gay-marriage-bill-wors hawaiis-gay-m arriage-bill-worst-at-protectingt-at-protecting-religious-fr religion-freedom/123 eedom/123 (Summary of the very real concerns about religious freedom raised by those who support and oppose a redefinition of marriage). For Nevada, see Sean Whaley, Whaley, Nevada Legislature Legislature Advances g gay ay wedding resolution, Resolution, Las Vegas Review Journal, May 23, 2013, http://www.reviewjournal.com http://www.review journal. com/news/nevada-legislat /news/nevada-legislature/nevada-legislature/nevada-legislatureadvances-gay-marriage-resoluti-advances-gay-m arriage-resolution; on; Press release, Retail Association Association of Nevada, RAN Poll Shows Nevad Nevadans ands Optimist Optimistic about state economy but R recovery not felt by most households (Oct 2013), http://www.rannv http ://www.rannv.org/documents .org/documents/23/Poll /23/Poll Release-RANOct2013Final.pdf Release-RAN Oct2013Final.pdf (Report (Report of an opinion poll showing that 57% of Nevadans share the support repeal Nevada's Marriag Marriagee Amendment.) 98 See Monique Garcia, Signed and Sealed: Sealed: Illinois 16th State to Legaliz Legalizee Gay Marriage, Chicago Tribune, November 21, 2013, http://www.chicagot-ehe http:// www.chicagotribune.com/new ribune .com/news/ s/ chi-illinois-gay-marriage-bi chi-illinois-gay-marriage-bill-signing-201 ll-signing-20131120.0.446460 31120.0, 4464600.story.0.story.63
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Resist the siren song to solve it by imposing your personal views of good on Nevada. III. NEVADANES HAVE RIGHTLY VALUED THE INTERESTS IN THE MARRIAGE LAWS OF NEVADA.
Section I above sets out the robust legal facts showing that the importance of man and woman at the core of our institution of marriage provides valuable valuable social benefits (or, in legal parlance, advances legitimate societal interests); that a sexless marriage regime is likely to jeopardize, diminish, and even eliminate these advantages over time; and that marriage laws protect these legitimate societal interests by using the power of law to ensure the continued institutionalization of the institutionalization of the meaning of man and woman. This section explores the concept of valuable value in more detail. Different people place different values on different social services in the United States. For example, someone living in San Francisco, far and away the nation's most childless metropolis,99 and imbued with the cultural assumptions essential to that city's status, may place little value on the marriage between a man and a woman's accomplishments related to reproduction reproduction and child rearing. d rearing. Similarly, a sinful single woman who does not want a husband but desires a child and is willing to use sperm from an anonymous donor is likely to place little or no value in the child's interest
99
See Stewart, Stewart, Eliding Eliding, supra, footnote 23, 23, p. 534, n. 186. 64
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knowing and being raised by both his mother and father. there. And one who is not engaged in religious practice and is suspicious of them can place little value on the religious liberties at stake. As a final exam example, someone who is fully committed to radical social-constructive gender theory is unlikely to value the benefits of gender complementarity in parenting. To the extent that one personally discounts the benefits of marriage, the benefits of marriage, he or she is likely to discount society's efforts to preserve and uphold that particular institution. These personal assessments of the unique social benefits of man-woman-man-woman marriage no doubt flow in large part from what John Rawls called the people's "comprehensive, comprehensive doctrines."100 The Supreme Court coined its notion of " public reason” is not included in constitutional jurisprudence, and we do not advocate that. We're raising Rawls only to frame this issue: ue: How do the judges of this court evaluate the societal interests that these laws protect in assessing whether there is sufficient good reason to defend Nevada's marriage laws from constitutional attack? Certainly it should not be based on their respective comprehensive teachings. In operation, judging based on one's comprehensive teachings leads to the kind of
100
See John John Rawls, Political Rawls, Political Liberalism Liberalism13 13 (1995); see (1995); see also John Rawls, The Idea
of Public Reason Revisited, 64 U. Chi. L. Rev. 765 (1997). 65
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problematic judgments in Dred in Dred Scott,101 in Lochner Lochner102 and his descendants and in the en bancdecision bancdecision of that court in the Washington assisted suicide case103. The judicial evaluation of the societal interests that laws are intended to protect should be based on both objectively reasonable considerations and due regard to the evaluations that arise from democratic processes. Application of this answer results in a high evaluation of the benefits materially and even uniquely provided by the institution of man-woman marriage and therefore protected and encouraged by the Nevada marriage-marriage laws. Society has an irresistible interest in its own continued existence, both biological and cultural. The institution of male-female marriage is the best means yet devised by mankind of ensuring to the greatest possible extent the orderly and orderly procreation of society, given human nature. society. Society has a compelling interest, based on a universally shared public morality, both to ensure that its children, the weakest and most vulnerable among it, are raised in the optimal manner, again to the greatest possible extent given human nature, and to justify that Child's interest in knowing and being raised by his mother and father. 101
Dred Scott v. Sanford Sanford, 60 U.S. (19 How.) 393 (1857), superseded (1857), superseded by U.S. constant to change. to change. XIII, §§ 1 & 2 and U.S. Co Const. nst. to change. XI XIV, V, § 1. 102 Lochner v. New York, 198 U.S. 45 (1905), repealed in part by Ferguson v. Skrupa, 372 U.S. 726 (1963). Skrupa 103 Compassion in Dying v. Washington, Washington, 79 F.3d 790 (9th Cir. 1996) (en banc), rev'd, Washington v. Glucksberg, 521 U.S. 702 (1997). We refer to this case with due respect to remind us that the judges of this Court, like all other judges, are not entirely immune to the temptation to substitute their own value judgments for democratically-democratic ones.
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And if Part I of the First Amendment teaches anything, it is that our society and our Constituent Constitution value religious liberties as equal religious liberties, thereby making their protection against the likely ravages of a sexless marriage regime both important and valuable. IV. BAK E R V. NELSON BINDS THIS COURT TO RULE AGAINST THE PLAINTIFFS. ELSONBINDS
On this issue, the Coalition adopts the analysis of the First Circuit in their DOMA case,104 and portions of Glover's respective Answering Briefs from the Governor'sand's and Clerk/Reco Clerk/Recorder are consistent with that analysis. We add only two observations. First, the Supreme Court's decision in Baker Baker v. Nelson Nelson was fully consistent with our constitutional jurisprudence of law, might, power and sovereign sovereignty of States, and is rightly viewed as a direct application of that define marriage within their respective marriages respective borders. This jurisprudence stretches from the early days of the Republic to Windsor (as we show in the following section). Second, plaintiffs, in arguing here against the application of the Baker v. Nelson Nelson judgment, cite Judge Ginsburg's comments made during the Hollingsworth hearing at Hollingsworth to the counsel arguing in favor of the proposed Proposition ion 8. Opening Br .at 96– 97. In support of his position, attorney Wyer Baker had called Baker v. Nelson, Nelson, Justice 104
Massachuse Massachusetts tts v. U.S. Dep’t o off Health & H Human uman Servs Servs., ., 682 F.3d 1, 8 (1st Cir.
2012), cert. denied, 133 S. Ct. 2884 (US 2013). 67
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Ginsburg offered some thoughts on the precedent value of this decision before the Supreme Court. In the Supreme Court is the point that the plaintiff missed. eat A higher court dismissal for lack of an essential federal question is a binding decision for the lower federal courts in the main issue, e.g. B. Hicks v. Miranda, Miranda, 422 U.S. 332, 343-45 45 (1975), but with less precedent in the Supreme Court itself, e.g. B. Tully v. Griffin, Inc., Inc., 429 U.S. 68, 74 (1976) (a summary order of appeal "does not have the same precedent here as an opinion of this court, which here deals with the merits,'" merits,'") (quoting Edelman (quoting Edelman v .Jordan Jordan,, 415 U.S. 651, 671 (1974) (emphasis (emphasis added)). Accordingly, Judge Ginsburg's comments add nothing to the Court's analysis of the extent to which Baker Baker v. Nelson binds Nelson this Court, which extent is, of course, complete V. WINDSOR I NDSOR SUPPORTS NEVADA'S MARRIAGE LAWS.
We read Windsorin in its entirety and in part and consistent with all of the Supreme Court's case law in this area. In its entirety, and not read as an aberration, Windsor supports Nevada marriage laws. laws. A. Windsorreviewed reviewed a law that differs materially from Nevada marriage laws in motivation, motivation, authority, operation, and consequences. laws.
In order to properly understand the reason why the Supreme Court found the line drawing in the Windsor Constitution constitutionally offensive, it is paramount to do so
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correctly identify the classes created by DOMA105 and the consequences of their line drawing. The line DOMA drew was between male-female-male-female and couples who are validly married under the laws of a state and same-sex couples who are also validly married under the same laws. laws. Although, when DOMA was passed in 1996, no government author authorized same-sex couples to marry, it was clear that if and when that happened, DOMA would work to create these two classes and classify married same-sex couples as unmarried to treat married for any covenant purpose. e. As for the resulting harms to these couples, Windsoris is read as identifying two categories: economical and dignified. gnitary. The relevant and exceptional feature of DOMA's line-draw-line-draw was that the federal government, with only very minor and specific exceptions, had never before made a definition of marriage, but had always deferred it to the states; s; If a state said a couple was married, the federal government treated the couple as married. Windsor found this highly "unusual" feature offensive in two closely related ways. First, it affected the authority of states to regulate and define domestic relations, principally marriage, marriage, a power which under our federalism has always been primarily, indeed almost exclusively, the prerogative of states. Second, the line drawing was associated with the "unusual" deviation from 105
All references herein to "DOMA" are limited to Section 3 of the Federal Defense of Marriage Act, 110 Stat. 2419 (1996), which transposed the Dictionary Act at 1 U.S.C. § 7. 69
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Deference to states' traditional authority over marriage suggested that DOMA targeted same-sex couples for mistreatment rather than advancing the various fiscal and unitary interests offered to defend the law. States' reserved power to regulate marriage as an aspect of our federalism undoubtedly played a central role in Windsor's view that DOMA is unconstitutional. finally. Windsor stated that "at the time the Constitution was passed, [the] States had full power over the issue of marriage and divorce. . . [and] the Constitution did not delegate any authority to the United States government regarding marriage and divorce.'” United States v. Windsor, 133 S.Ct. 2675, 2691 (2013) (cited (cited Haddock Haddock v. Haddock, 201 U.S. 562, 575 (1906)) (emphasis added). Wife, parent and child were matters reserved for States.'" States.'" Id. at 2691 (cited Ohio ex rel. Popovici v. Agler, 280 U.S. 379, 383-84 84 (1930)) (emphasis added) Windsor emphasized the "historical and essential authority of the states to define the marital relationship," id.id.at, p.2692, understanding that "[t]he definition of marriage is the basis of the state's broader regulatory powers, the issue of the domestic relationship with regard to the '[protection] of child protection, property interests and enforcement of marital responsibilities[,]'" ilities[,]'" id. id.at at 2691 (quoting Williams v.
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North Carolina Carolina, 317 US 287, 298 (1942)). (1942)). And the C Court found that "[c]"[c]in accordance with that attribution of competence, throughout our history the federal government has deferred constitutional policy decisions relating to domestic relations." Id.106 In particular, the Court that New York's recognition of same-sex same-sex marriage "was without doubt a proper exercise of its sovereign authority within our federal system, all as the drafters of the Constitution intended." ID. at 2692. Congress erred, the court ruled, by encroaching "on the equal dignity of same-sex marriages, a dignity conferred by states in the exercise of their sovereign power." ID. at 2693. Given this rationale, it is “undeniable” that the Windsor Supreme Court ruling “is based on federalism-federalism.” ." ID. Id.at at 2697 (Roberts, C.J., differing). Windsor's thorough discussion of both DOMA's violation of States' sovereignty over marriage and the economic and dignified damages resulting from that violation illuminate the case for the decision. establishments . To the extent that the court's decision to strike down DOMA is based on Fifth Amendment jurisprudence of substantive jurisdiction, its view is that they are a couple (probably (probably any couple, whether 106
Windsor also made clear the independence of a state in its marriage decisions in relation to all other states. The decision stated that diversity among states regarding same-sex same-sex marriages is consistent with “the long-established principle that the incidents, incidents, advantages, benefits and obligations of marriage . . . m may vary from one state to another, subject to constitutional guarantees." next." 133 S.Ct. at 2692. 71
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Man, woman or same-sex) is entitled (with corresponding federal obligation) to federal recognition of marriage privileges granted by a state to the couple in the exercise of its sovereignty over domestic relations. Inasmuch as the Court's decision to strike out DOMA is based on the equal protections component of the Fifth Amendment's due process clause, the view that state governmental fiscal and uniform interests were allegedly furthered by the creation of the disadvantaged class are in the face of two realities no sufficiently good reasons for this creation creation: first, that creation amounted to an extraordinary, extraordinary, unprecedented and affirmative federal violation of states' sovereignty over marriage; Second, this violation suggested a bias towards the disadvantaged class rather than the advancement of legitimate interests. The plaintiffs ignore these central aspects of Windsor. Consequently, there are many misinterpretations and abuses of Windsorare, which we will counteract in the following sections. B. Plaintiffs wrongly asked this court to make the same mistake that the Congressional Committee made with DOMA and corrected Windsor.
Plaintiffs' challenge to the Nevada definition of marriage is asking this court to commit the same error that Congress committed in enacting DOMA -- by declaring a "federal interference in state power" with the resultant "disorder" " Disturbance" [for] the federal balance." ID card. at 2692. Windsor confirms that Nevada statutes define 72
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Marriage deserves the respect and reverence of this court no less than that of New York. Like New York, Nevada adopted its definition of marriage "after a statewide deliberative process that allowed its citizens to debate and weigh arguments for and against same-sex marriage," and its laws reflect "the community's considered perspective on the historical roots of the." institutions of marriage. arrive."Id. at 2689, 2692-93. 93. That Nevada chose to retain and preserve the m-male-female-to-female definition of marriage while New York chose to adopt a sexless marriage regime does not diminish the validity of Nevada's choice. Windsor affirms “the long-established principle that the occurrences, benefits, and duties of marriage . . . may vary from state to state, subject to constitutional guarantees.” ID card. Id.at at 2692. To attribute less respect or reverence to the marriage laws of Nevada than the Supreme Court has accorded to the laws of New York would contradict the court's endorsement of nationwide diversity in the consideration of sexless marriage and violate the " fundamental principle” violate equal sovereignty among States.” Shelby County, Alabama v. Halter, 133 S. Ct. 2612, 2623 (2013) (cited (cited Northwestt Austin Mun. Util. Util. Dist. N No. o. One v. Holder, 557 U.S. 193, 203 (2009)). In short, fundamental principles of federalism are reserved for Nevada the sovereign agency with the power to define and regulate marriage. A court declaration that would void Nevada's definition of marriage would upset the federal balance
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as DOMA did, bringing federal power into a jurisdiction recognized as belonging solely to state authority. C. Plaintiffs would erroneously equate DOMA's discrimination, which Windsor found unconstitutional, with Nevada's fundamentally different decision to unconstitutionally preserve the male-female male-female marriage into the institute. Instruction.
In exercising its sovereign authority, New York chose to experiment with a sexless marriage regime. This meant that it gave equal marital status to all couples it considered married, including the couple to which the Windsor plaintiff belonged. Part. However, the federal government, through D DOMA, OMA, created two classes of married New York couples by treating some of them — same-sex same-sex couples — as unmarried, despite New York's binding binding statement to tthe he disagrees. Windsorheld held the federal creation of these two classes of married couples and their resulting differential treatment under federal law to be unconstitutional. The plaintiffs seek to call what Windsorheld held unconstitutional any government decision about marriage that distinguishes between male-female couples and same-sex same-sex couples. But there is no justification for such a characterization. Windsor himself said: Federal statute is void, for no legitimate purpose overcomes the purpose and effect of denigrating, denigrating, and injuring those whom the State, the State, should protect by its matrimonial, matrimonial statutes, and in its personality , personality and dignity should protect . By attempting to remove those protections and treating these individuals as if they are in marriages that are less respected than others, federal law is in order
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Violation of the Fifth Amendment. This opinion and its existence are limited to these lawful marriages. 133 S.Ct. at 2696. Furthermore, there are major and compelling differences between DOMA's decision regarding New York couples (which struck down Windsorstruck) and Nevada's decision to preserve man-woman marriage (which Windsor supports). supports). First, and most obviously, Nevada, like New York, exercised its sovereign powers over the institution of marriage within its borders, see, borders, see e.g. B. Sosna v. Iowa, Iowa, 419 U.S. 1975) ("[D]om ("[D]omestic relations relations[is] [is] a territory that has long been considered a virtually exclusive province of states."), states."), while the federal government is using DOMA acted without delegated authority because "'the Constitution of the United States Government delegated no authority with respect to marriage and divorce,'" Windsor, 133 S. Ct. at 2691 (cited Haddock 2691 (cited Haddock, 201 U.S. at 575) (emphasis added). Second, Nevada decided to preserve the institution of man-woman marriage. Because of the nature of that institution, Nevada's decision is quite different, in a profoundly substantive , of the federal government's decision in DOMA DOMA.. The federal government had no effective or constitutional authority to preserve the institution in New York precisely because that state had already used its sovereign powers to enact a sexless sexless marriage regime to govern and thereby d deinstitutionalize e-institutionalize 75
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over time male-female-male-female marriage. But Nevada has both effective and constitutive constitutional powers to preserve the institution of marriage between a man and a woman, and has chosen to use them. As Windsor pointed out in the language just quoted, DOMA had "no legitimate purpose" to violate the New York Orcs' sovereign sovereign power over marriage in that state and the marital status of those whom that state authorized to be deemed married. But the Nevada Nevada project to preserve the institution of male-female-male-female marriage is very different from the DOMA project and serves powerful, legitimate, legitimate purposes. These purposes, in short, are to maintain the valuable social benefits materially provided by the institution of male-female marriage, which are likely to be lost if the law suppresses the meaning of male-female at the core and constitutive of the institution. Institution. We have identified these benefits and their threats in Section I above. Yes, Nevada made a different choice than New York, but the legitimate purposes and interests served by Nevada's choice are at least as strong and valid as those that New York considers York to be progress, and, in the judgment of the people of Nevada, will be most beneficial to marriage, to generations of children to come, and to society in general. general. Most importantly for present purposes, Windsor enshrined in the Constitution the election of New New York no more than the election of Nevada for Nevada; Rather, Windsorprotected our federal balance through
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to quash DOMA's unwarranted and unwarranted interference in New York's election. Selection. Specifically, with respect to Windsor, this court should dismiss plaintiffs' contention that this court conducts its own DOMA-like DOMA-like interference in Nevada's election. Selection. D. The P-Plaintiffs The plaintiffs have misread Windsoras by acknowledging a freestanding substantive right to due process of "equal dignity" that requires the judicial imposition of a sexless marriage regime.
Plaintiffs argue that the judicial imposition of a sexless marriage regime is constitutionally required to defend the right to “equal dignity” of same-sex couples and the children associated with their relationships, since the maintenance of marriage between a man and a woman, Marriage Institute Viola, violates that right hurt . Opening Br. at 38–48. 48. Plaintiffs purport to derive this so-called right from Windsor. But that is a clear misinterpretation. The Supr Supreme Eme Co Court saw this: New York's sexless sexless marriage regime confers equal family status on all couples the state authorizes and considers married, whether male-female-male-female couples or same-sex e-sex couples. This status brings benefits and advances interests, including economic pause and increased dignity or social standing. Since marital status tus is the same for all New Yorkers who enjoy it, ttoo oo is the dignity that status confers. This "equal dignity" is thus a creation of the State of New York, and its bestowal and enjoyment is undoubtedly one of the reasons the State chose it
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Walk the path of sexless marriage. But this “equal dignity” is not also a creation of the Federal Constitution. Constitution. What is a creation of the federal constitution is our federalism and equal protection against harmful classifications without reasonable justification. s. Since DOMA harmed married same-sex couples in New York by reducing “without legitimate purpose” their federally bestowed “equal dignity” in marriage, Windsorvindicated defended the federal constitutional interests bound together by the facts, our federalism and the equal protection of the laws. laws. But Windsor certainly did not create a freestanding, freestanding substantive due process to establish the right to equal dignity for people in general, or equal dignity for gay men and lesbians, or equal dignity for same-sex couples in relation to marriage. Nothing in the decision supports the notion that she did any such thing. Much of the decision refutes this notion, including the explicit language that limits Holding to a situation where federal legislation "harms those whom the state sought to protect as a matter of personality and dignity through its marriage laws" and thereby operates "those [ to remove state-granted] [state-granted] protections and to treat these persons as living in marriages that are less respected than other rs . . . . This opinion and attitude is limited to lawful marriages.” Riage.” 133 S.S.Ct. Kt. at 2696. Beyond the decision itself is the powerful reality that the Supreme Court failed to read "dignity" or "dignity."
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“equal dignity” incorporated into our constitutional law either as a stand-alone right or as a value or even as a guide to interpretation – despite (or because of) the efforts of its counterparts in other countries to do so. 107 A right to “equal dignity” has no inherent limits or limitations and therefore, when recognized in courts, must become nothing more than a powerful machine for enforcing judicial conceptions of good and thereby materially constraining the governed spheres of national life through democratic processes. Trials.108 E. Plaintiffs misinterpret Windsoras by basing a “right” to a sexless marriage on “harms” to same-sex same-sex couples and the children associated with their relationships.
Plaintiffs devote much of their opening letter to discussing the "damages" suffered by same-sex couples and their linked children as a result of the lack of a sexless marriage regime. Opening Br. at 17–29. These harms are intended to include harms (i) to social status and self-esteem (ie, an interest in 'dignity'); (ii) for practical or administrative interests; and (iii) the absence of federal benefits, primarily economic, provided to married couples. (Due to the Nevada DPA, there is no loss of access to government economic benefits afforded to married persons.) le.) Included in this discussion of damages are the related notions that these damages (i) result in a fundamental 107
See Stewart, Stewart, Judicial Judicial Redefinition Redefinition, supra, footnotes 23, 23, pp. 100-19. 19. 108 See ibid. I would. 79
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substantive due process right to a sexless marriage regime, with the consequent heavier burden on the state to justify its "interference" with this putative right, and (ii) lead to increased judicial scrutiny of plaintiffs' claims for equal protection. Expectations. These notions are wrong. In keeping with established constitutional jurisprudence, Windsor never suggests that the extent of the resulting harm in any way determines the recognition or non-recognition of a fundamental substantive due process. Light. If an interest cannot otherwise be qualified as a fundamental right or a protected interest in liberty, it does not matter whether the damage to the interest is large or small. small. When real and compensable edible harm, large or small, arises to a protected liberty interest, the law will justify the interest. The same applies in connection with equal protection. The state reasons for a classification are judged to be good enough or not, regardless of the extent of the harm to the disadvantaged class, unless the classification interferes with a fundamental right such as freedom of expression. Dandridge v. Williams Williams, 397 U.S. 471 (1970), illustrates the correct and limited role of 'harm' in equal protection jurisprudence. Maryland imposed a welfare ceiling so that large, impoverished and impoverished families received less than they needed, while smaller, impoverished families suffered less damage. ID. Id.at at 472-73. 73. The Supreme Court was not callous at all
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compared to the harsh conditions of large families, but nevertheless stated that the classification must be subjected to a rational review. Certainly the cases cited, and many others that express this basic standard [of rationale-based review] under the Equal Treatment Clause, are primarily about government regulation of companies or industries. The administration of public welfare as assistance, on the other hand, affects the basic economic needs of poor and impoverished people. We recognize the dramatically real factual difference between the cases cited and this one, but can find no evidence for the application of any other constitutional standard. . . . [I]t is a standard consistent with the principle that the Fourteenth Amendment gives federal courts no authority to impose on states their views on what constitutes wise economic or social policies. Id.at Id. at 485–86 86 (citations and footnotes omitted).109 In substantive due process case law, the threshold question is whether the right asserted by the plaintiff is a fundamental right protected by the due process clause of the Fourteenth ( or fifth) Amendment is guaranteed. Clause. The answer to this first question depends on the nature of the interest claimed and not on the amount of damage. This important fundamental principle first became evident in procedural cases. E.g. Bsp. Bd. of Regents v. Roth, Roth, 408 U.S. 564, 570–71 71 (1972) ("[T]" ("[T]to determine whether the requirements of due process apply at all, we must look not at the 'weight' but at the nature of what is at stake interest..") It is now equally clear in substantive cases of due-proce-proce.. So, iin n United States v
Dandridge v. Williams Williams himself explains the First Amendment's exception to the general rule that the extent of harm does not change the equation of equal protection. 397 US 471 , 484 (1970). 81
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999 (Cir. 9, 2012), certain juveniles asserted a substantive right not to be registered as a sex offender because the resulting harm was grave and severe, amounting to "onerous life probation." Probation."Id. Id.at at 1011. But that court did not consider that damage in deciding whether to recognize the asserted right; it contradicted the claim of the fundamental right and applied a rational-based review. ID. Id.at at 1012-13. 13. This court's approach was consistent with that of the Supreme Court in Washington v. Glucksberg, 521 U.S. 702 (1997). (1997). There, the C court did not weigh up or even consider the plight of the terminally ill who wanted to end their lives in “dignity” but were prevented from doing so by the law prohibiting assisted suicide; Rather, like that court in Juvenile inJuvenile Male, Male, it applied a rational-based review. Glucksberg, 521 U.S. at 728. Windsoris is in full compliance with this established law. It did not use the perceived harms (economically and dignified) to the disadvantaged class to recognize a fundamental right or impose stricter scrutiny. The decision also contains no wording that suggests this. either. The decision itself makes clear its purpose of examining these perceived harms at length - to determine whether DOM DOMA's discrimination between two classes of legally married couples was "of an unusual character" and "motivated I am an inappropriate animus or purpose." “ 133 S.S.Ct. Kt. at 2693
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The The responsibility of states to regulate internal relations provides an important indicator of the significant societal impact that state classifications have on the daily life and customs of its population.DOMA's unusual departure from the usual tradition of recognizing state definitions of marriage and to accept acts here to deprive same-sex couples of the benefits and responsibilities that come with having their marriage federally recognized.This is strong evidence that a law has the purpose and effect of disapproving this class.The stated purpose and the practical Effect of the law here in It is about providing all who enter into same-sex marriages, which are leg were alised to impose a disadvantage, a separate status, and therefore a stigma The harms found demonstrated the existence of “a disadvantage, a separate status, and therefore a stigma” and did so as part of the larger effort to show how Moreno and Romer Romer claimed that the "purpose and practical effect of the law here in que questio stion n [was] to impose such damages. harms. 133 S.Ct. at 2693. In light of the settled law set out above and acknowledged by Windsor, the plaintiffs' lengthy discussion of their plight arising from the absence of a sexless marriage regime in Nevada is simply not relevant to the substantive issue of due process, which is a fundamental fundamental right issue to such a regime or to safeguard equal protection, the extent of judicial review applied to the decision to maintain the institution of marriage as a man and a woman. 83
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The plaintiffs argue at length about a specific harm: because they are not married under Nevada law, they do not receive the federal benefits due to married individuals. Opening Br. between 17 and 22. 22. This argument has three fatal flaws. First, under current law and as mentioned above, this damage (like the others put forward) is not relevant to the issue of the fundamental right to due process or the same level of protection in judicial review. Second, this lack of state benefits is not relevant to any question in this case. Plaintiffs' complaint only challenges the exercise of state authority, never the exercise of federal authority. Energy. However, under federal authority, lim limits its certain federal benefits to couples who are legally married in their jurisdiction of residence. Residence. Only federal power can expand the class of recipients of these federal benefits, ts, and certainly Congress has the authority to make these benefits available to couples who are legally married in any jurisdiction and/or couples in a legal civil partnership, such as as those who exploit the Nevad Nevada DPA. The fact that federal law has not been expanded in this way – or not yet – is by no means a function of state action. If the federal decision to limit benefits to couples who are legally married in their country of residence violates a constitutional provision,110 that provision is a Fifth Amendment, not a Fourteenth Amendment, and this is just one case the Fourteenth Amendment. 110
It doesn't. See SeeDandridge Dandridge vs. Williams Williams, 397 U.S. 471 (1970). 84
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Third, if this argument about the lack of federal benefits, the lack of federal benefits, is to attribute harm to Windsor's approach to harm - to acknowledge the existence of a "disadvantage, separate status, and therefore stigma" as part of the broader effort consider whether the "purpose and practical effect of the law in question [was] to impose such damages", the argument fails completely. i leave myself In 2000 and 2002, when Nevada voters passed the Ma Marriage rriage Amendment Amendment, DOMA was the state law and it prevented federal benefits for same-sex couples regardless of the content of the state law. So it's ridiculous to suggest that voters' motive was to deny same-sex same-sex couples these government benefits. Advantages. That leaves only the equally ridiculous possibility that after the Supreme Court's 5 5-4-4 decision in Windsor in June 2013, Nevada voters suddenly developed the mean, mean motive to uphold Nevada's marriage laws to "permit" ease ' the disadvantage resulting from restrictions in federal laws - with this motive making marriage laws unconstitutional in the hour after Windsor's announcement. In summary, the plaintiffs' lengthy discussion of damages by the plaintiffs by no means advances the principled resolution of the real and important important issues in this case, but rather confuses work on this task.
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VI. THERE IS NO FUNDAMENTAL RIGHT TO A GENDERLESS MARRIAGE REGULATION.
Because the Supreme Court has repeatedly recognized the fundamental right of a man and a woman to marry,111 plaintiffs argue that this right must extend to same-sex couples. Opening Br. at 30–38. 38. However, almost all courts that have dealt with this argument have rejected it. It violates current law, which regulates the recognition of a new fundamental right and monitors the limits of already recognized fundamental rights. recognized. And, most importantly, it is based on a conception of what marriage is that is profoundly at odds with the social institutional realities of contemporary American marriage. In the twenty years that American courts have studied the marriage issue extensively, most have either explicitly rejected the basic rights argument of same-sex same-sex couples or have refused to accept it even though it has been presented to them.112 This is the pre-constitutional rejection the question of fundamental rights in general and justified against the background of the social realities of marriage. 111
See e.g. e.g. B. Zablocki v. Redhail, 434 U.S. 374, 384 (1978) (collection of cases). B. ., ER 34 No. 9; Jackson #9; Jackson v. Abercrombie Abercrombie,, 884 F.Supp.2d 1065, 1098 (D.Haw. 2012); Wilson v. Ake, Ake, 354 F.Supp.2d 1298, 1307 (M.D. Fla. 2005); Standhardt v. Great. Ct., Ct., 77 P.3d 451, 460 (Ariz. Ct. App. 2003); Dean 2003); Dean v. District District of Columbia Columbia,, 653 A.2d 307, 332-33 33 (D.C. 1995) . );Baehr 1995);Baehr v. Lewin Lewin,, 852 pp. 2d 44, 55-57 (Haw. 1993); Morrison 1993); Morrison v. Sadler, 821 N.E.2d 15, 29 (Ind. Ct. App. 2005) (Agrees with due process in Standhardt)); Conaway v. Deane, Deane, 932 A.2d 571, 624 (2007 Md); Lewis 2007); Lewis v. Harris Harris,, 908 A.2d 196, 211 (N.J. 2006) (“Despite the rich diversity of this state, the tolerance and kindness of its people … we cannot find that a right to same-sex marriage is so ingrained in traditions, history and 86 112
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This court recently summarized this existing law: The Supreme Court has described the “fundamental” rights protected by substantive due process as “those personal activities and decisions which this court finds so ingrained in our history and tradition or identified as so fundamental to our concept of constitutionally ordered liberties that they are protected by the Fourteenth Amendment.” These rights are few, and incl. the right to marry, to marry, to have children, to direct the education and upbringing of one's children, to marital privacy, to contraception, to physical integrity, to abortion, and to refuse unwanted life-saving life-saving medical treatment. breathe. [An asserted right must] must be] "so ingrained in the traditions and conscience of our people that it may be qualified as fundamental." . . and "implicit in the concept of ordered liberty" so that "neither liberty nor justice would exist if they were sacrificed[.]" sacrificed[.]" United States v. Juvenile Male, Male, 670 F.3d 999, 1012 (Cir. 9, 2012), (citations omitted). And, important for present purposes, this Court also emphasized “that the analysis begins with a ‘careful’ careful description of the right asserted. correct.'" '" Id. Id. (cited (cited Reno v. Flores,507 Flores,507 U.S. 292, 302 (1993)). (1993)). Indeed, on a case-by-case basis, the Supreme Court has insisted on "carefully articulating the interest at stake in substantive due process cases". Cases." Washington v. Glücksberg, 521 U.S. U.S. 702, 722 (199 (1997). 7). In Glücksberg, for example, the court dismissed broad statements of asserted interest such as "an interest in liberty in determining the time and manner of one's death" or "the right to choose a humane, dignified death" in favor of the more awareness of the people of this state that it is considered a fundamental right.");Hernandez right."); Hernandez v. v. Robles Robles,,855 N.E.2d 1, 17 –18 18 (N.Y. 2006);Andersen 2006);Andersen v. King Cnty.,, 138 P.3d 963, 979 (Wash. 2006) (en banc) (calling a conclusion that there is a fundamental right in the country "amazing" there. "). 87
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Exact wording Wording "whether the 'liberty' specially protected by the due process clause includes a right to suicide, which in turn includes a right to assistance in doing so." Identification card. Id.at at 722–23 23 (citations omitted). Plaintiffs' description of the asserted right is not thorough; In fact, they never describe the law explicitly, relying instead on a series of allusions and negative analogies. nalogies. Opening B Br. r. at 31-38. 38. Hence they suggest that right “touches . . .fundamental . fundamental data protection rights”, id. id.at at 31, participates in “freedom of personal choice”, id. id.at 32, includes "'free choice' of who to marry", id. at 33, and "freedom to choose one's partner", id., ., implies "the freedom of the individual to form important personal relationships", id. at 34, and includes “the right of all human beings to enter into intimate unions,” unions,” id. However, the right that the applicants want to have declared fundamental is not at all difficult to describe. The established right to marry is, and no doubt always has been, the right of a man and a woman to marry. to marry. That is not the right the plaintiffs seek to justify. They seek “fundamental rights status” for the right to marry another person of the same sex. Sex. Only this statement fulfills the degree of descriptive care that Glucksberg demands. Requirements. See 521 U.S. at 722. Our fundamental rights jurisprudence, applied in a fairly straightforward, straightforward manner, will not consider the right to marry a person of the same sex to be a fundamental right
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to the right. The right to marry a son of the same sex does not pass the test recently repeated in Juvenile in Juvenile Male. Male. Historically, this nation has never recognized the right to recognition. ght It did not exist anywhere in this nation until it was mandated in that state in 2003 (effective date 2004) by a 4-3 decision of the Massachusetts Supreme Court. Although a minority of other states followed suit, either by court order or legislative action,113 something very big was happening in our national life at the same time: Thirty-one states changed their constitutions to protect the union of one man and one marriage woman, and six other states continued to provide protection by law.114 So, whether one looks back to the time of incorporation, or to the time of Civil War changes, or just to the last fifteen or twenty years, the view is the same: Ame: This nation and their people have not made the “right” to marry a person of the same sex deeply rooted in our history and traditions or fundamental to our concept of constitutional liberty, such that there would be neither liberty nor justice if the “right” would not be enshrined in the constitution. Rather, this nation nation and most of its peoples have sought to preserve "the union of man and woman" as the core of our vital social institution of marriage.
113
See See Competent Authority Addendum (“Supplement”) at A-10 A-10 to A-17; note97 note97 above. above. 114 See SeeAdd. Add to. at A-8 to A-15. 89
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The cases cited by the plaintiffs do not allow a contrary conclusion to be drawn. Lawrence v. Texas Texas, 539 U.S. 558 (2003), expressly distinguishes between the fundamental right of gays and lesbians to an intimate relationship on the one hand and the right to marry a relative on the other hand: Gender: “In the present case not . . . include whether the government must formally recognize any relationship homosexual persons wish to enter into. " Id. Id.at at 578. And Judge O'Connor said that "the preservation of the traditional institution of marriage" was a "legitimate interest of the state." Id. at 585 (O'Connor, J., concurring). Loving v. Virginia Virginia, 388 US 1 (1967), Zablocki (1967), Zablocki v. Redhail Redhail, 434 US 374 (1978) and Turner v. Safley, Safley, 482 US 78 (1987), (1987) , have at all no relevance relevance.Each decision invalidated a state law that barred the marriage of male-female couples for reasons unrelated to the case.Furthermore, the invocation of Lovingas as part of the strategy is a reminder of the importance of male and woman in marriage to anti-miscegenation anti-miscegenation laws (described in the introduction), because the comparison is a false analogy and therefore provides no basis for any court to order the redefinition of marriage.115 Plaintiffs also cite a plurality opinion in Pla nned inPlanned Parenthood Parenthood of Southeastern Pennsylvania v. Casey, Casey, 505 U.S. 833, 851 (1992), which identified 115
For the fallacy of this strategic strategy, see Blankenhorn, Blankenhorn, Future Future, supra, footnotes 34, 34, pp. 172-79; 79; Girgis, supra Girgis, supranote note 34, 34, at at 77 77-81; 81; Monte Neil Stewart & William C. Duncan, Marriage Duncan, Marriage and and the Betrayal of Perez and Loving, Loving, 2005 BYU L. Rev. 555. 90
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“Matters that concern the most intimate and personal choices a person can make in his or her life, choices central to personal dignity and autonomy are central to the liberty conferred by the Fourteenth Amendment end.” Opening Br. at 39. But in a later majority decision, the Supreme Court specifically denied that its “liberty jurisprudence and the broad, individualistic dividualistic principles that they reflect” principles protected a range of interests extending out "a general tradition" derived from "self-sovereignty" or "derived from abstract concepts of personal autonomy". Glucksberg, 521 U.S. at 724–25 25 (omitted citation). Instead, the court has taught: "That many of the rights and freedoms protected by the due process clause extend to personal autonomy does not justify the sweeping conclusion that all important, intimate, and personal choices are so protected and protected," Casey and Casey didn't suggest otherwise.” ID. at 727–28 28 (citations omitted) (emphasis added). The social realities of the institution of marriage make it clear how novel, how profoundly radical, how different the “right” of the fundamental right to marry claimed by the plaintiffs is. Plaintiffs may marry or have their foreign marriages recognized only if Nevada changes or is required to change its legal meaning of marriage from the union of one man and one woman to the union of two persons without regard to sex. under. That's for sure. keep. This means that the right that plaintiffs are actually and essentially seeking is the right to impose a state
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sexless marriage marriage regime. This is the only right the state can give them. Although the state has authority by law to suppress the meaning of man and woman, thereby de-institutionalizing the current institution of marriage, the state has no authority to usher the plaintiffs or other same-sex couples into that venerable institution. Institution. The very act of ushering in will transform the old institution (not all at once, of course, but certainly over time) and transform it into a fundamentally different institutional institution, application, one whose meanings, values, practices, and vit vitality ality are speculative , but certainly differ from the meanings, values, practices and vitality heretofore inherent in the institution of marriage between man and woman. Although same-sex couples apply to the law to admit them into the privileged institution, and the law may want it, it cannot; there can only be 116
See Brian Brian Bix, Reflections Bix, Reflections on the Nature of Marriage Marriage ge, in Revitalizing in Revitalizing the Institution of Marriage Marriage for the TwentyTwenty-First First Century: An Agenda for Strengthening Marriage 112–13 13 (Alan Hawkins et al. eds . , 2002): Marriage is an existing social institution. One could also helpfully speak of an existing “social good”. The complication of analysis is that one cannot fully distinguish the terms on which the good is available from the nature of the good. As Jose Joseph ph Raz wrote of same-sex marriages: “When people demand recognition of same-sex marriages, what they usually mean is that they are demanding access to an existing good. In fact, they also call for the transformation or transformation that is going well. od. For there is no doubt that the recognition of gay marriage will bring about as great a change in the nature of marriage as that of polygamous to monogamous, or arranged to unarranged marriages." Marriage." 92
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giving them access to another regime of different merit.117 So there is both a radical and an extremely radical aspect of the “fundamental right” that the plaintiff, the plaintiff, this court wishes to recognize: a right both to the establishment of a sexless marriage and to also to the creation of a state State repression of the institution of male-female marriage which inevitably competes with it. It is not a "fundamental right" in our national and constitutional heritage, but it is likely the destroyer of one. For this reason, plaintiffs and all advocates of sexless marriage are bound to accept the narrow or narrow description of the personal relationship of marriage and try to get the courts to do the same while trying to get them to turn a blind eye close the broad broad description of American American marriage. The narrow view posits a marriage regime already very similar to a sexless marriage regime, as discussed in Section I.C. Above. But solid legislative evidence supports the broad description of marriage and hence what we say here about the extremely radical nature of the "fundamental right" claimed by the plaintiffs. plaintiff. vii. THERE IS NO LEGAL OR FACTUAL BASIS FOR THE IMPLEMENTATION OF AN “ENHANCED TEST” IN THIS CASE.
The plaintiffs' plea for an "increased examination" fails for at least three reasons. First, Nevada marriage laws do not violate a fundamental right. Second, the Supreme Court is no longer busy issuing a "Suspicious Classification Classification."
117
See id.; idem.; Stewart, Stewart, Judicial Judicial Redefinition, supra, footnote 23, 23, at 83-85. 85. 93
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Labels for this or that identity group to shield them from the workings of normal democratic processes. processes. Third, even if the Supr Supreme Eme Court were open to it, the gay/lesbian community cannot meet the requirements for such a designation, particularly the "politically impotent" requirement. The previous section defines the first reason. As this court recently did in United States v. v.Juvenile Juvenile Male said: “In a substantive due process analysis, we must first examine whether the law in question restricts a fundamental fundamental right. If not, the statute need only be “proportionate to a legitimate legitimate interest of the state to warrant the action.” 670 F.3d 999, 1012 (Cir. 9, 2012) (cited Washington v. Glucksberg, 521 US 702 , 722 722 (1997)). This is a rational review on a rational basis. As for the second ground, from Romer to RomertoLawrence to Lawrenceto to Windsor, there has been tremendous pressure to get the Supreme Court to rule that discrimination based on sexual sexual orientation triggers heightened scrutiny. Consequently, the court did not do this. That reality, now spanning nearly two decades, confirms this assessment by one of the leading proponents of sexless marriage: All classifications based on other characteristics -- including age, disability, and sexual orientation -- are currently considered a rational base review. The litigants still argue that new classifications should be subject to increased scrutiny. Nonetheless, these attempts at federal constitutional lawsuits seem increasingly antiquated, since the last classification classification subjected to heightened scrutiny by the Supreme Court was 94
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on the basis of non-marital partnerships in 1977. This canon has closed, at least with regard to federal equal treatment case law. Kenji Yoshino, The New Same Protection, Protection, 124 Harv. L. Rev. 747, 756-57 57 (2011) (emphasis added). added). The district court in this case did well to indicate the probable reason for the cannon closure. lose. ER 27-28. 28. As to the third reason, even if the old canon were still open to additions, the gay/lesbian community cannot meet the requirements for the treatment of "suspicious classification", specifically the "immutability" "immutability" and " politically impotent" demands. This “suspicious classification issue” – including the continued validity of high-tech gays118 as this circle's authoritative authoritative voice on the subject – has been fully aired. ventilated. We adopt the analytical analysis of the issue provided by the district courts in this case and in the Hawai'i-Hawai'i marriage case.119 We add only two points. First, as explained in the introduction above, the theory of political impotence has been invaded by a band of facts. acts. In the most succinct, succinct terms, the proponents of sexless marriage, who say they support it, are winning and will continue to win the Nevada Nevada political battle for marriage. Drawing on legislative nose counts and credible polling data, this report builds on the fact that super majorities in both houses of the Nevada Legislature overruled the 118 in 2009
High-Tech-Schwule v. Def. Indus. Sec Sek.. Clearance Office Office,, 895 F.2d 563 (9. Cir. 1990). 119 ER 14–30; Jackson 30; Jackson gegen Abercrombie Abercrombie,, 884 F.Supp.2d 1065, 1099–1103 1103 (D. Haw. 2012). 95
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the then-governor's veto of the DPA and the DPA, and that just this year the legislature issued a joint resolution beginning the process to reverse the M-Marriage Amendment. The change. As the District Court has explained so well, appealing to more rigorous scrutiny often results in preventing the resolution of political problems through democratic public relations processes, although this may be appropriate in defense of a socially despised and politically impotent class or a clear grassroots right , such an exclusion in other cases seriously damages the structure, logic and genius of our form of government. ER 27-28. Nevada's gay/lesbian gay/lesbian community simply has no valid claim to immunity from the rigors of democracy. No doubt sensing this real reality, plaintiffs argue that "the relative political impotence of a group [must be measured nationally]], not in any state." Opening Br. at 60 60 k. 36. The only authority cited is Frontiero, namely Frontiero v. Richardson Richardson, 411 U.S. 677, 685-8888 (1973), which did not address this particular issue and made no comment or allusion to it. It is bad logic and bad constitutional law that Nevada has to set aside its fair, open, effective and equitable democratic processes because of supposed political "realities" in Mississippi. Mississippi. Plaintiffs also incorrectly argue that Windsor must somehow be viewed as advocating the introduction of enhanced scrutiny by the Second Federal Court in cases of sexual orientation discrimination. n. Opening B Br. r. at 49-50 50 n/a. 30. Windsordid did not
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Matter. It didn't address that aspect of the Second Second Circuit's decision at all. She didn't endorse any part of that decision. Decision. All it did was uphold the Second Circuit's ruling, which was an affirmation of the district court's order that DOMA found unconstitutional. unconstitutional. In these circumstances, no authority supports the plaintiffs' arguments. argument of the plaintiffs. In short, the statute directs that the constitutionality of Nevada marriage laws be determined by a rational-based review. Without in any way qualifying or dismissing this final conclusion, we state once again that Nevada's grounds for maintaining the institution of marriage between men and women are sufficiently good and powerful enough to uphold these marriage laws regardless of the level of scrutiny applied. VIII. THE MARRIAGE LAWS OF NEVADA DO NOT CONSTITUTE GENDER DISCRIMINATION.
The plaintiffs argue that the marriage laws then discriminate against them on the basis of sex. Opening Br. at 86–92. 92. That's not a problem. First, the courts have almost unanimously rejected this argument in the context of matrimonial matters.120
120
Z.B. B.,, ER 12–16; Jackson 16; Jackson,, 884 F. Supp. 2d bei 1098–99; Schmelze 99; Schmelze v. Orange, Orange, 374 F. Supp. 2d 861, 876–77 77 (C.D. Cal. 2005); Wilson v. Ake, Ake, 354 F. Supp. 2d 1298, 1307–08 08 (M.D. Fla. 2005);2005);In re Kandu Kandu, 315 B.R. 123, 143 (W.D. Wash. 2004);In 2004);In re Marriage MarriageCases Cases,, 183 S.3d 384, 439 (Cal. 2008); Conaway gegen Deane, Deane, 932 A.2d 571, 599 (Md. 2007);Hernandez 2007);Hernandez gegen Robles Robles,, 855 N.E.2d 1, 10–11 11 (N.Y. 2006); Baker v. Vermont Vermont, 744 A.2d 864, 880 n.13 (Vt. 1999); Andersen 1999); Andersen v. King Cnty. Cnty.,, 138 P.3d 963, 987–89 89 (Wash. 2006)(en banc); Singer v. Hara, Hara, 522 S.2d 1187, 1192 (Wash. App. 1974). 97
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Second, Nevada's second, Nevada marriage law treats men as a class and women as a class alike. Third, the provision by marriage of the status and identity of husband and wife does not constitute governmental endorsement of the “tradition of separate spheres” or of any improper tradition that permits improper attribution of gender roles or perpetuates prescribed gender stereotypes. Although some cultures and subcultures have pegged different gender roles, and hence gender role stereotypes, to the pegs of husband and wife, such gender roles and stereotypes, and any resulting separate spheres of tradition, are not inherent in the two traditions, and nothing in Nevada's marital status. In fact, the statuses of husband and wife are the antithesis of a separate sphere ethos precisely because the man and woman enter one and the same sphere—marriage. Before. Fourth, the plaintiffs' sex discrimination argument, if accepted, would cause the Fourteenth Amendment's equality clause to do something—require sexless marriage—that the proposed equality amendment that was put forward would provide greater protections from Offering sex discrimination as provided for by the Fourteenth Amendment would not do it. do. What about the quality of the debate in countries that have not ratified the ERA? Some legislators. . . declared “no” votes on the spot 98
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that the ERA would allow same-sex marriages. The Congressional history of the Congress clearly shows that the ERA would not do such a thing. Matter. Ruth Bader Ginsburg, Ratification Ginsburg, Ratification of the Equal Rights Amendment: ent: A Question of Time,, 57 Tex. L. Rev. 919, 937 (1979) (emphasis added). time IX NEVADA'S MARRIAGE LAWS ARE NOT THE RESULT OF ANIMUS AND A MERE WANT TO HARM.
The Windsor Supreme Court examined whether DOMA's discrimination between two classes of legally married couples, in disregard of state law, was "of an unusual character" and whether DOMA was "motivated by an improper animus or purpose". United States vs. Windsor, 133 S. Ct. 2675, 2693 (2013) (with reference to Dept of Agric. Agric. v. v. Moreno, Moreno, 413 U.S. 528, 534-35 35 (1973), (1973) and Romer Romer v. Evans Evans,, 517 U.S. 620, 633 (1996)). We have already shown how the Court answered 'yes' to both questions in that case. See section V.E. Above. Here, on the other hand, “no” is undoubtedly the right answer to both questions. First, as Windsor again strongly affirmed, it is for individual states to define and regulate marriage within their respective jurisdictions; their authority there is practically plenary. Plenum. Throughout the history of this nati-nation, states have typically exercised this power to give legal imprimatur and protection to the institution of male-female-male-female marriage. Institution. In fact, prior to 2003, every state had always exercised this power in exactly the same way. Since 2003, this has gone on as usual, as evidenced by the efforts of the vast majority 99 to anchor, protect and continue
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of the States.121 Indeed, DOMA's rejection of the New York definition of marriage was as unusual a government action as Nevada's continued existence of marriage between a man and a woman in Nevada is a common one. one. These actions are literally on opposite ends of the unusual/common spectrum. Second, regarding whether Nevada's marriage laws were "motivated by an inappropriate animus or purpose," the absence of any unusual government action is strong evidence for a "no," as Windsor teaches. In addition, plaintiffs cannot derive an animus conclusion from an alleged lack of legitimate reasons for government action because, as evidenced by corroborative legal facts, there are several compelling legitimate reasons for Nevadas
M ar r i old laws. Faced with this reality, but still wanting to gain traction from the Supreme Court's animus doctrine, the plaintiffs are doing the only thing they can -- they whistle by the graveyard, they ignore these legal facts, they label them disparagingly as "unfounded". private view that marriage equality taints the institution of marriage,” Opening Br.at Br.at 16, and they disingenuously claim that “response officials have found no violation of the institution of marriage,” Opening Br. at 36, while ignoring them that the Coalition found a probable violation of the institution of marriage -- and that clerk-recorder Glover, one of the "defendants officers, officers," specifically took the Coalition's work product, with the exception of the 121
See Add. at A-8 to A-15. 100
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Portion dealing with religious freedoms.122 Plaintiffs currently have no credible edible evidence of a "mere desire to harm." Harm." In contrast, we have shown how broad, broad, and profound scholarly work is in full harmony with the judgments, intuitions, perceptions, perceptions, assessments, and conclusions expressed in the voices of Nevada citizens' Neva assessments at the Were expressed marital change, and thereby for the preservation of the institution of man-woman marriage and the valuable advantages which it affords materially and even singularly.This showing ng negates the anim animus us slander.X NEVADAS COUPLES STRENGTHENS THE CONSTITUTIONAL ABILITY OF MARRIAGE LAWS OF NEVADA RATHER THAN UNDERMINING.
Plaintiffs appear to argue that Nevada's enactment of its DPA undermines Nevada's stated need to preserve the importance of man, woman, and woman at the core of the institution of marriage because the DPA reflects the state's official assessment that same-sex couples are equal as married couples Husband-wife couples are worthy of the duties, responsibilities, responsibilities, and rights of marriage, including those pertaining to parenthood. Opening Br. at 16, 36, 37 and 97 n. 51. Of course, with the DPA, Nevada law, as does its good-natured society generally, recognizes that gay men and lesbians are capable, worthy, and contributing citizens of our state. But this reality is relevant and only relevant to the Romer/Wi theRomer/Windsor ndsor issue as it shows the absence of animus towards gay men and lesbians and the absence of mere desire for harm in Nevada society.
122
Dist. C Ct. t. D Dkt. kt. 97. 101
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The "ability" reality is not relevant to the big constitutional question: does Nevada have sufficient valid reasons to preserve the man-woman-man-woman an institution of marriage? As demons have shown above, these reasons are about the valuable social benefits that this institution offers materially through its core meaning of male and female. By specifically identifying a domestic partnership as not a marriage, Nev. Rev. Stat. § 122A.510, the DPA affirms this demonstrated demonstration. nation. This demonstration is not at all altered by the relative ability or inability of gay men and lesbians. This relative ability is simply not relevant to the ultimate constitutional issue. It's a case for the political and electoral arena where the issue of marriage rightly belongs. Any suggestion that the DPA may or does counteract any of the political assessments and decisions advanced by the marriage amendment is legally subject to the legal status of the former and the constitutional status of the latter. king v Bd. Regents Regents of the Univ. of Nevada, Nevada, 200 P.2d 221, 225–26 26 (Nev. 1948) (Nevada legislature cannot contradict “any express or necessarily implied limitation which appears in the [Nevada] Constitution itself,” and it is "It is not essential that any given limitation of power be firmly expressed in the Constitution. Any positive direction contains an implication against everything
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violates or would frustrate or frustrate the purpose of this [constitutional] provision.”) Provision.”) (internal citations omitted). CONCLUSION
The Coalition respectfully requests that court rule that Nevada's marriage laws are constitutional and uphold the District Court's ruling. Evaluation. Date: January 21, 2014
Yours faithfully submitted, Monte Neil Stewart Craig G. Taylor Daniel W. Bower STEWART TAYLOR & MORRIS PLLC 12550 W. Explorer Drive, Suite 100 Boise, ID 83713 Tel: (208) 345-3333 From: s/ Monte Neil St Stewart ewart Monte Neil Stewart Attorneys for Appellee Appellee Coal Coalition for the Protection of Marriage Marriage
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STATEMENT ON RELATED CASES
Pursuant to Ninth Circuit Rule 28-2.6, 28-2.6, the Respondent-Respondent Coalition for the Protection of Marriage is aware that there are no related cases pending in the United States Court of Appeals for the Ninth Circuit other than the case identified as related became plaintiff-complainant opening letter of plaintiff-complainant. Meager.
Date: January 21, 2014
By: s/ Monte Neil Stewart Monte Neil Stewart Attorneys for Appellee Appellee Coalition Coalition for the Protection of Marriage Marriage
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ADDENDUM OF THE COMPETENT AUTHORITIES TABLE OF CONTENTS
Page(s) Constitutional Provisions Constitutiona
US const. Change XIV, § 1 ........................ ....................... .. ................ ................................ .................................................. ......... ........ A-1 Nev.Const. Art. Art. XIX, § 2(1)................. .......................... .......................................... ....... . ........................ ........................ . ...... .............. A-1 Nev. constant Art. Art. XIX, §2(4)................. .......................... ........ .... .................................... .. .......... ........................................ .................. ....... ................ A-1 Nev.Const. Art. Art. I, §21 ................................................ .... ...... ................................... ..... .... ....................... ..................... .... ......... ...................... ..... A-1 Nevada Revised Statutes
Nev. Rev. Stat. § 122.020 ................ .................................. . ................................ .................. ................ .................................. ................... .. A-2 Nev. Rev. Stat. § 122A.040 .................................................. ...................................................... .......... .......................................................... .................... A-3 Nev. Rev. Stat. § 122A.100 .................................................. ...................................................... .......... .......................................................... .................... A-3 Nev. Rev. Stat. § 122A.200 .................................................. ...................................................... .......... .......................................................... .................... A-4 Nev. Rev. Stat. § 122A.510 .................................................. ...................................................... .......... .......................................................... .................... A-6 Statuten von Nevada
Nev.Stat. § 88 (1876) (1876) ................... ....................... .. .......... ................................... ... .................................................. .......... ............. ...................... ..... A-6 Laws of the Territory of Nevada
Part 2:33: 1861 ................................ ....... ... ....................... ......... .......... ........ ........................ .......... . ................................ ...... .......... A -6 charts
Voting measures ..................................................... ... ................................. ................ ................. ................................ ... ................................ .............. . .A-8
A-I
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Statutory and constitutional provisions ................................................ .... ................................... ............ .. ...... ... A-12 court rulings in the marriage issue since 1993 ................. ............. .. ................................................. . ..........A-16
A-ii
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US const. to change. XIV, § 1
All persons born or naturalized in and subject to the jurisdiction of the United States are citizens of the United States and their state of residence. No state shall make or enforce any law that restricts the privileges, privileges, or immunities of any citizen of the United States; no State shall deprive any person of life, liberty, property or business without due process of law; nor do they deny any person within their jurisdiction the same protections of the laws.
New const. Art. I, §21
In this state, only a marriage between a man and a woman is recognized and consummated.
Nev. Art. Art. XIX, § 2(1)
Notwithstanding the provisions of Section 1 of Article 4 of this Constitution, the people reserve the power to propose statutes and amendments to the statutes and amendments to this Constitution on their own initiative, and to accept or reject them by ballot box.
Nev. Art. Art. XIX, §2(4)
If the initiative petition proposes an amendment to the constitution, the person who intends to circulate it must file a copy with the Secretary of State of the Secretary of State before the commencement of circulation and no earlier than September 1 of the year preceding the year in which the election is to take place. After it has been disseminated, it is to be filed
the Secretary of State not less than 90 days before any regular general election
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the question of approving or rejecting such an amendment may be voted upon by voters throughout the state. Circulation of the petition will end on the date the petition is submitted to the Secretary of State or such other date as may be required for verification of the number of signatures on the petition, whichever comes first. The Secretary of State shall arrange for the full text of the proposed amendment to be published in a general circulation newspaper on three separate occasions in each county of the state, together with any explanation to be placed on the ballot. If a majority of the electors voting on such an issue in such an election vote against such an amendment, no further action will be taken in relation to the petition. If a majority of those electors vote in favor of such an amendment, the Secretary of State publishes the approval or disapproval question and puts it again before voters at the next general election in the same manner in which that question was originally asked. submitted. If a majority of those voters vote against such an amendment, no further action will be taken regarding this petition. If a majority of such electors vote in favor of such an amendment, it shall, save as barred by subsection 5 or 6, become part of this Constitution upon the completion of the vote collection by the Supreme Court.
Nev. Rev. Stat. § 122.020
122.020
persons capable of marriage; Parental or Guardian Consent.
1. Except as otherwise provided in this section, section, one male male and one female male, at least 18 years of age, not closely related as second cousins or half-blood cousins, and not a living husband or a have a living wife can be joined in marriage. 2. A male and female Ale person who are spouses and wives of the other may be remarried if the records of their marriage are lost, destroyed or otherwise inaccessible. 3. A person at least 16 years of age but under 18 years of age may not marry unless the person has the consent of: (a) a parent; or (b) the legal guardian of that person. Guardian.
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Nev. Rev. Stat. § 122A.040
122A.040
"Domestic Partnership" defined. Are defined.
“Social partnership” means the articles of incorporation between two people described in NRS 122A.100.
Nev. Rev. Stat. § 122A.100
122A.100
Registration Registration: n: procedure; Fees; permission permission;; issuance of the certificate.
1. A valid civil partnership is incorporated in the State of Neva Nevada when n two persons who meet the requirements of Subsection 2 are: (a) filed with the Office of the Secretary of State, on a form prescribed by the Secretary of State, one signed and notarized Notarized statement declaring that both individuals: (1) have chosen to share each other's lives in an intimate and committed relationship of mutual caring; and (2) voluntary desire to enter into domestic partnership; and (b) pay to the Office of the Secret Secretary of State a reasonable filing fee, as determined by the Secretary of State, which filing fee shall not exceed the total amount determined by the Secretary of State, to estimate: (1) The expenses incurred by the Foreign Ministers arise to issue the certificate described in subsection 3; and (2) all other associated d administrative costs incurred by the Secretary Secretary of State.
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Nev. Rev. Stat. § 122A.200
122A.200
1.
Rights and obligations of life partners, former life partners and surviving life partners. Unless otherwise stated in NRS 122A.210:
(a) Domestic civil partners have the same rights, rights, protections and benefits, and are subject to the same statutory responsibilities, duties and duties, whether arising from statute, administrative regulation or court judgment. Government policy, common law, or any other regulation or source of law granted to and imposed on spouses. (b) Former domestic civil partners have the same rights, protections and benefits and are subject to the same legal responsibilities, duties and obligations, whether arising under any statute, administrative regulation, judicial rule, government directive, common law or any other provision or legal source which granted to and imposed on ex-spouses. (c) A surviving domestic civil partner shall have the same rights, protections and benefits upon the death of the other partner and be subject to the same responsibilities, accountabilities, duties and obligations under any law, whether derived from any statute, administrative regulation, Court judgments, government directives, common law or other administrative provisions or legal sources as granted and imposed on a widow or widower. (d) The rights and obligations of civil partners in relation to a child of theirs are the same as those of spouses. The rights and obligations of former or surviving civil partners in relation to a child of theirs are the same as those of former or surviving spouses. (e) To the extent that any provision of Nevada law incorporates, references, or relies on any provision of federal law in a manner that would otherwise result in domestic partners being treated differently from spouses, spouses, householders, domestic partners m must be required by the statute of Nevada be treated as if federal law recognized a domestic partnership in the same manner as Nevada law.
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(f) Domestic partners have the same right to non-discriminatory non-discriminatory treatment as spouses. (g) A public entity in that State shall not discriminate against any person or couple on the basis that the person is a civil partner rather than a spouse or that the couple is a civil partner. (h) The provisions of this chapter shall not prevent a public authority from exercising its regulatory powers to carry out laws which impose rights or obligations on civil partners. (i) Where necessary to protect the rights of domestic civil partners under this Chapter, gendered terms referring to spouses shall be construed to include civil partners. (j) For the purposes of the statutes, statutes, administrative regulations, ordinances, court rules, governmental directives, the common law and any other provision or legal source governing the rights, protections and benefits, and the responsibilities, duties and obligations of civil partners in this State under the provisions of this Chapter relating to: (1) common property; Yes; (2) mutual liability or liability for liabilities to third parties; (3) The right, particularly in the circumstances of either partner, to request financial support from the other after the partnership has been dissolved; and (4) other rights and obligations between the civil partners in relation to property, any reference to the date of marriage shall be deemed to be the date of registration of the civil partnership. 2. As used in this Section, “Public Authority” means an agency, bureau, board, commission, commission, division or division of the Nevada State Evada or any Nevada State political subdivision.
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Nev. Rev. Stat. § 122A.510
122A.510
Civil partnership, not marriage as defined in certain provisions of the Nevada Constitution. on.
A civil partnership is not a marriage within the meaning of Article 1 Section 21 of the Nevada Constitution. Constitution.
Nev. Stat. § 88 (1876)
§ 1. § 2 of this Act is hereby amended and reads as follows: Hereafter: § 2. Males aged eighteen and females aged sixteen who are not more closely related than second cousins and without living husband or wife, can be joined in marriage; Before; provided always that male persons under the age of twenty-one and female persons under eighteen must first obtain the consent of their fathers, respectively ly, or in on the death or incapacity of their fathers, then their mothers or legal guardians; and further provided that nothing in this Act shall be construed as rendering the marriage unlawful where the person or persons are underage. ....
Laws of the Territory of Nevada, Part 2:33: 1861
§ 1. This marriage is, as far as its legal validity is concerned, a civil contract, for which the consent of the contracting parties is required. Section 2. Any male person who has reached the full age of eighteen and any female person who will have reached the full age of sixteen
be legally able to enter into marriage, marriage if otherwise permitted; provided,
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however, that nothing in this Act shall be construed to render the marriage illegitimate if the person is under the age of majority; and provided that all minors who have attained the age prescribed for marriage under this Act shall be of legal majority upon entering into the marriage union. Section 3. No marriage shall be contracted while either the parties have a husband or living wife, nor between parties who are more closely related than second cousins calculated under the rules of civil law, whether or not semi - or thoroughbred. ....
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The Definition of Marriage: Voting Actions Alabama: 2006; amending the Constitution to enshrine male-female-male-female marriage and
prohibit civil partnerships; unions; legislature legislature initiated; pass 81%/1 81%/19% 9% Alaska: 1998; amend the Constitution to enshrine marriage between a man and a woman; Legisla Legislature initiated; pass 68%/31% Arizona: 2006; amend the constitution to enshrine male-female marriage and ban civil unions; unions; voter initiated; initiated; fail 4 48%/52% 8%/52% Arizona: 2008; amend the Constitution to enshrine marriage between a man and a woman; legislation initiated; pass 56%/44% Arkansas: 2004; amend the constitution to enshrine male-female marriage and ban civil unions; unions; voter initiated; initiated; Pass Pass d 75%/25% California: 2000; super-legislation to enact super-legislation to enshrine man-woman marriage; voter initiated; pass 61%/39% California: 2008; amending the Constitution to restore male-female marriage; voter initiated; pass 52%/48% Colorado: 2006; amend the Constitution to enshrine male-female marriage; voter initiated; pass 55%/45% Florida: 2008; amend the constitution to enshrine male-female marriage and ban civil unions; unions; legislature legislature initiated; passed 62%/3 62%/38% 8% Georgia: 2004; amend the constitution to enshrine male-female marriage and ban civil unions; unions; legislature legislature initiated; passed 76%/2 76%/24% 4% *Hawaii: 1998; Amend the Constitution to give the legislature sole power of definition
Before; legislation initiated; passed 69%/31% A-8
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Idaho: 2006; amend the constitution to enshrine male-female marriage and ban civil unions; legislation initiated; pass 63%/37% Kansas: 2005; amend the constitution to enshrine male-female marriage and ban civil unions; unions; legislature legislature initiated; pass 70%/3 70%/30% 0% Kentucky: 2004; amend the constitution to enshrine male-female marriage and ban civil unions; unions; legislature legislature initiated; pass 75%/2 75%/25% 5% Louisiana: 2004; amend the constitution to enshrine male-female marriage and ban civil unions; unions; legislature legislature initiated; pass 78%/2 78%/22% 2% Maine: 2009; to preserve man-woman marriage; Voters initiated after legislature vote approving sexless marriage; pass 53%/47% Maine: 2012; to approve sexless marriage by referendum referendum; voter initiated; pass 53%/47% 53%/47% Maryland: 2012; to approve sexless marriage laws; Voters initiated after legislature vote approving sexless marriage; pass 52%/48% Michigan: 2004; Amend the Constitution to enshrine male-female marriage and
prohibit civil partnerships; unions; voter initiated; initiated; Pass Pass d 59%/41% *Minnesota: 2012; amend the Constitution to enshrine male-female marriage; legislation initiated; fail 47%/53% Mississippi: 2004; amend the Constitution to enshrine male-female marriage; legislation initiated; pass 86%/14% Missouri: 2004; amend constitution to enshrine constitution n man-woman marriage; legislation initiated; 71%/29% pass
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Montana: 2004; amend the Constitution to enshrine male-female marriage; voter initiated; pass 67%/33% Nebraska: 2000; Amend the Constitution to enshrine male-female marriage and
prohibit civil partnerships; unions; voter initiated; initiated; pass pass d 70%/30% Nevada: 2000; amend the Constitution to enshrine male-female marriage; voter initiated; pass 70%/30% Nevada: 2002; amend the Constitution to enshrine male-female marriage; voter initiated; pass 67%/33% North Carolina: 2012; amend the Constitution to enshrine male-female marriage; legislation initiated; pass 61%/39% North Dakota: 2004; amend the constitution to enshrine male-female marriage and ban civil unions; unions; voter initiated; initiated; pass d 73%/27% Ohio: 2004; amend the constitution to enshrine male-female marriage and ban civil unions; voter initiated; passed 62%/38% Oklahoma: 2004; amend the constitution to enshrine male-female marriage and ban civil unions; unions; legislature legislature initiated; pass 76%/2 76%/24% 4% Oregon: 2004; amend the Constitution to enshrine male-female marriage; voter initiated; pass 57%/43% South Carolina: 2006; amend the constitution to enshrine male-female marriage and ban civil unions; legislation initiated; pass 78%/22% South Dakota: 2006; amend the constitution to enshrine male-female marriage and ban civil unions; unions; legislature legislature initiated; pass 52%/4 52%/48% 8% Tennessee: 2006; Amend the Constitution to enshrine male-female marriage and
prohibit civil partnerships; unions; legislature legislature initiated; pass 81%/1 81%/19% 9% A-10
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Texas: 2005; amend the constitution to enshrine male-female marriage and ban civil unions; legislation initiated; pass 76%/24% Utah: 2004; amend the constitution to enshrine male-female marriage and ban civil unions; legislation initiated; pass 66%/34% Virginia: 2006; amend the constitution to enshrine male-female marriage and ban civil unions; unions; legislature legislature initiated; passed 57%/43% Washington: 2012; to approve sexless marriage laws; Voters initiated after legislature vote approving sexless marriage; pass 54%/46% Wisconsin: 2006; amend the constitution to enshrine male-female marriage and ban civil unions; unions; legislature legislature initiated; p passed rated 59%/41%
*Note: In Hawaii and Minnesota, a blank vote essentially counts as a "no" vote. For purposes of this appendix, blank votes in these two states were counted as if they were “no” votes. Voices.
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The Definition of Marriage: Statutory and State Constitutional Provisions Alabama: Ala. const. to change. 774 (male-female) Alaska:Alaska Const. Art. I, § 25 (man-woman) Arizona:Ariz. constant Art. XXX (male female) Arkansas: Ark. constant to change. LXXXII, §1 (male-female) California:Cal. constant Art. I, § 7.5 (man-woman) deleted by Perry as unconstitutional by Perry v. Schwarzenegger Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010) (allegedly binding as appeals have been vacated or merits not addressed) ((gender); genderless); Colorado: Colorado. type II, §31 (male-female) Connecticut:Conn. Gen.Stat. § 46b-20 (sexless) Delaware: Del. code tit. 13, § 101 (sexless) District of Columbia:D.C. Code § 46-401 (sexless) Florida: Fla. constant Art. I, § 27 (man-woman) Georgia:Ga. constant Art. I, § 4 para. 1 (man-woman) Hawaii:Haw. Rev. Stat. § 572-1 et seq. § 572-1 et seq. (man-woman) Idaho:Idaho Const. Art. III, § 28 (male-female) Illinois:750 Ill. Comp. Stat.5/213.1 (man-woman; sexless marriage to begin June 1, 2014 for most couples; couples; see also Lee v. Orr, No. 1:13-cv-08719 (N.D. Ill. 16 Dec. ) , 2013) (genderles (sexless marriage required immediately for incurable
sick couples)). A-12
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Indiana:Ind. code ann. § 31-11-1-1 (man-woman (man-woman) on) Iowa: man-woman definition struck down by Varnum v. Brien,763 Brien,763 N.W.2d 862
(Iowa 2009) (sexless (sexless)) Kansas:Kan. constant Art. XV, § 16 (man-woman) Kentucky:Ky. constant § 233A (male-female) Louisiana:La. constant Art. XII, § 15 (man-woman) Maine:Me. Rev. Stat. Tit. 19-A, § 650, 701 (sexless) Maryland:Md. Code, Fam. Act § 2-201 (sexless) Massachusetts: Male-female definition was struck down by Goodridge v. Dep't of Pub. health, health, 798 N.E.2d 941 (Mass. 2003) (sexless) Michigan:Mich. constant Art. I, § 25 (man-woman) Minnesota:Minn. Stat. §§ 517.01 through .03 (sexless) Mississippi: Miss. constant Art. XIV, § 263A (male-female) Missouri:Mo. constant Art. I, § 33 (man-woman) Montana:Mont. constant Art. XIII, § 7 (man-woman (man-woman) on) Nebraska:Neb. constant Art. I, § 29 (man-woman (male-female) to) Nevada:Nev. constant Art. I, § 21 (man-woman) New Hampshire:N.H. Rev. Stat. § 457:1-a (sexless)
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New Jersey: Male-female definition crushed by Garden State Equality v. Dow, 2013 WL 5687193 (N.J. Super. Ct. Law Div. 27 Sept. 2013) Dow New Mexico: Griego v. Oliver, ___ P.3d ___ , 2013 WL 6670704 (N.M. Dec. 19,
2013) (interpretation of Marriage Laws of New Mexico, N.M. Stat. §§ 40-1-1 et seq., seq. to mean the voluntary union of two persons to the exclusion of all others) (sexless) New York: N.Y. Dom. Rel. Law § 10-a (genderles) North Carolina: N.C. constant Art. XIV, § 6 (man-woman) North Dakota:N.D. constant Art. XI, § 28 (man-woman) Ohio: Ohio Const. Art. XV, § 11 (male-female) Oklahoma:Okla. constant Art. II, § 35 (man-woman), declared unconstitutional by Bishop v. United States ex rel. H owner older, ___ F. Supp. 2d ___, 2014 WL 116013 (D. Okla. 14 Jan 2014) Oregon: Or. constant Art. XV, § 5a (man-woman) Pennsylvania:23Pa. Disadvantages Stat. § 1704 (man-woman) Rhode Island:R.I. Gen. Laws § 15-1-1 et seq. (sexless) seq. (sexless) South Carolina: S.C. constant Art. XVII, § 15 (man-woman) South Dakota:S.D. constant Art. XXI, § 9 (male-female) Tennessee:Tenn. constant Art. XI, § 18 (man-woman) Texas: Tex. const. Art. I, § 32 (man-woman)
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Utah: Utah Const. Art. I, § 29 (man-woman), declared unconstitutional by Kitchen by Kitchen v. Herbert, ___ F. Supp. 2d ___, 2013 WL 6697874 (D. Utah, 20 Dec 2013), Complaint in Registry, No. 13-4178 (10th Circuit, 20 Dec 2013). Vermont: Vt. Stat. Tit. 15, § 8 (sexless) Virginia:Va. constant Art. I, § 15-A (man-woman) Washington:Wash. Rev. Code§26.04.020ff. seq. seq. (sexless) West Virginia:W. Va. Code § 48-2-104(c)(male-female) Wisconsin:Wis. constant Art. XIII, § 13 (man-woman) Wyoming:Wyo. Stat. § 20-1-101 (man-woman (man-woman) on)
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Court decisions in the question of marriage since 1993 Provincial Court of Appeal decisions:
Lewin,, 852 P.2d 44 (Haw. 1993) Baehr gegen Lewin Dean gegen District District of Columb Columbia ia,, 653 A.2d 307 (D.C. 1995) Baker gegen Vermont Vermont, 744 A.2d 864 (Vt . 1999) Ct., 77 P.3d 451 (Ariz. Ct. App. 2003) Standhardt v. Super. Ct., Health, 798 N.E.2d 941 (Mass. 2003) Goodridge v. Dep’t of Pub. Health, In re Opinions of the Justice Justicess to the Senate Senate,, 802 N.E.2d 565 (Mass. 2004) Li v. Oregon, Oregon, 110 P.3d 91 (Or. 2005) Morrison v. Sadler, 821 N.E.2d 15 (Ind. Ct. App. 2005) Robles,, 855 N.E.2d 1 (N.Y. 2006) Hernandez gegen Robles King County, County, 138 P.3d 963 (Wash. 2006) Andersen gegen King Harris,, 908 A.2d 196 (N.J. 2006) Lewis v. Harris Conaway v. Deane, Deane, 932 A.2d 571 (Md. 2007) In re Marriage Marriage Cases Cases, 183 P.3d 384 (Cal. 2008) Kerrigan v. Comm'r Komm'r von Pu Pub. b. Health Health,, 957 A.2d 407 (Conn. 2008) Brien, 763 N.W.2d 862 (Iowa 2009) Varnum v. Brien, Dow, 2013 WL 5687193 (N.J. Super. Ct. Law Div. Garden State Equality v. Dow,
27. Sept. 2013) Greek v. United States. Oliver, ___ P.3d ___, 2013 WL 6670704 (N.M. Dec. 19, 2013)
Federal court decisions:
Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004) In re Kandu, Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005) Wilson v. Ake, Citizens for Equal Prot. v. Brüning, 455 F.3d 859 (8. Cir. 2006) Gill v. Office of Personnel Mgmt. Mgmt.,, 699 F. Supp. 2d 374 (D. Mass. 2010) In re Balas, Balas, 449 B.R. 567 (Bankr. C.D. Cal. 2011) Brown,, 671 F.3d 1052 (9th Cir. 2012) Perry v. Brown Mgmt.,, 824 F.Supp.2d 968 (N.D. Cal. 2012) Golinski v. Office of Personnel Verwaltung Massachus Massachusetts etts v. Health & Human Servs., Servs., 862 F.3d 1 (1st Cir. 2012) States, 833 F. Supp. 2d 394 (S.D.N.Y. 2012) Windsor gegen Vereinigte Staaten,
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Personnel Office Personnel Management, ., 881 F. Supp. 2d 394 (D. Conn. Pedersen v. Office
2012) Abercrombie,, 884 F.Supp. 2d 1065 (D. Haw. 2012) Jackson v Abercrombie Windsor v United States, States, 699 F.3d 169 (2nd circle 2012)
United States vs. Windsor, 570 US ___, 133 S. Ct. 2675 (2013) Kitchen v. Herbert Herbert, ___ F. Supp. 2d ___, 2013 WL 6697874 (D. Utah Dec.
20, 2013) United States ex rel. Holder, ___ F. Supp. 2d ___, 2014 WL Bishop v. United 116013 (D.Okla. January 14, 2014)
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CERTIFICATE OF SERVICE
I hereby certify that I filed the foregoing electronically on January 21, 2014 with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit using the Appeals CM/ECF system on January 21, 2014. I confirm that all parties involved in the case are registered CM/ECF users and this service is provided through the Appeals CM/ECF system. System.
s/Monte Neil StewartMonte Neil Stewart