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THOMAS C. PERRY, ISB #7203 CALLY A. YOUNGER, ISB #8987 Counsel to the Governor Office of the Governor P.O. Box 83720 Boise, ID 83720-0034 Telephone: (208) 334-2100 Facsimile: (208) 334-3454 Attorneys for Defendant Governor C.L. Butch Otter IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO ) ) ) ) ) ) Plaintiffs, ) ) vs. ) ) C.L. (BUTCH) OTTER, as Governor of the State ) of Idaho, in his official capacity, and ) CHRISTOPHER RICH, as Recorder of Ada ) County, Idaho, in his official capacity, ) ) Defendants, ) ) ) and ) STATE OF IDAHO, ) ) Defendant-Intervenor. ) SUSAN LATTA and TRACI EHLERS, LORI WATSEN and SHARENE WATSEN, SHELIA ROBERTSON and ANDREA ALTMAYER, AMBER BEIERLE and RACHAEL ROBERTSON,

Case No. 1:13-cv-00482-CWD DEFENDANT GOVERNOR OTTERS REPLY IN SUPPORT OF HIS MOTION FOR SUMMARY JUDGMENT (Dkt. No. 57)

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TABLE OF CONTENTS TABLE OF AUTHORITIES ......................................................................................................ii-iv INTRODUCTION .......................................................................................................................... 1 ARGUMENT 1. The Plaintiffs do not contest the social realities that sustain Idahos man-woman marriage institution ............................................................................................................. 2 2. Plaintiffs ignore the law governing this Courts choice between robustly supported but conflicting legislative facts. ................................................................................................ 4 3. The Plaintiffs social science addresses the wrong question and, in any event, is robustly contested ............................................................................................................... 7 4. Plaintiffs substantive due process/fundamental right argument ignores both (i) the factual reality that the man-woman marriage institution and a genderless marriage regime are profoundly different and (ii) the legal requirements of Glucksberg for recognition of a fundamental right in this case ............................................................................................. 8 5. Plaintiffs argument that Windsor refuses to allow the most important and consequential of Idahos two important child-welfare endeavors is erroneous ................ 11 6. Plaintiffs misread SmithKline ...................................................................................... 12 7. Plaintiffs misread Dandridge and are wrong about scarcity. ................................... 14 8. Plaintiffs argument about sex discrimination and Loving are clearly wrong ............. 14 9. Plaintiffs err in arguing that the public policy exception of the Full Faith and Credit Clause must be independently justified under the Fourteenth Amendment ..................... 15 10. Plaintiffs fail to show that Idahos Marriage Laws do not advance the important purposes of preserving religious liberties, avoiding civic strife, and assuring a broad social consensus regarding marriage ................................................................................ 16 11. Plaintiffs analysis of Baker v. Nelson is fatally flawed ............................................ 20 CONCLUSION ............................................................................................................................. 20

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TABLE OF AUTHORITIES Cases Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) ................................................................................................................ 13 Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971) ................................................................................................ 10 Bd. Educ. Westside Cnty. Schs. (Dist. 66) v. Mergens, 496 U.S. 226 (1990) ................................................................................................................ 16 Dandridge v. Williams, 397 U.S. 471 (1970) ................................................................................................................ 14 FCC v. Beach Commcns, Inc., 508 U.S. 307 (1993) .................................................................................................................. 4 Grutter v. Bollinger, 539 U.S. 306 (2003) .................................................................................................................. 5 In re Fonberg, 736 F.3d 901 (9th Cir. Jud. Council 2013) ............................................................................. 15 James v. Valtierra, 402 U.S. 137 (1971) ................................................................................................................ 10 Kitchen v. Herbert, 961 F. Supp. 2d 1181 (D. Utah 2013) ..................................................................................... 10 Loving v. Virginia, 388 U.S. 1 (1967) .................................................................................................................... 14 Michael M. v. Superior Court of Sonoma Cnty., 450 U.S. 464 (1981) ................................................................................................................ 13 Romer v. Evans, 517 U.S. 620 (1976) ................................................................................................................ 10 Rotsker v. Goldberg, 453 U.S. 57 (1981) .................................................................................................................. 14 SmithKline Beecham Corp. v. Abbot Labs., 740 F.3d 471 (9th Cir. 2014) ................................................................................................. 12

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Trop v. Dulles, 356 U.S. 86 (1958) .................................................................................................................. 11 Truax v. Corrigan, 257 U.S. 312, 357 (1920) ........................................................................................................ 19 United States v. Virginia, 518 U.S. 515 (1996) ................................................................................................................ 15 United States v. Windsor, 133 S. Ct. 2675 (2013) ...................................................................................................... passim Washington v. Glucksberg, 521 U.S. 702 (1997) ............................................................................................................ 9, 11 Zablocki v. Redhail, 434 U.S. 374 (1978) .......................................................................................................... 10, 19

Constitutions U.S. Const. amend. I .................................................................................................................... 16

Other Authorities Daniel Avila, Same-Sex Adoption in Massachusetts, the Catholic Church, and the Good of the Children: The Story Behind the Controversy and the Case for Conscientious Refusals 27 Childrens Legal Rights J. 1 (2007) ........................................................................................ 17 Douglas W. Allen et al., Nontraditional Families and Childhood Progress Through School: A Comment on Rosenfeld, 50 Demography 955 (2013), available at http://link.springer.com/article/ 10.1007/s13524-012-0169-x/fulltext.html ............................. 7 Emily Esfahani Smith, Washington, Gay Marriage and the Catholic Church, Wall Street Journal (Jan. 9, 2010), http://online.wsj.com/article/ SB10001424052748703478704574612451567822852.html .................................................. 17 John Rawls, Political Liberalism 13 (1995) .................................................................................. 7 John Rawls, The Idea of Public Reason Revisited, 64 U. Chi. L. Rev. 765 (1997) ....................... 7 Michelle Borostein, Citing Same-Sex Marriage Bill, Washington Archdiocese Ends Foster-Care Program, Washington Post (Feb. 17, 2010), http://www.washingtonpost.com/wpdyn/content/article/2010/02/16/AR2010021604899.html ...................................................... 17

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Richard E. Redding, Likes Attract: The Sociopolitical Groupthink of (Social) Psychologists, 7 Perspectives on Psychological Science 512 (2012), available at http://lesacreduprintemps19.files.wordpress.com/2012/09/like-attracts.pdf ............................ 7 Richard E. Redding, Politicized Science, 50 Socy 439 (2013), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2344433 ................................................. 7 Same-Sex Marriage and Religious Liberty: Emerging Conflicts (Douglas Laycock et al. eds., 2008) ....................................................................................................................................... 17 Yoel Inbar & Joris Lammers, Political Diversity in Social and Personality Psychology, 7 Perspectives on Psychological Science 496 (2012), available at http://yoelinbar.net/papers/ political_diversity.pdf ............................................................................................................... 7

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INTRODUCTION The Plaintiffs Memorandum in Opposition to Defendant Governor Otters Motion for Summary Judgment (PMO) (Dkt. No. 76) ignores the reality that this case is a contest between two mutually exclusive and profoundly different social institutions: the man-woman marriage institution versus a genderless marriage regime. This Court will either allow Idaho to preserve the former or mandate the extraordinary remedy of imposing a genderless marriage regime. There is no other choice. If allowed to still exist, Idahos man-woman marriage institution will continue to provide valuable benefits to the citizens of this State because its unique meanings teach, form, and transform individuals and guide their conduct. By what it communicates and by how it guides, more children will know and be reared by their own mothers and fathers or, at least, will have the benefit of gender-complementarity in their upbringing; more children will be spared the ills of fatherlessness and motherlessness; and more adults will be influenced towards a more childcentered view of marriage and away from a view that sees adult desires and choices as paramount. Governor Otter has so demonstrated with robustly supported legislative facts. By what it communicates and how it guides, a genderless marriage regime will do just the opposite. Idahos sufficiently good reasons for choosing man-woman marriage reside in these social institutional realities that Plaintiffs ignore. Plaintiffs fail to grapple with the arguments based on social institutional factspretending those realities do not exist. Instead, Plaintiffs distort and mischaracterize the Governors arguments, setting up strawmen and trying to knock them down. By taking that course, Plaintiffs leave uncontested the social realities that are

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sufficient to sustain Idahos marriage laws (Marriage Laws), regardless of the level of judicial scrutiny. Accordingly, summary judgment must issue in Governor Otters favor. ARGUMENT 1. The Plaintiffs do not contest the social realities that sustain Idahos man-woman marriage institution. Plaintiffs do not contest the following social realities: 1 Marriage is a vital social institution, which, like all fundamental social institutions, consists of a web of widely shared public meanings. One of the core meanings of Idahos marriage institution has always been the union of a man and a woman. Because institutionalized, the core man-woman meaning powerfully communicates to all Idahoans a particular cluster of norms, ideals, identities, and ways of behaving. Thus, like all fundamental social institutions, Idahos marriage institution subtly but effectively guides, forms, and transforms people and their behaviors in ways beneficial to society, especially to children. In the language of the social sciences, it provides valuable and unique social goods or social benefits. The man-woman meaning recognizes and values the roles of father and mother and communicates that a child ought to know and be reared by her own mother and father or, at least, have the benefits of gender-complementarity in her upbringing. That meaning thus operates as an influential social force against the ills of fatherlessness and motherlessness.

These social realities are demonstrated throughout the Governors Memorandum in Support of Motion for Summary Judgment (Dkt. No. 57-2) and its accompanying Appendix (Dkt. Nos. 57-3 through 57-12), in the Governors Response in Opposition to Plaintiffs Motion for Summary Judgment (Dkt. No. 81), and in the Brief of Amici Curiae Professors Alan J. Hawkins and Jason S. Carroll included in the Governors Supplemental Appendix at 3778 (Dkt. No. 81-1). 2

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For the Plaintiffs to be married in Idaho (regardless of where the ceremony takes place), the law must suppress Idahos man-woman marriage institution and replace it with a profoundly different social regime, genderless marriage, the core meaning of which is the union of two persons without regard to gender. The law has the power to do that, although it does not have the power to usher same-sex couples into the manwoman marriage institution. Once the law mandates genderless marriage, genderless marriage will be what marriage is for all Idahoans, and no Idahoan can be legally married in this State except by participating in the new genderless marriage regime because a society can have (and its law can support) only one social institution denominated marriage.

Genderless marriage cannot recognize in law the value of gender-complementarity in parents and thereby must devalue the roles of father and mother. Backed by the force of law, it teaches that whether a child knows and is reared by her own mother and father really does not matter and, further, that gender-complementarity in child-rearing is of no value. Making fathers or mothers optional, genderless marriage communicates that society is foolish to view fatherlessness or motherlessness as something that ought to be avoided. And each married same-sex couple with children is the tangible and visible embodiment of the laws powerful message to that effect.

The ethos of a genderless marriage regime influences towards a more adult-centric view of marriage, valorizing primarily adult desires and choices, whereas the ethos of the manwoman marriage institution influences towards a more child-centric view of marriage, with emphasis on the needs of children and how those needs are best met by fulfillment of obligations of permanence and fidelity even when in tension with adult longings.

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The man-woman marriage institution has operated in harmony with religion and thereby has been supportive of the religious liberties of people of faith and conscience and the religious liberties of their faith communities, while a genderless marriage regime would operate in ways inimical to those liberties.

Profound differences separate the man-woman marriage institution from a genderless marriage regime in their ethos, messages, and effects. Because Idahos man-woman marriage institution provides valuable social benefits to this

States society and particularly to its children now and for generations to come, and because a genderless regime will not provide those benefits but rather will work in opposition to them, Idahos Marriage Laws well serve compelling societal interests that withstand Plaintiffs constitutional challenge. Plaintiffs have not refuted the social institutional realities supporting that conclusion. Accordingly, the law requires summary judgment in favor of Governor Otter. 2. Plaintiffs ignore the law governing this Courts choice between robustly supported but conflicting legislative facts. Regardless of the level of review, when parties present well-supported but competing legislative facts, courts defer to those chosen by the government decision-maker. Defendant Governor Otters Memorandum in Support of Motion for Summary Judgment (Governors Mem.) at 1621 (Dkt. No. 57-2). Plaintiffs attempts to counter that position fall short. Plaintiffs concede that legislative facts are not subject to courtroom fact-finding, see, e.g., FCC v. Beach Commcns, Inc., 508 U.S. 307, 315 (1993), and at least implicitly acknowledge that opposing parties can and do present well-supported but opposing legislative facts. PMO at 59. However, Plaintiffs do not answer how a court, in such a situation, is to choose between robustly supported but conflicting legislative facts.

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Governing law requires the court to conduct its constitutional analysis on the basis of the robustly supported legislative facts chosen by the government-decision maker. Governors Mem. at 1621. That is not to say that the court must defer to legislative facts that are not adequately supported. And that is not to say that the courts constitutional analysis must lead to a holding in favor of the governments position if the government decision-makers chosen legislative facts are adequately supported. It is rather to say that the analysis will begin with the government decision-makers choice between adequately supported but opposing legislative facts. After all, the courts analysis must begin on some factual basis, that is, on the basis of one choice or the other between the opposing legislative facts. Plaintiffs never plainly state what the governing law is in such a situation. Instead, they obfuscate and misstate Governor Otters position, maintaining that the Governor is arguing that this Court must accept inadequately supported legislative facts or, having chosen the Governors adequately supported facts, must abdicate its duty to engage in constitutional analysis. That is plainly not the Governors position. In the same vein, Plaintiffs assert that the Governor has not identified which legislative facts he is relying onwhich is plainly not true. The bullet points in the previous section repeat the legislative facts that Governor Otter has used repeatedly as the basis for his legal arguments. Grutter v. Bollinger, 539 U.S. 306 (2003), clearly demonstrates how constitutional analysis should proceed based on the government decision-makers choice of adequately supported legislative facts in the face of contrary legislative facts. Governors Mem. at 2021. Plaintiffs try to limit Grutter to its facts, saying it applies only in instances of educational autonomy. PMO at 89. However, nothing in Grutter supports such a limitation. Plaintiffs suggest no reason why the States authority over marriage within their respective borders, so

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vigorously championed by the Supreme Court in Windsor, should be treated less carefully than the educational autonomy used to implement race-based classifications on the admissions process. Grutter recognizes and applies the governing law, just as this Court should. Plaintiffs argue that the real constitutional harms that Plaintiffs and their children are facing now as a result of their exclusion from marriage preclude this Court from basing its analysis on the legislative facts repeatedly emphasized by Governor Otter. PMO at 58. But that argument is circular; it presumes from the start that there are constitutional harms, which makes it easy to get to the conclusion that there are constitutional harms. There are no constitutional harms if there is no constitutional right to same-sex marriage, and there is no constitutional right to same-sex marriage if Idaho has sufficiently good reasons for preserving the man-woman marriage institution. In determining whether there are sufficiently good reasons, this Court has to begin its constitutional analysis on the basis of some legislative facts, and Grutter and other decisions cited by the Governor teach that the analysis must begin with the well-supported legislative facts chosen by the government decision-maker. Plaintiffs also argue that this Court must disregard Governor Otters explanation of the actual intent and effect of Idahos Marriage Laws, PMO at 5, when that explanation is robustly supported: the actual intent of Idahos Marriage Laws is to preserve the States vital social institution of man-woman marriage and its effect is to preserve against loss the man-woman meanings valuable social benefits. Stripped of all obfuscation, Plaintiffs approach is a plea for the Court to choose legislative facts congenial to their personal policy preferences and in harmony with their

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personal worldviews and comprehensive doctrines. 2 Plaintiffs hope that such an approach will lead to rejection of the legislative facts grounding the Governors arguments for summary judgment. But their plea is contrary to settled law. 3. The Plaintiffs social science addresses the wrong question and, in any event, is robustly contested. Plaintiffs have not contested that the man-woman marriage institution communicates and influences people generally in ways that (1) increase the likelihood that children generally will know and be reared by their own mothers and fathers or, at least, have the benefit of gendercomplementarity in their upbringing and (2) decrease the likelihood that children generally will suffer the ills of fatherlessness and motherlesswhile a genderless marriage regime does the opposite. Common sense and a mountain of social science data support the understanding that the man-woman marriage institution provides genuinely valuable social benefits that are good for children generally. See, e.g., Governors Mem. at 3148; Governors Supplemental Appendix (Governors Supp. App.) at 3778 (Dkt. No. 81-1). 3 None of the Plaintiffs proffered social science negates these facts. Nowhere in Plaintiffs briefing or supporting materials does one find an opinion by a qualified social scientist refuting these social institutional realities, including the reality that a genderless marriage regime

See John Rawls, Political Liberalism 13 (1995); see also John Rawls, The Idea of Public Reason Revisited, 64 U. Chi. L. Rev. 765 (1997). 3 See also Douglas W. Allen et al., Nontraditional Families and Childhood Progress Through School: A Comment on Rosenfeld, 50 Demography 955 (2013), available at http://link.springer.com/article/10.1007/s13524-012-0169-x/fulltext.html; Yoel Inbar & Joris Lammers, Political Diversity in Social and Personality Psychology, 7 Perspectives on Psychological Science 496 (2012), available at http://yoelinbar.net/papers/political_diversity.pdf; Richard E. Redding, Likes Attract: The Sociopolitical Groupthink of (Social) Psychologists, 7 Perspectives on Psychological Science 512 (2012), available at http://lesacreduprintemps19.files.wordpress.com/2012/09/likeattracts.pdf; Richard E. Redding, Politicized Science, 50 Socy 439 (2013), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2344433. 7

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will influence society away from the value of mother and of father and away from the value of gender-complementarity. Rather, the Plaintiffs proffered social science goes to the notion that the child-rearing outcomes for certain same-sex couples are as good as the outcomes for certain married man-woman couples. But Governor Otter does not deny the desires, intentions, or abilities of stable, committed same-sex couples relative to the children connected to their relationships. Rather, he makes clear the undeniable reality that, relative to the value of motherhood and fatherhood and gender-complementarity and the ills of fatherlessness and motherless, the man-woman marriage institution effectively influences society in one direction while a genderless marriage regime influences society in the opposite direction. That reality is the unassailable foundation for the compelling interests sustaining Idahos Marriage Laws against all constitutional attack, regardless of the level of judicial scrutiny applied. Plaintiffs proffered social science is an attempt to answer the wrong question. Moreover, it is robustly contested by other qualified social scientists. See, e.g., Governors Mem. at 3148; Governors Supp. App. at 136 (Professors of Social Science amicus brief) and 3778 (Professors Hawkins and Carroll amicus brief). 4. Plaintiffs substantive due process/fundamental right argument ignores both (i) the factual reality that the man-woman marriage institution and a genderless marriage regime are profoundly different and (ii) the legal requirements of Glucksberg for recognition of a fundamental right in this case. Plaintiffs are mistaken that the right of a same-sex couple to marry is the same legal construct as the long-recognized right of a man and a woman to marry because there is really no difference between participation in the man-woman marriage institution and participation in a genderless marriage regime. See Defendant Governor Otters Response in Opposition to Plaintiffs Motion for Summary Judgment (Governors Resp.) at 2526 (Dkt. No. 81). Those

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two institutions are not one and the same. They are mutually exclusive and profoundly different, and that reality fully defeats the Plaintiffs substantive due process/fundamental right argument. Furthermore, Washington v. Glucksberg, 521 U.S. 702 (1997), and other Supreme Court decisions addressing the right to man-woman marriage fully defeat Plaintiffs claim that they have a new fundamental right to marry a partner of the same gender. Governors Mem. at 21 24. And it does not wash to say that Governor Otter is claiming that the scope of a fundamental right may be restricted only to certain historically favored groups. PMO at 11. He has never claimed that but rather has demonstrated, with powerful proofs from social institutional studies, that the man-woman marriage institution (entry into which is constitutionally protected) and a genderless marriage regime are mutually exclusive and profoundly different. That demonstration coupled with an honest adherence to Glucksberg fully defeat Plaintiffs substantive due process claim. Equally flawed is Plaintiffs argument that Idahos Marriage Laws qualify as a discrimination[] of an unusual character. United States v. Windsor, 133 S. Ct. 2675, 2692 (2013). No category of laws could be more ordinary than Idahos laws defining marriage. Windsor implicitly acknowledged the ordinariness of such laws by conceding that marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization. Id. at 2689. In striking down section 3 of DOMA, the Court powerfully reaffirmed the States historic and essential authority to define the marital relation. Id. at 2692. Far from casting doubt on laws like Idahos, Windsor expressly reserved the question whether the States, in the exercise of their historic and essential authority to define the marital relation, . . . may continue to utilize the traditional definition of marriage. Id. at 2696 (Roberts, C.J., dissenting) (internal

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quotation omitted); see also id. (This opinion and its holding are confined to . . . lawful marriages between people of the same sex.) (majority opinion). That Idaho law exclude[s] an entire class of citizens from the protections and obligations of marriage, PMO at 15, hardly decides the question left open by Windsor. After all, it has long been the fact that [s]tate regulation has included bans on incest, bigamy, and homosexuality, as well as various preconditions to marriage, such as blood tests. Zablocki v. Redhail, 434 U.S. 374, 399 (1978) (Powell, J., concurring). Romer v. Evans offers even less support for the effort to reframe Idahos laws as unusual, seeing that laws defining marriage between a man and a woman are clearly not a classification unprecedented in our jurisprudence. 517 U.S. 620, 633 (1996). Plaintiffs suggestion that there is something sinister in Idahoans democratic choice to reject same-sex marriage, PMO at 15, is entirely undeserved. Provisions for referendums demonstrate devotion to democracy, not to bias, discrimination, or prejudice. James v. Valtierra, 402 U.S. 137, 141 (1971). Further stretching the bounds of credibilty, Plaintiffs insist that extending the fundamental right to marry to same-sex couples will not change constitutional law. Quoting a recent federal district court decision, they say that it is not the Constitution that has changed, but the knowledge of what it means to be gay or lesbian. PMO at 12 (quoting Kitchen v. Herbert, 961 F. Supp. 2d 1181, 1203 (D. Utah 2013)). But the notion that American society was previously oblivious to any possibility other than that a person could only share an intimate emotional bond and develop a family with a person of the opposite sex, Kitchen, 961 F. Supp. 2d at 1203, is contradicted by Baker v. Nelson itself. At least since 1972, when Baker was decided, we have known with clarity that some homosexuals want to marry. See Baker v. Nelson, 191 N.W.2d 185, 18587 (Minn. 1971). Moreover, Plaintiffs suggestion that the right

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to marry should be extended to same-sex couples based on shifting public opinion confuses the Eighth Amendments standard of evolving standards of decency, Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion), with the legal standard governing the already controversial exercise of substantive due process. In that area the Supreme Court has underscored that [o]ur Nations history, legal traditions, and practices thus provide the crucial guideposts for responsible decisionmaking, that direct and restrain our exposition of the Due Process Clause. Glucksberg, 521 U.S. at 721 (internal quotation omitted). Plaintiffs substantive due process/fundamental right argument is without merit. 5. Plaintiffs argument that Windsor refuses to allow the most important and consequential of Idahos two important child-welfare endeavors is erroneous. Idaho engages in two different child-welfare endeavors. Governors Resp. at 1819. One is providing various important benefits (education, health care, etc.) to children now living in Idaho, on an equal basis and without regard to family form. The other benefit is more important and consequential: seeking to maximize the number of children down through the generations who know and are reared by mother and father, who have the benefits of gender complementarity in their upbringing, and who are spared the woes of fatherlessness or motherlessness. Proponents of genderless marriage act as if societys only child-welfare endeavor is the first one, by ignoring the existence of the second one. Plaintiffs put a new spin on this old gambit, arguing that Windsor somehow limits a State to engaging only in the first child-welfare endeavor. They note (in distorted fashion) the Governors references to the second endeavor and then say: But when presented with similar hypothetical arguments from those defending [ DOMA] in Windsor, the Supreme Court focused on the need to protect existing families and existing children. PMO at 23 (emphasis in original). What the Supreme Court actually focused on was DOMAs disparate treatment 11

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between two classes of married existing families and their existing children. More importantly, Windsor never suggests that a State must abandon its second and most important child-welfare endeavorthereby depriving the great majority of children for generations to come of important social benefitsso as to achieve an abstract equality between all its existing children. 133 S. Ct. at 2696. 6. Plaintiffs misread SmithKline. Plaintiffs stubborn insistence on misstating and misapplying the equal protection standard dictated by SmithKline Beecham Corp. v. Abbott Laboratories, 740 F.3d 471 (9th Cir. 2014) is resolved by a careful reading of Windsor because the panel in SmithKline claimed to be doing nothing more than applying Windsors heightened scrutiny to the unique facts of that case. Id. at 483. Contrary to Plaintiffs argument, Windsor emphatically did not announce that laws that impose legal disadvantages on same-sex couples must be carefully scrutinized to determine whether their purpose and effect is to impose inequality on same-sex couples. PMO at 14. Windsor focused instead on whether DOMA came within the rule that discriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision. 133 S. Ct. at 2692 (emphasis added ) (internal quotations omitted). DOMA qualified as unusual, the Court held, because it depart[ed] from this history and tradition of reliance on state law to define marriage. Id. Only after identifying DOMAs unusual character did the Court proceedtwo sentences laterto address whether the resulting injury and indignity is a deprivation of an essential part of the liberty protected by the Fifth Amendment. Id. This logical progression demonstrates that DOMA warranted careful consideration only because the Court found it to be a discrimination[ ] of an unusual

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character. Id. It is therefore plaintiffs who have reverse[d] the Supreme Courts analytical process in Windsor. PMO at 14. Nothing in Windsorand thus nothing in SmithKline, which merely applied Windsors holding without purporting to break new legal groundremotely suggests that heightened scrutiny applies to distinctions based on sexual orientation absent unusual circumstances. For all the reasons explained in the Governors opening memorandum and response brief, Idahos Marriage Laws are anything but unusual. And Plaintiffs comparison between DOMA and Idaho law is foreclosed by Windsor itself, which expressly preserved the question whether the States, in the exercise of their historic and essential authority to define the marital relation . . . may continue to utilize the traditional definition of marriage. Windsor, 133 S. Ct. at 2696 (Roberts, C.J., dissenting) (internal quotation omitted); see also id. (This opinion and its holding are confined to . . . lawful marriages between people of the same sex) (majority opinion). In short, Windsor requires heightened scrutiny for unusual discriminations based on sexual orientation, such as the discrimination at issue in SmithKline, but it assuredly does not require heightened scrutiny for a common classification like Idahos age-old definition of marriage. In any event, Idahos marriage laws satisfy intermediate scrutiny. Application of heightened scrutiny does not automatically doom a law. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 237 (1995). Heightened scrutiny would demonstrate that the States interests in avoiding the deinstitutionalization of marriage and thus preserving the social benefits of manwoman marriage are at least as important as the governmental interests that have satisfied intermediate scrutiny before. See, e.g., Michael M. v. Superior Court of Sonoma Cnty., 450 U.S. 464, 470 (1981) (plurality opinion) (recognizing the prevention of illegitimate teenage pregnancies as a strong interest served by a state statute making statutory rape an offense for

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men but not women); Rotsker v. Goldberg, 453 U.S. 57, 70 (1981) (affirming the importance of the Governments interest in raising and supporting armies when upholding a statute requiring men but not women to register for the draft). Nor can there be serious doubt that laws maintaining the historic definition of marriage serve Idahos important interests in avoiding deinstitutionalization. 7. Plaintiffs misread Dandridge and are wrong about scarcity. Plaintiffs flatly misread Dandridge v. Williams, 397 U.S. 471 (1970), by asserting that it poses no bar to invalidating Idahos Marriage Laws on the specious ground that [m]arriage licenses are not a limited resource. PMO at 8 n.2. The Governor previously demonstrated the factual error in Plaintiffs discussion of scarcity. Governors Resp. at 10 n.21. The central point of Dandridge was that federal courts possess only limited power under the Fourteenth Amendment, not that the constitutional limits on federal judicial power apply only when the challenged classification involves the allocation of scarce resources. That is why, after surveying decades of equal protection precedent, the Dandridge Court concluded that the intractable economic, social, and even philosophical problems presented by public welfare assistance programs are not the business of this Court. 397 U.S. at 487. 8. Plaintiffs argument about sex discrimination and Loving are clearly wrong. Plaintiffs mistakenly assert that the Governor makes the same argument rejected in Loving v. Virginia by denying that Idaho marriage laws discriminate on the basis of gender. PMO at 16. Loving correctly rebuffed Virginias defense of its criminal penalty on interracial marriage, given that the similar punishment of white and Negro participants in the offense did not eliminate the racial classification of Virginia citizens. 388 U.S. 1, 10 (1967). In sharp contrast, Idaho Marriage Laws do not classify men and womena fact borne out by the absence

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of any of the hallmarks of gender discrimination. Idahos laws do not impose differential treatment or denial of opportunity on either men or women as a class; they do not imply generalizations about the different talents, capacities, or preferences of males and females; they specifically do not create or perpetuate the legal, social, and economic inferiority of women. United States v. Virginia, 518 U.S. 515, 53334 (1996). The Governor has fully rebutted the glib suggestion that Idahos time-honored definition of marriage discriminates on the basis of gender by generalizing about the sexual preferences of men and women. Governors Resp. at 2728. Idaho has not engaged in gender discrimination by retaining the man-woman marriage institution because that institution treats men and women as equals. 4 9. Plaintiffs err in arguing that the public policy exception of the Full Faith and Credit Clause must be independently justified under the Fourteenth Amendment. Idahos Marriage Laws comply with the Fourteenth Amendment. They also comply with the Full Faith and Credit Clause because they embody a genuine public policy of the State. Confronted with these realities, the Plaintiffs venture the novel and fundamentally flawed argument that the public-policy exception to the Full Faith and Credit Clause must be Plaintiffs suggestion that In re Fonberg, 736 F.3d 901 (9th Cir. Jud. Council 2013), supports their claim that Idahos Marriage Laws discriminate on the basis of sex is mistaken. PMO at 17 n.8. In Fonberg, the Ninth Circuit Judicial Council was performing an administrative function, with its own set of procedures separate and apart from the normal judicial process, in the narrow context of determining whether the United States Office of Personnel Managements decision to deny benefits to an employee of the District of Oregon and her same-sex domestic partner violated the District of Oregons Employment Dispute Resolution (EDR) Plan. Id. at 902. For the reasons explained above, the Judicial Council was wrong in suggesting that the denial of benefits was discrimination on the basis of sex. Furthermore, a decision of the Judicial Council in a narrow administrative context should have no precedential value in a civil action like this one, where (1) the challenged action is the enactment and enforcement of certain state statutes and constitutional provisions, rather than the denial of benefits by a federal agency and (2) the question presented is whether those state laws violate the federal Constitution, rather than a courts EDR Plan. Plaintiffs have cited no authority suggesting that EDR decisions have precedential value in cases like this. 15
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independently justified under the Fourteenth Amendment. That notion has no support in the case law and is contrary to settled principles of constitutional law. It is simply an unfounded attempt to federalize the marriage laws of all States by making them conform to the different marriage laws of just one State, under force of supposed federal constitutional law. Not logic, not federalism, not our constitutional structure, or any case law supports that attempt. No supposed federal constitutional right compels Idaho to recognize the foreign marriages of same-sex couples. Governors Resp. at 3640. 10. Plaintiffs fail to show that Idahos Marriage Laws do not advance the important purposes of preserving religious liberties, avoiding civic strife, and assuring a broad social consensus regarding marriage. Religious liberty is Americas first freedom, ranked so fundamental by the Founding generation that it was placed at the head of the Bill of Rights. See U.S. Const. amend. I. Plaintiffs give this hollow reassurance: Allowing same-sex couples to marry will not require any religious congregation to marry same-sex couples or otherwise alter its own beliefs or requirements regarding marriage by its members. PMO at 28. But a genderless marriage regime can avoid serious conflicts with religious liberties only by draining those liberties of all public significance and much of their personal value. The First Amendments guaranteed right to exercise ones religion would, in Plaintiffs view, consist only of the rights to believe what one wants and avoid state-ordered religious ceremonies in a church. Two centuries of American history and established Supreme Court doctrine deny that religious liberty can be so ungenerously constrained. [The Constitution] does not license government to treat religion and those who teach or practice it . . . as subversive of American ideals and therefore subject to unique disabilities. Bd. Educ. Westside Cnty. Schs. (Dist. 66) v. Mergens, 496 U.S. 226, 248 (1990) (internal quotation omitted).

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Governor Otter previously detailed several conflicts with religious liberty that imposing a genderless marriage regime will almost certainly create. Governors Mem. at 5053. There is no doubt that a judicial redefinition of marriage will accelerate and intensify religious conflictsby, for example, making it impossible for wedding photographers and bakers with religious scruples about same-sex unions to avoid religious conflicts simply by limiting their businesses to marriage ceremonies. Indeed, the adoption of same-sex marriagenot mere antidiscrimination lawshas already forced such organizations as Catholic Charities to shut down social service programs in several States that have adopted genderless marriage. 5 Plaintiffs attempt to dismiss such conflicts as a hypothetical concern, PMO at 29, cannot withstand the scholarly consensus that conflicts between same-sex marriage and religious liberty are inevitable. See generally Same-Sex Marriage and Religious Liberty: Emerging Conflicts (Douglas Laycock et al. eds., 2008). And it is no answer to say that [i]f actual infringements of religious liberty should occur, the courts are available to remedy them . . . . PMO at 29. The question before this Court is not whether the infringement of enumerated constitutional rights can be remedied, but whether the State of Idaho has pursued an important governmental interest by avoiding such conflicts in the first place. It surely has. Allowing Idaho to decide the contentious issue of same-sex marriage through orderly and lawful democratic processes carries a direct benefit for religious liberty by permitting appropriate exemptions and adjustments that an up-or-down judicial decision does not. For instance, every
5

See, e.g., Michelle Boorstein, Citing Same-Sex Marriage Bill, Washington Archdiocese Ends Foster-Care Program, Washington Post (Feb. 17, 2010), http://www.washingtonpost.com/wpdyn/content/article/2010/02/16/AR2010021604899.html; Emily Esfahani Smith, Washington, Gay Marriage and the Catholic Church, Wall Street Journal (Jan. 9, 2010), http://online.wsj.com/article/SB10001424052748703478704574612451567822852.html; Daniel Avila, Same-Sex Adoption in Massachusetts, the Catholic Church, and the Good of the Children: The Story Behind the Controversy and the Case for Conscientious Refusals 27 Childrens Legal Rights J. 1, 11 (2007). 17

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State that has enacted same-sex marriage through democratic means has included at least some protections for religious freedom. Massachusetts has not adopted similar protections, however, because the decision to impose same-sex marriage by judicial order deprived those concerned about its effect on religious freedom of any open legislative forum. And it is the lack of religious exemptions that ultimately forced Catholic Charities to close its adoption and foster care services in Massachusetts, while it has not had to do so in states that have adopted religious exemptions as part of their marriage redefinition. Plaintiffs fare no better in their response to the Governors concerns about social tensions and conflicts. Governors Mem. at 53. Labeling such concerns speculative and unfounded, Plaintiffs intone that opposition to equality or threats of violence or unrest by some citizens cannot justify depriving others of their constitutional rights. PMO at 27. That argument again repeats the circular argument that Plaintiffs are entitled to vindication of a constitutional right whose existence is exactly the issue in dispute. Plaintiffs offer no meaningful response to the risk that redefining marriage will spark serious public conflicts. Moreover, they assume that social support does not affect the ability of marriage to perform its vital functions. But experience and the information summarized in the Governors earlier briefing show that different forms of marriage lead to different social outcomes that either advance or harm Idahos child-centric interests in marriage. The broadest possible consensus about the definition of marriage is essential, both to marriages ability to advance those state interests and to avoiding divisive social conflict. Idaho thus has the highest interest in a definition of marriage that marshals the greatest degree of social support, including support from its diverse religious communities.

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The State would be irresponsible to ignore the deeply felt convictions of its faith communities. See, e.g., Truax v. Corrigan, 257 U.S. 312, 357 (1920) (Brandeis, J., dissenting) (Since government is not an exact science, prevailing public opinion concerning the evils and the remedy is among the important facts deserving consideration, particularly when the public conviction is both deep-seated and widespread . . . .). Religious communities and their members are unlikely to abandon their beliefs or teachings about man-woman marriage even if it is legally redefined in genderless terms. But if marriage were redefined, many faith communities might oppose any teaching about marriage in public schools, preferring to leave the entire issue to parents and private institutions. Or they might refuse on religious grounds to support statesponsored informational campaigns extoling the benefits of marriage generally. Or, more drastic still, they might call for the State to get out of the marriage business entirely and instead establish a civil union regime for all domestic relationsthereby risking the complete privatization of marriage and the consequent loss of its vital public purposes. Idaho cannot afford to ignore those risks. Plaintiffs references to civil rights era precedents are thoroughly misplaced. PMO at 27 & n.13. Plaintiffs have neither constitutional text nor history to support their novel claim to a genderless marriage regime. At bottom, Plaintiffs ask the Court to brush aside Idahos important interests in avoiding serious conflicts with other important segments of society and preserving the deepest possible social support for the States legal definition of marriage. See Zablocki, 434 U.S. at 399 (Powell, J., concurring) (The State, representing the collective expression of moral aspirations, has an undeniable interest in ensuring that its rules of domestic relations reflect the widely held values of its people.).

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Preservation of religious liberties, avoidance of civil strife, and assuring broad support for the vital social institution of marriage are compelling, powerful, and legitimate reasons for preserving the man-woman marriage institution. Under any level of judicial scrutiny, Plaintiffs do not have a constitutional right to impose a genderless marriage regime on this State. 11. Plaintiffs analysis of Baker v. Nelson is fatally flawed. Plaintiffs try to evade the precedential force of Baker v. Nelson in this case. PMO at 35. The Governors earlier briefing shows why Plaintiffs attempt is unavailing. Governors Mem. at 1115; Governors Resp. at 2831. That Supreme Court decision is binding on this lower court and defeats all of Plaintiffs claims. CONCLUSION Governor Otter respectfully requests that this Court enter summary judgment in his favor and against the Plaintiffs claims and dismiss this civil action in its entirety. DATED: April 4, 2014

By

/s/ Thomas C. Perry THOMAS C. PERRY Counsel to the Governor

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on April 4, 2014, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which caused the following parties or counsel to be served by electronic means, as more fully reflected on the Notice of Electronic Filing: Deborah A. Ferguson d@fergusonlawmediation.com Craig Harrison Durham craig@chdlawoffice.com Shannon P. Minter sminter@nclrights.org Christopher F. Stoll cstoll@nclrights.org W. Scott Zanzig scott.zanzig@ag.idaho.gov Clay R. Smith clay.smith@ag.idaho.gov

/s/ Thomas C. Perry THOMAS C. PERRY Counsel to the Governor

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