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Case 3:13-cv-24068 Document 155 Filed 01/16/15 Page 1 of 42 PageID #: 4986

IN THE UNITED STATES DISTRICT COURT FOR


THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION

CASIE JO MCGEE and SARA ELIZABETH


ADKINS; JUSTIN MURDOCK and WILLIAM
GLAVARIS; and NANCY ELIZABETH
MICHAEL and JANE LOUISE FENTON,
Individually and as next friends of A.S.M.,
minor child,
Plaintiffs,
v.

Civil Action No. 3:13-24068

KAREN S. COLE, in her official capacity as


CABELL COUNTY CLERK; and VERA J.
MCCORMICK, in her official capacity as
KANAWHA COUNTY CLERK,
Defendants,
and
STATE OF WEST VIRGINIA,
Defendant-Intervenor.
THE STATE OF WEST VIRGINIAS RESPONSE TO
PLAINTIFFS MOTION FOR ATTORNEYS FEES, EXPENSES, AND COSTS
ORAL ARGUMENT REQUESTED

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TABLE OF CONTENTS
TABLE OF CONTENTS ................................................................................................................. i
TABLE OF AUTHORITIES ......................................................................................................... iii
TABLE OF EXHIBITS ................................................................................................................ vii
INTRODUCTION .......................................................................................................................... 1
BACKGROUND ............................................................................................................................ 2
I. The State Intervened Under 28 U.S.C. 2403(b) For The Limited Purpose Of Arguing
The Constitutionality Of Its Statutes While Reserving Sovereign Immunity............................. 2
The Court Dismissed Plaintiffs Non-Recognition Claim For Lack Of Standing. ............. 3

II.

III. Plaintiffs Agreed That The State, As A Limited Intervenor, Did Not Waive Its
Sovereign Immunity And Would Be Liable Only For Certain Court Costs. .......................... 4
IV.
V.

This Court Entered Judgment Against The Two County Clerks. .................................... 5
Plaintiffs Now Seek A Fee Award. ..................................................................................... 6

SUMMARY OF ARGUMENT ...................................................................................................... 6


ARGUMENT .................................................................................................................................. 8
THE STATE IS IMMUNE FROM ANY LIABILITY FOR ATTORNEYS FEES. ........ 8

I.
A.

Section 1988 Does Not Abrogate The States Immunity From Attorneys Fees. ........ 9

B.

The State Did Not Waive Its Immunity To Fees. ....................................................... 11

C.

Plaintiffs Did Not Sue Any State Officials. ................................................................ 14

II. EVEN IF THE STATE IS NOT IMMUNE, NO FEES SHOULD BE RECOVERED


FROM THE STATE. ................................................................................................................ 19
III. IF AN AWARD OF FEES IS APPROPRIATE, THIS COURT MUST REDUCE THE
AMOUNT. ................................................................................................................................ 21
A.

This Court Must Subtract Hours Unreasonably Expended Due To Overstaffing. ..... 21
1.

Eleven Attorneys Was Unnecessary Overstaffing. ................................................. 22

2.

Any Hours Recoverable Should Be Limited To Non-Duplicative Work. .............. 24

3.
The Hours Billed Were Excessive In Light Of Similar Arguments Researched And
Asserted In Other Cases. ................................................................................................... 25
4.

Time Spent On Public Relations Is Non-Recoverable. ........................................... 26

5.

Certain Billing Entries Are Too Vague To Meet The Burden Of Proof. ................ 26

B.
Under Section 1988, Plaintiffs Counsel May Only Be Reimbursed At Local
Prevailing Rates. ................................................................................................................... 27
C.
This Court Should Subtract The Fees Attributable To Plaintiffs Unsuccessful
Challenge To The Non-Recognition Statute. ........................................................................ 29
D.
The Requested Fees Are Unreasonable In Light Of The Fees Awarded In Similar
Cases Across The Country. ................................................................................................... 29
i

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CONCLUSION ............................................................................................................................. 30
CERTIFICATE OF SERVICE ..................................................................................................... 32

ii

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TABLE OF AUTHORITIES

Cases
A Helping Hand, LLC v. Baltimore Cnty., MD,
515 F.3d 356 (4th Cir. 2008) ...................................................................................................... 9
Alyeska Pipeline Serv. Co. v. Wilderness Soc'y,
421 U.S. 240 (1975) .................................................................................................................. 14
Arizonans for Official English v. Arizona,
520 U.S. 43 (1997) ................................................................................................................ 3, 12
Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy,
548 U.S. 291 (2006) .................................................................................................................. 14
B.E. v. Mount Hope High Sch.,
No. 2:11-CV-00679, 2012 WL 3580091 (S.D.W. Va. Aug. 17, 2012) .............................. 1112
Beers v. State,
61 U.S. 527 (1857) .................................................................................................................... 11
Blum v. Stenson,
465 U.S. 886 (1984) ............................................................................................................ 20, 27
Bockes v. Fields,
999 F.2d 788 (4th Cir. 1993) .................................................................................................... 18
Boggs v. Bd. of Ed. of Clay Cnty.,
161 W. Va. 471, 244 S.E.2d 799 (1978) ................................................................................... 17
Bourke v. Beshear,
No 14-574, 2015 WL 213651 (U.S. Jan. 16, 2015) .................................................................. 20
Clark v. Dunn,
195 W. Va. 272, 465 S.E.2d 374 (1995) ................................................................................... 11
Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd.,
527 U.S. 666 (1999) .............................................................................................................. 8, 11
Comfort ex rel. Neumyer v. Lynn School Committee,
131 F. Supp. 2d 253 (D. Mass. 2001) ....................................................................................... 13
Conde-Vidal v. Garcia-Padilla,
2014 WL 5361987 (D.P.R. Oct. 21, 2014) ............................................................................... 20
Crawford Fitting Co. v. J.T. Gibbons, Inc.,
482 U.S. 437 (1987) .................................................................................................................. 14
Daly v. Hill,
790 F.2d 1071 (4th Cir.1986) ................................................................................................... 26
Deboer v. Snyder,
772 F.3d 388 (6th Cir. 2014) .................................................................................................... 20
DeBoer v. Snyder,
No. 14-571, 2015 WL 213650 (U.S. Jan. 16, 2015) ................................................................. 20
Dellmuth v. Muth,
491 U.S. 223 (1989) .................................................................................................................... 9
Echols v. Parker,
909 F.2d 795 (5th Cir. 1990) .................................................................................................... 18
Ex parte Young,
209 U.S. 123 (1908) .................................................................................................................... 8
iii

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Frew ex rel. Frew v. Hawkins,


540 U.S. 431 (2004) .............................................................................................................. 8, 15
Glosen v. Barnes,
724 F.2d 1418 (9th Cir. 1984) .................................................................................................. 10
Grendel's Den, Inc. v. Larkin,
749 F.2d 945 (1st Cir. 1984) ..................................................................................................... 17
H.J. Inc. v. Flygt Corp.,
925 F.2d 257 (8th Cir. 1991) .................................................................................................... 26
Hensley v. Eckerhart,
461 U.S. 424 (1983) ........................................................................................................... passim
Indep. Fed'n of Flight Attendants v. Zipes,
491 U.S. 754 (1989) .................................................................................................................. 19
Johnson v. City of Aiken,
278 F.3d 333 (4th Cir. 2002) .................................................................................................... 21
Kentucky v. Graham,
473 U.S. 159 (1985) ............................................................................................................ 10, 19
Koster v. Perales,
903 F.2d 131 (2d Cir. 1990)...................................................................................................... 18
Leroy v. City of Houston,
831 F.2d 576 (5th Cir. 1987) .................................................................................................... 27
Leroy v. City of Houston,
906 F.2d 1068 (5th Cir. 1990) .................................................................................................. 26
Los Angeles County v. Humphries,
562 U.S. 29 (2010) .................................................................................................................... 18
McGee v. Cole,
993 F. Supp. 2d 639 (S.D. W. Va. 2014) ............................................................................... 3, 5
McGee v. Cole,
2014 WL 5802665 (S.D. W. Va. Nov. 7, 2014) ................................................................ passim
Missouri v. Jenkins by Agei,
491 U.S. 274 (1989) .................................................................................................... 6, 9, 10, 15
Monell v. New York City Dept. of Social Servs.,
436 U.S. 658 (1978) .................................................................................................................. 18
Nash v. Chandler,
848 F.2d 567 (5th Cir. 1988) .................................................................................................... 13
Nat'l Wildlife Fed. v. Hanson,
859 F.2d 313 (4th Cir.1988) ............................................................................................... 2728
Obergefell v. Hodges,
No. 14-556, 2015 WL 213646 (U.S. Jan. 16, 2015) ................................................................. 20
Ohio Valley Contractors v. Bd. of Ed. of Wetzel Cnty.,
170 W. Va. 240, 293 S.E.2d 437 (1982) ................................................................................... 17
Pennhurst State Sch. & Hosp. v. Halderman,
465 U.S. 89 (1984) ...................................................................................................................... 8
People for Ethical Treatment of Animals v. Doughney,
263 F.3d 359 (4th Cir. 2001) .................................................................................................... 14
Plyler v. Evatt,
902 F.2d 273 (4th Cir. 1990) .................................................................................................... 28
iv

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Port Auth. Trans-Hudson Corp. v. Feeney,


495 U.S. 299 (1990) .............................................................................................................. 9, 11
Roadway Exp., Inc. v. Piper,
447 U.S. 752 (1980) .................................................................................................................. 14
Robicheaux v. Caldwell,
2 F. Supp. 3d 910 (E.D. La. 2014) ............................................................................................ 20
Robinson v. Equifax Info. Servs., LLC,
560 F.3d 235 (4th Cir. 2009) .............................................................................................. 2829
Rum Creek Coal Sales, Inc. v. Caperton,
31 F.3d 169 (4th Cir. 1994) .......................................................................................... 19, 2627
SEC v. Pirate Investor LLC,
580 F.3d 233 (4th Cir. 2009) ...................................................................................................... 9
Sossamon v. Texas,
131 S. Ct. 1651 (2011) .......................................................................................................... 9, 11
Stevens v. Gay,
864 F.2d 113 (11th Cir. 1989) .................................................................................................. 10
Supreme Court of Virginia v. Consumers Union of U.S., Inc.,
446 U.S. 719 (1980) ............................................................................................................ 1618
Tanco v. Haslam,
No. 14-562, 2015 WL 213648 (U.S. Jan. 16, 2015) ................................................................. 20
Tennessee v. Garner,
471 U.S. 1 (1985) ...................................................................................................................... 13
Turner v. D.C. Bd. of Elections & Ethics,
354 F.3d 890 (D.C. Cir. 2004) .................................................................................................. 18
Union Elec. Co. v. Mo. Dep't of Conservation,
366 F.3d 655 (8th Cir. 2004) .................................................................................................... 13
Va. Office for Prot. & Advocacy v. Stewart,
131 S. Ct. 1632 (2011) ................................................................................................................ 8
Venuti v. Riordan,
702 F.2d 6 (1st Cir. 1983) ......................................................................................................... 17
West Virginians for Life, Inc. v. Smith,
952 F. Supp. 342 (S.D. W. Va. 1996) ....................................................................................... 16
Will v. Mich. Dep't of State Police,
491 U.S. 58 (1989) .................................................................................................................... 10
Wyatt v. Cole,
928 F.2d 718 (5th Cir. 1991) .................................................................................................... 18
Statutes
28 U.S.C. 1920 ........................................................................................................................... 14
28 U.S.C. 2403 .................................................................................................................... passim
42 U.S.C. 1988 .................................................................................................................... passim
W. Va. Const. art. VI, 35 ........................................................................................................... 11
W. Va. Const. art. X, 6 ............................................................................................................... 17
W. Va. Code 29-12A-8 .............................................................................................................. 17
W.Va. Code 48-2-104(c)............................................................................................................ 29
West Virginia Code 48-2-603 ...................................................................................................... 3

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Rules
Fed. R. Civ. P. 5.1 ........................................................................................................................... 2
Fed. R. Civ. P. 24 ............................................................................................................................ 3
Other Authorities
Note, Federal Intervention in Private Actions Involving the Public Interest,
65 Harv. L. Rev. 319 (1951) ..................................................................................................... 14

vi

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TABLE OF EXHIBITS
Exhibit 1.

Chart Reflecting Duplicate Communications Charges

Exhibit 2.

Harris Plaintiffs Complaint (W.D. Va.)

Exhibit 3.

Harris Plaintiffs Memorandum On Summary Judgment (W.D. Va.)

Exhibit 4.

Chart With Breakdown Of Time Spent On Standing Opposition

Exhibit 5.

Chart Of Other Jurisdictions Fee Awards

Exhibit 6.

Request For Attorneys Fees In Alaska Federal Same-Sex Marriage Case

Exhibit 7.

Request For Attorneys Fees In Colorado Federal Same-Sex Marriage Case

Exhibit 8.

Request For Attorneys Fees In Idaho Federal Same-Sex Marriage Case

Exhibit 9.

Request For Attorneys Fees In Kentucky Federal Same-Sex Marriage Case

Exhibit 10.

Request For Attorneys Fees In Ohio Federal Same-Sex Marriage Case

Exhibit 11.

Request For Attorneys Fees In Oklahoma Federal Same-Sex Marriage Case

Exhibit 12.

Request For Attorneys Fees In Oregon Federal Same-Sex Marriage Case

Exhibit 13.

Request For Attorneys Fees In South Carolina Federal Same-Sex Marriage Case

Exhibit 14.

Request For Attorneys Fees In Utah Federal Same-Sex Marriage Case

Exhibit 15.

Request For Attorneys Fees In Virginia Federal Same-Sex Marriage Case

Exhibit 16.

Chart Summarizing Fees, Expenses, And Costs Billed For Public Relations And

Press Efforts

vii

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INTRODUCTION
Plaintiffs request for an award of attorneys fees and costsseeking an astounding
$350,256.19is deeply flawed. It seeks fees on behalf of eleven attorneys from three different
entities (a local law firm, a national law firm, and a national advocacy group) at rates as high as
$789 per hour for work that in some cases appears to have been already generated in other
contemporaneous lawsuits around the country on these very same issues. It requests nonrecoverable payment for work relating to media and public relations, bills for significantly
overlapping work, and fails to subtract fees related to Plaintiffs unsuccessful challenge to West
Virginias non-recognition statute.
Most important, conspicuously missing from Plaintiffs request is any discussion of the
States sovereign immunity.

As this Court well knows, a State is immune from any suit

(regardless of the relief sought) brought in federal courts by her own citizens as well as by
citizens of another state, unless certain exceptions apply. In this case, even Plaintiffs have
conceded that the State of West Virginia has properly and expressly preserved its immunity by
intervening in a limited capacity pursuant to 28 U.S.C. 2403(b).

And yet, their request

includes nary a mention of the States immunitynot a word even attempting to explain why
fees against the State could arguably be appropriate.
Plaintiffs silence is a telling acknowledgment. The Supreme Court has recognized only
three exceptions to a States immunity from fees, and none applies here. There is no federal
statute that clearly abrogates that immunity, nor is there an unequivocal waiver of immunity by
the State. And the third exceptionan award of fees ancillary to a grant of prospective relief
against a state officialis unavailable by Plaintiffs own deliberate choice not to join any state
officials. Even after the State asserted that it was necessary and appropriate to join state officials
to this suit, Plaintiffs resisted joinder and this Court agreed. While there may have been a lawful
1

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basis for shifting fees to the State had the State prevailed on its view of the case, there simply is
none now.
BACKGROUND
I.

The State Intervened Under 28 U.S.C. 2403(b) For The Limited Purpose Of
Arguing The Constitutionality Of Its Statutes While Reserving Sovereign Immunity.
Plaintiffs, who are several private citizens, brought this action under 42 U.S.C. 1983

and 1988 challenging the constitutionality of certain West Virginia marriage laws and seeking
declaratory and injunctive relief against two county officials. Doc. 8, Compl. at 1, 9, 1419,
2122 & at 2829. Because Plaintiffs drew into question the constitutionality of state statutes
without naming the State of West Virginia or any state agency, officer, or employee as
defendants, the Court was required to notify the State of this lawsuit. Fed. R. Civ. P. 5.1(a); Doc.
14. Once Plaintiffs notified the Court that no state official was present, this Court certified the
challenge under 28 U.S.C. 2403 to the state attorney general. Doc. 16.
Under 28 U.S.C. 2403(b), a State may intervene in any federal case in which the
constitutionality of a state statute is drawn in question and in which the State or any agency,
officer, or employee thereof is not a party. 28 U.S.C. 2403(b) (emphasis added); Fed. R. Civ.
P. 5.1. This intervention is limited to the presentation of evidence and argument on the
question of constitutionality. 28 U.S.C. 2403(b). Upon intervention, the State shall have all
the rights of a party but will only be subject to all liabilities of a party as to court costs to the
extent necessary for a proper presentation of the facts and law relating to the question of
constitutionality. Id.
On November 22, 2013, the State of West Virginia, through its Attorney General,
moved to intervene as of right under 28 U.S.C. 2403(b). Doc. 25 at 1, 3. Consistent with the

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statutory language, the State asserted that it sought to intervene for the sole and limited purpose
of defending the constitutionality of [its] statutes and expressly reserved its sovereign
immunity. Doc. 25 at 12. As the State noted at the time, the statute explicitly provides, and
the Supreme Court has recognized, that the States intervention does not waive its sovereign
immunity or subject to it liability for damages as a party defendant. Doc. 25 at 2 (citing
Arizonans for Official English v. Arizona, 520 U.S. 43, 70 n.25 (1997)). The State also noted
that as there are specific state entities that enforce or otherwise execute the statutes in question,
[it] d[id] not represent or concede that its presence alone is sufficient to accord Plaintiffs the
relief requested should they prevail. Id. at 3.
This Court granted the States motion to intervene under 28 U.S.C. 2403(b) on
December 2, 2013. Doc. 28; Doc. 56 at 4 (The State of West Virginia filed a motion to
intervene as a defendant, pursuant to 28 U.S.C. 2403(b) and Federal Rules of Civil Procedure
5.1(c) and 24(a), to defend the constitutionality of the marriage ban. The Court granted this
motion, allowing the State to proceed as an Intervenor Defendant.).
II.

The Court Dismissed Plaintiffs Non-Recognition Claim For Lack Of Standing.


Because Plaintiffs complaint included no allegations that supported standing to

challenge to the state statute prohibiting the recognition of out-of-state same-sex marriages, the
State moved to dismiss the complaint to the extent that it challenged that statute. Doc. 34. This
Court agreed and dismisse[d] from the case all claims that relate to West Virginia Code Section
48-2-603. 993 F. Supp. 2d 639, 657 (S.D. W. Va. 2014) (Doc. 56 at 27).

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III.

Plaintiffs Agreed That The State, As A Limited Intervenor, Did Not Waive Its
Sovereign Immunity And Would Be Liable Only For Certain Court Costs.
During the next stages of briefing, the State reiterated its sovereign immunity and

emphasized that its presence in this case is not an adequate substitute for absent state officials.
Doc. 25 at 23; Doc. 34 at 34; Doc. 49 at 3 & n.3; Doc. 65 at 12, 51, 60, 8384, & at 2021;
Doc. 68 at 18; Doc. 86 at 34, 1113; Doc. 92 at 46; Doc. 101 at n.1; Doc. 126 at 67; Doc. 128
at 2; Doc. 134 at 1, 35. In particular, the State raised as an affirmative defense in its Answer
that [s]overeign immunity under the Eleventh Amendment bars any judgment against the State,
including injunctive relief, declaratory relief, damages, attorneys fees, or costs under 42 U.S.C.
1988. Doc. 65 at 20. The State also contended that Plaintiffs failed to join the state officials
necessary to accord Plaintiffs the relief they seek. E.g., Doc. 68 at 1618.
Plaintiffs agreed that the State intervened not as a full defendant, but solely to defend its
laws constitutionality and with its sovereign immunity intact. In several filings, Plaintiffs
conceded that the State had not waived its sovereign immunity and that, accordingly, they did
not seek relief against the State. See Doc. 61 at 4 (intervention under Section 2403(b) does not
waive a States sovereign immunity for purposes of damages liability); Doc. 88 at 5 (arguing
that the States sovereign immunity is not implicated because they did not seek an injunction
against the State). Plaintiffs expressly acknowledged that under Section 2403, the State shall
be liable only for certain court costs. Id. at 4.
Plaintiffs nevertheless chose not to add any individual state officials as defendants. On
January 29, 2014, this Court specifically directed Plaintiffs to either seek joinder of . . .
additional parties or file a responsive pleading explaining . . . why joinder of additional parties

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is not necessary. 993 F. Supp. 2d at 658 (Doc. 56 at 1314). Plaintiffs responded by filing its
explanation for not joining any additional parties. Doc. 61 at 3.
IV.

This Court Entered Judgment Against The Two County Clerks.


On November 7, 2014, this Court entered judgment against the county clerks. McGee v.

Cole, 2014 WL 5802665, at *34, 10 (S.D. W. Va. Nov. 7, 2014) (Doc. 139). According to this
Court, the two clerks are the officials directly responsible for effectuating the marriage ban and
causing Plaintiffs alleged injury. Id. at *4 n.1. By refusing to issue licenses, this Court
explained, the clerks themselves directly took action that violated [Plaintiffs] rights under the
Fourteenth Amendment. Id. at *1. The clerks are the officials responsible for issuing licenses
in their respective counties, id. at *3, and therefore what the plaintiffs request is an injunction
requiring the county clerks to issue marriage licenses to same-sex couples, id. at *2.
At the same time, this Court rejected the States contention that Plaintiffs should have
joined certain state officials to the suit. No state officials, the Court explained, were necessary
to afford the plaintiffs injunctive relief. Id. at *4. Plaintiffs do not seek an injunction requiring
the State Registrar to change the marriage forms in West Virginia, it held, nor do they seek to
compel the Secretary of State to change the manner in which religious celebrants are authorized
to perform marriages in the State. Id. at *3. Plaintiffs injury here is directly traceable to the
defendants and the Court can thus afford the plaintiffs full relief with respect to Defendant
Clerks. Id. at *4.
The Courts judgment thus did not mention the State or any state officials, but rather
enjoined only the two clerks. It first declare[d] that West Virginia Code 482104(a) & (c)
and West Virginia Code 482401 are unconstitutional in so far as they prohibit same-sex
marriage. Then, the Court enjoin[ed] Defendant Clerks from enforcing West Virginia Code
5

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482104(a) & (c) and West Virginia Code 482401 to the extent that these statutes have
been declared unconstitutional, and from refusing to accept applications and issue marriage
licenses to same-sex couples on the same terms as opposite-sex couples under West Virginia
Code 482104(a) & (c) and West Virginia Code 482401. Id. at *10. Though it did not
enter any judgment directly against the State or any state officials, the Court did note that it
believed the declaratory judgment would preclude the State from relitigating the issue in
future proceedings. Id. at *5.
V.

Plaintiffs Now Seek A Fee Award.


Plaintiffs have now moved under Section 1988 for an award of $350,256.19 in attorneys

fees, costs, and expenses. Doc. 14546. The proposed fees include the work of eleven attorneys
from three different entities: a local law firm, a national advocacy group, and a national law firm.
Plaintiffs motion does not identify against whom they seek the award of feesthe defendant
clerks, the State, or bothnor does it address the effect of the States sovereign immunity on
their claim for fees.
SUMMARY OF ARGUMENT
At the threshold, Plaintiffs request fails with respect to the State because the State is
immune from any liability for attorneys fees. Plaintiffs cannot establish that any of the three
recognized exceptions that permit the award of attorneys fees against a State apply here. First,
there is no federal statute that clearly abrogates the States immunity to fees. Plaintiffs seek fees
under 42 U.S.C. 1988, but the Supreme Court has held that Section 1988 does not strip a State
of its immunity to fees. See Missouri v. Jenkins by Agei, 491 U.S. 274, 279 (1989). Second, the
State has not unequivocally waived its immunity to fees. The West Virginia Constitution does
not permit the waiver of sovereign immunity when the State is a defendant. And the federal
6

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statute pursuant to which the State intervened28 U.S.C. 2403(b)cannot be considered a


waiver of immunity for anything more than ordinary court costs. Third, although immunity does
not bar the recovery of fees from a State when a state official has been successfully sued in his or
her official capacity for prospective relief, there are no state officials in this suit. In fact, even
though the State repeatedly asserted that state officials were necessary to this case, this Court
rejected that argument and Plaintiffs made the deliberate choice not to join any state officials.
But even if this Court were to conclude that the State lacks immunity against attorneys
fees, it still should not impose a fee award against the State. Section 1988 only creates liability
for attorneys fees where a party is liable on the merits, and there has been no finding of merits
liability or injunction against the State. Moreover, Section 1988 authorizes only the award of
reasonable attorneys fees, and the evolving and still unsettled nature of the law in this area
suggests that the most appropriate award would be no award.
To the extent the Court makes an award of fees, however, it must be reduced. Under
settled case law, the court must eliminate from any award duplicative work caused by
overstaffing this case with eleven attorneys, as well as reduce the claimed hours to account for
many pleadings that reflected briefs drafted and submitted in other cases. The award should also
subtract time spent on media and public relations efforts, exclude vague time entries, and
discount time expended by attorneys who failed to provide sufficient affidavits. This Court
should also reduce the claimed hourly rate, and subtract any fees and expenses related to
Plaintiffs unsuccessful challenge to the States non-recognition provision. And finally, the
Court must evaluate the total award in light of awards in similar cases, which suggest that
Plaintiffs request is well above the norm.

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ARGUMENT
I.

THE STATE IS IMMUNE FROM ANY LIABILITY FOR ATTORNEYS FEES.


As a general rule, the Eleventh Amendment makes a State immune from suits brought in

federal courts by her own citizens as well as by citizens of another state. Pennhurst State Sch.
& Hosp. v. Halderman, 465 U.S. 89, 100 (1984). That immunity applies regardless of the
nature of the relief sought, id., though it is often and correctly understood as a bulwark for state
treasuries against the imposition of compensatory damages, attorneys fees, and even punitive
damages, Alden v. Maine, 527 U.S. 706 at 750 (1999). The Supreme Court has recognized
only two circumstances in which an individual may sue a State. Coll. Sav. Bank v. Fla. Prepaid
Postsecondary Educ. Expense Bd., 527 U.S. 666, 670 (1999). Congress may abrogate a States
sovereign immunity by exercising its power to enforce the Fourteenth Amendment, or a State
may waive its sovereign immunity by consenting to suit. Id.; see also Va. Office for Prot. &
Advocacy v. Stewart, 131 S. Ct. 1632, 1638 & n.2 (2011). A third exception does not technically
permit suits against a State, but it recognizes that the Eleventh Amendment does not bar suits
for prospective injunctive relief against state officials. Frew ex rel. Frew v. Hawkins, 540 U.S.
431, 437 (2004) (citing Ex parte Young, 209 U.S. 123 (1908)).
Plaintiffs have not and cannot establish that any of the three exceptions apply here to
permit an award of attorneys fees against the State of West Virginia. Under 42 U.S.C. 1988
the provision under which Plaintiffs seek feesthe fee applicant bears the burden of
establishing entitlement to an award. Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). But in

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their motion, Plaintiffs have made no effort to address the question of sovereign immunity.1 Nor
could they have, as shown in detail below.
A.

Section 1988 Does Not Abrogate The States Immunity From Attorneys
Fees.

When Congress abrogates state sovereign immunity under its power to enforce the
Fourteenth Amendment, it must do so with clear and unequivocal language in the statute. The
Supreme Court has specifically and repeatedly required a clear statement in the text of the
statute ensur[ing] that Congress has specifically considered state sovereign immunity and has
intentionally legislated on the matter. Sossamon v. Texas, 131 S. Ct. 1651, 1661 (2011). This is
a particularly strict standard. Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 305
(1990) (citations omitted). A statute that makes no reference whatsoever to either the Eleventh
Amendment or the States sovereign immunity, for example, lacks the requisite clarity.
Dellmuth v. Muth, 491 U.S. 223, 231 (1989).
Although indisputably an exercise of Congresss power to enforce the Fourteenth
Amendment, Section 1988 does not clearly abrogate state sovereign immunity for fees. As the
Supreme Court has explained, Congress could have set aside the States immunity under Section
1988 in the exercise of its enforcement power under 5 of the Fourteenth Amendment, but
the application of 1988 to the States did not depend on congressional abrogation of the
States immunity. Missouri v. Jenkins by Agyei, 491 U.S. 274, 279 (1989) (emphasis added).
The Supreme Court has concluded that Section 1988 only permits the award of fees against a
1

By failing to address this issue, Plaintiffs have waived any argument that the State should be
liable for attorneys fees. See A Helping Hand, LLC v. Baltimore Cnty., MD, 515 F.3d 356, 369
(4th Cir. 2008) (It is a well settled rule that contentions not raised in the argument section of the
opening brief are abandoned. (citations omitted)); SEC v. Pirate Investor LLC, 580 F.3d 233,
255 n.23 (4th Cir. 2009) ([W]e do not consider arguments raised for the first time in a reply
brief).
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State in a very limited circumstance where the Eleventh Amendment d[oes] not applyi.e.,
where the fees are ancillary to a grant of prospective relief against a state official. Id. at 280;
see infra Part I.C. Congress did not, however, speak sufficiently clearly to overcome Eleventh
Amendment immunity in enacting 1988. Jenkins by Agyei, 491 U.S. at 280 (emphasis added).
The lack of congressional intent to assess fees under Section 1988 against a State is
particularly apparent in cases arising under Section 1983, as this one does, because States are
immune from any liability in such cases. It is well settled that Congress did not abrogate state
sovereign immunity under Section 1983 and create a private cause of action against States. Will
v. Mich. Dept of State Police, 491 U.S. 58, 71 (1989). The language of 1983, the Supreme
Court has held, falls far short of the requirement that an abrogation of state sovereign
immunity be unmistakably clear. Id. at 65 (quotations omitted). But Section 1988 only
permits a court to award reasonable attorneys fees against the losing partythe party legally
responsible for relief on the merits.

Kentucky v. Graham, 473 U.S. 159, 164 (1985).

[L]iability on the merits and responsibility for fees go hand in hand; where a defendant has not
been prevailed against, either because of legal immunity or on the merits, 1988 does not
authorize a fee award against that defendant. Id. at 165. Because a State can never be
prevailed against on the merits in any case arising under Section 1983, it is especially clear
that Congress did not intend to permit fees under Section 1988 against a State here.2

See Stevens v. Gay, 864 F.2d 113, 115 (11th Cir. 1989) (Because the state itself cannot be
liable on the merits, and because plaintiff failed to amend his complaint to add the state officials
acting in their official capacities, we affirm the district courts dismissal of plaintiff's claim for
prospective injunctive relief and denial of plaintiffs petition for attorneys fees.); Glosen v.
Barnes, 724 F.2d 1418, 1421 (9th Cir. 1984) (It would be anomalous to require the state to pay
attorneys fees when the Eleventh Amendment and [precedent] bar recovery of damages from
the state.).
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B.

The State Did Not Waive Its Immunity To Fees.

While a State may waive its sovereign immunity, waiver is altogether voluntary on the
part of the sovereignty, Beers v. State, 61 U.S. 527, 529 (1857), and any waiver must be stated
by the most express language or by such overwhelming implication from the text as [will] leave
no room for any other reasonable construction. Port Auth. Trans-Hudson Corp, 495 U.S. at
30506. This is a stringent test. Coll. Savs. Bank, 527 U.S. at 675. A waiver must be strictly
construed, in terms of its scope, in favor of the sovereign. Sossamon v. Texas, 131 S. Ct. 1651,
1658 (2011) (internal quotations omitted). So, for example, a waiver of sovereign immunity to
other types of relief does not waive immunity to damages: [T]he waiver of sovereign immunity
must extend unambiguously to such monetary claims. Id. (internal quotations omitted). And
where it is contended that a federal statute waives sovereign immunity, the States consent to
suit must be unequivocally expressed in the text of the relevant statute in a way that provides
notice to the States. Id. at 1658, 1661. If a statute is susceptible of multiple plausible
interpretations, including one preserving immunity, the Supreme Court has instructed that
courts not consider a State to have waived its sovereign immunity. Id. at 1659.
Here, the West Virginia Constitution makes clear that the States intervention in this case
as a defendant did not (and could not) waive the States immunity. Under the West Virginia
Constitution, [t]he state of West Virginia shall never be made defendant in any court of law or
equity. W. Va. Const. art. VI, 35. This provision has been interpreted to prohibit the waiver
of sovereign immunity where the State acts as a defendant, as was true in this case, where the
State brought no claims of its own. See, e.g., Clark v. Dunn, 195 W. Va. 272, 276, 465 S.E.2d
374, 378 (1995); B.E. v. Mount Hope High Sch., No. 2:11-CV-00679, 2012 WL 3580091, at *4
(S.D.W. Va. Aug. 17, 2012).
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But even if the State could have waived its immunity, it did not. In its very first filing,
the State limited its intervention to the sole and limited purpose of defending the
constitutionality of [its] statutes and d[id] not waive its right to sovereign immunity. Doc. 25
at 12. Similarly, in its Answer, the State raised the affirmative defense that [s]overeign
immunity under the Eleventh Amendment bars any judgment against the State, including
injunctive relief, declaratory relief, damages, attorneys fees, or costs under 42 U.S.C. 1988.
Doc. 65 at 20. And it repeated the reservation of immunity in filing after filing. See Doc. 25 at
23; Doc. 34 at 34; Doc. 49 at 3 & n.1; Doc. 65 at 12, 51, 60, 8384, & at 2021; Doc. 68 at
18; Doc. 86 at 34, 1113; Doc. 92 at 46; Doc. 101 at n.1; Doc. 126 at 67; Doc. 128 at 2; Doc.
134 at 1, 35.
Moreover, the federal statute pursuant to which the State intervened28 U.S.C.
2403(b)cannot be considered a waiver of immunity for anything more than court costs.
Section 2403(b) permits a State to intervene in federal lawsuits to which a State or any agency,
officer, or employee thereof is not a party, wherein the constitutionality of any statute of that
State affecting the public interest is drawn in question. 28 U.S.C. 2403(b). Intervention is
limited to the purposes of presentation of evidence and argument on the question of
constitutionality. Id. An intervening State is given all the rights of a party, but is only
subject to all liabilities of a party as to court costs to the extent necessary for a proper
presentation of the facts and law relating to the question of constitutionality. 28 U.S.C.
2403(b) (emphasis added).
As the Supreme Court and other courts have held, this language does not rise to the level
of an unequivocally expressed waiver of sovereign immunity. See Arizonans for Official English
v. Arizona, 520 U.S. 43, 70 n.25 (1997) (Section 2403(b) by its terms subjects an intervener to
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all liabilities of a party as to court costs required for a proper presentation of the facts and law
relating to the question of constitutionality. 28 U.S.C. 2403(b) (emphasis added). It does not
subject an intervener to liability for damages available against a party defendant.); Tennessee v.
Garner, 471 U.S. 1, 22 (1985) (The State is a party only by virtue of 28 U.S.C. 2403(b) and is
not subject to liability.); see also Union Elec. Co. v. Mo. Dep't of Conservation, 366 F.3d 655,
660 (8th Cir. 2004) ([T]he Attorney General's application to intervene did not constitute a
waiver of the State's Eleventh Amendment immunity.); Nash v. Chandler, 848 F.2d 567, 573
(5th Cir. 1988) (The State of Texas, appearing in this action as an intervenor pursuant to 28
U.S.C. 2403(b), is not subject to liability on the merits and consequently cannot be held jointly
and severally liable for attorneys fees.); Comfort ex rel. Neumyer v. Lynn School Committee,
131 F. Supp. 2d 253, 254 n.2 (D. Mass. 2001) (holding that the Commonwealth had [p]lainly
not waived its sovereign immunity because its focused intervention [under Section 2403(b)]
[was] limited to presentation of evidence and argument on the questions of constitutionality,
and d[id] not unmistakably evidence an intent by the Commonwealth to subject itself in federal
court to the entire gamut of the plaintiffs state and federal claims.).
Even Plaintiffs agree. They have expressly conceded that intervention under Section
2403(b) does not waive a States sovereign immunity for purposes of damages liability. Doc.
61 at 5. Under the statute, they acknowledge, a State shall be liable only for certain court
costs. Id. at 4 (emphasis added).
This understanding also comports with the purpose of Section 2403(b) to incentivize state
defense of laws. Before the statutes enactment, courts had allowed the government to intervene
in private lawsuits to introduce evidence and to argue the facts and applicable law, but had not
granted the government the full status of a party since it was thought its sovereign immunity
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prevented any judgment for or against it from being conclusive. Note, Federal Intervention in
Private Actions Involving the Public Interest, 65 Harv. L. Rev. 319, 320 (1951). This statute was
passed in 1937 to codify this precise practicelimited interventionin recognition of the
inadequate treatment constitutional issues had received in suits between private parties. Id. at
322. To interpret this statute to entirely waive sovereign immunity would contravene this
purpose by discouraging the government to participate out of fear of financial liability.
Accordingly, the State could be liable at most for court costs, which do not include
attorneys fees. As a general statutory rule, when Congress uses the word costs, it refers
only to the costs listed in 28 U.S.C. 1920. Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421
U.S. 240, 25455, 260 (1975).3 That provision includes a list of ordinary court costs, such as
docket fees and transcript fees, but does not include attorneys fees. Courts are not to include
attorneys fees within costs unless the statute in question provides some affirmative evidence
that Congress intended to incorporate [] attorneys fee[s]. Roadway Exp., Inc. v. Piper, 447
U.S. 752, 761 (1980). For example, Section 1988 expressly permits an award of a reasonable
attorneys fee as part of the costs. 42 U.S.C. 1988(b). Because there is no such specific
provision for attorneys fees in Section 2403(b), Alyeska Pipeline Serv. Co., 421 U.S. at 254,
the reference to court costs cannot be read to include such fees.
C.

Plaintiffs Did Not Sue Any State Officials.

The third possible exception to State immunity from feesbeyond abrogation and
waiveris where state officials are successfully sued in their official capacity for prospective

See, e.g., Roadway Exp., Inc. v. Piper, 447 U.S. 752, 757 (1980); Arlington Cent. Sch. Dist. Bd.
of Educ. v. Murphy, 548 U.S. 291, 297-98 (2006); Crawford Fitting Co. v. J.T. Gibbons, Inc.,
482 U.S. 437, 44142 (1987); People for Ethical Treatment of Animals v. Doughney, 263 F.3d
359, 371 (4th Cir. 2001).
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relief. Under Ex parte Young, the Eleventh Amendment does not bar suits for prospective
injunctive relief against state officials in their official capacities. Hawkins, 540 U.S. at 437. It
also does not bar, the Supreme Court has further concluded, an award of attorneys fees against
the State itself for the successful prosecution of such a suit. Jenkins by Agyei, 491 U.S. at 284
(1989) (holding that in an official-capacity suit, the Eleventh Amendment has no application to
an award of attorneys fees, ancillary to a grant of prospective relief, against a State). That is
because the award of fees reimburses [the plaintiff] for a portion of the expenses he incurred in
seeking prospective relief. Id. at 278.
As this Court has made quite clear, however, Plaintiffs have not sought or obtained
prospective relief in this case against state officials sued in their official capacities. The State
sought dismissal for that very reasonarguing that there is no jurisdiction because Plaintiffs
failed to sue any state officialsand this Court rejected the argument. The state officials, this
Court determined, are not necessary to afford the plaintiffs injunctive relief or declaratory
relief. McGee v. Cole, 2014 WL 5802665, at *4 (S.D. W. Va. Nov. 7, 2014) (Doc. 139).
Rather, in this Courts view, Plaintiffs properly sought relief solely against the two named county
clerks for acts taken by the county clerks for which the clerks themselves were
responsiblespecifically, issuing licenses in their respective counties. Id. at *3. According
to this Court, the clerks themselves could and did directly t[ake] action that violated
[Plaintiffs] rights under the Fourteenth Amendment. Id. As such, this Court entered an
injunction only against the defendant clerks. Id. at *10.
The consequence of this Courts decision and Plaintiffs litigation choices, unfortunately,
is that the county governments of the two defendant clerks must solely bear any award of
attorneys fees. As explained further below, the State contends that this Court should not, in its
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discretion, award any attorneys fees. See infra Part II. But if this Court chooses to award fees,
the clerks are the only parties available from which to recover the fees, and there is no basis in
the law to shift that recovery to the State.
Had Plaintiffs voluntarily joined a state official (or been required by this Court to do so),
there would be no immunity and the fee award could be directed in part or in whole against the
State in this Courts discretion. That is what happened in West Virginians for Life, Inc. v. Smith,
952 F. Supp. 342 (S.D. W. Va. 1996), a successful constitutional challenge to a state law that had
been brought against both county and state officials. Noting that [p]assage of the statute
involved in this case was the work of the West Virginia Legislature, the court determined that it
would be patently unfair to require West Virginias fifty-five county governments to shoulder a
share of the cost of the States unconstitutional action. Accordingly, the court exercised its
discretion to assess the entirety of the fee award against the defendant state official and thereby
against the state treasury. Id. at 348 & n.4.
The refusal by Plaintiffs and this Court to join a state official prevents this Court from
circumventing the States immunity, however, so any award of fees may only be assessed against
the defendant clerks, even though they merely enforced and did not create the challenged state
laws. That is the lesson of Supreme Court of Virginia v. Consumers Union of U.S., Inc., 446
U.S. 719 (1980). There, the Virginia State Bar was responsible for enforcing certain challenged
rules. Noting that the rules were in fact promulgated by the Supreme Court of Virginia and that
the State Bar had actually recommended changes to the rules, the lower court considered it
unjust to require the State Bar defendants to pay attorneys fees and instead assessed the fees
against the Virginia Court. Id. at 738. The United States Supreme Court reversed, finding the

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Virginia Court immune and suggesting that the State Bar instead be held liable for the fees, even
though the State Bar merely enforced and did not create the rules. Id. at 739.
This Court has suggested that the defendant clerks might be deemed state officials
because of their role in enforcing state law. See McGee, 2014 WL 5802665, at *4 n.1. But this
view cannot be squared with West Virginia law. In West Virginia, counties are fundamentally
independent of the State, and accordingly, . . . cannot be considered arms of the State. Boggs v.
Bd. of Ed. of Clay Cnty., 161 W. Va. 471, 476, 244 S.E.2d 799, 802 (1978); see also W. Va.
Const. art. X, 6 (The credit of the state shall not be granted to, or in aid of any county, city,
township, corporation or person; nor shall the state ever assume, or become responsible for the
debts or liabilities of any county, city, township, corporation or person.). Moreover, while the
West Virginia Constitution prohibits waiving the immunity of the State or its agencies, see Ohio
Valley Contractors v. Bd. of Ed. of Wetzel Cnty., 170 W. Va. 240, 241, 293 S.E.2d 437, 438
(1982), counties have no such immunity, see W. Va. Code 29-12A-8 (waiving immunity for
suits against counties).4
Several courts have also broadly rejected the notion of exempting a local entity from
liability [for fees] on the theory that it is nothing more than an agent of the state and has no status
as a separate entity. Grendels Den, Inc. v. Larkin, 749 F.2d 945, 959 (1st Cir. 1984). While on
the First Circuit, then-Judge Breyer observed that civil rights action costs (including attorneys
fees) are often assessed against defendants who enforce the laws instead of those who enact
them and refused to carv[e] out a special legal rule excepting cities from cost liability when
they seek to enforce state statutes. Venuti v. Riordan, 702 F.2d 6, 8 (1st Cir. 1983) (Breyer, J)
4

Indeed, if the county clerks were state officers, this Court should not have certified the absence
of state officials as grounds for permitting the State to intervene under Section 2403(b). Doc. 16,
25 at 1, 3.
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(citing several cases holding school districts and counties liable for fees when they sought to
enforce state statutes). And more recently, the D.C. Circuit has similarly noted that [m]ere
enforcers of unconstitutional laws may be held liable for attorneys fees because the point of
Section 1988 is not to identify who was at fault for the underlying law. Turner v. D.C. Bd. of
Elections & Ethics, 354 F.3d 890, 89798 (D.C. Cir. 2004).

As the D.C. Circuit noted, [t]he

Supreme Court has acknowledged that [f]ee awards against enforcement officials are run-of-the
mill-occurrences. Id. at 898 (citing Supreme Court of Va., 446 U.S. at 739); see also Koster v.
Perales, 903 F.2d 131, 137 (2d Cir. 1990) (rejecting county officials agent of the State
argument).
Where local governments or officials truly have no discretion under a state law or policy,
they simply should not have been sued in the first place. The Supreme Court has held that local
governments and officials can be sued under Section 1983whether the suit is brought for
money damages or just for prospective relief, as hereonly for a policy or custom of the local
government.

See Monell v. New York City Dept. of Social Servs., 436 U.S. 658 (1978); Los

Angeles County v. Humphries, 562 U.S. 29 (2010).

Accordingly, the Fourth Circuit has held

that a local government or official is not subject to suit under Section 1983 for carrying out
policies set and determined solely by a State. Bockes v. Fields, 999 F.2d 788, 791 (4th Cir.
1993). The proper response to a suit against a local official acting as an agent of the State is thus
to dismiss and require the presence of the appropriate state officials, not to impose liability on
the local officials and then shift responsibility for the payment of fees.5

Two Fifth Circuit cases from nearly two decades agoWyatt v. Cole, 928 F.2d 718 (5th Cir.
1991), and Echols v. Parker, 909 F.2d 795 (5th Cir. 1990)reached the opposite conclusion but
should not be followed. Unlike the decisions of the First, Second, and D.C. Circuits, the Fifth
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From the outset, the State has consistently and repeatedly contended that state officials
were necessary and appropriate defendants in this suit, but was rebuffed. Plaintiffs strongly
resisted joining any state officials, and this Court affirmed that decision. As a result, while there
may have been a lawful basis for shifting fees to the State had the State prevailed on its view of
the case, there simply is none now.
II.

EVEN IF THE STATE IS NOT IMMUNE, NO FEES SHOULD BE RECOVERED


FROM THE STATE.
A.

Should this Court conclude that the State lacks immunity against attorneys fees,

it still should not impose a fee award against the State because Section 1988 only permits awards
against a liable party. As discussed above, Section 1988 simply does not create fee liability
where merits liability is non-existent. Graham, 473 U.S. at 168. Where an intervenor has lost
but suffered no liability, the Supreme Court has held that courts may award attorneys fees . . .
only where the intervenors action was frivolous, unreasonable, or without foundation. Indep.
Fed'n of Flight Attendants v. Zipes, 491 U.S. 754, 761 (1989); see also Rum Creek Coal Sales,
Inc. v. Caperton, 31 F.3d 169, 176 (4th Cir. 1994).(In Zipes, the Court held that a prevailing
plaintiff in a civil rights case can recover from an intervening party only when the intervening
partys action is frivolous, unreasonable or without foundation.).
This Court should award no fee against the State because the State is not liable under the
judgment. The order includes no finding of liability or injunction against the State. To the
contrary, it states specifically that Defendant Clerks are the officials directly responsible for
effectuating the marriage ban and causing Plaintiffs alleged injury and enjoins only the clerks.
McGee, 2014 WL 5802665, at *4 n. 1. The most this Court held was that, by virtue of
Circuit cases cannot be squared with the reasoning of the Supreme Court in either Supreme
Court of Virginia or Monell.
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intervention, the State is subject to any declaration by this Court that the ban is
unconstitutional as res judicata, such that the State would be precluded from defending the
constitutionality of the marriage ban in the future. Id. at *45 (emphasis added).
B.

Separately, this Court should also award no fees because that would constitute the

appropriate fee under the circumstances. Section 1988 authorizes a reasonable attorneys fee as
part of the costs, 42 U.S.C. 1988, which is one that is adequate to attract competent
counsel, but that does not produce windfalls to attorneys. Blum v. Stenson, 465 U.S. 886,
897 (1984) (quoting S.Rep. No. 941011, 94th Cong., 2d Sess., 6 (1976)).
Here, the most appropriate award is no award. Same-sex marriage is a changing area of
law in which a new constitutional rule was announced by the Fourth Circuit, and which is yet to
be finally resolved.

There was no question of constitutionality when the West Virginias

challenged marriage laws were passed, and in at least five states and one territory, similar laws
have been held to be constitutional. See Deboer v. Snyder, 772 F.3d 388 (6th Cir. 2014);
Robicheaux v. Caldwell, 2 F. Supp. 3d 910 (E.D. La. 2014); Conde-Vidal v. Garcia-Padilla,
2014 WL 5361987 (D.P.R. Oct. 21, 2014). The Supreme Court has also just agreed to decide the
very merits issue Plaintiffs raised. See Obergefell v. Hodges, No. 14-556, 2015 WL 213646
(U.S. Jan. 16, 2015), Tanco v. Haslam, No. 14-562, 2015 WL 213648 (U.S. Jan. 16, 2015),
DeBoer v. Snyder, No. 14-571, 2015 WL 213650 (U.S. Jan. 16, 2015), Bourke v. Beshear, No
14-574, 2015 WL 213651 (U.S. Jan. 16, 2015) (granting certiorari and consolidating cases to
examine whether the Fourteenth Amendment require[s] a state to license a marriage between
two people of the same sex).

In a time of declining government revenues, and many

worthwhile claims on public funds, it would be unfair and unjust to require payment of fees by
state and county officials acting in good faith in a case like this.
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III.

IF AN AWARD OF FEES IS APPROPRIATE, THIS COURT MUST REDUCE


THE AMOUNT.
Under Section 1988, a fee award should reimburse the plaintiff for work expended in

pursuit of the success achieved. Johnson v. City of Aiken, 278 F.3d 333, 337 (4th Cir. 2002).
To determine the appropriate amount, a district court should first identify the number of hours
reasonably expended on the litigation and multiply that number by a reasonable rate, which
creates a lodestar amount.

Id.

The court then should subtract fees for hours spent on

unsuccessful claims unrelated to successful ones. Id. Once the court has subtracted the fees
incurred for unsuccessful, unrelated claims, it then awards some percentage of the remaining
amount, depending on the degree of success enjoyed by the plaintiff. Id.
Here, application of these standards yields an award dramatically lower than the
$350,256.19 in fees that Plaintiffs request. As such, even if an award were appropriate, this
Court must still reduce the amount requested in several ways.6
A.

This Court Must Subtract Hours Unreasonably Expended Due To


Overstaffing.

Under Section 1988, the court should exclude from this initial fee calculation hours that
were not reasonably expended, and take into consideration that cases may be overstaffed, and
the skill and experience of lawyers vary widely. Hensley v. Eckerhart, 461 U.S. at 434 (1983).
The court should exclude hours that are excessive, redundant, or otherwise unnecessary, just as
a lawyer in private practice ethically is obligated to exclude such hours from his fee submission.
Id. After all, [h]ours that are not properly billed to ones client also are not properly billed to
ones adversary pursuant to statutory authority. Id.
6

This brief outlines several reasons why Plaintiffs fee request merits reduction, but this list is
not to the exclusion of the many other troubling aspects of the request that the defendant county
clerks highlight in their response. Doc. 153.
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1.

Eleven Attorneys Was Unnecessary Overstaffing.

The court should reduce Plaintiffs request for reimbursement because this case did not
reasonably require the work of eleven separate attorneys, plus support staff.
First, Plaintiffs local counsel (the Tinney Law Firm and John Tinney) possessed the
basic expertise and staff necessary for general litigation of a case like this. Doc. 146, at 1213.
Lead local counsel on this case, John Tinney, is well qualified for federal litigation of this
stature: he served a clerkship on the Fourth Circuit Court of Appeals and had a tenure of almost
three years as an Assistant United States Attorney in the United States Attorneys Office for the
Southern District of West Virginia, during which he represented the United States before the
Fourth Circuit Court of Appeals. Doc. 146 at 13. Now, in private practice, Mr. Tinney regularly
represents diverse clients in both state and federal courts in complex constitutional cases. Id.
It is no surprise that according to the billing entries, local counsel made a significant contribution
this case, including, but not limited to, researching case law, drafting and reviewing pleadings,
and participating in internal strategy conferences. Doc. 146-2.

This is reflected in: local

counsels assignment of four attorneys, plus one paralegal; its expenditure of 170.9 attorney
hours and 66.6 paralegal hours; and its individual request for $51,856.00 in fees. Doc. 146 at 16.
All of this indicates that local counsel could very have handled this case on their own.
Second, even if this Court were to find that it was reasonable for this qualified team of
four local attorneys to seek the assistance of outside counsel, it is far from clear that they
required two additional teams of lawyers: one from a national advocacy group and another from
a large national law firm. The first team from the national advocacy group, Lambda Legal,
became involved from the beginning and appears to have provided necessary subject-matter
expertise. Doc. 146-3 at 8. Lambda Legal describes itself as the nations oldest and largest
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legal organization dedicated to achieving full recognition of the civil rights of lesbian, gay,
bisexual and transgender people; asserts that it has been party counsel to in numerous
challenges to state laws banning same-sex couples from marriage; and claims that its role in this
litigation was essential given its unique and highly specialized expertise in constitutional
advocacy on behalf of lesbian and gay persons. Doc. 146-3, -4, -5. Even accepting that it was
reasonable to include an outside specialist in this area, however, it is not clear that more than one
attorney from Lambda Legal was necessary.
The necessity of the second team from the large national law firm, Jenner & Block, is
particularly suspect. Jenner became involved some months after the national advocacy group,
Doc. 146-3, -4, -5, though it is unclear what Jenner added to this case that the advocacy group
and local counsel did not. Counsel asserts that appellate counsel at Jenner became involved in
this litigation in September 2013 to provide Jenners unique expertise in litigation advancing the
rights of gay and lesbian individuals. Doc. 146, 146-1. But local counsel possessed federal
appellate expertiseto the extent any was necessary in this case, which never even proceeded to
argumentand the advocacy group possessed unique subject-matter expertise.
This lack of necessity is born out, for example, in the records for Plaintiffs summary
judgment filings. The national firm states that it was the primary drafter of almost all pleadings
and submissions, including Plaintiffs Motion for Summary Judgment. Doc. 146-1 at 3. In
particular, its junior associates were primarily responsible for researching and drafting the briefs
and motions in this case, with oversight from Lindsay Harrison. Doc. 146-1 at 3. Nicholas
Tarasen and R. Trent McCotter, the junior associates, did bill a significant amount of time for on
the plaintiffs Motion for Summary Judgment and Replybut their entries also indicate that
their work was performed in concert with Lambda Legals counsel, and that they relied upon
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ideas and research provided by Lambda Legal. Doc. 146-1. Lambda Legals billing entries
likewise show that Camilla Taylor, Karen Loewy and Elizabeth Littrell expended significant
amounts of time researching, drafting, revising, and reviewing each filing: Lambda Legals
attorneys spent 17.7 hours drafting and revising Plaintiffs Complaint, as well as 42.2 hours
drafting and revising Plaintiffs Motion for Summary Judgment and 53.1 hours drafting and
revising the Reply. Doc. 146-3 at 8-10; Doc. 146-4 at 8-10; Doc. 146-5 at 10.
The addition of this apparently duplicative national law firm is especially troubling
because its requested rates are significantly higher than co-counsel and because it billed a
substantial number of hours. Their attorneys fees alone account for $150,707.75 of the total
$350,256.19 in fees request. Doc. 146-1, -3, -4, -5. Plaintiffs simply do not explain why this law
firm was a prudent addition to the case, or that a reasonable, cost-conscious client would have
paid for its work.
2.

Any Hours Recoverable Should Be Limited To Non-Duplicative


Work.

Even if the participation of all eleven attorneys were reasonable, their actual hours
recoverable should be limited to non-duplicative work. Despite counsels assertions that they
exercised billing judgment to reduce duplicate expense, their billing records do not reveal any
cooperative effort to reduce duplicative time entries between the three teams of counsel. Doc.
146-1 at 3-4; Doc. 146-1 at 4; Doc. 146-2 at 3; Doc. 146-3 at 5; Doc. 146-4 at 6; Doc. 146-5 at 4.
Nearly every one of the eleven attorneys, for example, claims to have researched and
drafted every substantive filing. A side by side comparison of the billing entries from each firm
reveals that each attorney billed for drafting, researching, reviewing, editing, discussing,
summarizing, or reading an email about Plaintiffs response to motions to dismiss filed by the

24

Case 3:13-cv-24068 Document 155 Filed 01/16/15 Page 33 of 42 PageID #: 5018

State and the clerks. Doc. 146-1 at 12; Doc. 146-2 at 10-11; Doc. 146-3 at 9; Doc. 146-4 at 9;
Doc. 146-5 at 7. Similar records exist for every other filing, showing that the plaintiffs counsel
did not in fact de-duplicate their recordsor, if they did, that their case was grossly overstaffed.
Similarly, there are numerous examples of duplicate bills for travel and conference calls.
Doc. 146 at 9. The chart below reflects that many attorneys conducted the same travel and
conference calls, and billed for them, to the tune of $40,800. See Exh. 1 (Chart reflecting
duplicate communications charges).

Given how much work product was produced jointly

among three firms and eleven attorneys, this court should proportionately reduce all hours billed
by a factor reflecting the number of attorneys actually necessary to work on this case.
3.

The Hours Billed Were Excessive In Light Of Similar Arguments


Researched And Asserted In Other Cases.

Contrary to Plaintiffs assertion that the challenge to West Virginias marriage laws
certainly was not a relatively straightforward procedural analysis, the arguments and
substance of Plaintiffs case are not novel. Doc. 146, pp. 9. The merits issues were being
briefed and litigated in dozens of cases contemporaneously, nearly all of whose filings were
publicly available online. Nor were the national law firm or the advocacy group new to this
subject matter. In fact, Plaintiffs counsel borrowed heavily from the legal arguments raised in
Harris v. McDonnell, where the same attorneys represented other plaintiffs in their challenge to
the Virginia marriage laws, filed in the Western District of Virginia. Exh. 1 & 2 (Harris
Complaint and Motion for Summary Judgment). Any award should also proportionately reduce
fees in light of this factor.

25

Case 3:13-cv-24068 Document 155 Filed 01/16/15 Page 34 of 42 PageID #: 5019

4.

Time Spent On Public Relations Is Non-Recoverable.

This Court should also reduce the total hours to subtract fees, costs, and expenses related
to public relations or media outreach. In Rum Creek Coal Sales, Inc., the Fourth Circuit affirmed
the lower courts disallowance of $11,008.75 in attorneys fees/costs related to media
communications and public relations, finding that [t]he legitimate goals of litigation are almost
always attained in the courtroom, not in the media. 31 F.3d at 176. Here, the billing entries
from both the Tinney Firm and Lambda Legal billing combine for $7,452 in attorneys fees for
media and public relations. Doc.146-2 at 6-37; Doc. 146-5 at 9; Exh. 16. These hours should be
subtracted from the award.
5.

Certain Billing Entries Are Too Vague To Meet The Burden Of Proof.

Because Plaintiffs have the burden to provide this Court with the documentation
necessary to prove that their rate and the hours worked are reasonable, [w]here the
documentation of hours is inadequate, the district court may reduce the award accordingly.
Hensley, 461 U.S. at 433. The Fourth Circuit has frequently exhorted counsel to describe
specifically the tasks performed, a practice which is especially necessary when we review an
award in a case where the plaintiff has not prevailed on all the claims. Rum Creek, 31 F.3d at
180 (citing Daly v. Hill, 790 F.2d 1071 (4th Cir.1986)). Entries limited to legal research,
revise, draft, discovery, email, and preparation, are an inadequate account of an
attorneys time. (2013)Koontz v. Wells Fargo N.A., 2013 WL 1337260 at 20 (2013) (imposing a
10% reduction of the total hours billed to address the impermissibly vague time entries.); see
also H.J. Inc. v. Flygt Corp., 925 F.2d 257, 260 (8th Cir. 1991) (reducing hours for vague entries
including legal research, trial preparation, and met with client); Leroy v. City of Houston,
906 F.2d 1068, 1080 (5th Cir. 1990) (reducing fee award based on hours not illuminating as to
26

Case 3:13-cv-24068 Document 155 Filed 01/16/15 Page 35 of 42 PageID #: 5020

the subject matter or vague as to precisely what was done); Leroy v. City of Houston, 831
F.2d 576, 585 (5th Cir. 1987) (reducing hours for after-the-fact summaries and entries
lack[ing] explanatory detail).
Here, many hours are simply too vague or abbreviated to permit a reasonable person to
understand their necessity to the case.

In particular, Ms. Littrells Communication Log only

provides vague descriptions for several communications for which she seeks $8,800 in fees. For
example, her entry dated September 20, 2013 reflects .4 hours billed for emails, the topic of
which she describes as complaint. Doc. 146-5 at 7. On entries dated October 7 & 9, 2014, she
billed 1.3 hours and 1.1 hours respectively, for emails the topic for which she simply describes
as settlement. Doc. 146-5 at 8. A further reduction is therefore appropriate to account for
these entries.
B.

Under Section 1988, Plaintiffs Counsel May Only Be Reimbursed At Local


Prevailing Rates.

As a general rule, reasonable fees under 1988 are to be calculated according to the
prevailing market rates in the relevant community, regardless of whether plaintiff is represented
by private or nonprofit counsel.

Blum v. Stenson, 465 U.S. 886, 895 (1984).

[T]his

determination is fact-intensive and is best guided by what attorneys earn from paying clients for
similar services in similar circumstances. Rum Creek Coal Sales, 31 F.3d at 175. It is only
reasonable to go beyond this community when the complexity and specialized nature of a case .
. . mean that no attorney, with the required skills, is available locally. Natl Wildlife Fed. v.
Hanson, 859 F.2d 313, 317 (4th Cir.1988) (internal cites and quotations omitted).
Here, not only was it questionable to add a national law firm with the same expertise as
local counsel and the national advocacy group, that firm charged rates out of line with both sets

27

Case 3:13-cv-24068 Document 155 Filed 01/16/15 Page 36 of 42 PageID #: 5021

of co-counsel. Paul Smith seeks a rate of $771 to $789 per hour, and Lindsay Harrison seeks
$567 to $655 per hour. Doc. 146, 146-1. In contrast, the rates sought by local counsel and the
national advocacy group are half that, ranging from $300 to $350 per hour. Doc. 146, 146-2, -3,
-4 -5. Those rates show that $300 to $350 hour is at most the proper rate, whether viewed as the
prevailing local rate or the rate appropriate for lawyers recognized as national advocates in this
area. Plaintiffs assert that the Jenner attorneys brought appellate expertise and subject-matter
experience, but they have not shown that such expertise and experience was worth twice as much
as the contributions of their well-qualified co-counsel. There is no evidence in the record
suggesting that the complexity and specialized nature of [this] case put it beyond the
capabilities of local counsel and the national advocacy group. Hanson, 859 F.2d at 317.
Moreover, even if it were appropriate to hire attorneys from Washington, D.C. when
similarly experienced attorneys were available and used in this case locally and at lower rates,
Plaintiffs have failed to provide this Court with satisfactory specific evidence of the prevailing
market rates in Washington, D.C. In addition to the attorneys own affidavits, the fee applicant
must produce satisfactory specific evidence of the prevailing market rates in the relevant
community for the type of work for which he seeks an award. Plyler v. Evatt, 902 F.2d 273,
277 (4th Cir. 1990). The Jenner attorneys have relied only on the Laffey Matrix and Paul
Smiths declaration. Lindsay Harrison, R. Trent McCotter, and Nicholas Tarasen did not submit
any affidavits of their own with supporting evidence to support their requested rates or certify
their records and qualifications. Doc. 146-1, -6. In similar circumstances, the Fourth Circuit has
required more. Robinson v. Equifax Info. Servs., LLC, 560 F.3d 235, 245 (4th Cir. 2009). The
record lacked affidavits of other local lawyers who are familiar both with the skills of the fee
applicants and more generally with the type of work in the relevant community. Id.
28

Case 3:13-cv-24068 Document 155 Filed 01/16/15 Page 37 of 42 PageID #: 5022

C.

This Court Should Subtract The Fees Attributable To Plaintiffs


Unsuccessful Challenge To The Non-Recognition Statute.

After identifying the lodestar fee, the hours spent on the unsuccessful claim should be
excluded. Hensley, 461 U.S. at 440. This ensures that where the plaintiff achieved only
limited success, the court awards not an excessive amount but only that amount of fees that
is reasonable in relation to the results obtained. Hensley v. Eckerhart, 461 U.S. 424, 434, 440
(1983); see also Robinson, 560 F.3d at 244 (After determining the lodestar figure, the court then
should subtract fees for hours spent on unsuccessful claims unrelated to successful ones.)
(internal quotations and citations omitted). Here, this Court should subtract at least $21,111.25
from any award for time spent on Plaintiffs unsuccessful challenge to West Virginias nonrecognition statute. See Exh. 3 (chart listing billing entries related to States motion to dismiss
and compiling the amount requested due to this claim). Contrary to Plaintiffs assertion that they
succeeded on every significant issue in this litigation, Doc. 146 at. 4, this Court dismissed for
lack of standing their challenge to the non-recognition provision, W.Va. Code 48-2-104(c).
See Doc. 56. Plaintiffs are thus not a prevailing party on that claim and any fees, costs, or
expenses associated with that challenge are not recoverable. According to their time sheets,
Plaintiffs counsel dedicated 58.5 hours to defending this claim from dismissal and seek
$21,111.25 in compensation. Exh. 3. Any award should therefore be reduced by at least that
amount.
D.

The Requested Fees Are Unreasonable In Light Of The Fees Awarded In


Similar Cases Across The Country.

Finally, any award should be reasonable in light of similar efforts in other cases, but as
shown in the attached chart those cases fees are much lower than the sum requested here,
despite the fact that many of those cases required considerably more work. Exh. 4 (chart
29

Case 3:13-cv-24068 Document 155 Filed 01/16/15 Page 38 of 42 PageID #: 5023

reflecting comparative fee requests in other same-sex marriage cases by number of hours and
hourly rate). The highest billable rate was $425 per hour, as opposed to the $789 per hour
requested here. These cases were staffed with three to seven attorneys, not the eleven attorneys
used here. The final fees in these cases have ranged from $60,000 to $133,657.50, as opposed to
the $350,256.19 Plaintiffs request here. And, unlike this case, the work in many of these cases
involved oral argument, appeals, petitions for certiorari, and motions to appeals courts or the
Supreme Court for stays. In fact, the total fees requested in a case that involved trial court
briefing, an appeal, and a petition for certiorari totaled $371,769.87just about what Plaintiffs
request here just for trial court briefing alone.
CONCLUSION
The Court should hold oral argument on this motion and decline to enter any award
against the State or other parties.

30

Case 3:13-cv-24068 Document 155 Filed 01/16/15 Page 39 of 42 PageID #: 5024

Respectfully submitted,
ATTORNEYS FOR DEFENDANTINTERVENOR STATE OF WEST VIRGINIA
PATRICK MORRISEY
ATTORNEY GENERAL

/s/ Elbert Lin


Elbert Lin (WV Bar #12171)
Solicitor General
Julie A. Warren (WV Bar #9789)
Julie M. Blake (WV Bar #12271)
Assistant Attorneys General
OFFICE OF THE WEST VIRGINIA
ATTORNEY GENERAL
State Capitol Complex
Building 1, Room E-26
Charleston, WV 25305
Telephone: (304) 558-2021
Fax: (304) 558-0140
E-mail: elbert.lin@wvago.gov
Dated: January 16, 2015

31

Case 3:13-cv-24068 Document 155 Filed 01/16/15 Page 40 of 42 PageID #: 5025

IN THE UNITED STATES DISTRICT COURT FOR


THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION

CASIE JO MCGEE and SARA ELIZABETH


ADKINS; JUSTIN MURDOCK and WILLIAM
GLAVARIS; and NANCY ELIZABETH
MICHAEL and JANE LOUISE FENTON,
Individually and as next friends of A.S.M.,
minor child,
Plaintiffs,
v.

Civil Action No. 3:13-24068

KAREN S. COLE, in her official capacity as


CABELL COUNTY CLERK; and VERA J.
MCCORMICK, in her official capacity as
KANAWHA COUNTY CLERK,
Defendants,
and
STATE OF WEST VIRGINIA,
Defendant-Intervenor.
CERTIFICATE OF SERVICE
I, Elbert Lin, counsel for Defendant-Intervenor, hereby certify that on January 16, 2015, I
electronically filed the foregoing The State Of West Virginias Response To Plaintiffs Motion
for Attorneys Fees, Expenses, and Costs with the Clerk of the Court using the CM/ECF system,
which will send notification of such filing to:

32

Case 3:13-cv-24068 Document 155 Filed 01/16/15 Page 41 of 42 PageID #: 5026

Camilla B. Taylor
LAMBDA LEGAL DEFENSE & EDUCATION FUND, INC.
Suite 2600
105 West Adams
Chicago, IL 60603
Email: ctaylor@lambdalegal.org
Elizabeth L. Littrell
LAMBA LEGAL DEFENSE & EDUCATION FUND, INC.
Suite 1070
730 Peachtree Street, NE
Atlanta, GA 30308-1210
Email: blittrell@lambdalegal.org
Heather Foster Kittredge
THE TINNEY LAW FIRM
P. O. Box 3752
Charleston, WV 25337-3752
Email: heather@tinneylawfirm.com
Karen L. Loewy
LAMBDA LEGAL DEFENSE & EDUCATION FUND, INC.
19th Floor
120 Wall Street
New York, NY 10005-3904
Email: kloewy@lambdalegal.org
Lindsay C. Harrison
JENNER & BLOCK
Suite 900
1099 New York Avenue, NW
Washington, DC 20001-4412
Luke C. Platzer
JENNER & BLOCK
Suite 900
1099 New York Avenue, NW
Washington, DC 20001-4412
Email: lplatzer@jenner.com
Paul M. Smith
JENNER & BLOCK
Suite 900
1099 New York Avenue, NW
Washington, DC 20001-4412
Email: psmith@jenner.com

33

Case 3:13-cv-24068 Document 155 Filed 01/16/15 Page 42 of 42 PageID #: 5027

R. Trent McCotter
JENNER & BLOCK
Suite 900
1099 New York Avenue, NW
Washington, DC 20001-4412
Email: rmccotter@jenner.com
John H. Tinney , Jr.
THE TINNEY LAW FIRM
P. O. Box 3752
Charleston, WV 25337-3752
Email: jacktinney@tinneylawfirm.com
Lee Murray Hall
JENKINS FENSTERMAKER
P. O. BOX 2688
Huntington, WV 25726-2688
Email: lmh@jenkinsfenstermaker.com
Sarah A. Walling
JENKINS FENSTERMAKER
P. O. Box 2688
Huntington, WV 25726-2688
Email: saw@jenkinsfenstermaker.com
Charles R. Bailey
BAILEY & WYANT
P. O. Box 3710
Charleston, WV 25337-3710
Email: cbailey@baileywyant.com
Michael W. Taylor
BAILEY & WYANT
P. O. Box 3710
Charleston, WV 25337-3710
Email: mtaylor@baileywyant.com

s/ Elbert Lin
Elbert Lin

34

Case 3:13-cv-24068 Document 155-1 Filed 01/16/15 Page 1 of 2 PageID #: 5028

Exhibit 1. Chart Reflecting Duplicate


Communications Charges

Case 3:13-cv-24068 Document 155-1 Filed 01/16/15 Page 2 of 2 PageID #: 5029

Exhibit 1: Chart Reflecting Duplicate Communications Charges


Date

Activity:

Participants:

Total
Time:

8/19-21/2013

Travel to Huntington

69.2 hours $23,007.50

9/19/2013

Conference Call

9/25/2013

Conference Call

10/9/2013

Conference Call

11/1/2013

Conference Call

C. Taylor
E. Littrell
K. Loewy
C. Taylor
E. Littrell
K. Loewy
C. Taylor
K. Loewy
K. Loewy
P. Smith
John Tinney, Jr.
K. Loewy
L. Harrison
R.T. McCotter

11/27/2013

Conference Call

12/16/2013

1/6/2014

2/13/2014

K. Loewy
C. Taylor
L. Harrison
P. Smith
R.T. McCotter
H. Kittredge
Rule 26(f) Conference P. Smith
Call
C. Taylor
K. Loewy
J. Tinney, Jr.
Travel to, and
L. Harrison
participation in status
J. Tinney, Jr.
conference in
H. Kittredge
Huntington, WV, and
C. Taylor
subsequent Conference K. Loewy
Call to discuss status
conference.
Conference Call
L. Harrison
C. Taylor
K. Loewy
H. Kittredge

Fee
Requested

11.7 hours $3,580.00

2 hours

$700.00

2.3 hours

$1,070.75

4.7 hours

$1,974.00

2.8 hours

$ 1,244.75

3.5 hours

$1,721.00

27 hours

$7,514.50

2.9 hours

$1,048.50

Case 3:13-cv-24068 Document 155-2 Filed 01/16/15 Page 1 of 40 PageID #: 5030

Exhibit 2. Harris Plaintiffs


Complaint (W.D. Va.)

Case 3:13-cv-24068 Document 155-2 Filed 01/16/15 Page 2 of 40 PageID #: 5031

IN THE UNITED STATES DISTRICT COURT


FOR THE WESTERN DISTRICT OF VIRGINIA
HARRISONBURG DIVISION

JOANNE HARRIS and JESSICA DUFF, and


CHRISTY BERGHOFF and VICTORIA KIDD,
on behalf of themselves and all others similarly
situated,
Plaintiffs,

No. _________________________
COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF
CLASS ACTION

v.
ROBERT F. MCDONNELL, in his official
capacity as Governor of Virginia; JANET M.
RAINEY, in her official capacity as State Registrar
of Vital Records; THOMAS E. ROBERTS, in his
official capacity as Staunton Circuit Court Clerk,
Defendants.

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF


I.
1.

INTRODUCTION

Named Plaintiffs Joanne Harris and Jessica Duff, and Christy Berghoff and

Victoria Kidd (collectively, Named Plaintiffs), and the members of the Plaintiff Class 1
(collectively, with the Named Plaintiffs, Plaintiffs) are loving, committed same-sex couples.
The Named Plaintiffs bring this action pursuant to 42 U.S.C. 1983 on behalf of themselves and
the Plaintiff Class, seeking declaratory and injunctive relief for the violation of Plaintiffs rights
under the Fourteenth Amendment to the United States Constitution caused by the exclusion of
same-sex couples from the freedom to marry and from recognition of the marriages some

The Plaintiff Class is defined in Section V of this Complaint, below.


1

Case 3:13-cv-24068 Document 155-2 Filed 01/16/15 Page 3 of 40 PageID #: 5032

Plaintiffs have entered into in other jurisdictions under the law of the Commonwealth of Virginia
(Commonwealth or Virginia).
2.

Marriage plays a unique role in society as the universally recognized and

celebrated hallmark of a couples commitment to build family life together. It confers upon
couples a dignity and status of immense import. Plaintiffs have formed committed, enduring
bonds equally worthy of the respect afforded by the Commonwealth to different-sex couples
through marriage. Yet, the Commonwealth, without any adequate justification, has enacted an
unprecedented series of statutory and constitutional amendments to single out lesbian and gay
Virginians by excluding them from the freedom to marry, or by refusing to recognize their
existing marriages from other jurisdictions, based solely on their sexual orientation and their sex.
3.

Through the Commonwealths constitutional and statutory marriage bans and

through Defendants enforcement of them, the Commonwealth and Defendants send a purposeful
message that they view lesbians, gay men, and their children as second-class citizens who are
undeserving of the legal sanction, respect, protections, and support that heterosexuals and their
families are able to enjoy through marriage. This discrimination (referred to herein as the
Commonwealths marriage ban) is enshrined both in the Commonwealths statutes and in
article 1, section 15-A of the Commonwealths Constitution, which limits marriage to couples
composed of one man and one woman.
4.

The marriage ban inflicts serious and irreparable harms upon same-sex couples

and their children. Joanne Harris and Jessica Duff are unmarried, and wish to marry for the same
reasons as different-sex couples to publicly declare their love and commitment before their
family, friends, and community, and to give one another and their son J. H.-D. the security and
protections that only marriage provides. Christy Berghoff and Victoria Kidd have married in

Case 3:13-cv-24068 Document 155-2 Filed 01/16/15 Page 4 of 40 PageID #: 5033

another jurisdiction, but are treated as legal strangers in the state they call home a painful
invalidation of their relationship that also deprives them and their daughter L. B.-K. of the
protections that a legally recognized marriage most securely provides.
5.

Our courts and our society have discarded, one by one, marriage laws that

violated the Constitutions mandate of equality, such as anti-miscegenation laws and laws that
denied married women legal independence and the right to make decisions for themselves.
History has taught us that the vitality of marriage does not depend on maintaining such
discriminatory laws. To the contrary, eliminating these unconstitutional aspects of marriage has
enhanced the institution. Ending the exclusion of lesbian and gay couples from marriage is no
different. Indeed, in 13 states and the District of Columbia, same-sex couples are marrying and
the institution of marriage continues to thrive.
6.

Plaintiffs seek equal access to marriage as the only means to secure their rights to

due process and equal protection of the law, and to eliminate the myriad serious harms inflicted
on them by the marriage ban and Defendants enforcement of it. Accordingly, Named Plaintiffs
bring this suit on behalf of themselves and all others similarly situated pursuant to 42 U.S.C.
1983 seeking declaratory and injunctive relief on the grounds that the Commonwealths
exclusion of same-sex couples from marriage and refusal to recognize their valid marriages from
other jurisdictions and Defendants enforcement of the marriage ban violate the due process and
equal protection guarantees of the Fourteenth Amendment to the United States Constitution.
II.

PARTIES

A.

The Named Plaintiffs

7.

Joanne Harris (Joanne), and Jessica Duff (Jessi), are a lesbian couple residing

in Staunton, Virginia, within the Harrisonburg Division of the Western District of Virginia.

Case 3:13-cv-24068 Document 155-2 Filed 01/16/15 Page 5 of 40 PageID #: 5034

Joanne, age 37, is the Director of Diversity and Advocacy at Mary Baldwin College in Staunton,
Virginia. Jessi, age 33, previously worked for many years at an agency serving people with
developmental disabilities, and now works for child protective services, conducting child abuse
investigations with Shenandoah Valley Social Services. The couple has been in a committed,
loving relationship for 11 years, and are the devoted parents of a four-year-old son, J. H.-D.
8.

Jessi fell in love at first sight with Joanne when they met in 2002 through mutual

friends. Joanne realized that she wanted to spend the rest of her life with Jessi when Jessis
grandmother wrapped her in a big hug and welcomed her into the family. The couple shares
many values, including a commitment to their Christian faith. In 2006, they were baptized
together in the backyard river of a fellow church member.
9.

Both Joanne and Jessi also grew up in Virginia farmland. Joannes dad is a pig

farmer, and she lived on the family farm until she left for college. Jessis grandfather owned a
cow farm, which remains in the family, and Jessi remembers baling hay and feeding and
watering the cows as a child.
10.

Joanne and Jessi have commingled their finances and pledged to support each

other financially. They maintain joint checking and savings accounts, and have designated each
other as beneficiaries on their retirement accounts. Both contribute to a 529 Plan (college
savings account) for J. H.-D.
11.

Joanne and Jessis lives revolve around J. H.-D. Joanne is J. H.-D.s biological

mother, and he calls her Mommy, and calls Jessi Momma DeeDee, or DeeDee (his chosen
name for Jessi). They all are members of their local YMCA, where J. H.-D. plays soccer and
basketball, and takes swimming lessons. Joanne and Jessi also take J. H.-D. to play Kiwanis tee-

Case 3:13-cv-24068 Document 155-2 Filed 01/16/15 Page 6 of 40 PageID #: 5035

ball through the Staunton Parks and Recreation Department. They look forward all week to
Friday, which is Family Movie Night.
12.

Religion is important to the couple, and when they decided to have a commitment

ceremony in 2006, they saw their pastor for marriage counseling, as other heterosexual members
of their church do. In their words, they wanted to feel what normal couples feel, and to get
what heterosexual couples get, which is marriage counseling, as well as to deepen their bond
through the process. Their attempts to recreate the experiences that different-sex fiancs and
spouses may take for granted, however, are severely limited by the Commonwealths marriage
ban and Defendants enforcement of it.
13.

While Joanne and Jessis commitment ceremony was one of the happiest days of

their lives, they remember how completely different it was when Jessis brother, Matt, got
married. The moment Matt was married he could cover his wife through his health insurance at
work, and feel secure that no one would question his right to make medical decisions if she were
incapacitated. Matt also instantly gained the ability to take parenting leave to care for any
children he might have with his wife. As Matt expressed to the couple, he was very conscious of
the fact that he could take those rights for granted, knowing that they were unavailable to Joanne
and Jessi.
14.

Joanne and Jessi worry about the hurtful messages of stigma that their inability to

marry sends to J. H.-D. He is proud of their family, but even at the age of four is very aware that
his parents cannot marry. A picture from their commitment ceremony hangs in their home, and
J. H.-D. points to it and says to others, Mommy and Momma DeeDee got married, and they
need to really get married. Joanne and Jessi believe that a state-approved ceremony would
carry great significance for him because he has expressed that he wants to be a part of their

Case 3:13-cv-24068 Document 155-2 Filed 01/16/15 Page 7 of 40 PageID #: 5036

wedding. J. H.-D. proudly told Joanne and Jessi that he went to school one day and told his
friends, Barack Obama [who supports marriage equality] is president, and hopefully he will
help my mommies get married.
15.

The inability to marry leaves Joanne and Jessi vulnerable in a range of contexts.

Jessi has no legal relationship to J. H.-D., as she would have if Joanne and Jessi had been
married at the time of his birth. Because they cannot marry in Virginia, Jessi also is unable to
adopt J. H.-D. as a co-parent in Virginia. The couple is terrified about what might happen if, for
example, Joanne and J. H.-D. were both in an accident and J. H.-D. needed emergency medical
care. Jessi lacks clear legal authority to authorize such care, and they fear what would happen if
Joanne were injured and unable to consent. This fear is exacerbated by the fact that Joannes
relationship with her parents is tenuous, and both Joanne and Jessi worry that Joannes family
might seek to override or deny Jessis role as J. H.-D.s mother in such circumstances. Although
some other same-sex couples raising children in Virginia have been able to obtain court orders
granting some forms of decision-making authority to both parents, at a substantial cost, Joanne
and Jessi know there is no guarantee that such papers would be respected in an emergency
situation. Moreover, under current Virginia law there is no way for Jessi to secure an order
recognizing what she is to J. H.-D.: a co-equal parent.
16.

Especially because Joanne has epilepsy, the couple worries that their relationship

may be disrespected during a health crisis. They also are concerned because Joannes mother
disagrees with Joannes clear wishes for end-of-life decision-making. Jessi fully respects and is
prepared to carry out Joannes wishes not to receive life-prolonging measures, but Joannes
mother has expressed that she would vigorously fight that decision. Joanne also worries that her

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family might contest her will, which would inflict significant uncertainty and anxiety during the
very moment that Jessi would also be grieving.
17.

Joanne and Jessi have struggled to identify their family on forms that require them

to indicate their marital status. They also are frustrated that Jessi cannot sign forms or make
school-related decisions that require a legal parent. They are unable to have a family
membership at the YMCA where J. H.-D. takes classes. On a daily basis, in ways both profound
and mundane, they are reminded that the Commonwealth views them as strangers to each
other, and Jessi to her son. Joanne and Jessi long for the day that their family and commitment
to each other can be recognized for what it is: equally loving and devoted, and worthy of the
same vital protections that other families formed by couples who may marry receive.
18.

Christy Berghoff (Christy) and Victoria Kidd (Victoria) of Winchester have

lived together in a committed relationship for more than nine years. Together, they are the
parents of a daughter, L. B.-K., who is eight months old.
19.

Victoria, 34, is a small business owner as well as a stay-at-home mother to L. B.-

K. Victoria works part-time from home as a freelance writer and owner of a small consulting
business that provides writing, editing, and resume development services. She is a Certified
Professional Resume Writer and a Certified Professional Career Coach, and holds a masters
degree in business administration.
20.

Christy, also 34, works as an information technology program manager for the

U.S. Department of Justice in Washington, D.C. Christy is also currently working toward a
masters degree in management information systems.

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21.

In addition, Christy is a veteran of the United States Air Force. She served in an

intelligence unit from 1999 to 2003, when she was honorably discharged with the rank of Senior
Airman.
22.

Victoria and Christy met online in the summer of 2004, when they were both

living in Ohio, and had their first date over coffee shortly thereafter. They quickly realized that
they shared important goals and values; in particular, Victoria was impressed with Christys
maturity as a 25-year-old Air Force veteran. They also came from similar backgrounds.
Victoria grew up in the small community of Roanoke Rapids, North Carolina, while Christy
grew up in the small community of Greenville, Ohio. Both Victoria and Christy were raised in
the Jehovahs Witness faith.
23.

Within less than a year after meeting, Victoria and Christy decided that they not

only loved one another, but wanted to permanently commit their lives to one another. In 2004,
Christy proposed to Victoria. Victoria accepted, and began wearing a diamond engagement ring
that Christy gave her. Less than a year later, Victoria also gave Christy a ring that Christy began
wearing as a symbol of their commitment.
24.

In 2005, Victoria and Christy moved to Northern Virginia, in order to be near the

many job opportunities the area offers. In 2007, they purchased and moved into their home in
Winchester, Virginia, within the Harrisonburg Division of the Western District of Virginia.
Since then, they have established firm roots in Frederick County, Virginia. In addition to
running her business and serving as primary caretaker to L. B.-K., Victoria is an active member
of a local civic club and has also done volunteer work with many other groups including the
Taproot Foundation, the United Way, the United Service Organizations, and AIDS Response
Effort, a Winchester charity that serves people living with HIV and AIDS. Christys work and

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commute take up most of her time on weekdays, but she often helps out with Victorias service
projects on the weekends.
25.

Victoria and Christy are legally married under the laws of the District of

Columbia. Getting legally married was important to Victoria and Christy because of the
legitimacy it afforded to their relationship, and because a government-sanctioned marriage
ceremony provided a way for them to officially pledge their lives to one another. Victoria and
Christy put off getting married for years because they wanted to do so in their home town rather
than travel to a faraway place. But after the District of Columbia granted same-sex couples the
freedom to marry in 2010, Victoria and Christy decided to take advantage of that freedom.
26.

Victoria and Christys wedding took place on August 20, 2011, at a church in

Washington, D.C., with about 20 friends and family members in attendance. After the
ceremony, they hosted a reception for the wedding guests in their backyard in Winchester.
27.

Although their relationship was already committed and strong before they got

married, Victoria and Christy both feel that legally marrying has caused a positive change in
their relationship. Victoria in particular believes that calling Christy her wife rather than her
partner has helped other people understand the depth of their relationship.
28.

But the Commonwealths disrespect of their marriage invites others to see them as

less than. Victoria and Christy started a family together when Christy gave birth to their
daughter, L. B.-K. in November 2012, at Winchester Medical Center. One nurse was overtly
hostile to both Victoria and Christy, delaying service and responding with unkind words so often
that the couple felt like they were on their own even when Victoria called for help because
Christy needed medical attention the night after L. B.-K. was born. Victoria and Christy believe

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this kind of experience would be far less common for same-sex couples if the Commonwealth
recognized the equal dignity of their relationships.
29.

Because the Commonwealth does not recognize Victoria as married to Christy,

Victoria initially had no legal relationship to L. B.-K. After their baby was born, Victoria and
Christy retained an attorney whom they paid hundreds of dollars to secure co-custodianship for
Victoria that gives her the legal right to make medical and other decisions for L. B.-K. when
Christy is not present. However, Victoria and Christy worry about whether the co-custodianship
papers they carry with them would be enough to make sure Victorias relationship with L. B.-K.
is respected in a time of crisis. Additionally, the papers do not confer full parental status on
Victoria.
30.

Victoria and Christy are considering seeking additional legal assistance with

preparation of wills, living wills, powers of attorney, and other legal documents to help protect
one another given that, due to the marriage ban and Defendants enforcement of it, their marriage
is not legally respected in the Commonwealth. However, this process would require a large
investment of time and money, and Victoria and Christy are aware that, even with every possible
private legal agreement in place, they would not have access to many of the rights and
responsibilities that come with marriage in Virginia.
31.

When Victoria and Christy purchased their home in Winchester in 2007, they

wanted to get a home loan guaranteed by the federal Veterans Administration (the V.A.).
The V.A. guarantees certain types of home loans issued to veterans and their spouses, and those
loan products typically feature better interest rates and other financial advantages over other loan
products because of the V.A. guarantee. However, Christy and Victoria were not able to get a
V.A. loan, because Victoria was not Christys legal spouse and lenders were unwilling to issue

10

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loans with a V.A. guarantee covering only half of the total amount. Since then, Victoria and
Christy have married in the District of Columbia and the Supreme Court has struck down as
unconstitutional the section of the federal Defense of Marriage Act that previously forbade any
federal agency from recognizing the marriages of same-sex couples. However, if they were to
buy a new house in Virginia or seek to refinance their current mortgage, Victoria and Christy
today would still not be eligible for the full V.A. loan guarantee that other veterans families
receive, because the V.A. currently looks to the law of joint applicants state of residence to
determine whether they are legally married, and Virginia refuses to recognize Victoria and
Christy as married.
32.

Christy commutes more than 75 miles each way from the couples home in

Winchester to her office in the District of Columbia. The chance that one of them could suffer a
medical emergency during a weekday when the other is not immediately available makes
Victoria and Christy particularly concerned about needing to make sure they are respected as
spouses by first responders, hospital staff, and anyone else who might question their legal
relationship during an emergency situation. These concerns were further heightened when
Victoria suffered a minor stroke last year and required emergency medical treatment, and again
when Victoria and Christy had the painful experience of having a nurse disrespect them in the
hospital the night after L. B.-K.s birth.
33.

Victoria and Christy feel strongly that Virginia is their home and is where they

want their child to grow up, but they feel disrespected under current Virginia law. The couple
hopes their marriage is recognized in the Commonwealth before L. B.-K. is old enough to
understand that Virginia does not give her parents and family the same rights and respect it gives
other parents and families.

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B.

The Defendants

34.

Defendant Robert F. McDonnell is sued in his official capacity as Governor of the

Commonwealth of Virginia. As decreed by article 5, sections 1 and 7 of the Virginia


Constitution, Governor McDonnell is vested with the chief executive power of the
Commonwealth and has the duty to see that the Commonwealths laws, including the marriage
ban, are faithfully executed. Pursuant to Va. Code Ann. 2.2-103, Governor McDonnell also
bears the authority and responsibility for the formulation and administration of the policies of the
executive branch, including administrative agency policies relating to health insurance coverage,
vital records, tax obligations, state employee benefits programs (including in Governor
McDonnells role as Chief Personnel Officer of the Commonwealth), motor vehicles (including,
for example, changing ones last name on a drivers license), and regulation of health professions
(including, for example, implementation of laws governing medical decision-making by family
members and requests for autopsies) all of which involve recognizing marital status. Governor
McDonnell appoints the heads of various agencies with responsibility for recognizing the
marriages of same-sex couples, and may remove those appointees for various reasons, including
for how they administer laws relating to the ability of same-sex couples to marry, or to have their
valid marriages from other jurisdictions recognized. Governor McDonnell also has authority to
remove from office members of boards, commissions, councils and collegial bodies for
misconduct, including a failure to comply with the obligations of the federal Constitution.
Governor McDonnell may also enforce such obligations through his ability to initiate suit to
protect the interests of the Commonwealths citizens. Governor McDonnell is a person within
the meaning of 42 U.S.C. 1983 and was acting under color of state law at all times relevant to
this complaint.

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35.

Defendant Janet M. Rainey is sued in her official capacity as the State Registrar

of Vital Records (State Registrar). Ms. Raineys duties include directing and supervising the
system of vital records and serving as the custodian of its records; directing, supervising, and
controlling the activities of all persons pertaining to the operation of the system of vital records;
as part of these vital records-related duties, furnishing forms for the marriage license, marriage
certificate, and application for marriage license used in the Commonwealth; maintaining a
publicly available online vital records index of marriages; and compiling, publishing, and
making available to the public aggregate data on the number of marriages occurring in the
Commonwealth, including the age and race of the spouses, and the number of minor children
involved. Ms. Rainey must ensure compliance through all of these functions with relevant
Commonwealth laws, including those that currently exclude same-sex couples from marriage.
Upon information and belief, this includes furnishing forms that prohibit same-sex couples from
marrying by requiring a Bride and a Groom. Ms. Rainey also enforces Virginia law with
respect to birth certificates, which disrespects same-sex couples valid marriages from other
jurisdictions by requiring that, for children resulting from assisted conception, the birth
certificate contain the name of the mother and her husband. Ms. Rainey is a person within the
meaning of 42 U.S.C. 1983 and was acting under color of state law at all times relevant to this
complaint.
36.

Defendant Thomas E. Roberts is sued in his official capacity as Staunton Circuit

Court Clerk, an office authorized by Article VII, Section 4 of the Commonwealths Constitution.
Mr. Roberts duties include issuing marriage licenses, which couples may seek from him
regardless of where they reside in Virginia; requiring the parties contemplating marriage to state
under oath the information required for the marriage record, and delivering certificates of that

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information to the parties along with the marriage license; levying and collecting a tax on each
marriage license; authorizing qualified ministers to perform marriage rites; filing and preserving
the originals and indexing the names of both spouses, upon return of the marriage license and
certificate from the officiant; forwarding a record of each marriage to the State Registrar;
providing an attorney for the Commonwealth a list of all marriage licenses issued during the
preceding calendar year that have not been returned by the person celebrating the marriage; and
correcting marriage records as needed. Mr. Roberts must ensure compliance through all of these
functions with relevant Commonwealth laws, including those that exclude same-sex couples
from marriage. Mr. Roberts is a person within the meaning of 42 U.S.C. 1983 and was acting
under color of state law at all times relevant to this complaint.
37.

Defendants, through their respective duties and obligations, are responsible for

enforcing the Commonwealths marriage ban. Each Defendant, and those subject to their
direction, supervision, and control, intentionally performed, participated in, aided and/or abetted
in some manner the acts alleged here, proximately caused the harm alleged herein, and will
continue to injure Plaintiffs irreparably if not enjoined. Accordingly, the relief requested herein
is sought against each Defendant, as well as all persons under their supervision, direction, or
control, including but not limited to their officers, employees, and agents.
III.
38.

JURISDICTION AND VENUE

Named Plaintiffs bring this action under 42 U.S.C. 1983 on behalf of

themselves and the Plaintiff Class to redress the deprivation under color of state law of rights
secured by the United States Constitution.

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39.

This Court has original jurisdiction over the subject matter of this action pursuant

to 28 U.S.C. 1331 and 1343 because the matters in controversy arise under the Constitution
and laws of the United States.
40.

Venue is proper in this Court under 28 U.S.C. 1391(b)(1) and (2) because

Defendant Roberts resides within the District and the Harrisonburg Division of it and all
Defendants reside within the Commonwealth of Virginia; and because a substantial part of the
events that gave rise to the Named Plaintiffs claims took place within the District and the
Harrisonburg Division of it.
41.

This Court has the authority to enter a declaratory judgment and to provide

preliminary and permanent injunctive relief pursuant to Rules 57 and 65 of the Federal Rules of
Civil Procedure, and 28 U.S.C. 2201 and 2202.
42.

This Court has personal jurisdiction over Defendants because they are domiciled

in the Commonwealth.
IV.
43.

STATEMENT OF FACTS

Plaintiffs are residents of the Commonwealth who experience the same joys and

challenges of family life as their heterosexual neighbors, co-workers, and other community
members who freely may marry. Plaintiffs are productive, contributing citizens who support
their families and nurture their children, but must do so without the same legal shelter, dignity,
and respect afforded by the Commonwealth to other families through access to the universally
celebrated status of marriage. The Commonwealths exclusion of Plaintiffs from marriage, and
Defendants enforcement of that exclusion, subjects Plaintiffs to an inferior second class status
relative to the rest of the political community and deprives them and their children of equal
dignity, security, and legal protections afforded to other Virginia families.

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Named Plaintiffs Respective Attempt To Marry And Marriage In Another Jurisdiction


44.

But for the fact that they are of the same sex, Joanne Harris and Jessica Duff are

legally qualified to marry under the laws of the Commonwealth and wish to marry in Virginia.
Each is over the age of 18 and fully competent, and neither is precluded from marriage as a result
of having another spouse or being closely related to the other. They are willing to provide the
requisite information to receive a marriage license and to pay the required fee. Joanne Harris
and Jessica Duff are able and eager to assume the responsibilities of marriage.
45.

On July 29, 2013, Joanne Harris and Jessica Duff appeared in person at the

Staunton Circuit Court to apply for a marriage license. Defendant Roberts refused their marriage
license application because they are a same-sex couple.
46.

Christy Berghoff and Victoria Kidd were validly married in Washington, D.C. on

August 20, 2011, and would be recognized as such by the Commonwealth but for the fact that
they are a same-sex couple.
The Plaintiff Class
47.

The Class the Named Plaintiffs represent reflects the rich diversity of the

Commonwealth. Class members come from all walks of life, and include, by way of example,
people who put their lives on the line daily to serve the Commonwealth as police officers and
fire fighters; people who are doing or have done the same for their country as members of the
armed forces; doctors, nurses, social workers, attorneys, government officials and employees,
scientists, artists, engineers, sales people, office workers, small business owners, professors,
students, stay-at-home parents, and retirees; and members of diverse faith communities, as well
as some of their pastors and rabbis. Many are raising children together, and some have
grandchildren.

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48.

Each member of the Plaintiff Class either has been unable to marry his or her

same-sex partner in Virginia because of the marriage ban or validly married a partner of the same
sex in another jurisdiction but is treated as a legal stranger to his or her spouse under Virginia
law.
The Commonwealths Statutory and Constitutional Amendments Single Out Same-Sex
Couples and Exclude Them From Marriage
49.

Beginning in 1975, the Commonwealth has enacted a series of statutory and

constitutional bans designed to exclude same-sex couples from marriage. These marriage bans
cannot be explained by reference to legitimate public policies that could justify the disadvantages
the marriage bans impose on certain same-sex couples. Rather, the history of these enactments
and their own text demonstrate that interference with the equal dignity of same-sex couples was
more than a mere side effect of the various enactments it was their essence.
50.

In 1975, shortly after same-sex couples in other jurisdictions filed the first

lawsuits seeking the freedom to marry, the Commonwealth for the first time enacted a statutory
provision specifically to exclude same-sex couples from marriage. The new statute, Virginia
Code 20-45.2, provided that, A marriage between persons of the same sex is prohibited.
51.

In 1997, in response to court decisions in Hawaii that indicated Hawaii might

soon allow same-sex couples to marry, the Commonwealth reenacted Section 20-45.2 and added
sweeping language that not only voided any marriage entered into by persons of the same sex in
another state or jurisdiction, but also voided any contractual rights created by such marriage,
rendering them unenforceable.
52.

In 2004, the Commonwealth went even further to ensure that same-sex couples

could not obtain any state-recognized status even one significantly inferior to marriage by
enacting Virginia Code Annotated 20-45.3, which prohibits same-sex couples from obtaining a
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civil union, partnership contract or other arrangement . . . purporting to bestow the privileges or
obligations of marriage. One of the most extreme laws restricting the rights of same-sex
couples in the country, the statute also barred any and all recognition of a civil union,
partnership contract or other arrangement entered into by persons of the same sex in another state
or jurisdiction, providing that any such status shall be void in all respects in Virginia and any
contractual rights created thereby shall be void and unenforceable. The Virginia legislature
rejected an amendment offered by the then-Governor Mark Warner that would have mitigated
the adverse effects of the law on contractual rights.
53.

In 2005 the Virginia legislature took the first step required to refer a constitutional

amendment to the voters for approval, for the purpose of enshrining the marriage ban into the
Commonwealths Constitution. The legislature approved a proposed amendment providing:
That only a union between one man and one woman may be a marriage valid in or
recognized by this Commonwealth and its political subdivisions.
This Commonwealth and its political subdivisions shall not create or recognize a legal
status for relationships of unmarried individuals that intends to approximate the design,
qualities, significance, or effects of marriage. Nor shall this Commonwealth or its
political subdivisions create or recognize another union, partnership, or other legal status
to which is assigned the rights, benefits, obligations, qualities, or effects of marriage.
54.

As required for a proposed constitutional amendment, the legislature approved the

measure again in early 2006, and the voters ratified Virginia Constitution article 1, 15-A in
November 2006 by a 57% to 43% vote.
55.

Pursuant to these laws, same-sex couples are prohibited from all access to

marriage; they can neither marry in the Commonwealth nor have a valid marriage from another
jurisdiction recognized.

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The Commonwealths Exclusion of Same-Sex Couples from Marriage Inflicts Profound


Harms on Plaintiffs
56.

Barring same-sex couples from marriage disqualifies them from critically

important rights and responsibilities that different-sex couples rely upon to secure their
commitment to each other, and to safeguard their families. By way of example only, same-sex
couples are denied:
a. The ability to solemnize their relationships through state-sanctioned
ceremonies. Va. Code Ann. 20-13. The denial of state sanction or
recognition deprives same-sex couples of important legal protections that
automatically come with state-sanctioned marriage.
b. The ability to celebrate their marriage in their chosen faith tradition or in a
civil ceremony because ministers, rabbis, priests, other faith leaders, and
authorized marriage celebrants are specifically prohibited even from using the
word marriage in a religious ceremony (even if permitted or encouraged by
their faith tradition) or other ceremony celebrating their committed union and
could face criminal prosecution if they did. Va. Code Ann. 20-28. The
important right to celebrate a marriage through religious ceremony or other
ceremony which symbolizes the binding together of two lives and two
families, and creates memories that couples and families cherish for a lifetime
is denied to same-sex couples in the Commonwealth.
c. The ability to safeguard family resources under an array of laws that protect
spousal finances, including for example, the exemption from taxable income
of the value of health insurance coverage that one partner receives through the
others employment; the exemption or deferral of taxes on the property of
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certain elderly or disabled residents, Va. Code Ann. 58.1-3210; and property
tax exemptions for the surviving spouse of an eligible veteran, Va. Code Ann.
58.1-3219.5.
d. The ability to make caretaking decisions in times of death and disaster,
including priority to make medical decisions for an incapacitated spouse, Va.
Code Ann. 54.1-2986; the ability to petition a circuit court for an autopsy,
Va. Code Ann. 32.1-285; the automatic right to authorize interment, Va.
Code Ann. 57-27.3; and the automatic right and priority to make anatomical
gifts of a decedents body, Va. Code Ann. 32.1-291.9.
e. The ability to support each other in end-of-life circumstances, such as being
assured privacy for visits with a spouse if an individual is in a nursing home,
and the right to share a room with a spouse if both reside in the same nursing
home. Va. Code Ann. 32.1-138(A)(15).
f. The right to inheritance under the laws of intestacy, Va. Code Ann. 64.2200; to claim an elective share in a deceased spouses estate, Va. Code Ann.
64.2-302; rights in the family residence pending final determination of the
estate, Va. Code Ann. 64.2-307; a homestead allowance, Va. Code Ann.
64.2-311; and various kinds of survivor benefits, including for example,
survivor benefits for a spouse and children of an individual killed while
performing firefighting duties, Va. Code Ann. 27-39.
g. Benefits for families who have made some of the greatest sacrifices for our
country, including educational benefits, home loan guarantees, and a real

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estate tax exemption for surviving spouses of military service members killed
in action, see, e.g., Va. Code Ann. 2.2-2001.
h. The ability to secure legal recognition for parent-child bonds through the
mechanisms afforded to spouses, including joint adoption, Va. Code Ann.
63.2-1201; adoption of a spouses child, Va. Code Ann. 63.2-1241; the
ability of a couple to legitimate their child by marrying, Va. Code Ann. 2031.1; and the presumption of parentage for children born into a marriage, Va.
Code Ann. 63.2-1202(D).
i. In the event that a couple separates, access to an orderly dissolution process
for terminating the relationship and assuring an equitable division of the
couples assets and debts. Va. Code Ann. 20-96, 20-107.3.
j. A range of important responsibilities that, like rights, enhance the dignity and
integrity of the person. As one example, same-sex couples are denied the
ability to be made formally accountable to each other through, obligations of
spousal support and child support. Va. Code Ann. 20-107.1, 20-107.2.
k. A host of federal rights and responsibilities that span the entire United States
Code and the whole realm of federal regulations. Unmarried couples are
denied recognition for virtually all purposes throughout the more than 1,000
statutes and numerous federal regulations relating to marriage, including laws
pertaining to Social Security, housing, taxes, criminal sanctions, copyright,
and veterans benefits. Couples validly married in another jurisdiction and
living in the Commonwealth may qualify for some federal benefits and
protections, but will likely be denied others such as veterans spousal benefits

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and Social Security survivor benefits. Many of these deprivations drain


family economic resources, causing financial harm not only to same-sex
couples but to their children as well.
57.

In addition to the tangible harms listed above, Plaintiffs are denied the unique

social recognition that marriage conveys. Without access to the familiar language and legal label
of marriage, Plaintiffs are unable instantly or adequately to communicate to others the depth and
permanence of their commitment, or to obtain respect for that commitment as others do simply
by invoking their married status.
58.

The substantive and dignitary inequities imposed on committed same-sex couples

include particular harms to same-sex couples children, who are equally deserving of the
stability, permanence, and legitimacy that are enjoyed by children of different-sex couples who
marry. Civil marriage affords official sanctuary to the family unit, offering parents and children
critical means to secure legal parent-child bonds, and a familiar, public way of demonstrating
those bonds to third parties. By denying same-sex couples marriage, the Commonwealth
reinforces the view held by some that the family bonds that tie same-sex parents and their
children are less consequential, enduring, and meaningful than those of different-sex parents and
their children. Same-sex couples and their children accordingly must live with the vulnerability
and stress inflicted by a lack of access to the same mechanisms for securing their legal
relationships, and the ever-present possibility that others may question their familial relationship
in social, legal, educational, and medical settings and in moments of crisis in a way that
spouses can avoid by simple reference to being married.
59.

Children from a young age understand that marriage signifies an enduring family

unit, and likewise understand when the Commonwealth has deemed a class of families as less

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worthy than other families, undeserving of marriage, and not entitled to the same societal
recognition and support as other families. The Commonwealth has no adequate interest to justify
marking the children of same-sex couples, including the children of Named Plaintiffs, with a
badge of inferiority that will invite disrespect in school, on the playground, and in every other
sphere of their lives.
60.

The government is a powerful teacher of discrimination to others. By decreeing

that the relationships of same-sex couples should be ignored in the Commonwealth and
enforcing that policy, the Commonwealth and Defendants instruct all persons with whom samesex couples interact, including those couples own children, that their relationships are less
worthy than others. Bearing the imprimatur of the government, the Commonwealths statutory
and constitutional marriage ban, and Defendants enforcement of it, communicates a view that
same-sex couples are unfit for the dignity, respect, and stature afforded to different-sex couples,
and this encourages others to follow the governments example in discriminating against them.
61.

Many private entities defer to the Commonwealths and Defendants conferral of

marital status in defining family for purposes of an array of important benefits, often resulting
in the exclusion of same-sex couples and their children from important safety nets such as
private employer-provided health insurance for family members. The Commonwealth and
Defendants also encourage disrespect of committed same-sex couples and their children by
others in workplaces, schools, businesses, and other major arenas of life, in ways that would be
less likely to occur and more readily corrected if marriage were available to same-sex couples.

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The Commonwealths Exclusion Of Same-Sex Couples from Marriage Is Not Even


Rationally Related To A Legitimate Governmental Purpose, Let Alone Substantially
Related To An Important Government Purpose Or Narrowly Tailored To A Compelling
Governmental Purpose
62.

No legitimate, let alone important or compelling, interest exists to exclude same-

sex couples from the historic and highly venerated institution of marriage. An individuals
capacity to establish a loving and enduring relationship does not depend upon that individuals
sexual orientation or sex in relation to his or her committed life partner, nor is there even a
legitimate interest in justifying same-sex couples exclusion from marriage and the spousal
protections it provides on such bases.
63.

Neither history nor tradition can justify the Commonwealths discriminatory

exclusion of same-sex couples from marriage. Marriage has remained vital and enduring
because of, not despite, its resiliency in response to a dynamic society, as society and the courts
have cast off prior restrictions on interracial marriage and coverture. The Constitution is not
confined to historic notions of equality, and no excuse for the Commonwealths discriminatory
restriction can be found in the pedigree of such discrimination.
64.

As the Supreme Court has made clear, the law cannot, directly or indirectly, give

effect to private biases. Liberty and equality, not moral disapproval, must be the guiding
framework for a states treatment of its citizens.
65.

Excluding same-sex couples from marriage does nothing to protect or enhance the

rights of different-sex couples. Different-sex spouses will continue to enjoy the same rights and
status conferred by marriage regardless of whether same-sex couples may marry, unimpaired by
the acknowledgment that this freedom belongs equally to lesbians and gay men.
66.

Although the Commonwealth has a valid interest in protecting the public fisc, it

may not pursue that interest by making invidious distinctions between classes of its citizens
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without adequate justification. Moreover, the Commonwealth not only lacks any such fiscal
justification but rather would generate additional revenues by allowing same-sex couples to
marry and to be recognized as married.
67.

The Commonwealths interest in child welfare is affirmatively harmed rather than

furthered by the exclusion of same-sex couples from marriage. That exclusion injures same-sex
couples children without offering any conceivable benefit to other children.
68.

Barring same-sex couples from marriage does not affect which couples raise

children together. Same-sex couples in Virginia can and do bear children through use of
reproductive technology that is available to both same-sex and different-sex couples, and bring
children into their families through foster care and adoption. Marriage has never been the sole
province of couples who are parents. Neither Virginia nor any other state in this country has
ever restricted marriage to those capable of or intending to procreate.
69.

There is no valid basis for the Commonwealth to assert a preference for parenting

by different-sex couples over same-sex couples. Based on more than 30 years of research, the
scientific community has reached a consensus that children raised by same-sex couples are just
as well-adjusted as children raised by different-sex couples. This consensus has been recognized
by every major professional organization dedicated to childrens health and welfare including the
American Academy of Pediatrics, the American Psychological Association, the American
Medical Association, the National Association of Social Workers, and the Child Welfare League
of America.
70.

Other courts have found, after trials involving expert testimony, that there is no

rational basis for favoring parenting by heterosexual couples over gay and lesbian couples. See,
e.g., Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 980 (N.D. Cal. 2010) (finding that the

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research supporting the conclusion that [c]hildren raised by gay or lesbian parents are as likely
as children raised by heterosexual parents to be healthy, successful and well-adjusted is
accepted beyond serious debate in the field of developmental psychology), affd sub nom.
Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012), vacated for lack of standing sub nom.
Hollingsworth v. Perry, No. 12-144, 2013 WL 3196927 (U.S. June 26, 2013); In re Adoption of
Doe, 2008 WL 5006172, at *20 (Fla. Cir. Ct. Nov. 25, 2008) ([B]ased on the robust nature of
the evidence available in the field, this Court is satisfied that the issue is so far beyond dispute
that it would be irrational to hold otherwise; the best interests of children are not preserved by
prohibiting homosexual adoption.), affd sub nom. Florida Dept of Children & Families v.
Adoption of X.X.G., 45 So.3d 79 (Fla. Dist. Ct. App. 2010); Howard v. Child Welfare Agency
Review Bd., Nos. 1999-9881, 2004 WL 3154530, at *9 and 2004 WL 3200916, at *3-4 (Ark. Cir.
Ct. Dec. 29, 2004) (holding based on factual findings regarding the well-being of children of gay
parents that there was no rational relationship between the [exclusion of gay people from
becoming foster parents] and the health, safety, and welfare of the foster children.), affd sub
nom. Dept of Human Servs. v. Howard, 238 S.W.3d 1 (Ark. 2006).
71.

Excluding same-sex couples from marriage harms their children, including by

branding their families as inferior and less deserving of respect, and by encouraging private bias
and discrimination. Denying same-sex couples the equal dignity and status of marriage
humiliates the children now being raised by same-sex couples, and makes it more difficult for the
children to understand the integrity and closeness of their own family and its concord with other
families in their community and in their daily lives.
72.

Excluding same-sex couples from civil marriage will not make the children of

different-sex spouses more secure. Different-sex spouses children will continue to enjoy the

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benefits that flow from their parents marriage regardless of whether same-sex couples are
permitted to marry. The marriage ban has no conceivable effect on the choices different-sex
couples make about such profound issues as whether to marry, whether to have children, and
whether to raise their children in wedlock.
73.

The Commonwealths interest in the welfare of children parented by same-sex

couples is as great as its interest in the welfare of any other children. The family security that
comes from the Commonwealths official recognition and support is no less important for samesex parents and their children than it is for different-sex parents and their children.
V.
74.

CLASS ACTION ALLEGATIONS

Named Plaintiffs bring this action for themselves and, pursuant to Rules 23(a),

23(b)(1), and 23(b)(2) of the Federal Rules of Civil Procedure, on behalf of all same-sex couples
who are injured by the Commonwealths marriage ban (the Plaintiff Class). The class, as
proposed by Named Plaintiffs, consists of:
a. all persons residing in Virginia who are unmarried, and either
1. wish to marry a person of the same sex, have applied for a
marriage license in the Commonwealth with a person of the same sex,
and have been denied the license; or
2. wish to marry a person of the same sex in the Commonwealth, but
have not attempted to apply for a marriage license because the
marriage ban would render such an attempt futile; as well as
b. all persons residing in Virginia who are validly married to a person of the
same sex in another jurisdiction, and wish to have their marriage recognized
by the Commonwealth.

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75.

The class is so numerous that joinder of all members is impracticable. Fed. R.

Civ. P. 23(a)(1). Upon information and belief, there are thousands of same-sex couples in
Virginia who are married or would marry if Virginia law permitted them to do so. The
Commonwealths marriage ban, and Defendants enforcement of it, prevents all of those couples
from either marrying or having their valid marriage from another jurisdiction recognized by the
Commonwealth.
76.

There are questions of law and fact common to the members of the class. Fed. R.

Civ. P. 23(a)(2). Such questions include, but are not limited to:
a. whether the Commonwealths marriage ban violates federal substantive due
process guarantees, including the fundamental right to marry, and liberty
interests in autonomy, and family integrity and association;
b. whether the Commonwealths marriage ban violates guarantees of equal
protection regardless of an individuals sexual orientation, and sex in relation
to the sex of his or her life partner; and
c. the level of constitutional scrutiny applicable to governmental discrimination
based on sexual orientation.
Defendants are expected to raise common defenses to those claims.
77.

The claims of Named Plaintiffs are typical of those of the Plaintiff Class, as their

claims all arise from the Commonwealths marriage ban and are based on the same theories of
law.
78.

Named Plaintiffs are capable of fairly and adequately protecting the interests of

the Plaintiff Class because they do not have any interests antagonistic to the class. Named
Plaintiffs as well as the Plaintiff Class all seek to enjoin the Commonwealths marriage ban.

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Moreover, Named Plaintiffs are represented by counsel experienced in civil rights litigation and
complex class action litigation.
79.

This action is maintainable as a class action under Fed. R. Civ. P. 23(b)(1)

because prosecution of separate actions by individuals would create a risk of inconsistent and
varying adjudications, resulting in some Virginia same-sex couples having access to marriage, or
recognition for their valid marriage, and others not. In addition, prosecution of separate actions
by individual members could result in adjudications with respect to individual members that, as a
practical matter, would substantially impair the ability of other members to protect their interests.
80.

This action is also maintainable as a class action under Fed. R. Civ. P. 23(b)(2)

because Defendants enforcement of the marriage ban applies generally to the class, by
precluding all class members from marrying or having a valid marriage from another jurisdiction
recognized. The injunctive and declaratory relief sought is appropriate respecting the class as a
whole.
VI.

CLAIMS FOR RELIEF

FIRST CLAIM FOR RELIEF


Deprivation of Due Process
U.S. Const. Amend. XIV
81.

Plaintiffs incorporate by reference and reallege all of the preceding paragraphs of

this complaint as though fully set forth herein.


82.

Plaintiffs state this cause of action against Defendants in their official capacities

for purposes of seeking declaratory and injunctive relief.


83.

The Fourteenth Amendment to the United States Constitution, enforceable

pursuant to 42 U.S.C. 1983, provides that no state shall deprive any person of life, liberty, or
property, without due process of law. U.S. Const. amend. XIV, 1.

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84.

Virginia Constitution article 1, 15-A, Virginia Code Annotated 20-45.2, and

all other sources of state law that preclude marriage for same-sex couples or prevent recognition
of their marriages violate the due process guarantee of the Fourteenth Amendment both facially
and as applied to Plaintiffs.
85.

The right to marry the unique person of ones choice and to direct the course of

ones life in this intimate realm without undue government restriction is one of the fundamental
liberty interests protected by the Due Process Clause of the Fourteenth Amendment.
Defendants actions to enforce the marriage ban directly and impermissibly infringe Plaintiffs
choice of whom to marry, interfering with a core, life-altering, and intimate personal choice.
86.

The Due Process Clause also protects choices central to personal dignity and

autonomy, including each individuals rights to family integrity and association. Defendants
actions to enforce the marriage ban directly and impermissibly infringe Plaintiffs deeply
intimate, personal, and private decisions regarding family life, and preclude them from obtaining
full liberty, dignity, and security for themselves, their family, and their parent-child bonds.
87.

As the Commonwealths chief executive officer, Defendant McDonnells duties

and actions to enforce the Commonwealths marriage ban, including those taken pursuant to his
responsibility for the policies of the executive branch relating to, for example, health insurance
coverage, vital records, tax obligations, state employee benefits programs, and regulation of
motor vehicles and health professions, violate Plaintiffs fundamental right to marry and
constitutional rights to liberty, dignity, autonomy, family integrity, association, and due process
under the Fourteenth Amendment to the United States Constitution.
88.

As the State Registrar, Defendant Raineys duties and actions to ensure

compliance with the Commonwealths discriminatory marriage ban by, for example, furnishing

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forms for marriage licenses that prohibit same-sex couples from marrying by requiring a Bride
and a Groom, and by requiring that birth certificates contain the name of a mother and her
husband for children resulting from assisted conception, violate the Plaintiffs fundamental
right to marry and constitutional rights to liberty, dignity, autonomy, family integrity,
association, and due process under the Fourteenth Amendment to the United States Constitution.
89.

As Staunton Circuit Court Clerk, Defendant Roberts duties and actions to ensure

compliance with the Commonwealths discriminatory marriage ban by, for example, denying
same-sex couples marriage licenses, violate the fundamental right to marry and the rights,
protected under the Fourteenth Amendment to the United States Constitution, to liberty, dignity,
autonomy, family integrity, association, and due process of Joanne Harris and Jessica Duff, and
the unmarried members of the Plaintiff Class.
90.

Defendants actions thus deny and abridge Plaintiffs fundamental right to marry,

and liberty and due process interests in autonomy, and family integrity and association, by
penalizing Plaintiffs self-determination in the most intimate sphere of their lives.
91.

Defendants cannot satisfy the Due Process Clauses decree that governmental

interference with a fundamental right or liberty interest may be sustained only upon a showing
that the burden is narrowly tailored to serve a compelling or even important governmental
interest, as the marriage ban is not even tailored to any legitimate interest at all.
SECOND CLAIM FOR RELIEF
Deprivation of Equal Protection
U.S. Const. Amend. XIV
92.

Plaintiffs incorporate by reference and reallege all of the preceding paragraphs of

this complaint as though fully set forth herein.

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93.

Plaintiffs state this cause of action against Defendants in their official capacities

for purposes of seeking declaratory and injunctive relief.


94.

The Fourteenth Amendment to the United States Constitution, enforceable

pursuant to 42 U.S.C. 1983, provides that no state shall deny to any person within its
jurisdiction the equal protection of the laws. U.S. Const. amend. XIV, 1.
95.

Virginia Constitution article 1, 15-A, Virginia Code Annotated 20-45.2, and

all other sources of state law that preclude marriage for same-sex couples or prevent recognition
of their marriages violate the equal protection guarantee of the Fourteenth Amendment both
facially and as applied to Plaintiffs. Moreover, by enshrining discrimination in the form of a
constitutional amendment, Virginia Constitution article 1, 15-A, deprives lesbian and gay
Virginians of equal protection of the laws by locking them out of the political process and
making it uniquely more difficult to secure legislation on their behalf. The conduct of
Defendants in enforcing these laws violates the right of Plaintiffs to equal protection by
discriminating impermissibly on the basis of sexual orientation and sex.
96.

As the Commonwealths chief executive officer, Defendant McDonnells duties

and actions to enforce the Commonwealths discriminatory marriage ban, including those taken
pursuant to his responsibility for the policies of the executive branch relating to, for example,
health insurance coverage, vital records, tax obligations, state employee benefits programs, and
regulation of motor vehicles and health professions, violate Plaintiffs constitutional rights to
equal treatment, without regard to sexual orientation or sex, under the Fourteenth Amendment to
the United States Constitution.
97.

As the State Registrar, Defendant Raineys duties and actions to ensure

compliance with the Commonwealths discriminatory marriage ban by, for example, furnishing

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forms for marriage licenses that prohibit same-sex couples from marrying by requiring a Bride
and a Groom, and by requiring that birth certificates contain the name of a mother and her
husband for children resulting from assisted conception, violate the constitutional rights of
Plaintiffs to equal treatment.
98.

As Staunton Circuit Court Clerk, Defendant Roberts duties and actions to ensure

compliance with the Commonwealths discriminatory marriage ban by, for example, denying
same-sex couples marriage licenses, violate the constitutional rights to equal treatment of Joanne
Harris and Jessica Duff, and the unmarried members of the Plaintiff Class.
99.

The Commonwealths marriage ban, and Defendants actions to enforce it, denies

same-sex couples equal dignity and respect, and deprives their families of a critical safety net of
rights and responsibilities. The Commonwealths marriage ban brands lesbians and gay men and
their children as second-class citizens through a message of government-imposed stigma and
fosters private bias and discrimination, by instructing all persons with whom same-sex couples
interact, including their own children, that their relationship is less worthy than others. The
Commonwealths marriage ban and Defendants actions reflect moral disapproval and antipathy
toward lesbians and gay men.
100.

Same-sex couples such as the plaintiff couples are identical to different-sex

couples in all of the characteristics relevant to marriage.


101.

Same-sex couples make the same commitment to one another as different-sex

couples. Like different-sex couples, same-sex couples fall in love, build their lives together, plan
their futures together, and hope to grow old together. Like different-sex couples, same-sex
couples support one another emotionally and financially and take care of one another physically

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when faced with injury or illness, as for example Plaintiff Christy Berghoff did for her wife
Victoria Kidd when Victoria suffered a stroke last year.
102.

Plaintiffs seek to marry for the same emotional, romantic, and dignitary reasons,

and to provide the same legal shelter to their families, as different-sex spouses.
103.

Like some different-sex couples, some same-sex couples are parents raising

children together. All of the Named Plaintiffs are raising children jointly with their same-sex
partners.
104.

Plaintiffs and their children are equally worthy of the tangible rights and

responsibilities, as well as the respect, dignity, and legitimacy that access to marriage confers on
different-sex couples and their children. For the many children being raised by same-sex
couples, the tangible resources and societal esteem that access to marriage confers is no less
precious than for children of different-sex couples.
105.

Discrimination Based on Sexual Orientation. The Commonwealths marriage

ban targets lesbian and gay Virginians as a class for exclusion from marriage and discriminates
against each Plaintiff based on his or her sexual orientation both facially and as applied.
106.

The exclusion of Plaintiffs from marriage based on their sexual orientation

subjects Defendants conduct to strict or at least heightened scrutiny, which Defendants conduct
cannot withstand because the exclusion does not even serve any legitimate governmental
interests, let alone any important or compelling interests, nor does it serve any such interests in
an adequately tailored manner.
107.

Lesbians and gay men have suffered a long and painful history of discrimination

in the Commonwealth and across the United States.

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108.

Sexual orientation bears no relation to an individuals ability to perform in or

contribute to society.
109.

Sexual orientation is a core, defining trait that is so fundamental to ones identity

and conscience that a person may not legitimately be required to abandon it (even if that were
possible) as a condition of equal treatment.
110.

Sexual orientation generally is fixed at an early age and highly resistant to change

through intervention. No credible evidence supports the notion that such interventions are either
effective or safe; indeed, they often are harmful and damaging. No mainstream mental health
professional organization approves interventions that attempt to change sexual orientation, and
virtually all of them have adopted policy statements cautioning professionals and the public
about these treatments.
111.

Lesbians and gay men are a discrete and insular minority, and ongoing prejudice

against them continues seriously to curtail the operation of those political processes that might
ordinarily be relied upon to protect minorities. Gay people have fewer civil rights protections at
the state and federal level than racial minorities and women had when race- and sex-based
classifications were declared to be suspect and quasi-suspect, respectively.
112.

Lesbians and gay men lack express statutory protection against discrimination in

employment, public accommodations, and housing at the federal level and in more than half the
states, including the Commonwealth; are systematically underrepresented in federal, state, and
local democratic bodies; have been stripped of the right to marry through 30 state constitutional
amendments and are currently not permitted to marry in a total of 37 states; and have been
targeted across the nation through the voter initiative process more than any other group.

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113.

Discrimination Based on Sex. The Commonwealths marriage ban discriminates

against Plaintiffs on the basis of sex, both facially and as applied, barring Plaintiffs from
marriage or from being recognized as validly married, solely because each of the Plaintiffs
wishes to marry a life partner of the same sex. The sex-based restriction is plain on the face of
the Commonwealths laws, which restrict marriage to one man and one woman, Va. Const. art.
1, 15-A, and prohibit marriage or recognition of a marriage from another jurisdiction between
persons of the same sex, Va. Code Ann. 20-45.2.
114.

Because of these sex-based classifications, Joanne Harris is precluded from

marrying her devoted life partner because she is a woman and not a man; were Joanne a man, she
could marry Jessica Duff. Similarly, Christy Berghoff is precluded from having her marriage to
Victoria Kidd recognized as valid because she is a woman and not a man; were Christy a man,
her validly-entered marriage to Victoria would be recognized as such under Virginia law.
115.

The Commonwealths marriage ban also serves the impermissible purpose of

enforcing and perpetuating sex stereotypes by excluding Plaintiffs from marriage, or from being
recognized as validly married, because Plaintiffs have failed to conform to sex-based stereotypes
that men should marry women, and women should marry men.
116.

Given that there are no longer legal distinctions between the duties of husbands

and wives, there is no basis for the sex-based eligibility requirements for marriage.
117.

The exclusion of Plaintiffs from marriage based on their sex and the enforcement

of gender-based stereotypes cannot survive the heightened scrutiny required for sex-based
discrimination.
118.

Discrimination With Respect to Fundamental Rights and Liberty Interests

Secured by the Due Process Clause. The marriage ban discriminates against Plaintiffs based on

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sexual orientation and sex with respect to the exercise of the fundamental right to marry, and
their liberty interests in dignity, autonomy, and family integrity and association. Differential
treatment with respect to Plaintiffs exercise of fundamental rights and liberty interests, based on
their sexual orientation and sex, subjects Defendants conduct to strict or at least heightened
scrutiny, which Defendants conduct cannot withstand.
DECLARATORY AND INJUNCTIVE RELIEF
28 U.S.C. 2201 and 2202; Federal Rules of Civil Procedure, Rules 57 and 65
119.

Plaintiffs incorporate by reference and reallege all of the preceding paragraphs of

this complaint as though fully set forth herein.


120.

This case presents an actual controversy because Defendants present and ongoing

denial of equal treatment to Plaintiffs subjects them to serious and immediate harms, warranting
the issuance of a declaratory judgment.
121.

Named Plaintiffs seek injunctive relief on behalf of themselves and the Plaintiff

Class to protect their constitutional rights and avoid the injuries described above. A favorable
decision enjoining Defendants would redress and prevent the irreparable injuries to Plaintiffs
identified herein, for which Plaintiffs have no adequate remedy at law or in equity.
122.

The Commonwealth will incur little to no burden in allowing same-sex couples to

marry and in recognizing the valid marriages of same-sex couples from other jurisdictions on the
same terms as different-sex couples, whereas the hardship for Plaintiffs of being denied equal
treatment is severe, subjecting them to an irreparable denial of their constitutional rights. The
balance of hardships thus tips strongly in favor of Plaintiffs.
VII.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs respectfully request that this Court enter judgment:

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A.

Declaring that the suit is maintainable as a class action pursuant to Federal Rules

of Civil Procedure 23(a) and 23(b)(1) and (2);


B.

Declaring that the provisions of and enforcement by Defendants of article 1,

section 15-A of the Commonwealths Constitution, Virginia Code Annotated 20-45.2, and any
other sources of state law that (1) exclude same-sex couples from marrying, or (2) refuse
recognition to the marriages of the Named Plaintiffs and members of the Plaintiff Class who
validly married a same-sex spouse in another jurisdiction, violate Plaintiffs rights under the Due
Process and Equal Protection Clauses of the Fourteenth Amendment to the United States
Constitution;
C.

Permanently enjoining enforcement by Defendants of article 1, section 15-A of

the Commonwealths Constitution, Virginia Code Annotated 20-45.2, and any other sources of
state law to exclude same-sex couples from marriage or to refuse recognition to the marriages of
same-sex couples validly married in another jurisdiction;
D.

Requiring Defendants in their official capacities to permit issuance of marriage

licenses to same-sex couples to marry, pursuant to the same restrictions and limitations
applicable to different-sex couples freedom to marry, and to recognize marriages validly entered
into by Plaintiffs;
E.

Awarding Plaintiffs their costs, expenses, and reasonable attorneys fees pursuant

to, inter alia, 42 U.S.C. 1988 and other applicable laws; and
F.

Granting such other and further relief as the Court deems just and proper.

G.

The declaratory and injunctive relief requested in this action is sought against

each Defendant; against each Defendants officers, employees, and agents; and against all

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persons acting in active concert or participation with any Defendant, or under any Defendants
supervision, direction, or control.
DATED: August 1, 2013
Respectfully submitted,
AMERICAN CIVIL LIBERTIES UNION
OF VIRGINIA FOUNDATION, INC.

AMERICAN CIVIL LIBERTIES UNION


FOUNDATION

/s/
.
Rebecca K. Glenberg (VSB No. 44099)
701 E. Franklin Street, Suite 1412
Richmond, Virginia 23219
Phone: (804) 644-8080
Fax: (804) 649-2733
rglenberg@acluva.org

James D. Esseks*
Amanda C. Goad*
Joshua A. Block*
125 Broad Street, 18th Floor
New York, New York 10004
Phone: (212) 549-2500
Fax: (212) 549-2650
jesseks@aclu.org
agoad@aclu.org
jblock@aclu.org

LAMBDA LEGAL DEFENSE AND EDUCATION


FUND, INC.

JENNER & BLOCK LLP

Gregory R. Nevins*
730 Peachtree Street, NE, Suite 1070
Atlanta, Georgia 30308
Phone: (404) 897-1880
Fax: (404) 897-1884
gnevins@lambdalegal.org
Tara L. Borelli*
3325 Wilshire Boulevard, Suite 1300
Los Angeles, California 90010
Phone: (213) 382-7600
Fax: (213) 351-6050
tborelli@lambdalegal.org

Paul M. Smith*
Luke C. Platzer*
Mark P. Gaber*
1099 New York Avenue, NW Suite 900
Washington, D.C. 20001-4412
Phone: (202) 639-6000
Fax: (202) 639-6066
psmith@jenner.com
lplatzer@jenner.com
mgaber@jenner.com

* Pro hac vice applications pending


Counsel for Plaintiffs

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Exhibit 3. Harris Plaintiffs


Memorandum On Summary
Judgment (W.D. Va.)

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IN THE UNITED STATES DISTRICT COURT


FOR THE WESTERN DISTRICT OF VIRGINIA
HARRISONBURG DIVISION

JOANNE HARRIS and JESSICA DUFF, and


CHRISTY BERGHOFF and VICTORIA KIDD,
on behalf of themselves and all others similarly
situated,

No. 5:13-cv-00077

Plaintiffs,
v.
ROBERT F. MCDONNELL, in his official
capacity as Governor of Virginia; JANET M.
RAINEY, in her official capacity as State Registrar
of Vital Records; THOMAS E. ROBERTS, in his
official capacity as Staunton Circuit Court Clerk,
Defendants.

BRIEF IN SUPPORT OF PLAINTIFFS MOTION FOR SUMMARY JUDGMENT


Pursuant to Rule 56 of the Federal Rules of Civil Procedure, Plaintiffs Joanne Harris and
Jessica Duff, and Christy Berghoff and Victoria Kidd, and all others similarly situated
(collectively Plaintiffs), submit the following brief in support of their motion for summary
judgment.

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TABLE OF CONTENTS
INTRODUCTION ...........................................................................................................................1
PROCEDURAL HISTORY.............................................................................................................2
BACKGROUND .............................................................................................................................3
I.

History of Virginias Marriage Bans. ..................................................................................3

II.

Marriage and Its Purposes Have Evolved in Virginia. ........................................................8


A.

Virginia Has Cast Aside Prior Discriminatory Exclusions From Marriage. ...........8

B.

Marriage in Virginia Today Serves Multiple Interests, and Is Not Limited to


Procreative Purposes. .............................................................................................10

STATEMENT OF UNDISPUTED FACTS ..................................................................................11


ARGUMENT .................................................................................................................................15
I.

Virginias Marriage Bans Deny Equal Protection of the Law. ..........................................15


A.

Virginias Marriage Bans Are Subject to Heightened Scrutiny Because


They Discriminate Based on Sexual Orientation. ..................................................15
1.

Lesbians and Gay Men Have Suffered a Long History of


Discrimination............................................................................................17

2.

Sexual Orientation Is Irrelevant to an Individuals Ability to


Contribute to Society. .............................................................................18

3.

Lesbians and Gay Men Lack Sufficient Political Power to Protect


Themselves Against Invidious Discrimination. .........................................19

4.

Sexual Orientation Is An Immutable Or Defining Characteristic.......20

B.

Virginias Marriage Bans Also Are Subject to Heightened Scrutiny Because


They Contain Explicit Sex-Based Classifications and Because They
Perpetuate Improper Stereotyped Notions of the Spousal and Parental Roles
of Men and Women. ..............................................................................................23

C.

Virginias Constitutional Marriage Ban Also Is Constitutionally Suspect


Because it Locks Same-Sex Couples Out of the Normal Political Process
and Makes it Uniquely More Difficult to Secure Legislation on Their
Behalf. ....................................................................................................................27

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D.

II.

Virginias Marriage Bans Are Unconstitutional Under Any Standard of


Review. ..................................................................................................................29
1.

Virginias Marriage Bans Cannot Be Justified by an Asserted


Interest in Maintaining a Traditional Definition of Marriage. ...................32

2.

Virginias Marriage Bans Cannot Be Justified by an Asserted


Interest in Encouraging Responsible Procreation by Heterosexual
Couples or Promoting a Conjugal View of Marriage.............................34

3.

Virginias Marriage Bans Cannot Be Justified by an Asserted


Interest in Optimal Childrearing.............................................................38

4.

No Legitimate Interest Overcomes the Primary Purpose and


Practical Effect of Virginias Marriage Bans to Disparage and
Demean Same-Sex Couples and Their Families. .......................................42

Virginias Marriage Bans Infringe Plaintiffs Fundamental Rights and Liberty


Interests and Thus Violate the Guarantees of Due Process and Equal Protection in
the Fourteenth Amendment................................................................................................47
A.

The Fundamental Right to Marry Includes the Right to Choose Ones


Spouse Free of Unwarranted Interference by the State. ........................................47
1.

The Right to Marry Is a Fundamental Right that Belongs to the


Individual. ..................................................................................................47

2.

The Scope of a Fundamental Right or Liberty Interest Under the


Due Process Clause Does Not Depend on Who Is Exercising that
Right...........................................................................................................48

3.

The Fundamental Right to Marry Is Not Contingent on the Ability to


Accidentally Procreate. ..............................................................................51

B.

Virginias Marriage Bans Infringe the Unmarried Plaintiffs Fundamental


Right to Marry and Other Protected Liberty Interests. ..........................................53

C.

Virginias Marriage Bans Also Violate the Equal Protection Clause Because
They Unjustifiably Discriminate Against Same-Sex Couples With Regard
to the Exercise of Fundamental Rights and Liberty Interests. ...............................55

D.

The Married Plaintiffs Also Suffer An Unconstitutional Denial of their


Fundamental Rights and Liberty Interests. ............................................................57

E.

Marriage and Its Recognition Cannot Be Denied to Plaintiffs Absent a


Compelling State Interest, Which the Commonwealth of Virginia Cannot
Demonstrate. ..........................................................................................................57

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III.

Baker v. Nelson is not Controlling. ....................................................................................58

CONCLUSION ..............................................................................................................................60

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TABLE OF AUTHORITIES
Page(s)
C ASES
Baehr v. Lewin,
910 P.2d 112 (Haw. 1996) .........................................................................................................3
Baker v. Nelson,
191 N.W.2d 185 (Minn. 1971), appeal dismissed, 409 U.S. 810 (1972) ............................3, 58
Board of Trustees of University of Alabama v. Garrett,
531 U.S. 356 (2001) .................................................................................................................30
Boddie v. Connecticut,
401 U.S. 371 (1971) .................................................................................................................50
Bottoms v. Bottoms,
457 S.E.2d 102 (Va. 1995).......................................................................................................45
Bowen v. Gilliard,
483 U.S. 587 (1987) ...................................................................................................................1
Bowers v. Hardwick,
478 U.S. 186 (1986) .................................................................................................................15
Caban v. Mohammed,
441 U.S. 380 (1979) .................................................................................................................26
Califano v. Goldfarb,
430 U.S. 199 (1977) ...................................................................................................................9
Califano v. Webster,
430 U.S. 313 (1977) .................................................................................................................25
Califano v. Westcott,
443 U.S. 76 (1979) ...................................................................................................................26
Carey v. Population Services International,
431 U.S. 678 (1977) .................................................................................................................59
Centola v. Potter,
183 F. Supp. 2d 403 (D. Mass. 2002) ......................................................................................24
Christian Legal Society v. Martinez,
130 S. Ct. 2971 (2010) .............................................................................................................23
City of Cleburne v. Cleburne Living Center, Inc.,
473 U.S. 432 (1985) .................................................................18, 19, 20, 29, 30, 31, 32, 34, 37
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Coalition to Defend Affirmative Action v. Regents of the University of Michigan,


701 F.3d 466 (6thCir. 2012) (en banc), cert. granted sub nom. Schuette v. Coalition to
Defend Affirmative Action (No. 12-682) ......................................................................27, 28, 29
Cook v. Gates,
528 F.3d 42 (1st Cir. 2008) ......................................................................................................58
Department of Human Services. v. Howard,
238 S.W.3d 1 (Ark. 2006)........................................................................................................41
Dorsey v. Solomon,
604 F.2d 271 (4th Cir. 1979) ...................................................................................................58
Eisenstadt v. Baird,
405 U.S. 438 (1972) ............................................................................. 31, 36-37, 38, 50, 51, 59
Evans v. Romer,
882 P.2d 1335 (Colo. 1994), affd on other grounds 517 U.S. 620 (1996) .............................28
Fatin v. INS,
12 F.3d 1233 (3d Cir. 1993).....................................................................................................21
Frontiero v. Richardson,
411 U.S. 677 (1973) .....................................................................................................18, 19, 21
Golinski v. United States Office of Personnel Management,
824 F. Supp. 2d 968 (N.D. Cal. 2012) .........................16, 17, 18, 19, 22, 23, 33, 34, 39, 41, 48
Goodridge v. Department of Public Health,
798 N.E.2d 941 (Mass. 2003) ............................................................................................33, 39
Griswold v. Connecticut,
381 U.S. 479 (1965) .....................................................................................................47, 51, 54
Hawkins v. Freeman,
195 F.3d 732 (4th Cir. 1999) (en banc) ...................................................................................47
Heckler v. Mathews,
465 U.S. 728 (1984) .................................................................................................................46
Heller v. Doe by Doe,
509 U.S. 312 (1993) .................................................................................................................32
Hernandez v. Robles,
855 N.E.2d 1 (N.Y. 2006) ........................................................................................................36

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Hernandez-Montiel v. INS,
225 F.3d 1084 (9th Cir. 2000), overruled on other grounds, Thomas v. Gonzales, 409
F.3d 1177 (9th Cir. 2005) ........................................................................................................21
Hicks v. Miranda,
422 U.S. 332 (1975) .................................................................................................................58
High Tech Gays v. Defense Industrial Security Clearance Office,
895 F.2d 563 (9th Cir. 1990) ...................................................................................................23
Hodgson v. Minnesota.,
497 U.S. 417 (1990) .................................................................................................................48
Howard v. Child Welfare Agency Review Board,
Nos. 1999-9881, 2004 WL 3154530 (Ark. Cir. 2004), affd sub nom. Department of
Human Services v. Howard, 238 S.W.3d 1 (Ark. 2006)..........................................................41
Hunter v. Erickson,
393 U.S. 385 (1969) ...........................................................................................................27, 28
In re Adoption of Doe,
2008 WL 5006172 (Fla. Cir. Ct. Nov. 25, 2008), affd sub nom. Florida Department
of Children & Families v. Adoption of X.X.G., 45 So. 3d 79 (Fla. Dist. Ct. App. 2010) .. 41-42
In re Balas,
449 B.R. 567 (Bankr. C.D. Cal. 2011).....................................................................................17
In re Marriage Cases,
183 P.3d 384 (Cal. 2008) .........................................................17, 22, 33, 35, 36, 46, 48, 49, 52
J.E.B. v. Alabama ex rel. T.B.,
511 U.S. 127 (1994) ...........................................................................................................24, 25
Jordan by Jordan v. Jackson,
15 F.3d 333 (4th Cir. 1994) .....................................................................................................55
Kerrigan v. Commissioner of Public Health,
957 A.2d 407 (Conn. 2008) ....................................................................................17,20, 22, 33
Knussman v. Maryland,
272 F.3d 625 (4th Cir. 2001) ...................................................................................................26
Kramer v. Union Free School District No. 15,
395 U.S. 621 (1969) .................................................................................................................57
Lawrence v. Texas,
539 U.S. 558 (2003) .............................15, 22, 33, 37, 38, 43, 44, 46, 48, 49, 50, 51, 52, 54, 59

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Loving v. Virginia,
388 U.S. 1 (1967) ...............................................................................................8, 24, 47, 48, 55
Manwani v. United States Department of Justice,
736 F. Supp. 1367 (W.D.N.C. 1990) .......................................................................................31
Marsh v. Chambers,
463 U.S. 783 (1983) ................................................................................................................33
McLaughlin v. Florida,
379 U.S. 184 (1964) .................................................................................................................24
Mississippi University for Women v. Hogan,
458 U.S. 718 (1982) .................................................................................................................26
Moore v. East Cleveland,
431 U.S. 494 (1977) ...........................................................................................................47, 55
Norfolk & W. Railroad Co. v. Prindle,
82 Va. 122 (1886) ......................................................................................................................9
Nevada Department of Human Resources v. Hibbs,
538 U.S. 721 (2003) ...........................................................................................................24, 26
Nyquist v. Mauclet,
432 U.S. 1 (1977) .....................................................................................................................21
Orr v. Orr,
440 U.S. 268 (1979) .................................................................................................................26
Padula v. Webster,
822 F.2d 97 (D.C. Cir. 1987) ...................................................................................................15
Pedersen v. Office of Personnel Management,
881 F. Supp. 2d 294 (D. Conn. 2012) ................................16, 17, 18, 19, 22, 23, 35, 39, 40, 42
Perry v. Schwarzenegger,
704 F. Supp. 2d 921 (N.D. Cal. 2010), appeal dismissed sub nom. Perry v. Brown,
725 F.3d. 1140 (9th Cir. 2013) ........................................................................17, 22, 24, 40, 52
Phan v. Commonwealth of Virginia,
806 F.2d 516 (4th Cir. 1986) ...................................................................................................31
Pierce v. Society of the Sisters of the Holy Names of Jesus & Mary,
268 U.S. 510 (1925) .................................................................................................................55
Planned Parenthood of SE Pennsylvania v. Casey,
505 U.S. 833 (1992) ...........................................................................................................40, 49

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Plyler v. Doe,
457 U.S. 202 (1982) ...........................................................................................................21, 39
Prowel v. Wise Business Forms, Inc.,
579 F.3d 285 (3d Cir. 2008).....................................................................................................24
Roberts v. United States Jaycees,
468 U.S. 609 (1984) .................................................................................................................48
Roe v. Roe,
228 Va. 722 (1985) ............................................................................................................ 44-45
Roe v. Wade,
410 U.S. 113 (1973) .................................................................................................................59
Romer v. Evans,
517 U.S. 620 (1996) ...............................................................................5, 29, 30, 31, 32, 34, 36
Rowland v. Mad River Local School District,
470 U.S. 1009 (1985) ...............................................................................................................17
South Carolina Education Assn v. Campbell,
883 F.2d 1251 (4th Cir. 1989) .................................................................................................43
Santosky v. Kramer,
455 U.S. 745 (1982) .................................................................................................................54
Scott v. Raub,
14 S.E. 178 (Va. 1891)...............................................................................................................8
Sell v. United States,
539 U.S. 166 (2003) .................................................................................................................58
Skinner v. Oklahoma,
316 U.S. 535 (1942) .................................................................................................................55
Smith Setzer & Sons, Inc. v. South Carolina Procurement Review Panel,
20 F.3d 1311 (4th Cir. 1994) ...................................................................................................29
Stanley v. Illinois,
405 U.S. 645 (1972) .................................................................................................................26
Stanton v. Stanton,
421 U.S. 7 (1975) .....................................................................................................................26
Sylvia Development Corp. v. Calvert County,
48 F.3d 810 (4th Cir. 1995) ...............................................................................................36, 43

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Thomasson v. Perry,
80 F.3d 915 (4th Cir. 1996) (en banc) .....................................................................................15
Turner v. Safley,
482 U.S. 78 (1987) ...............................................................................47, 48, 50, 51, 52, 55, 59
United States v. Virginia,
518 U.S. 515 (1996) ...........................................................................................................24, 25
United States v. Windsor,
133 S. Ct. 2675 (2013) ......... 1, 10, 16-17, 29, 30, 32, 34, 36, 37, 38, 39, 43, 44, 46, 47, 54, 57
United States Dept of Agriculture v. Moreno,
413 U.S. 528 (1973) ...............................................................................................29, 30, 31, 34
Vance v. Bradley,
440 U.S. 93 (1979) ..................................................................................................................43
Varnum v. Brien,
763 N.W.2d 862 (Iowa 2009) ........................................................17, 25, 33, 34, 35, 39, 41, 42
Veney v. Wyche,
293 F.3d 726 (4th Cir. 2002) ...................................................................................................15
Vigilant Insurance Co. v. Bennett,
89 S.E.2d 69 (Va. 1955).............................................................................................................9
Village of Arlington Heights v. Metropolitan Housing Development Corp.,
429 U.S. 252, 266-68 (1977) .............................................................................................30, 44
Village of Willowbrook v. Olech,
528 U.S. 562 (2000) .................................................................................................................42
Washington v. Glucksberg,
521 U.S. 702 (1997) .................................................................................................................47
Washington v. Seattle School District No. 1,
458 U.S. 457 (1982) ...........................................................................................................27, 28
Watkins v. United States Army,
875 F.2d 699 (9th Cir. 1989) ...................................................................................................21
Weinberger v. Wiesenfeld,
420 U.S. 636 (1975) ...................................................................................................................9
Williams v. Williams,
354 S.E.2d 64 (Va. 1987).............................................................................................11, 12, 13

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Windsor v. United States,


699 F.3d 169 (2d Cir. 2012).........................................16, 17, 18, 19, 20, 21, 34, 39, 42, 58, 59
Witt v. Departmentt of Air Force,
527 F.3d 806 (9th Cir. 2008) ...................................................................................................58
Womack and als. v. Tankersley and Wife, 78 Va. 242 (1883) .......................................................10
Youngberg v. Romeo,
457 U.S. 307 (1982) .................................................................................................................50
Zablocki v. Redhail,
434 U.S. 374 (1978) .........................................................................................47, 48, 50, 56, 59
C ONSTITUTIONAL P ROVISIONS
Va. Const. art. I, 15-A ...................................................................................................................4
Va. Const. art. XII, 2 .................................................................................................................6, 7
STATUTES
Va. Code Ann. 2.2-2001 .............................................................................................................14
VA Code Ann. 18.2-361(A)........................................................................................................44
Va. Code Ann. 20-13 ..................................................................................................................13
Va. Code Ann. 20-28 ..................................................................................................................13
Va. Code Ann. 20-31.1 ...............................................................................................................10
Va. Code Ann. 20-45.2 .................................................................................................................3
Va. Code Ann. 20-45.3 .................................................................................................................4
Va. Code Ann. 20-96 ..................................................................................................................14
Va. Code Ann. 20-107.1 .......................................................................................................10, 14
Va. Code Ann. 20-107.2 .......................................................................................................10, 14
Va. Code Ann. 20-107.3 .............................................................................................................14
Va. Code Ann. 20-107.3(E) ........................................................................................................11
Va. Code Ann. 27-39 ..................................................................................................................13
Va. Code Ann. 32.1-285 .............................................................................................................13

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Va. Code Ann. 32.1-291.9 ..........................................................................................................13


Va. Code Ann. 54.1-2986 ...........................................................................................................13
Va. Code Ann. 57-27.3 ...............................................................................................................13
Va. Code Ann. 58.1-100 et seq. ..................................................................................................10
Va. Code Ann. 58.1-3210 ...........................................................................................................13
Va. Code Ann. 58.1-3219.5 ........................................................................................................13
Va. Code Ann. 63.2-1201 ...........................................................................................................10
Va. Code Ann. 63.2-1202(D) ......................................................................................................10
Va. Code Ann. 63.2-1241 ...........................................................................................................10
Va. Code Ann. 64.2-200 .............................................................................................................13
Va. Code Ann. 64.2-302 .......................................................................................................10, 13
Va. Code Ann. 64.2-307 .............................................................................................................13
Va. Code Ann. 64.2-311 .............................................................................................................13
Va. Code Ann. 64.2-100 et seq. ..................................................................................................10
Va. Code Ann. 20-45.1 ...............................................................................................................27
R ULES
Fed. R. Civ. P. 23(b)(2)....................................................................................................................2
Fed. R. Civ. P. 56 Advisory Committee Notes for 2009 Amendments ...........................................2
O THER AUTHORITIES
Andrew Koppelman, Why Discrimination Against Lesbians and Gay Men Is Sex
Discrimination, 69. N.Y.U. L. Rev. 197 (1994) ......................................................................24
Barbara S. Gamble, Putting Civil Rights to a Popular Vote, 41 Am. J. Pol. Sci. 245
(1997) .......................................................................................................................................20
Bostic v. McDonnell, No. 2:13-cv-00395-AWA-LRL, ECF No. 14 (E.D. Va.) ..............................2

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Brief of the American Psychological Association, et al., as Amici Curiae on the Merits in
Support of Affirmance, 2013 WL 871958 (Mar. 1, 2013).......................................................40
Brief of the American Sociological Assn, in Support of Respondent Kristin M. Perry and
Respondent Edith Schlain Windsor, 2013 WL 840004 (Feb. 28, 2013) .................................40
Brief of Amicus Curiae GLMA: Health Professionals Advancing LGBT Equality (Gay
and Lesbian Medical Association) Concerning the Immutability of Sexual Orientation
in Support of Affirmance on the Merits, 2013 WL 860299 (Feb. 26, 2013) ...........................22
Brief of the Organization of American Historians and the American Studies Association
as Amici Curiae Support of Respondent Edith Windsor, 2013 WL 838150 (Feb. 28,
2013) .................................................................................................................................. 17-18
Carlos A. Ball, The Blurring of the Lines: Children and Bans on Interracial Unions and
Same-Sex Marriage, 76 Fordham L. Rev. 2733 (2008).............................................................8
Chemerinsky, Const. Law Principles and Policies ........................................................................55
Commonwealth of Virginia, November 7th 2006 General Election: Official Results,
available at
http://www.sbe.virginia.gov/ElectionResults/2006/Nov/htm/index.htm#141...........................8
Donald P. Haider-Markel et al., Lose, Win, or Draw?: A Reexamination of Direct
Democracy and Minority Rights, 60 Pol. Res. Q. 304 (2007) .................................................20
Dulcey B. Fowler, Virginia Family Law: The Effect of The General Assemblys 1975
Revisions, 1 Va. B. Assn J 7 (1975) .........................................................................................3
Erwin Chemerinsky, Constitutional Law Principles and Policies (3d ed. 2006) ..........................55
George Washington, General Orders at Valley Forge on 14 March 1778 (reprinted in
Washington Papers), available at
http://founders.archives.gov/documents/Washington/03-14-02-0138#GEWN-03-1402-0138-fn-0004. .......................................................................................................................5
Richard A. Posner, Sex and Reason 291 (1992) ............................................................................17
Gregory M. Herek, et al., Demographic, Psychological, and Social Characteristics of
Self-Identified Lesbian, Gay, and Bisexual Adults, 7 Sex Res. Soc. Policy 176 (2010)..........22
Glenda Riley, Legislative Divorce in Virginia, 1803-1850, Journal of the Early Republic,
Vol. 11, No. 1 (Spring, 1991) ....................................................................................................9
Jane Schacter, Courts and the Politics of Backlash: Marriage Equality Litigation, Then
and Now, 82 S. Cal. L. Rev. 1153 (2009) ..................................................................................3

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Merits Brief of Bipartisan Legal Advisory Group in United States v. Windsor, 2013 WL
267026 (2013) ..........................................................................................................................43
Virginia L. Hardwick, Punishing the Innocent: Unconstitutional Restrictions on Prison
Marriage and Visitation, 60 N.Y.U. L. Rev. 275 (1985) ........................................................50
Virginia Legislative Information System, 2005 Session, House Joint Resolution 586,
available at http://lis.virginia.gov/cgi-bin/legp604.exe?051+ful+HJ586H2 .....................4, 5, 6
Commonwealth of Virginia, November 7th 2006 General Election: Official Results,
available at
http://www.sbe.virginia.gov/ElectionResults/2006/Nov/htm/index.htm#141.......................7, 8
Virginia Legislative Information System, 2004 Session, Senate Bill 477, available at
http://lis.virginia.gov/cgi-bin/legp604.exe?041+sum+SB477 .................................................45

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INTRODUCTION
This case involves the exclusion of same-sex couples in Virginia from one of the most
profoundly important and cherished relationships of a lifetime: civil marriage. As the Supreme
Court recently reaffirmed, marriage confers a dignity and status of immense import, and the
states historic and essential role in extending this status uniquely enhance[s] the recognition,
dignity, and protection of [same-sex couples] in their own community. United States v.
Windsor, 133 S. Ct. 2675, 2692 (2013). Virginia denies same-sex couples access to marriage by
constitutional amendment and statutory law (collectively, the marriage bans), barring same-sex
couples both from entering marriage, and from having a valid marriage entered in another
jurisdiction recognized as such in the Commonwealth.
Two loving and devoted same-sex couples (Named Plaintiffs) brought suit challenging
Virginias marriage bans as a violation of federal constitutional guarantees, seeking to represent
a class of unmarried same-sex couples in Virginia who wish to marry (Unmarried Plaintiffs)
and same-sex couples validly married elsewhere who wish to have their marriage recognized in
Virginia (Married Plaintiffs) (collectively, including Named Plaintiffs and all other class
members, Plaintiffs). Plaintiffs complaint raises two claims challenging the marriage bans as
a violation of Equal Protection Clause and Due Process Clause of the Fourteenth Amendment,
and Plaintiffs seek summary judgment on both claims as to all defendants.
After describing the procedural history of this case below, this brief sets forth the history
of Virginias marriage bans and describes the evolution of marriage and its purposes in the
Commonwealth as well as the harm the bans inflict upon same-sex couples and their children.
The brief then explains why Virginias marriage bans are subject to heightened scrutiny because
they discriminate based on both sexual orientation and sex and why the Commonwealths

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constitutional marriage ban is suspect based on how it discriminatorily affects the normal process
for political reform. The brief then demonstrates how the marriage bans are unconstitutional
under any standard of review. Finally, the brief explains how the bans also infringe Plaintiffs
fundamental rights and liberty interests and violate the Fourteenth Amendments guarantees of
due process and equal protection for that reason as well.
PROCEDURAL HISTORY
Plaintiffs filed this putative class action on August 1, 2013, and moved to certify the case
as a class action pursuant to Fed. R. Civ. P. 23(b)(2) on August 16, 2013. On August 16,
Defendant Janet M. Rainey filed an Answer to the Complaint and Defendant Robert F.
McDonnell filed a motion to dismiss. Defendant Thomas E. Roberts filed another motion to
dismiss on August 30. The pending motions are fully briefed and set for argument before this
Court on October 29.
Federal Rule of Civil Procedure 56 allows a party to move for summary judgment at any
time, even as early as the commencement of the action. Fed. R. Civ. P. 56 Advisory Committee
Notes for 2009 Amendments.
In separate litigation pending in the Eastern District of Virginia also challenging the
constitutionality of Virginias marriage bans, the parties to that case (including Defendant
Rainey) have agreed to file cross-motions for summary judgment on September 30, 2013 without
any discovery. See Bostic v. McDonnell, No. 2:13-cv-00395-AWA-LRL, ECF No. 14 (E.D.
Va.). Plaintiffs have filed this motion for summary judgment simultaneously, seeking resolution
of their claims on a similar timetable, because the Named Plaintiffs and the class they seek to
represent suffer harms no less urgent than those of the plaintiffs in Bostic.

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BACKGROUND
I.

History of Virginias Marriage Bans.


Virginias constitutional amendment barring same-sex couples from marrying and

refusing to recognize such marriages entered elsewhere is the final result of a long series of
legislative actions. First, in 1975, Virginia adopted a statute providing that a marriage between
persons of the same sex is prohibited. Va. Code Ann. 20-45.2. That enactment was a
response to Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971), appeal dismissed, 409 U.S. 810
(1972), the first freedom-to-marry case filed by a same-sex couple in the U.S.; see Va. Code
Ann. 20-45.2; Acts 1975, c. 644; Dulcey B. Fowler, Virginia Family Law: The Effect of The
General Assemblys 1975 Revisions, 1 Va. B. Assn J 7, 8-9 (1975). In 1997, the legislature
added a ban on recognizing same-sex marriages solemnized legally in other states declaring them
void: Any marriage entered into by persons of the same sex in another state or jurisdiction shall
be void in all respects in Virginia and any contractual rights created by such marriage shall be
void and unenforceable. Va. Code Ann. 20-45.2; Acts 1997, c. 354. This was part of a wave
of state and federal legislation in 1996 and 1997 responding to the Hawaii Supreme Courts
decision in Baehr v. Lewin, 910 P.2d 112 (Haw. 1996). See Jane Schacter, Courts and the
Politics of Backlash: Marriage Equality Litigation, Then and Now, 82 S. Cal. L. Rev. 1153,
1185-86 (2009).
In 2004, the Commonwealth went a step further by also banning civil unions and
domestic partnershipsthus stripping from same-sex couples the possibility of any legal
recognition of their relationships in the Commonwealth. That law, sponsored by Delegate Bob
Marshall of Prince William and introduced as House Bill 751 (the Affirmation of Marriage
Act), provides:

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A civil union, partnership contract or other arrangement between persons of the same sex
purporting to bestow the privileges or obligations of marriage is prohibited. Any such
civil union, partnership contract or other arrangement entered into by persons of the same
sex in another state or jurisdiction shall be void in all respects in Virginia and any
contractual rights created thereby shall be void and unenforceable.
Va. Code Ann. 20-45.3; Acts 2004, c. 983. The very next year, several state delegates and
senators, including Delegate Marshall, proposed competing versions of yet another ban on
marriage by same-sex couplesthis time in the form of an amendment to the Virginia
Constitution. The version ultimately adopted provides:
That only a union between one man and one woman may be a marriage valid in or
recognized by this Commonwealth and its political subdivisions.
This Commonwealth and its political subdivisions shall not create or recognize a legal
status for relationships of unmarried individuals that intends to approximate the design,
qualities, significance, or effects of marriage. Nor shall this Commonwealth or its
political subdivisions create or recognize another union, partnership, or other legal status
to which is assigned the rights, benefits, obligations, qualities, or effects of marriage.
Va. Const. art. I, 15-A.
The original version of the proposed constitutional amendment, adopted by the Virginia
House on February 8, 2005, was narrower in scope than the one ultimately enacted. First, it
included a Savings Clause providing that [a]ny other right, benefit, obligation, or legal status
pertaining to persons not married is otherwise not altered or abridged by this section. Virginia
Legislative Information System, 2005 Session, House Joint Resolution 586, available at
http://lis.virginia.gov/cgi-bin/legp604.exe?051+ful+HJ586H2. Second, it did not contain the ban
on recognition for relationships that intend[] to approximate the design, qualities, significance,
or effects of marriage. Compare id. with Va. Const. art. I, 15-A. Finally, it included an
introductory clause providing:
marriage is essential to the liberty, happiness, and prosperity of a free and virtuous people
and is, among other things, the natural and optimal institution for uniting the two sexes in
a committed, complementary, and conjugal partnership; for begetting posterity; and for
providing children with the surest opportunity to be raised by their mother and father.
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Virginia Legislative Information System, 2005 Session, House Joint Resolution 586, available at
http://lis.virginia.gov/cgi-bin/legp604.exe?051+ful+HJ586H2.
The House debate indicates that the Savings Clause and this introductory clause, both
ultimately rejected, were viewed by some sponsors as critical to demonstrate that the measure
was not based on animus towards gay people. During the consideration of the original measure
on the House Floor, Delegate Marshall rejected the notion that the debate was about civil rights.
Homosexuals are supposed to be portrayed as victims of circumstance, victims of bigotry, and
mainly seeking their civil rights. Some might ask, well is this really a civil rights question?
Declaration of Mark P. Gaber (Gaber Dec.) 6. His answer was no. Id. 7. He explained to
the delegates that he included the introductory clause (referred to in the debates as the Resolve
Clause) specifically to insulate the measure against legal challenges, based on the Supreme
Courts opinion in Romer v. Evans, 517 U.S. 620 (1996), that the bill was intended to reflect
animus. Id. 8. We are not here about hatred, were here about marriage. Id. 1 He also
reasoned that, because of the Savings Clause included in the measure, were not taking away
rights. Id. 9.

1 Some

of Delegate Marshalls comments during the debate belie his assertion that the marriage
bans did not reflect hostility toward lesbians and gay men and their relationships. For example,
in discussing marriage, he said I dont know how you have a same sex marriage. I cant
comprehend the meaning of the term of there being two husbands or two wives. Id. 10.
When asked how same-sex marriage would affect the marriages of heterosexual Virginians,
Delegate Marshall quipped, to laughter from other delegates, the same way that counterfeit
money threatens the economy of the Commonwealth. Id. 11. And, when another delegate
quoted President George Washington in opposing the proposed amendment, Delegate Marshall
responded, [i]s the Gentleman aware of what George Washington did to persons who exercised
same-sex persuasions in his units? [laughter] Id. 18. That statement presumably refers to
George Washingtons court-martial of a Continental Army Lieutenant for attempted sodomy.
See George Washington, General Orders at Valley Forge on 14 March 1778 (reprinted in
Washington Papers), available at http://founders.archives.gov/documents/Washington/03-14-020138#GEWN-03-14-02-0138-fn-0004.
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When the Conference Committee met, it removed both the introductory, Resolve
Clause and the Savings Clause. See Virginia Legislative Information System, 2005 Session,
House Joint Resolution 586, available at http://lis.virginia.gov/cgibin/legp604.exe?051+ful+HJ586H3. It also added the expansive provision barring creation or
recognition of relationships that intend[] to approximate the design, qualities, significance, or
effects of marriage. Id. Speaking to the Conference Committee provision, Delegate Marshall
lamented the new breadth of the measure and how it would reflect the attitude of the legislature
in adopting it. When we get into the word design of marriage or the significance of marriage
ah if I were with the opponents of this, I would suggest that this is a way to slip in theology,
because we in nowhere state in the code what the design of marriage in [sic]. Gaber Dec. at
14. Regarding the elimination of the Savings Clause, Marshall noted that opponents will say
you see, they really do want to take away some of the rights of persons who are not married.
Id. 15. Finally, Delegate Marshall noted that the removal of the introductory Resolve Clause
would lead to the conclusion that the legislature was not concerned with marriage, but instead
with animus towards lesbians and gay men. That is going to be the prime grounds of attack, I
would think, that were just a bunch of rednecks who dont like homosexuals in Virginia cause
weve not defined the purpose of marriage. Id. 16. Warned that these changes would suggest
action based on animus, the House nonetheless passed the resolution by a vote of 79-17, and the
Senate passed it by a vote of 30-10. See Virginia Legislative Information System, 2005 Session,
House Joint Resolution 586, available at http://lis.virginia.gov/cgibin/legp604.exe?051+sum+HJ586.
The Virginia Constitution requires that proposed amendments be passed by two
consecutive sessions of the legislature. Va. Const. art. XII, 2. Accordingly, the measure was

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considered again during the first week of the next session. One of its chief proponents, Delegate
Marshall, said:
Marriage is a legal and moral union between a man and a woman, which has the form of
reproduction and the attendant responsibilities that ensue therefrom, even if the fact of
reproduction does not occur. Therefore any claim that two men or two women may marry
each other is simply nonsense. It does not make logical sense. However there are
attempts to radically alter an institution that must antedate history. And this has come
about by social engineering judges in Massachusetts, Vermont, and elsewhere who wish
to do this.
Gaber Dec. at 19. (emphasis added). Marshall contended that the measure did not constitute
discrimination. We have the ah notion that Virginia should not discriminate. Anybody can
apply for a marriage license; theres no inquiry on there as to your sexual interest or appetites.
The only qualification is the qualifications of age and sex, nothing else. And to suggest
otherwise is to itself tamper with this institution. Id. 20 (emphasis added).
During the debate, Delegate Ebbin of Alexandria argued that the legislature was using
gay people as scapegoats and that the 2004 law was already the third time the state had
banned marriage. Id. 12, 21. Marshall explained the history of Virginias legislative actions
with respect to marriage between same-sex couples: In 1975 when the [Equal Rights
Amendment] was raging, we did define that. We further modified that to say were not going to
accept out of state same sex marriages, and we further modified that to say we wont accept
these imitations, which are the further permutations of the legal staff of the Lambda Legal
Defense Fund. Id. 21 (emphasis added).
Delegate Watts offered an amendment to re-insert the Savings Clause language that the
conferees had removed during the 2005 session. See Id. 22; Virginia Legislative Information
System, 2006 Session, House Joint Resolution 41, Amendments Rejected by the House,
available at http://lis.virginia.gov/cgi-bin/legp604.exe?061+amd+HJ41AHR. The House
rejected the amendment by a 36-60 vote. See Virginia Legislative Information System, 2006
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Session, House Joint Resolution 41, available at http://lis.virginia.gov/cgibin/legp604.exe?061+sum+HJ41.


Ultimately, the amendment passed the House 73-22, and the Senate 29-11. See id. On
November 7, 2006, the measure was approved by Virginia voters by a 57% to 43% vote. 2
II.

Marriage and Its Purposes Have Evolved in Virginia.


A.

Virginia Has Cast Aside Prior Discriminatory Exclusions From Marriage.

Virginia has gradually eliminated restrictions on marriage that excluded minority groups
and imposed unequal treatment based on sex. During slavery, Virginia law provided that a
slave cannot marry, because he cannot make a valid contract, because the duties of a slave are
inconsistent with the duties of a husband or a wife, and because a slave is property. So the
marriage of a slave is a mere nullity, though it is allowed a certain moral effect. Scott v. Raub,
14 S.E. 178, 179 (Va. 1891).
Virginia also banned interracial marriage in 1691. See Carlos A. Ball, The Blurring of
the Lines: Children and Bans on Interracial Unions and Same-Sex Marriage, 76 Fordham L.
Rev. 2733, 2740 (2008). The ban was designed to prevent . . . that abominable mixture and
spurious issue which hereafter may encrease in this dominion, as well by negroes, mulattoes, and
Indians intermarrying with English, or other white women, as by their unlawfull accompanying
with one another. Id. (citing An Act for Suppressing Outlying Slaves, in 3 Being a Collection
of All the Laws of Virginia 86-87 (William Waller Hening ed. 1823)). That law remained in
effect for almost 300 years until the Supreme Court held it unconstitutional in Loving v. Virginia,
388 U.S. 1 (1967).

of Virginia, November 7th 2006 General Election: Official Results, available


at http://www.sbe.virginia.gov/ElectionResults/2006/Nov/htm/index.htm#141.
2 Commonwealth

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Virginias marriage laws also discriminated against women through coverture. Under
this doctrine, a husband and wife were treated as a single entity. The wife ceded her legal and
economic identity to her husband upon marriage and could not own property, represent herself in
court, sign a contract, or keep any money she earned. See, e.g., Vigilant Ins. Co. v. Bennett, 89
S.E.2d 69, 71-75 (Va. 1955) (describing history of coverture in Virginia). This inequality, seen
as essential to marriage for centuries, was eliminated in response to changing values and Virginia
enacted its first statute regarding married womens ownership of their own property in 1877. See
Norfolk & W. R. R. Co. v. Prindle, 82 Va. 122, 126 (1886). Today, Virginia and federal law treat
both spouses equally and in gender-neutral fashion with respect to marriage, and the United
States Supreme Court has confirmed that such gender-neutral treatment for marital partners is
constitutionally required. See Califano v. Goldfarb, 430 U.S. 199 (1977); Weinberger v.
Wiesenfeld, 420 U.S. 636 (1975).
Finally, Virginias policy regarding divorce has evolved substantially. Virginia law
initially did not provide for divorce, but in the early nineteenth century the Virginia General
Assembly began granting divorces to particular couples interested in terminating their marriages.
1802 Va. Acts 46-47, c. 64. Gradually, the standards and procedures for obtaining a divorce
became less onerous. Glenda Riley, Legislative Divorce in Virginia, 1803-1850, Journal of the
Early Republic, Vol. 11, No. 1, at 51 (Spring, 1991). In 1960, Virginia began treating an
extended period of separation as a valid basis for divorce, and in 1975 the legislature reduced the
required period of separation to one year, effectively establishing modern no-fault divorce. 1960
Acts, c. 108; 1975 Acts, c. 644.

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B.

Marriage in Virginia Today Serves Multiple Interests, and Is Not Limited to


Procreative Purposes.

In modern times, marriage in Virginia has been understood as a civil contract embodying
a couples free consent to create a long-lasting intimate and economic union. See Womack and
als. v. Tankersley and Wife, 78 Va. 242, 243 (1883) (characterizing marriage as a civil
contract). The institution of marriage has evolved to serve a number of important societal
purposes.
First, there are many tangible benefits pursuant to both federal and state laws, which form
a safety net for marital couples and households. The federal General Accounting Office reported
in 1997 that there are more than 1,000 references in federal law to marriage, see Windsor, 133 S.
Ct. at 2683, and the Commonwealth gives special recognition to spouses in areas ranging from
tax policy to probate rules. See, e.g., Va. Code Ann. 58.1-100, et seq.; Va. Code Ann. 64.2100, et seq.
Second, Virginias marriage laws afford the ability to secure legal recognition of parentchild bonds, including joint adoption, Va. Code Ann. 63.2-1201; adoption of a spouses child,
Va. Code Ann. 63.2-1241; legitimization of children through marriage, Va. Code Ann. 2031.1; and the presumption of parentage for children born into a marriage, Va. Code Ann. 63.21202(D). Virginia also makes spouses and parents accountable for economic support through,
for example, obligations of spousal and child support. Va. Code Ann. 20-107.1, 20-107.2.
Such rules have put a critical limit on the publics responsibilities to provide care and financial
support for the young and dependent.
Third, marriage organizes households and significantly determines property ownership
and inheritance. These are matters of civil society in which public authorities, including the
Commonwealth, are highly interested. See, e.g., Va. Code Ann. 64.2-302 (allowing surviving

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spouse to claim an elective share of deceased spouses estate); Va. Code Ann. 20-107.3(E)
(requiring courts to consider various factors to arrive at an equitable monetary award between
divorcing spouses); Williams v. Williams, 354 S.E.2d 64, 66 (Va. 1987) (Virginia law is
intended to recognize a marriage as a partnership and to provide a means to divide equitably the
wealth accumulated).
The ability or willingness to bear children has never been a prerequisite for marriage in
the United States or Virginia. Women have never been barred from marrying past their
reproductive years, nor has menopause ever offered legal grounds for a man to divorce his wife.
In contrast to the ability to have intimate relationswhich has been an expectation in marriage
men or women known to be sterile have not been prevented from marrying, nor could a marriage
be annulled for an inability to bear or beget children.
STATEMENT OF UNDISPUTED FACTS 3
The Plaintiffs and their children are harmed daily by Virginias discriminatory marriage
bans.
1.

Joanne Harris and Jessica Duff have been in a committed relationship for eleven

years, Declaration of Jessica Duff (Duff Dec) 4; Declaration of Joanne Harris (Harris Dec.)
4, and together have a four-year-old son J. H.-D., Id. 3.
2.

Unlike Jessicas brother Matt, who is able to cover his wife under his health

insurance and knows that no one can challenge his ability to make medical decisions for her in
an emergency, Jessica and Joanne do not have these automatic rights. Id. 11.
3.

Joanne and Jessicas son is harmed tooeven at his young age, he is aware of the

stigma surrounding the marriage ban. When he sees the picture of his moms commitment

Referred to herein as SUF.


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ceremony, he says Mommy and Momma DeeDee got married, and they need to really get
married. Id. 12. Jessica has no legal relationship with J. H.-D., as she could if she and Joanne
could marry. Id. 13.
4.

Joanne and Jessica fear what might happen if Joanne and J. H.-D. were to be in an

accidentit would not be clear that Jessica had the authority to make medical decisions. Id.
Joannes tenuous relationship with her parents exacerbates this concernthe couple
understandably fears that Joannes family may seek to deny Jessicas role as J. H.-D.s mother.
Id. 14.
5.

For Joanne and Jessica, the ability to make medical decisions for each other is not

academic; Joanne has epilepsy and her mother has expressed that she would not respect Joannes
desire not to receive life-prolonging measures should she experience a health crisis. Id. 15.
6.

The harm comes in smaller ways too. Matters such as describing the family on

school forms, obtaining family memberships at organizations like the YMCA, and making
school-related decisions are all made more difficult because of the marriage ban. Id. 16.
7.

Christy Berghoff and Victoria Kidd have been in a committed relationship for

nine years, Declaration of Christy Berghoff (Berghoff Dec.) at 2; Declaration of Victoria


Kidd (Kidd Dec.) 2, were legally married in Washington, D.C. in 2011, Id. 9, and together
have an infant daughter L. B.-K., Id. 11.
8.

Because Virginia does not recognize their marriage, Christy and Victoria have

spent hundreds of dollars obtaining co-custodianship documents for Victoria, Id. 12, but they
fear those papers will not be respected in an emergency, id. They face the prospect of additional
costs associated with securing wills, living wills, powers of attorney, and other legal

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documentsall because they cannot receive the same protections and rights that other married
couples receive. Id. 13.
9.

When Victoria and Christy sought a home loan guaranteed by the federal

Department of Veterans Affairs, they were unable to obtain it because lenders were unwilling to
issue loans with a V.A. guarantee covering only half the loan amountdue to their marriage not
being recognized by Virginia. Id. 14.
10.

The threat of being prevented from making medical decisions is real for Victoria

and Christy tooVictoria suffered a minor stroke last year, and they had already experienced
disrespect during the birth of their daughter. Id. 15.
11.

More generally, all Plaintiffs face a host of harms at the state and federal level

based on their exclusion from the right to marry: they lack the ability to solemnize their
relationships through state-sanctioned ceremonies, Va. Code Ann. 20-13; the ability to
celebrate their marriage in their chosen faith tradition or civil ceremony, because those
authorized to conduct marriages are prohibited, under threat of criminal sanction, from using the
word marriage, Va. Code Ann. 20-28; the ability to safeguard family resources under an
array of laws that protect spousal finances, such as through exemption or deferral of taxes on the
property of certain elderly or disabled residents, Va. Code Ann. 58.1-3210, and through
property tax exemptions for the surviving spouse of an eligible veteran, Va. Code Ann. 58.13219.5; the automatic ability and priority to make caretaking decisions in times of death and
disaster, see Va. Code Ann. 54.1-2986, 32.1-285, 57-27.3, 32.1-291.9; the right of inheritance
under the laws of intestacy and other rights related to estates, see Va. Code Ann. 64.2-200,
64.2-302, 64.2-307, 64.2-311, 27-39; benefits for surviving spouses of military service members
killed in action, such as educational benefits, home loan guarantees, and real estate tax

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exemptions, see e.g., Va. Code Ann. 2.2-2001; access to an orderly dissolution process in the
event a couple separates, Va. Code Ann. 20-96, 20-107.3; and the ability to hold a partner
accountable for child support, Va. Code Ann. 20-107.1, 20-107.2.
12.

Virginias marriage bans also render Plaintiffs unable to benefit from a host of

federal rights that turn on marital statusunder more than 1,000 statutes and numerous federal
regulationsincluding laws pertaining to Social Security, housing, taxes, criminal sanctions,
copyright, and veterans benefits.
13.

In addition to these tangible harms, Plaintiffs suffer from the harm of being

excluded from the unique social recognition that marriage conveys. Without access to the
familiar language and legal label of marriage, Plaintiffs are unable instantly or adequately to
communicate to others the depth of their commitment, or obtain respect for that commitment, as
other do by simply invoking their married status. Plaintiffs wish to express the nature, depth,
and quality of their lifelong commitment to each other in the way that they, their family, their
friends, and society at large best understand. See, e.g., Harris Dec. 4, 8, 9; Duff Dec. 4, 8,
9.
14.

Children of same-sex couples in Virginia are likewise harmed; the exclusion of

their parents from marriage reinforces the view held by some that the family bonds that tie samesex parents and their children are less consequential, enduring, and meaningful that those of
different-sex parents and their children. And the children must live with the stress of knowing
their legal relationship with one of their parents is tenuousand may not be respectedin
social, legal, educational, or medical settings.
These harmsboth tangible and intangibleare profoundly damaging and demand a
prompt remedy.

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ARGUMENT
I.

Virginias Marriage Bans Deny Equal Protection of the Law.


A.

Virginias Marriage Bans Are Subject to Heightened Scrutiny Because They


Discriminate Based on Sexual Orientation.

There is no controlling law in the Fourth Circuit regarding the appropriate level of
scrutiny for classifications based on sexual orientation. The only Fourth Circuit decisions to
address the issueThomasson v. Perry, 80 F.3d 915, 928-29 (4th Cir. 1996) (en banc), and
Veney v. Wyche, 293 F.3d 726, 732 (4th Cir. 2002)were decided before the Supreme Court, in
Lawrence v. Texas, 539 U.S. 558 (2003), overruled Bowers v. Hardwick, 478 U.S. 186 (1986).
Like every other circuit court to address the issue before Lawrence, the Fourth Circuit in
Thomasson reasoned that, because the government could constitutionally criminalize private,
consensual sex between gay people, sexual orientation could not be considered a suspect or
quasi-suspect classification for purpose of equal protection. See Thomasson, 80 F.3d at 928-29
(Given that it is legitimate for Congress to proscribe homosexual acts, it is also legitimate for
the government to seek to forestall these same dangers by trying to prevent the commission of
such acts. (citations omitted)); accord Padula v. Webster, 822 F.2d 97, 103 (D.C. Cir. 1987)
(After all, there can hardly be more palpable discrimination against a class than making the
conduct that defines the class criminal.). In 2002, the Fourth Circuit relied on Thomasson as
precedent without conducting an independent analysis. See Veney, 293 F.3d at 731 n.4.
In 2003, however, the Supreme Court overruled Bowers and emphatically declared that it
was not correct when it was decided and is not correct today. Lawrence, 539 U.S. at 578. In
repudiating the Bowers decision, the Court stated that [i]ts continuance as precedent demeans
the lives of homosexual persons and represents an invitation to subject homosexual persons to
discrimination both in the public and in the private spheres. Id. By overruling Bowers, the

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Supreme Court in Lawrence necessarily abrogated Thomasson, Veney, and other decisions that
relied on Bowers to foreclose the possibility of heightened scrutiny for sexual orientation
classifications. See Pedersen v. Office of Pers. Mgmt., 881 F. Supp. 2d 294, 312 (D. Conn.
2012) (The Supreme Courts holding in Lawrence remov[ed] the precedential underpinnings of
the federal case law supporting the defendants claim that gay persons are not a [suspect or]
quasi-suspect class. (citations omitted)); Golinski v. U.S. Office of Pers. Mgmt., 824 F. Supp.
2d 968, 984 (N.D. Cal. 2012). ([T]he reasoning in [prior circuit court decisions], that laws
discriminating against gay men and lesbians are not entitled to heightened scrutiny because
homosexual conduct may be legitimately criminalized, cannot stand post-Lawrence.)
Now that Lawrence has overruled Bowers, lower courts without controlling postLawrence precedent on the issue must apply the criteria mandated by the Supreme Court to
determine whether sexual orientation classifications should receive heightened scrutiny.
The Supreme Court uses certain factors to decide whether a new classification qualifies
as a [suspect or] quasi-suspect class. They include: A) whether the class has been
historically subjected to discrimination,; B) whether the class has a defining
characteristic that frequently bears [a] relation to ability to perform or contribute to
society,; C) whether the class exhibits obvious, immutable, or distinguishing
characteristics that define them as a discrete group; and D) whether the class is a
minority or politically powerless.
Windsor v. United States, 699 F.3d 169, 181 (2d Cir. 2012) (quoting Bowen v. Gilliard, 483 U.S.
587, 602 (1987), and Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 440-41 (1985)
(citations omitted)). Of these considerations, the first two are the most important. See id.
(Immutability and lack of political power are not strictly necessary factors to identify a suspect
class.); accord Golinski, 824 F. Supp. 2d at 987.
As several federal and state courts have recently recognized, any faithful application of
those factors leads to the inescapable conclusion that sexual orientation classifications must be
recognized as suspect or quasi-suspect and subjected to heightened scrutiny. See, e.g., Windsor,
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699 F.3d at 181-85; Golinski, 824 F. Supp. 2d at 985-90; Pedersen, 881 F. Supp. 2d at 310-33;
Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 997 (N.D. Cal. 2010), appeal dismissed sub nom.
Perry v. Brown, 725 F.3d. 1140 (9th Cir. 2013); In re Balas, 449 B.R. 567, 573-75 (Bankr. C.D.
Cal. 2011) (decision of 20 bankruptcy judges); Varnum v. Brien, 763 N.W.2d 862, 885-96 (Iowa
2009); In re Marriage Cases, 183 P.3d 384, 441-44 (Cal. 2008); Kerrigan v. Commr of Pub.
Health, 957 A.2d 407, 425-31 (Conn. 2008).
1.

Lesbians and Gay Men Have Suffered a Long History of


Discrimination.

There can be no doubt that lesbians and gay men historically have been, and continue to
be, the target of purposeful and often grievously harmful discrimination because of their sexual
orientation. For centuries, the prevailing attitude toward gay persons has been one of strong
disapproval, frequent ostracism, social and legal discrimination, and at times ferocious
punishment. Richard A. Posner, Sex and Reason 291 (1992); see also Rowland v. Mad River
Local Sch. Dist., 470 U.S. 1009, 1015 (1985) (Brennan, J., dissenting from denial of cert.) (gay
people have historically been the object of pernicious and sustained hostility.). As the Second
Circuit concluded, It is easy to conclude that homosexuals have suffered a history of
discrimination. Windsor and several amici labor to establish and document this history, but we
think it is not much in debate. Windsor, 699 F.3d at 182; see Pedersen, 881 F. Supp. 2d at 318
(The long history of anti-gay discrimination which evolved from conduct-based proscriptions to
status or identity-based proscriptions perpetrated by federal, state and local governments as well
as private parties amply demonstrates that homosexuals have suffered a long history of invidious
discrimination.); United States v. Windsor, No-12-307, Brief of the Organization of American
Historians and the American Studies Association as Amici Curiae Support of Respondent Edith

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Windsor, 2013 WL 838150 (Feb. 28, 2013) (summarizing history of discrimination against gay
people in America).
2.

Sexual Orientation Is Irrelevant to an Individuals Ability to


Contribute to Society.

The other essential factor in the Courts heightened scrutiny analysis is whether the group
in question is distinctively different from other groups in a way that frequently bears [a] relation
to ability to perform or contribute to society. City of Cleburne v. Cleburne Living Center, Inc.,
473 U.S. 432, 440-41 (1985) (citation omitted); see also Frontiero v. Richardson, 411 U.S. 677,
686 (1973) (plurality) ([W]hat differentiates sex from such nonsuspect statuses as intelligence
or physical disability, and aligns it with the recognized suspect criteria, is that the sex
characteristic frequently bears no relation to ability to perform or contribute to society.).
Courts discussing this prong have agreed with near unanimity that homosexuality is
irrelevant to ones ability to perform or contribute to society. There are some distinguishing
characteristics, such as age or mental handicap, that may arguably inhibit an individuals ability
to contribute to society, at least in some respect. But homosexuality is not one of them.
Windsor, 699 F.3d at 682; accord Golinski, 824 F. Supp. 2d at 986 ([T]here is no dispute in the
record or the law that sexual orientation has no relevance to a persons ability to contribute to
society.); Pedersen, 881 F. Supp. 2d at 320 (Sexual orientation is not a distinguishing
characteristic like mental retardation or age which undeniably impacts an individuals capacity
and ability to contribute to society. Instead like sex, race, or illegitimacy, homosexuals have
been subjected to unique disabilities on the basis of stereotyped characteristics not truly
indicative of their abilities.). See also Am. Psychiatric Assn, Position Statement On
Homosexuality and Civil Rights, 131 Am. J. Psychiatry 436, 497 (1974). In this respect, sexual
orientation is akin to race, gender, alienage, and national origin, all of which are so seldom

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relevant to the achievement of any legitimate state interest that laws grounded in such
considerations are deemed to reflect prejudice and antipathy. Cleburne, 473 U.S. at 440.
3.

Lesbians and Gay Men Lack Sufficient Political Power to Protect


Themselves Against Invidious Discrimination.

Lack of political power is not essential for recognition as a suspect or quasi-suspect class.
See Windsor, 699 F.3d at 181. But the limited ability of gay people as a group to protect
themselves in the political process also weighs in favor of heightened scrutiny of laws that
discriminate based on sexual orientation. In analyzing this factor, [t]he question is not whether
homosexuals have achieved political successes over the years; they clearly have. The question is
whether they have the strength to politically protect themselves from wrongful discrimination.
Id. at 184.
The political influence of lesbians and gay men today stands in sharp contrast to the
political power of women in 1973, when a plurality of the Court concluded in Frontiero that sexbased classifications required heightened scrutiny. 411 U.S. at 688. After all, Congress had
already passed Title VII of the Civil Rights Act of 1964 and the Equal Pay Act of 1963, both of
which protect women from discrimination in the workplace. See id. at 687-88. In contrast, there
is still no express federal ban on sexual orientation discrimination in employment, housing, or
public accommodations, and twenty-nine states have no such protections either. See Golinski,
824 F. Supp. 2d at 988-89; Pedersen, 881 F. Supp. 2d at 326-27. As political power has been
defined by the Court for purposes of heightened scrutiny analysis, lesbians and gay men do not
have it. 4

Similarly, while there has been some improvement in recent years, lesbians and gay men
remain vastly under-represented in this Nations decisionmaking councils. No openly gay
person has ever served in the United States Cabinet. In 2008, of the more than half a million
people who then held political office at the local, state, and national levels in this country, only
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Moreover, while there have been recent successes in securing antidiscrimination


legislation (and even marriage equality) in some parts of the nation, those limited successes do
not alter the conclusion that lesbians and gay men are not in a position to adequately protect
themselves from the discriminatory wishes of the majoritarian public. Windsor, 699 F.3d at
185. Thus, in the last two decades, more than two-thirds of ballot initiatives that proposed to
enact (or prevent the repeal of) basic antidiscrimination protections for gay and lesbian
individuals have failed. Gay people have seen their civil rights put to a popular vote more often
than any other group. Barbara S. Gamble, Putting Civil Rights to a Popular Vote, 41 Am. J. Pol.
Sci. 245, 257 (1997).; see also Donald P. Haider-Markel et al., Lose, Win, or Draw?: A
Reexamination of Direct Democracy and Minority Rights, 60 Pol. Res. Q. 304 (2007).
Indeed, the notion that gay people are too politically powerful to warrant applying
heightened scrutiny is particularly misplaced because, by enshrining Virginias marriage bans in
the state constitution, Virginia has effectively locked gay people out of the normal political
process. See infra Argument, Part I.C (discussing why this fencing out violates equal
protection). Having disabled gay people from remedying discrimination through the normal
legislative process, Virginia can hardly argue that this discrimination is likely to be soon
rectified by legislative means. Cleburne, 473 U.S. at 440.
4.

Sexual Orientation Is An Immutable Or Defining Characteristic.

The heightened scrutiny inquiry sometimes also considers whether laws discriminate on
the basis of immutable . . . or distinguishing characteristics that define [persons] as a discrete

about 400 were openly gay. See Kerrigan, 957 A.2d at 446; see also Windsor, 699 F.3d at 18485 (underrepresentation of lesbians and gay men in positions of power is attributable either to a
hostility that excludes them or to a hostility that keeps their sexual preference private which,
for our purposes [assessing their political power], amounts to much the same thing).
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group. Bowen v. Gilliard, 483 U.S. 587, 602 (1987) (citation omitted). This consideration
derives from the basic concept of our system that legal burdens should bear some relationship to
individual responsibility. Frontiero, 411 U.S. at 626; see also Plyler v. Doe, 457 U.S. 202, 220
(1982) (noting that illegal alien children have little control over that status). But there is no
requirement that a characteristic be immutable in order to trigger heightened scrutiny.
Heightened scrutiny applies to classifications based on alienage and legitimacy, even though
[a]lienage and illegitimacy are actually subject to change. Windsor, 699 F.3d at 183 n.4; see
Nyquist v. Mauclet, 432 U.S. 1, 9 n.11 (1977) (rejecting the argument that alienage did not
deserve strict scrutiny because it was mutable).
To the extent that immutability is relevant to the inquiry of whether to apply
heightened scrutiny, the question is not whether a characteristic is strictly unchangeableit is
whether the characteristic is a core trait or condition that one cannot or should not be required to
abandon. See Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993) (Alito, J.) (characteristic is
immutable when the members of the group either cannot change, or should not be required
to change because it is fundamental to their individual identities or consciences) (citation
omitted); Hernandez-Montiel v. INS, 225 F.3d 1084, 1093 (9th Cir. 2000) ([S]exual orientation
and sexual identity are immutable; they are so fundamental to ones identity that a person should
not be required to abandon them.), overruled on other grounds, Thomas v. Gonzales, 409 F.3d
1177 (9th Cir. 2005); Watkins v. United States Army, 875 F.2d 699, 726 (9th Cir. 1989) (Norris,
J., concurring in judgment) (It is clear that by immutability the [Supreme] Court has never
meant strict immutability in the sense that members of the class must be physically unable to
change or mask the trait defining their class. . . . the Supreme Court is willing to treat a trait as

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effectively immutable if changing it would involve great difficulty, such as requiring a major
physical change or a traumatic change of identity.).
Under any definition of immutability, sexual orientation clearly qualifies. There is now
broad medical and scientific consensus that sexual orientation is immutable. See Perry, 704 F.
Supp. 2d at 966 (No credible evidence supports a finding that an individual may, through
conscious decision, therapeutic intervention or any other method, change his or her sexual
orientation.); accord Golinski, 824 F. Supp. 2d at 986; Pedersen, 881 F. Supp. 2d at 320-24; see
also Gregory M. Herek, et al., Demographic, Psychological, and Social Characteristics of SelfIdentified Lesbian, Gay, and Bisexual Adults, 7 Sex Res. Soc. Policy 176 (2010); United States v.
Windsor, Brief of Amicus Curiae GLMA: Health Professionals Advancing LGBT Equality (Gay
and Lesbian Medical Association) Concerning the Immutability of Sexual Orientation in Support
of Affirmance on the Merits, 2013 WL 860299 (Feb. 26, 2013).
Even more importantly, as the Supreme Court has acknowledged, sexual orientation is so
fundamental to a persons identity that one ought not be forced to choose between ones sexual
orientation and ones rights as an individualeven if such a choice could be made. See
Lawrence, 539 U.S. at 576-77 (recognizing that individual decisions by consenting adults
concerning the intimacies of their physical relationships are an integral part of human
freedom); see also In re Marriage Cases, 183 P.3d at 442 (Because a persons sexual
orientation is so integral an aspect of ones identity, it is not appropriate to require a person to
repudiate or change his or her sexual orientation in order to avoid discriminatory treatment.);
Kerrigan, 957 A.2d at 438 (In view of the central role that sexual orientation plays in a persons
fundamental right to self-determination, we fully agree with the plaintiffs that their sexual
orientation represents the kind of distinguishing characteristic that defines them as a discrete

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group for purposes of determining whether that group should be afforded heightened protection
under the equal protection provisions of the state constitution.); accord Golinski, 824 F. Supp.
2d at 987; Pedersen, 881 F. Supp. 2d at 325. 5
Sexual orientation discrimination accordingly meets not only the two essential criteria for
receipt of heightened scrutiny, but all considerations the Supreme Court has identified, and thus
defendants must sustain their burden to justify the Virginia marriage bans.
B.

Virginias Marriage Bans Also Are Subject to Heightened Scrutiny Because


They Contain Explicit Sex-Based Classifications and Because They
Perpetuate Improper Stereotyped Notions of the Spousal and Parental Roles
of Men and Women.

Virginias marriage bans must be subjected to heightened scrutiny for two additional
reasons: they classify explicitly based on gender, and they reflect stereotyped notions of the
proper role of men and women in the marital and family contexts. There is nothing inconsistent
about subjecting the Virginia marriage restrictions both to the scrutiny due classifications based
on sex and to the scrutiny due classifications based on sexual orientation. The confluence of
discrimination based on both sex and sexual orientation here is not mere happenstance; sexual
orientation is defined by ones sex relative to the sex of those to whom one is attracted and the

In the past, some courts have asserted that sexual orientation is not immutable by
arguing that sexual orientation refers merely to the conduct of engaging in sexual activity.
See, e.g., High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563, 573-74 (9th
Cir. 1990) (arguing that homosexuality is behavioral and hence is fundamentally
different from traits such as race, gender, or alienage, which define already existing
suspect and quasi-suspect classes.). But the Supreme Court has now rejected that
artificial distinction between the conduct of engaging in same-sex activity and the status
of being gay, explaining that [o]ur decisions have declined to distinguish between status
and conduct in this context. Christian Legal Socy v. Martinez, 130 S. Ct. 2971, 2990
(2010); see Pedersen, 881 F. Supp. 2d at 325 (Supreme Court precedent has since
rejected the artificial distinction between status and conduct in the context of sexual
orientation. Consequently, the precedential underpinnings of those cases declining to
recognize homosexuality as an immutable characteristic have been significantly eroded.
(citations omitted)).
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opprobrium visited on lesbians and gay men by society is in large part because of their
contravention of gender norms and stereotypes. 6
There can be no doubt that Virginias marriage bans contain explicit gender
classifications. They only allow a person to marry if the persons sex is different from that of the
persons intended spouse. Such a distinction requires heightened scrutiny. United States v.
Virginia, 518 U.S. 515, 555 (1996) (The Fourth Circuit plainly erred in exposing Virginias
VWIL plan to a deferential analysis, for all gender-based classifications today warrant
heightened scrutiny. (quoting J.E.B. v. Ala. ex rel. T.B., 511 U.S. 127, 136 (1994)); Nev. Dept
of Human Res. v. Hibbs, 538 U.S. 721, 728 (2003) (Statutory classifications that distinguish
between males and females are subject to heightened scrutiny.). [O]ur Nation has had a long
and unfortunate history of sex discrimination, . . . a history which warrants the heightened
scrutiny we afford all gender-based classifications today. J.E.B. v. Ala. ex rel. T.B., 511 U.S.
127, 136 (1994) (quoting Frontiero, 411 U.S. at 684). 7

6 See

Perry, 704 F. Supp. 2d at 996; see also Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285, 291
(3d Cir. 2008) (reversing summary judgment for the employer on the gay male employees claim
of discrimination based on failure to conform to gender stereotypes; the line between sexual
orientation discrimination and discrimination because of sex can be difficult to draw.);
Centola v. Potter, 183 F. Supp. 2d 403, 410 (D. Mass. 2002) (Sexual orientation harassment is
often, if not always, motivated by a desire to enforce heterosexually defined gender norms. In
fact, stereotypes about homosexuality are directly related to our stereotypes about the proper
roles of men and women.); Andrew Koppelman, Why Discrimination Against Lesbians and
Gay Men Is Sex Discrimination, 69. N.Y.U. L. Rev. 197, 202-03 (1994) (In the same way that
the prohibition of miscegenation preserved the polarities of race on which white supremacy
rested, the prohibition of homosexuality preserves the polarities of gender on which rests the
subordination of women. . . . [S]tigmatization of gays in contemporary American society
functions as part of a larger system of social control based on gender.).
7

Virginias restriction on marriage is no less invidious because it equally denies men and
women the right to marry a same-sex life partner. Loving discarded the notion that the mere
equal application of a statute containing racial classifications is enough to remove the
classifications from the Fourteenth Amendments proscription of all invidious racial
discriminations. 388 U.S. at 8; see also McLaughlin v. Florida, 379 U.S. 184, 191 (1964)
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Virginias marriage bans should be subject to heightened scrutiny for the additional
reason that they reflect and seek to enforce the perpetuation of sex stereotypes in life roles,
which the Supreme Court has held to be constitutionally impermissible. See, e.g., Virginia, 518
U.S. at 533 (justifications for gender classifications must not rely on overbroad generalizations
about the different talents, capacities, or preferences of males and females); Califano v.
Webster, 430 U.S. 313, 317 (1977) (under heightened scrutiny, a court looks at whether a gender
classification is the result of archaic and overbroad generalizations about women or of the
role-typing society has long imposed upon women).
Indeed, one of the asserted justifications for Virginias marriage bans is the notion that
optimal parenting requires two parents of different sexes. See Ans. 62, 68. As discussed
below, that premise flies in the face of the overwhelming scientific consensus that has developed
through decades of rigorous studies. See infra Argument, Part I.D.3. As the Supreme Court of
Iowa explained: The research appears to strongly support the conclusion that same-sex couples
foster the same wholesome environment as opposite-sex couples and suggests that the traditional
notion that children need a mother and a father to be raised into healthy, well-adjusted adults is
based more on stereotype than anything else. Varnum, 763 N.W.2d at 899 n.26. A law
enforcing that stereotype must be subjected to heightened scrutiny.

(holding that equal protection analysis does not end with a showing of equal application among
the members of the class defined by the legislation), and J.E.B. v. Ala. ex rel. T.B., 511 U.S. 127
(1994) (holding that the government may not strike jurors based on sex, even though such a
practice, as a whole, does not favor one sex over the other). Nor was the context of race central
to Lovings holding, which expressly found that, even if race discrimination had not been at play
and the Court presumed an even-handed state purpose to protect the integrity of all races,
Virginias anti-miscegenation statute still was repugnant to the Fourteenth Amendment. Id. at
12 n.11.
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The Supreme Court has made emphatically clear that gender classifications cannot be
based on or validated by fixed notions concerning the roles and abilities of males and females.
Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724-25 (1982). And in the context of parenting
responsibilities, the Supreme Court has rejected the notion of any universal difference between
maternal and paternal relations at every phase of a childs development. Caban v. Mohammed,
441 U.S. 380, 388-89 (1979); see also Stanley v. Illinois, 405 U.S. 645 (1972) (finding that a
state law presumption that unmarried fathers were unfit violated Due Process and Equal
Protection Clauses). The Court also has recognized that stereotypes about distinct parenting
roles for men and women foster discrimination in the workplace and elsewhere. Hibbs, 538 U.S.
at 736 (Stereotypes about womens domestic roles are reinforced by parallel stereotypes
presuming a lack of domestic responsibilities for men. . . . These mutually reinforcing
stereotypes created a self-fulfilling cycle of discrimination that forced women to continue to
assume the role of primary family caregiver, and fostered employers stereotypical views about
womens commitment to work and their value as employees.). Thus, generalizations about
typical gender roles in the raising and nurturing of children are constitutionally insufficient
bases for differential treatment of the sexes. Knussman v. Maryland, 272 F.3d 625, 636 (4th Cir.
2001) (upholding liability of state agency under the Equal Protection Clause for refusing to grant
father paid leave as primary caregiver for newborn). 8

See also Califano v. Westcott, 443 U.S. 76, 89 (1979) (finding unconstitutional a federal statute
providing for support in event of fathers unemployment, but not mothers unemployment;
describing measure as based on stereotypes that father is principal provider while the mother is
the center of home and family life); Orr v. Orr, 440 U.S. 268, 283 (1979) (invalidating a
measure imposing alimony obligations on husbands, but not on wives, because it carries with it
the baggage of sexual stereotypes); Stanton v. Stanton, 421 U.S. 7, 14-15 (1975) (finding
unconstitutional a statute assigning different age of majority to girls than to boys and stating,
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As a result of these decisions and attendant legislative reforms, laws relating to marriage
have become wholly gender-neutral, apart from their frequent exclusion of same-sex couples.
Men and women entering into marriage today have the liberty to determine for themselves the
responsibilities each will shoulder as parents, wage earners, and family decision-makers,
regardless of whether these responsibilities conform to or depart from traditional arrangements.
Laws based on the assumption that, for every family, the spousal and parental roles have to be
performed by a man and a woman must be tested under heightened scrutiny.
C.

Virginias Constitutional Marriage Ban Also Is Constitutionally Suspect


Because it Locks Same-Sex Couples Out of the Normal Political Process and
Makes it Uniquely More Difficult to Secure Legislation on Their Behalf.

The Virginia marriage ban is unconstitutional for an additional reason: it discriminatorily


fences out of the normal political process any citizen of the Commonwealth seeking to change
the law to allow marriage for same-sex couples by enshrining Virginias exclusion of same-sex
couples from marriageand none of Virginias other marriage regulationsin the Virginia
Constitution. Unlike a citizen seeking to effect a different change in the Commonwealths
marriage eligibility rules, such as someone wishing to lower the age at which persons may marry
without parental consent (currently age 18 under Va. Code Ann. 20-45.1), Plaintiffs cannot
simply lobby the General Assembly to change the Virginia Code. Instead, they are uniquely
burdened with having to amend the Virginia Constitution.
It is well established that such a selective disparity in the ability to advocate for a change
in the law, disadvantaging a single class of people, is constitutionally suspect. See Washington v.
Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982); Hunter v. Erickson, 393 U.S. 385 (1969); Coal. to

[n]o longer is the female destined solely for the home and the rearing of the family, and only the
male for the marketplace and the world of ideas).
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Defend Affirmative Action v. Regents of the Univ. of Mich., 701 F.3d 466, 477 (6th Cir. 2012) (en
banc), cert. granted sub nom. Schuette v. Coal. to Defend Affirmative Action (No. 12-682); Evans
v. Romer, 882 P.2d 1335 (Colo. 1994), affd on other grounds 517 U.S. 620, 633 (1996). Thus,
as Justice Harlan put it in Hunter, there is a clear distinction between general rules of
governance, such as the procedure for passing a law or amending a state constitution, that are
presumptively valid even if they sometimes make it more difficult for a particular group to
further its aims, and a law structured to prevent one single group from achieving its goals. 393
U.S. at 393 (Harlan, J., concurring). The latter type of provision has the clear purpose of
making it more difficult for . . . minorities to further their political aims and thus is
discriminatory on its face. Id.; see also Seattle Sch. Dist. No. 1, 458 U.S. at 470 (adopting
Justice Harlans concurrence); Evans, 882 P.2d at 1339 ([T]he Equal Protection Clause of the
United States Constitution protects the fundamental right to participate equally in the political
process, and . . . any legislation or state constitutional amendment which infringes on this right
by fencing out an independently identifiable class of persons must be subject to strict judicial
scrutiny. (internal quotation marks and citation omitted)).
Legislative history makes clear that the reason the marriage bans were incorporated into
the Virginia Constitution was a recognition that the reversal of statutory bans was a central goal
of lesbians and gay menand a desire to thwart the efforts of people like Plaintiffs to persuade a
majority of their elected representatives to change the law. Like the constitutional amendment at
issue in Coalition to Defend Affirmative Action, Virginias constitutional marriage ban creates a
comparative structural burden, 701 F.3d at 470, imposed by the majority on the minority to
prevent them from using the normal processes of democratic governance to achieve their goals.

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Such a selective burden undermines the Equal Protection Clauses guarantee that all citizens
ought to have equal access to the tools of political change. Coal. to Defend, 701 F.3d at 470.
D.

Virginias Marriage Bans Are Unconstitutional Under Any Standard of


Review.

If the requisite heightened scrutiny is applied, there is no possibility that Virginia


marriage bans can be viewed as consistent with the Commonwealths duty to accord equal
protection of the laws to all persons. But, regardless of whether heightened scrutiny is applied,
the marriage bans violate the Constitutions equal protection guarantee. Even in the ordinary
equal protection case calling for the most deferential of standards, [the Court] insist[s] on
knowing the relation between the classification adopted and the object to be attained.
Romer, 517 U.S. at 632. [S]ome objectives . . . are not legitimate state interests and, even
when a law is justified by an ostensibly legitimate purpose, [t]he State may not rely on a
classification whose relationship to an asserted goal is so attenuated as to render the distinction
arbitrary or irrational. Cleburne, 473 U.S. at 446-47. Because all, or almost all, state action
results in some persons being benefitted while others are burdened, the Equal Protection Clause
stands to ensure that the line drawn between the two groups has some modicum of principled
validity, through its scrutiny of both the purpose animating the statute as well as the way the line
is set. Smith Setzer & Sons, Inc. v. S.C. Procurement Rev. Panel, 20 F.3d 1311, 1321 (4th Cir.
1994).
At the most basic level, by requiring that classifications be justified by an independent
and legitimate purpose, the Equal Protection Clause prohibits classifications from being drawn
for the purpose of disadvantaging the group burdened by the law. Romer, 517 U.S. at 633; see
also Windsor, 133 S. Ct. at 2693; Cleburne, 473 U.S. at 450; U.S. Dept of Agriculture v.
Moreno, 413 U.S. 528, 534 (1973). The Supreme Court invoked this principle most recently in

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Windsor when it held that the principal provision of the federal Defense of Marriage Act
(DOMA) violated equal protection principles because the purpose and practical effect of the
law . . . [was] to impose a disadvantage, a separate status, and so a stigma upon all who enter into
same-sex marriages. Windsor, 133 S. Ct. at 2693. The Court explained that the statute was not
sufficiently connected to a legitimate governmental purpose because its interference with the
equal dignity of same-sex marriages . . . was more than an incidental effect of the federal statute.
It was its essence. Id. The Supreme Court has sometimes described this impermissible purpose
as animus or a bare desire to harm a politically unpopular group. Windsor, 133 S. Ct. at
2693; Romer, 517 U.S. at 633; Cleburne, 473 U.S. at 447; Moreno, 413 U.S. at 534. But an
impermissible motive does not always reflect malicious ill will. Bd. of Trustees of Univ. of
Ala. v. Garrett, 531 U.S. 356, 374 (2001) (Kennedy, J., concurring). It can also take the form of
negative attitudes, Cleburne, 473 U.S. at 448, fear, id., irrational prejudice, id. at 450, or
some instinctive mechanism to guard against people who appear to be different in some respects
from ourselves, Garrett, 531 U.S. at 374 (Kennedy, J., concurring). 9

In determining whether a law is based on such an impermissible purpose, the Court has looked
to a variety of direct and circumstantial evidence, including the text of a statute and its obvious
practical effects, see, e.g., Windsor, 133 S. Ct. at 2693; Romer, 517 U.S at 633; Village of
Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 266-68 (1977), statements by
legislators during floor debates or committee reports, see, e.g., Windsor, 133 S. Ct. at 2693;
Moreno, 413 U.S. at 534-35, the historical background of the challenged statute, see, e.g.,
Windsor, 133 S. Ct. at 2693; Arlington Heights, 429 U.S. at 266-68, and a history of
discrimination by the relevant governmental entity, see, e.g. Arlington Heights, 429 U.S. at 26668. Finally, even without direct evidence of discriminatory intent, the absence of any logical
connection to a legitimate purpose can lead to an inference of an impermissible intent to
discriminate. See Romer, 517 U.S. at 632 (reasoning that the laws sheer breadth is so
discontinuous with the reasons offered for it that the amendment seems inexplicable by anything
but animus toward the class it affects); Cleburne, 473 U.S. at 448-50 (reasoning that because a
home for developmentally disabled adults did posed no threat to citys interests other than those
also posed by permitted uses, requiring a special zoning permit in this case appears to us to rest
on an irrational prejudice).
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In addition, even when the government offers an ostensibly legitimate purpose, the
simple articulation of a justification for a challenged classification does not conclude the judicial
inquiry. Phan v. Com. of Va., 806 F.2d 516, 521 n.6 (4th Cir. 1986). The court must also
examine the statutes connection to that purpose to assess whether it is too attenuated to
rationally advance the asserted governmental interest. Cleburne, 473 U.S. at 446; see, e.g.,
Moreno, 413 U.S. at 535-36 (invalidating law on rational-basis review because even if we were
to accept as rational the Governments wholly unsubstantiated assumptions concerning [hippies]
. . . we still could not agree with the Governments conclusion that the denial of essential federal
food assistance . . . constitutes a rational effort to deal with these concerns); Eisenstadt v. Baird,
405 U.S. 438, 448-49 (1972) (invalidating law on rational-basis review because, even if deterring
premarital sex is a legitimate governmental interest, the effect of the ban on distribution of
contraceptives to unmarried persons has at best a marginal relation to the proffered objective);
see also Manwani v. U.S. Dept of Justice, 736 F. Supp. 1367, 1390 (W.D.N.C. 1990) ([T]he
government must do more than articulate reasons why the stated purpose . . . is rational. The
inquiry that is constitutionally required is whether Congress response . . . rationally furthers the
congressional purpose.) (emphasis in original). This search for a meaningful connection
between a classification and the asserted governmental interest also provides an additional
safeguard against intentional discrimination. As the Supreme Court has explained, [b]y
requiring that the classification bear a rational relationship to an independent and legitimate
legislative end, we ensure that classifications are not drawn for the purpose of disadvantaging the
group burdened by the law. Romer, 517 U.S. at 633. 10

10

The Supreme Court has been particularly likely to find a classification too attenuated to serve
an asserted government interest when the law imposes a sweeping disadvantage on a group that
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Virginias marriage bans share all the hallmarks of irrational discrimination that have
been present in prior Supreme Court cases that struck down laws violating even the lowest level
of equal protection scrutiny. Even if the Court does not apply heightened scrutiny (although it
should), none of the proffered rationales for Virginias marriage bans can withstand
constitutional review.
1.

Virginias Marriage Bans Cannot Be Justified by an Asserted Interest


in Maintaining a Traditional Definition of Marriage.

In order to survive constitutional scrutiny, Virginias marriage bans must be justified by


some legitimate state interest other than simply maintaining a traditional definition of
marriage. Ancient lineage of a legal concept does not give it immunity from attack for lacking
a rational basis. Heller v. Doe by Doe, 509 U.S. 312, 326-27 (1993). Indeed, the fact that a
form of discrimination has been traditional is a reason to be more skeptical of its rationality.
The Court must be especially vigilant in evaluating the rationality of any classification
involving a group that has been subjected to a tradition of disfavor for a traditional classification
is more likely to be used without pausing to consider its justification than is a newly created
classification. Cleburne, 473 U.S. at 454 n.6 (Stevens, J., concurring) (alterations incorporated;

is grossly out of proportion to accomplishing that purpose. For example, in Romer, the Court
invalidated a Colorado constitutional amendment excluding gay people from eligibility for
nondiscrimination protections because, the law identifie[d] persons by a single trait and then
denie[d] them protection across the board. 517 U.S. at 633. Similarly, in Windsor the Supreme
Court invalidated the challenged section of DOMA as not sufficiently related to any legitimate
governmental purpose in part because it was a system-wide enactment with no identified
connection to any particular government program. Windsor, 133 S. Ct. at 2694. In such
situations, the laws breadth may outrun and belie any legitimate justifications that may be
claimed for it. Romer, 517 U.S. at 635; see also id. (The breadth of the amendment is so far
removed from these particular justifications that we find it impossible to credit them.).
Virginias sweeping marriage bans likewise exclude same-sex couples and their children systemwide from the protections and benefits afforded married couples and their families under
Virginia and federal law.
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internal quotation marks omitted); see also Marsh v. Chambers, 463 U.S. 183, 791-92 (1983)
(even longstanding practice should not be taken thoughtlessly, by force of long tradition and
without regard to the problems posed by a pluralistic society); In re Marriage Cases, 183 P.3d
at 853-54 ([E]ven the most familiar and generally accepted of social practices and traditions
often mask an unfairness and inequality that frequently is not recognized or appreciated by those
not directly harmed by those practices or traditions.). As the Supreme Court has explained,
times can blind us to certain truths and later generations can see that laws once thought
necessary and proper in fact serve only to oppress. Lawrence, 539 U.S. at 579.
Regarding laws that exclude same-sex couples from marriage, the justification of
tradition does not explain the classification; it merely repeats it. Simply put, a history or
tradition of discrimination no matter how entrenched does not make the discrimination
constitutional. . . . Kerrigan, 957 A.2d at 478 (citation omitted); accord Goodridge v. Dept of
Pub. Health, 798 N.E.2d 941, 961 n.23 (Mass. 2003) ([I]t is circular reasoning, not analysis, to
maintain that marriage must remain a heterosexual institution because that is what it historically
has been.); Varnum, 763 N.W.2d at 898 (asking whether restricting marriage to opposite-sex
couples accomplishes the governmental objective of maintaining opposite-sex marriage results
in empty analysis); see also Golinski, 824 F. Supp. 2d at 993 (Tradition alone . . . cannot form
an adequate justification for a law. . . . Instead, the government must have an interest separate
and apart from the fact of tradition itself.) (citations omitted).
Ultimately, preserving the traditional institution of marriage is just a kinder way of
describing the [s]tates moral disapproval of same-sex couples. Lawrence, 539 U.S. at 601
(Scalia, J., dissenting) (emphasis in original). That intent to discriminate is not a rational basis

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for perpetuating discrimination. See Windsor, 133 S. Ct. at 2692; Romer, 517 U.S. at
633; Cleburne, 473 U.S. at 450; Moreno, 413 U.S. at 534.
2.

Virginias Marriage Bans Cannot Be Justified by an Asserted Interest


in Encouraging Responsible Procreation by Heterosexual Couples or
Promoting a Conjugal View of Marriage.

There is no rational connection between Virginias marriage bans and an asserted state
interest in encouraging responsible procreation by heterosexual couples. To the extent that the
benefits and protections accompanying marriage encourage heterosexual couples to marry
before procreating, those incentives existed before Virginia passed its statutory ban in 1975,
before it reaffirmed its statutory ban in 1997 and again in 2004, and before it passed its
constitutional amendment in 2006. And those incentives will still exist if the marriage bans are
stuck down. See Varnum, 763 N.W.2d at 901-02 (While heterosexual marriage does lead to
procreation, the argument by the County fails to address the real issue[:] . . . whether exclusion
of gay and lesbian individuals from the institution of civil marriage will result in more
procreation? If procreation is the true objective, then the proffered classification must work to
achieve that objective.); see also Windsor, 699 F.3d at 188 (DOMA does not provide any
incremental reason for opposite-sex couples to engage in responsible procreation. Incentives
for opposite-sex couples to marry and procreate (or not) were the same after DOMA was enacted
as they were before. (footnotes omitted)); Golinski, 824 F. Supp. 2d at 998 (Denying federal
benefits to same-sex married couples has no rational effect on the procreation and child-rearing
practices of opposite-sex married (or unmarried) couples.).
In her Answer, Defendant Rainey does not attempt to take on the impossible task of
arguing that allowing same-sex couples to marry will discourage different-sex couples from
procreating responsibly. Instead, she asserts it is rational to exclude gay couples from marriage
because allowing them to marry will not affirmatively advance the governmental interest in
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responsible procreation. See Ans. 64 (asserting that the inquiry is not whether a same sex
marriage interferes with the purposes advanced by the traditional classification but whether it
advances them). That argument fails on multiple levels.
As an initial matter, Defendant Raineys assertion that the governmental interest in
responsible procreation somehow does not apply to gay people is simply wrong. Lesbian and
gay couples have children through assisted reproduction and through adoption, and the
government has just as strong an interest in encouraging such procreation and child-rearing to
take place in the stable context of marriage. See Varnum, 763 N.W.2d at 902 (Conceptually,
the promotion of procreation as an objective of marriage is compatible with the inclusion of gays
and lesbians within the definition of marriage. Gay and lesbian persons are capable of
procreation.); In re Marriage Cases, 183 P.3d at 433 ([A] stable two-parent family
relationship, supported by the states official recognition and protection, is equally as important
for the numerous children . . . who are being raised by same-sex couples as for those children
being raised by opposite-sex couples (whether they are biological parents or adoptive parents).);
see also Pedersen, 881 F. Supp. 2d at 339 (Assuming, as Congress has, that the marital context
provides the optimal environment to rear children as opposed to non-marital circumstances, it is
irrational to strive to incentivize the rearing of children within the marital context by affording
benefits to one class of marital unions in which children may be reared while denying the very
same benefits to another class of marriages in which children may also be reared.).
Alternatively, by invoking an interest in responsible procreation, Defendant Rainey
may be alluding to the accidental procreation theory that was adopted by some courts in the
previous decade as a basis for limiting marriage to heterosexual couples. According to this
theory, the purpose of marriage is ostensibly to ensure that couples are in stable relationships if

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they accidentally procreate, and because same-sex couples cannot procreate by accident, it is
argued that it is rational not to include same-sex couples within the definition of marriage. See,
e.g., Hernandez v. Robles, 855 N.E.2d 1, 7 (N.Y. 2006). But whether or not encouraging
accidental procreation to take place in the context of a stable relationship might be considered by
some people to be one of the purposes of marriage, it is indisputably not the only purpose that
marriage serves for Virginia families today. [M]arriage is more than a routine classification for
purposes of certain statutory benefits and is a far-reaching legal acknowledgment of the
intimate relationship between two people. Windsor, 133 S. Ct. at 2692. Marriage in Virginia is
tied a wide array of governmental programs and protections that have nothing to do with
procreation (let alone, accidental procreation). See supra Background, Part II.B; see also In re
Marriage Cases, 183 P.3d at 432 ([A]lthough promoting and facilitating a stable environment
for the procreation and raising of children is unquestionably one of the vitally important purposes
underlying the institution of marriage and the constitutional right to marry . . . this right is not
confined to, or restrictively defined by, that purpose alone.).
The fact that same-sex couples cannot procreate by accident does not provide a rational
basis for excluding those couples from all the other protections that marriage provides in modern
society. Under rational-basis review, it is not enough for the government to identify some
difference between two classes; it must be a ground of difference having a fair and substantial
relation to the object of the legislation. Sylvia Dev. Corp. v. Calvert County, 48 F.3d 810, 818
(4th Cir. 1995) (quoting Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920)). As in
Romer, [t]he breadth of the [marriage bans] is so far removed from these particular
justifications that [it is] impossible to credit them. Romer, 517 U.S. at 635; see also Eisenstadt,
405 U.S. at 449 (finding law discriminating between married and unmarried individuals in access

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to contraceptives so riddled with exceptions that the interest claimed by the government
cannot reasonably be regarded as its aim).
In any event, Virginias marriage bans simply do not classify based on the ability to
accidentally procreate; they classify based on the sex of the partners regardless of their
procreative abilities. See Lawrence, 539 U.S. at 604 (Scalia, J., dissenting) ([W]hat justification
could there possibly be for denying the benefits of marriage to homosexual couples exercising
[t]he liberty protected by the Constitution? Surely not the encouragement of procreation, since
the sterile and the elderly are allowed to marry.). Because Virginia does not condition the right
to marry on procreative ability, the Commonwealth cannot selectively rely on accidental
procreation only when it comes to same-sex couples. Cf. Cleburne, 473 U.S. at 450 ([T]he
expressed worry about fire hazards, the serenity of the neighborhood, and the avoidance of
danger to other residents fail rationally to justify singling out a home [for people with
disabilities] for the special use permit, yet imposing no such restrictions on the many other uses
freely permitted in the neighborhood.).
In a variation of the accidental procreation argument, Defendant Rainey also draws on
Justice Alitos dissenting opinion in Windsor to argue that it is not irrational for Virginia to
choose to adopt a conjugal vision of marriage instead of a consent-based vision. Def. Ans.
101-04, 107-10; Windsor, 133 S. Ct. at 2718 (Alito, J., dissenting) (contrasting a conjugal
or traditional view, which sees marriage as an intrinsically opposite-sex institution that is
inextricably linked to procreation and biological kinship, and a consent-based vision, which
sees marriage as the solemnization of mutual commitment between two persons). Framing this
argument in philosophical terms does not rescue this procreation-based rationale. It fails for all
of the same reasons discussed above. Moreover, Virginia has long held the consent-based

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vision of marriage for heterosexual couples. See supra Background, Part II.A (discussing history
of Virginia laws creating gender parity in marriage, abolishing doctrine of coverture, and
instituting no-fault divorce). As Justice Alito noted, [a]t least as it applies to heterosexual
couples, this [consent-based] view of marriage now plays a very prominent role in the popular
understanding of the institution. Indeed, our popular culture is infused with this understanding of
marriage. Windsor, 133 S. Ct. at 2718 (Alito, J., dissenting).
On this equal-protection challenge, the question is not whether Virginia may in the
abstract adopt a conjugal view of marriage for everyone, but whether Virginia may impose a
conjugal vision of marriage when it comes to the rights of same-sex couples while adopting a
consent-based vision of marriage for everyone else. See Eisenstadt, 405 U.S. at 454 (quoting Ry.
Express Agency v. New York, 336 U.S. 106, 112-13 (1949) (Jackson, J., concurring)); accord
Lawrence, 539 U.S. at 585 (OConnor, J., concurring).
3.

Virginias Marriage Bans Cannot Be Justified by an Asserted Interest


in Optimal Childrearing.

Defendant Rainey asserts that Virginias marriage bans also are justified by a state
interest in optimal parenting, which presumably refers to the notion that it is in the best interest
of children to be raised by married heterosexual parents rather than by two parents of the same
sex. But even if it were rational for legislators to speculate that children raised by heterosexual
couples are better adjusted than children raised by gay onesand it is notthere is simply no
rational connection between Virginias marriage bans and the asserted goal. As Defendant
Rainey concedes, the marriage bans are not law[s] respecting parenting. Ans. 70. Virginias
marriage bans do not prevent gay couples from having children. And excluding same-sex
couples from marrying does nothing to prevent heterosexual couples from procreating out of
wedlock or encourage them to procreate within marriage. See Windsor, 699 F.3d at 188;

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Golinski, 824 F. Supp. 2d at 998; Pedersen, 881 F. Supp. 2d at 340-41; Varnum, 763 N.W.2d at
901.
The only effect that Virginias marriage bans have on childrens well-being is that they
harm the children of same-sex couples who are denied the protection and stability of having
parents who are married. See, e.g., SUF 3, 4, 10, 13-14. Like the DOMA statute invalidated
in Windsor, Virginias marriage bans serve only to humiliate the children now being raised
by same-sex couples and make[] it even more difficult for the children to understand the
integrity and closeness of their own family and its concord with other families in their
community and in their daily lives. Windsor, 133 S. Ct. at 2694; see also, e.g., SUF 3, 14.
Excluding same-sex couples from civil marriage will not make children of opposite-sex
marriages more secure, but it does prevent children of same-sex couples from enjoying the
immeasurable advantages that flow from the assurance of a stable family structure in which
children will be reared, educated, and socialized. Goodridge, 798 N.E.2d at 964 (internal
quotation marks and citation omitted)). To the extent that Virginias marriage bans visit these
harms on children as a way to attempt (albeit irrationally) to deter other same-sex couples from
having children, the Supreme Court has invalidated similar attempts to incentivize parents by
punishing children as illogical and unjust. Plyler, 457 U.S. at 220 (quoting Weber v. Aetna
Cas. & Sur. Co., 406 U.S. 164, 175 (1972)). Obviously, no child is responsible for his birth
and penalizing the . . . child is an ineffectualas well as unjustway of deterring the parent.
Id. (quoting Weber, 406 U.S. at 175). 11

11Moreover,

any law adopted with the purpose of burdening gay peoples ability to procreate
would also demand strict scrutiny for implicating the fundamental right to decide whether to
bear or beget a child. Planned Parenthood of SE Penn. v. Casey, 505 U.S. 833, 851 (1992)
(quoting Eisenstadt, 405 U.S. at 453); see Pedersen, 881 F. Supp. 2d at 341.
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The lack of rational connection between the marriage bans and the asserted goals of
encouraging children to be raised by heterosexual couples is sufficient to render the marriage
bans unconstitutional, even without considering whether the government has a legitimate basis
for preferring different-sex over same-sex parents. But the overwhelming scientific consensus,
based on decades of peer-reviewed scientific research, shows unequivocally that children raised
by same-sex couples are just as well adjusted as those raised by heterosexual couples. This
consensus has been recognized by every major professional organization dedicated to childrens
health and welfare, including the American Academy of Pediatrics, American Academy of Child
and Adolescent Psychiatry, the American Psychiatric Association, the American Psychological
Association, the American Psychoanalytic Association, and the Child Welfare League of
America. See United States v. Windsor, No. 12-307, Brief of the American Psychological
Association, et al., as Amici Curiae on the Merits in Support of Affirmance, 2013 WL 871958, at
*14-26 (Mar. 1, 2013) (discussing this scientific consensus); Hollingsworth v. Perry, No. 12-144,
and United States v. Windsor, No. 12-307, Brief of the American Sociological Assn, in Support
of Respondent Kristin M. Perry and Respondent Edith Schlain Windsor, 2013 WL 840004, at
*6-14 (Feb. 28, 2013).
This consensus has also been recognized by numerous courts. See Perry, 704 F. Supp. 2d
at 980 (finding that the research supporting the conclusion that [c]hildren raised by gay or
lesbian parents are as likely as children raised by heterosexual parents to be healthy, successful
and well-adjusted is accepted beyond serious debate in the field of developmental
psychology); In re Adoption of Doe, 2008 WL 5006172, at *20 (Fla. Cir. Ct. Nov. 25, 2008)
([B]ased on the robust nature of the evidence available in the field, this Court is satisfied that
the issue is so far beyond dispute that it would be irrational to hold otherwise; the best interests

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of children are not preserved by prohibiting homosexual adoption.), affd sub nom. Fla. Dept of
Children & Families v. Adoption of X.X.G., 45 So.3d 79 (Fla. Dist. Ct. App. 2010); Howard v.
Child Welfare Agency Rev. Bd., Nos. 1999-9881, 2004 WL 3154530, at *9 and 2004 WL
3200916, at *3-4 (Ark. Cir. Ct. Dec. 29, 2004) (holding based on factual findings regarding the
well-being of children of gay parents that there was no rational relationship between the
[exclusion of gay people as foster parents] and the health, safety, and welfare of the foster
children.), affd sub nom. Dept of Human Servs. v. Howard, 238 S.W.3d 1 (Ark. 2006);
Varnum, 763 N.W.2d at 899 and n.26 (concluding, after reviewing an abundance of evidence
and research, that opinions that dual-gender parenting is the optimal environment for children .
. . is based more on stereotype than anything else); Golinski, 824 F. Supp. 2d at 991 (More
than thirty years of scholarship resulting in over fifty peer-reviewed empirical reports have
overwhelmingly demonstrated that children raised by same-sex parents are as likely to be
emotionally healthy, and educationally and socially successful as those raised by opposite-sex
parents.).
In any event, even without considering the scientific consensus regarding parenting by
same-sex couples, the marriage bans still fail constitutional review as a matter of law because
there is no rational connection between the marriage bans and the asserted governmental interest
in optimal parenting, Children being raised by different-sex couples are unaffected by whether
same-sex couples can marry, and children raised by same-sex couples will not end up being
raised by different-sex couples because their current parents cannot marry. See Golinski, 824 F.
Supp. 2d at 997 (Even if the Court were to accept as true, which it does not, that opposite-sex
parenting is somehow superior to same-sex parenting, DOMA is not rationally related to this

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alleged governmental interest.); accord Windsor, 699 F.3d at 188; Pedersen, 881 F. Supp. 2d at
340-41; Varnum, 763 N.W.2d at 901.
4.

No Legitimate Interest Overcomes the Primary Purpose and Practical


Effect of Virginias Marriage Bans to Disparage and Demean SameSex Couples and Their Families.

Because there is no rational connection between Virginias marriage bans and any of the
asserted state interests, this Court can conclude that the marriage bans violate equal protection
even without considering whether they are motivated by an impermissible purpose. See Vill. of
Willowbrook v. Olech, 528 U.S. 562, 565 (2000) (allegations of irrational discrimination quite
apart from the Villages subjective motivation, are sufficient to state a claim for relief under
traditional equal protection analysis). In this case, however, the lack of any connection between
Virginias marriage bans and any legitimate state interest also confirms the inescapable
conclusion that they were passedand reaffirmed multiple timesbecause of, not in spite of,
the harm they would inflict on same-sex couples. And, even if it were possible to hypothesize a
rational connection between Virginias marriage bans and some legitimate governmental
interestand there is noneVirginias marriage bans would still violate equal protection
because no hypothetical justification can overcome the unmistakable primary purpose and
practical effect of the marriage bans to disparage and demean the dignity of same-sex couples in
the eyes of the Commonwealth and the wider community.
The Supreme Court in Windsor recently reaffirmed that when the primary purpose and
effect of a law is to harm an identifiable group, the fact that the law may also incidentally serve
some other neutral governmental interest cannot save it from unconstitutionality. In defending
the constitutionality of DOMA, the Bipartisan Legal Advisory Group (BLAG) argued that the
statute helped serve a variety of federal interests in promoting efficiency and uniformity, as well

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as the same purported state interests that Defendant Rainey relies upon in this case. According
to BLAGs merits brief:
Congress could rationally decide to retain the traditional definition for the same basic
reasons that states adopted the traditional definition in the first place and that many
continue to retain it: There is a unique relationship between marriage and procreation that
stems from marriages origins as a means to address the tendency of opposite-sex
relationships to produce unintended and unplanned offspring. There is nothing irrational
about declining to extend marriage to same-sex relationships that, whatever their other
similarities to opposite-sex relationships, simply do not share that same tendency.
Congress likewise could rationally decide to foster relationships in which children are
raised by both of their biological parents.
See Merits Brief of Bipartisan Legal Advisory Group in United States v. Windsor, 2013 WL
267026, at *21 (2013). But the Supreme Court held that none of BLAGs rationalizations could
save the law. The Court explained that [t]he principal purpose [of DOMA] [was] to impose
inequality, not for other reasons like governmental efficiency, and no legitimate purpose
overcomes the purpose and effect to disparage and injure same-sex couples and their families.
Windsor, 133 S. Ct at 2694, 2696; see also Vance v. Bradley, 440 U.S. 93, 97 (1979) (rationalbasis review is deferential absent some reason to infer antipathy); Lawrence, 539 U.S. at 580
(OConnor, J., concurring) (When a law exhibits such a desire to harm a politically unpopular
group, we have applied a more searching form of rational basis review to strike down such laws
under the Equal Protection Clause.).
It is indisputable that Virginias marriage bans were enacted because of, not in spite, of
their adverse effect on same-sex couples. Although courts are reluctant to examine the intent
behind legislation in other contexts, when a constitutional claim is based on equal protection,
legislative intent may be relevant insofar as the Court has held that unlawful motive is a specific
element of the test of constitutionality. S.C. Educ. Assn v. Campbell, 883 F.2d 1251, 1259 n.6
(4th Cir. 1989); see Sylvia Dev. Corp., 48 F.3d at 819 (discussing factors [that] have been

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recognized as probative of whether a decisionmaking body was motivated by a discriminatory


intent).
The historical background of each of the marriage bans reflects a targeted attempt to
exclude same-sex couples, not a mere side-effect of some broader public policy. Cf. Windsor,
133 S. Ct. at 2693 (examining historical context of DOMA); Arlington Heights, 429 U.S. at 26667 (explaining historical background of the decision is relevant when determining legislative
intent). The marriage bans were not enacted long ago at a time when many citizens had not
even considered the possibility that two persons of the same sex might aspire to occupy the same
status and dignity as that of a man and woman in lawful marriage. Windsor, 133 S. Ct. at 2689.
They were enacted as specific responses to developments in other jurisdictions where same-sex
couples sought the freedom to marry. See supra Background, Part I. In each case, the marriage
bans did not simply represent a failure to include same-sex couples within the broader public
policies advanced by marriage; they were specific, targeted efforts to exclude same-sex couples.
Indeed, in targeting the relationships of same-sex couples as unworthy of equal dignity
and respect, the marriage bans were just part of a broader Virginia public policy to disparage gay
people and same-sex couples by declaring their sexual intimacy to be punishable as crimes
against nature. VA Code Ann. 18.2-361(A). Like other sodomy statutes, Virginias ban
imposed a far-reaching social stigma on gay people that serves as an invitation to subject
homosexual persons to discrimination both in the public and in the private spheres. Lawrence,
539 U.S. at 575. 12

12

Most dramatically, the criminal sodomy ban was frequently invoked by Virginia courts in
family law disputes to deny gay people custody of their children. In 1985, the Virginia Supreme
Court held that awarding custody to a gay father who shared a bedroom with his partneror
even allowing visitation in the fathers homeflies in the face . . . of societys mores. Roe v.
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The legislative debates similarly reflect an intent to disparage same-sex relationships as


counterfeit or imitation[] marriages driven solely by sexual interest[s] or appetites. See
Gaber Dec. 11, 20, 21. Most tellingly, as discussed above, although the proponents of the
constitutional amendment initially included a Savings Clause to clarify that the amendment did
not alter [a]ny other right, benefit, obligation, or legal status of unmarried personssuch as
the ability to control who may make medical decisions on ones behalfthat purported Savings
Clause was stricken from the bill (along with an introductory provision setting forth the
purported purposes of marriage) and sweeping new language was added, barring creation or
recognition of relationships that intend[] to approximate the design, qualities, significance, or
effects of marriage. See supra Background, Part I. The legislature adopted these modifications
despite warnings from the one of the bills chief sponsors that doing so would support arguments

Roe, 228 Va. 722, 726 (1985) (internal quotation marks omitted). The court reasoned that the
fathers immoral and illicit relationship render[ed] him an unfit and improper custodian as a
matter of law; described the relative degree of abhorrence by which our society regards samesex relationships by pointing to Virginias felony sodomy law, which is prosecuted with
considerable frequency and vigor; and claimed that the fathers relationship placed an
intolerable burden upon [the daughter] by reason of the social condemnation attached to them.
Id. at 727-28. In another widely publicized case, a Virginia trial court in 1993 granted a
grandmothers petition to take Sharon Bottoms son away from her because, as the trial court
judge explained, her lesbian conduct is illegal . . . a Class 6 felony in the Commonwealth of
Virginia. Bottoms v. Bottoms, 457 S.E.2d 102, 109 (Va. 1995) (Keenan, J., dissenting) (quoting
trial transcript); see id. (trial judge went on to declare that her conduct is immoral and renders
her an unfit parent.). The Virginia Supreme Court upheld the trial courts decision terminating
the mothers custody despite the presumption favoring her as a natural parent. Among the
factors it relied on was its assumption that having a lesbian mother would subject the child to
social condemnation and thus disturb his relationships with peers and the community at large.
Id. at 419-420.
After the Supreme Court invalidated Texass criminal sodomy statute in Lawrence, a bill
was introduced in the Virginia Senate in 2004 to bring Virginias statute into compliance with
the Constitution, but Virginias legislature refused to remove the unconstitutional and
stigmatizing law from its books during the same legislative session that it passed the Marriage
Affirmation Act. See Virginia Legislative Information System, 2004 Session, Senate Bill 477,
available at http://lis.virginia.gov/cgi-bin/legp604.exe?041+sum+SB477.
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that the legislature was motivated primarily by animus toward gay people. See Gaber Dec. at
14-16.
In addition to all the other contemporaneous evidence of an impermissible purpose, the
inescapable practical effect of Virginias marriage bans is to impose a disadvantage, a
separate status, and so a stigma upon same-sex couples in the eyes of the state and the broader
community. Windsor, 133 S. Ct at 2693; see also Heckler v. Mathews, 465 U.S. 728, 739-40
(1984) ([A]s we have repeatedly emphasized, discrimination itself, by perpetuating archaic and
stereotypic notions or by stigmatizing members of the disfavored group as innately inferior
and therefore as less worthy participants in the political community . . . can cause serious
noneconomic injuries to those persons who are personally denied equal treatment solely because
of their membership in a disfavored group.) (footnote and citations omitted). The marriage bans
collectively diminish[] the stability and predictability of basic personal relations of gay people
and demeans the couple, whose moral and sexual choices the Constitution protects. Windsor,
133 S. Ct. at 2694 (citing Lawrence, 539 U.S. 558 (2003)). The marriage bans thus constitute an
official statement that the family relationship of same-sex couples is not of comparable stature
or equal dignity to the family relationship of opposite-sex couples and that that it is
permissible, under the law, for society to treat gay individuals and same-sex couples differently
from, and less favorably than, heterosexual individuals and opposite-sex couples. In re
Marriage Cases, 183 P.3d 384 at 452. That official statement of inequality is in and of itself is
an invitation to subject homosexual persons to discrimination both in the public and in the
private spheres. Lawrence, 539 U.S. at 575.
The unmistakable intent of the marriage bans is to impose inequality on gay people and
their intimate relationships. As noted above, Virginias marriage bans are not rationally related

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to any legitimate purpose. But even if there were a rational connection to the marriage bans and
some legitimate purpose, that incidental connection could not overcome[] the purpose and
effect to disparage and to injure same-sex couples and their families. Windsor, 133 S. Ct at
2696.
II.

Virginias Marriage Bans Infringe Plaintiffs Fundamental Rights and Liberty


Interests and Thus Violate the Guarantees of Due Process and Equal Protection in
the Fourteenth Amendment.
A.

The Fundamental Right to Marry Includes the Right to Choose Ones Spouse
Free of Unwarranted Interference by the State.
1.

The Right to Marry Is a Fundamental Right that Belongs to the


Individual.

The freedom to marry has long been recognized as one of the vital personal rights
essential to the orderly pursuit of happiness by free men. Loving, 388 U.S. at 12 (citation
omitted); accord Zablocki v. Redhail, 434 U.S. 374, 383 (1978); see generally Hawkins v.
Freeman, 195 F.3d 732, 747 (4th Cir. 1999) (en banc) (listing the right to marry first among
the relatively few, more generally shared, unenumerated rights that over time have been found
by the Supreme Court (and not without difficulty) to have that fundamental quality.) (citation
omitted). 13
Although states have a legitimate interest in regulating and promoting marriage, the
fundamental right to marry belongs to the individual. [T]he regulation of constitutionally

13

Many other cases describe the right to marry as fundamental. Turner v. Safley, 482 U.S. 78,
95 (1987) (The decision to marry is a fundamental right); Moore v. East Cleveland, 431 U.S.
494, 503 (1977) ([T]he Constitution protects the sanctity of the family precisely because the
institution of the family is deeply rooted in this Nations history and tradition); Griswold v.
Connecticut, 381 U.S. 479, 485-486 (1965) (intrusions into the sacred precincts of marital
bedrooms offend rights older than the Bill of Rights); id., at 495-496 (Goldberg, J.,
concurring) (the law in question disrupt[ed] the traditional relation of the family--a relation as
old and as fundamental as our entire civilization); see generally Washington v. Glucksberg, 521
U.S. 702, 727 n.19 (1997) (citing cases).
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protected decisions, such as where a person shall reside or whom he or she shall marry, must be
predicated on legitimate state concerns other than disagreement with the choice the individual
has made. Hodgson v. Minnesota., 497 U.S. 417, 435 (1990); see also Loving, 388 U.S. at 12
(Under our Constitution, the freedom to marry, or not marry, a person of another race resides
with the individual and cannot be infringed by the State.); Roberts v. United States Jaycees, 468
U.S. 609, 620 (1984) ([T]he Constitution undoubtedly imposes constraints on the States
power to control the selection of ones spouse . . . .).
2.

The Scope of a Fundamental Right or Liberty Interest Under the Due


Process Clause Does Not Depend on Who Is Exercising that Right.

This case is about the fundamental right to marrynot, as Defendant Rainey attempts to
reframe the issue, the right to same sex marriage. Rainey Ans. at 118. The Supreme Court
has consistently refused to narrow the scope of the fundamental right to marry by reframing a
plaintiffs asserted right to marry as a more limited right that is about the characteristics of the
couple seeking marriage. Supreme Court cases addressing the fundamental right to marry do
not recast it as merely the right to interracial marriage, the right to inmate marriage, or the
right of people owing child support to marry. See Golinski, 824 F. Supp. 2d at 982 n.5 (citing
Loving, 388 U.S. at 12; Turner, 482 U.S. at 94-96; Zablocki, 434 U.S. at 383-86; accord In re
Marriage Cases, 183 P.3d at 421 n.33 (Turner did not characterize the constitutional right at
issue as the right to inmate marriage.).
Indeed, Defendant Raineys argument is exactly the same argument that the Supreme
Court squarely rejected in Lawrence when it overruled Bowers. Lawrence explained that the
Bowers decision was flawed from the very outset in trying to distinguish the Courts liberty
interest jurisprudence by characterizing the inquiry as whether the Federal Constitution confers
a fundamental right upon homosexuals to engage in sodomy. Lawrence, 539 U.S. at 566-67

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(quoting Bowers, 478 U.S. at 190). In doing so, Bowers fail[ed] to appreciate the extent of the
liberty at stake, Lawrence, 539 U.S. at 567, just as does Raineys attempt to recharacterize
Plaintiffs claims as seeking the right to same-sex marriage.
Lawrence held that the right of consenting adults (including same-sex couples) to engage
in private, sexual intimacy is protected by the Fourteenth Amendments protection of liberty,
notwithstanding the historical existence of sodomy laws and their use against gay people. For
the same reasons, the fundamental right to marry is deeply rooted in this Nation's history and
tradition for purposes of constitutional protection even though same-sex couples have not
historically been allowed to exercise that right. See Ans. 85. [H]istory and tradition are the
starting point but not in all cases the ending point of the substantive due process inquiry.
Lawrence, 539 U.S. at 572 (citation omitted). While courts use history and tradition to identify
the interests that due process protects, they do not carry forward historical limitations, either
traditional or arising by operation of prior law, on which Americans may exercise a right once
that right is recognized as one that due process protects. This critical distinctionthat history
guides the what of due process rights, but not the who of which individuals have themis
central to due process jurisprudence. Fundamental rights, once recognized, cannot be denied to
particular groups on the ground that these groups have historically been denied those rights. In
re Marriage Cases, 183 P.3d at 430 (quoting Hernandez, 855 N.E.2d at 23 (Kaye, C.J.,
dissenting) (brackets omitted)).
For example, when the Court held that anti-miscegenation laws violated the fundamental
right to marry in Loving, it did so despite a long tradition of excluding interracial couples from
marriage. See supra Background, Part II.A; Planned Parenthood v. Casey, 505 U.S. 833, 847-48
(1992) ([I]nterracial marriage was illegal in most States in the 19th century, but the Court was

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no doubt correct in finding it to be an aspect of liberty protected against state interference by the
substantive component of the Due Process Clause in Loving . . . .); Lawrence, 539 U.S. at 57778 ([N]either history nor tradition could save a law prohibiting miscegenation from
constitutional attack.) (citation omitted).
Cases subsequent to Loving have similarly confirmed that the fundamental right to marry
is available to even those who have not traditionally been eligible to exercise that right. The
traditional right to marry did not include a right to divorce and marry a second time, as divorce
was rare and difficult in the eighteenth and early nineteenth centuries in Virginia as elsewhere.
See supra, Background, Part II.A. But in the modern era, the Supreme Court has repeatedly
held that states may not burden an individuals right to remarry. Boddie v. Connecticut, 401 U.S.
371, 376 (1971) (states may not require indigent individuals to pay court fees in order to obtain a
divorce, since doing so unduly burdened their fundamental right to marry again); see also
Zablocki, 434 U.S. at 388-90 (state may not condition ability to marry on fulfillment of existing
child support obligations). Similarly, the right to marry as traditionally understood in this
country did not extend to people in prison. See Virginia L. Hardwick, Punishing the Innocent:
Unconstitutional Restrictions on Prison Marriage and Visitation, 60 N.Y.U. L. Rev. 275, 277-79
(1985). Nevertheless, in Turner v. Safley, 482 U.S. 78, 95-97 (1987), the Supreme Court held
that a state cannot restrict a prisoners ability to marry without sufficient justification. 14

14

When analyzing other fundamental rights and liberty interests in other contexts, the Supreme
Court has consistently adhered to the principle that a fundamental right, once recognized,
properly belongs to everyone. For example, in Youngberg v. Romeo, 457 U.S. 307, 315-16
(1982), the Supreme Court held that an individual involuntarily committed to a custodial facility
because of a disability retained liberty interests including a right to freedom from bodily
restraint, thus departing from a longstanding historical tradition in which people with serious
disabilities were not viewed as enjoying such substantive due process rights and were routinely
subjected to bodily restraints in institutions. Similarly, in Eisenstadt, 405 U.S. at 438, the
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In sum, because the fundamental right to marry is firmly rooted in our nations history,
that right cannot be denied to interracial couples, divorced couples, prisoners, or same-sex
couples simply because they have historically been prevented from exercising that right.
3.

The Fundamental Right to Marry Is Not Contingent on the Ability to


Accidentally Procreate.

Defendant Rainey appears to argue that because same-sex couples cannot accidentally
procreate, they are incapable of exercising the fundamental right to marry. That argument
echoes statements made by the co-sponsor of the 2004 marriage ban and constitutional
amendment asserting that marriages between same-sex couples were counterfeit marriages.
See Background, Part I. But even if the ability to accidentally procreate were somehow an
essential attribute of marriageand it is notthe Supreme Court in Turner v. Safley, 482 U.S.
78 (1987), rejected the notion that the freedom to marry could be denied because the people
seeking to marry could not engage in particular activities traditionally associated with a marital
relationship. Under the policy struck down in Turner, prisoners were permitted to marry only in
circumstances involving a pre-existing pregnancy or the birth of an illegitimate child. Turner,
482 U.S. at 82. But the Supreme Court held that prisoners freedom to marry could not be so
restricted. Instead, the Turner Court methodically chronicled aspects of the marital relation that
remain unaffected by incarceration and determined that the sum total of the other attributes was a

Supreme Court struck down a ban on distributing contraceptives to unmarried persons, building
on its prior holding in Griswold, 381 U.S. at 486, that states could not prohibit the use of
contraceptives by married persons. Importantly, the Eisenstadt Court did not suggest that this
country had a specific history of protecting the sexual privacy of unmarried people. Rather, the
Court held that, [i]f the right to privacy means anything, it is the right of the individual, married
or single, to be free from unwarranted governmental intrusion into matters so fundamentally
affecting a person as the decision whether to bear or beget a child. Eisenstadt, 405 U.S. at 453.
And in Lawrence, the Court followed Eisenstadt and other due process cases in holding that
lesbian and gay Americans could not be excluded from the existing fundamental right to sexual
intimacy, even though historically they had often been prohibited from full enjoyment of that
right. Lawrence, 539 U.S. at 566-67.
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marital relationship entitled to constitutional protection. Id. at 95 (while acknowledging the


substantial restrictions as a result of incarceration, . . . [m]any important attributes of marriage
remain, however, after taking into account the limitations imposed by prison life.); cf.
Lawrence, 539 U.S. at 578 (decisions by married persons, concerning the intimacies of their
physical relationship, even when not intended to produce offspring, are a form of liberty
protected by the Due Process Clause of the Fourteenth Amendment.).
The marriages that Plaintiffs seek to enter into, which enjoy all of the legal and social
attributes of marriages of different-sex couples, save for the ability to beget children together as
the two biological parents, involve the same fundamental right to marriage invoked since Loving,
and Virginias restriction should be evaluated for what it is, a burden on the exercise of that
fundamental right. See Perry, 704 F. Supp. 2d at 993 (same-sex couples are situated identically
to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage
under California law. . . . Plaintiffs do not seek recognition of a new . . . right to same-sex
marriage . . . . Rather, plaintiffs ask California to recognize their relationships for what they are:
marriages.); In re Marriage Cases, 183 P.3d at 451 (same-sex couples who choose to enter
into the relationship with that designation will be subject to the same duties and obligations to
each other, to their children, and to third parties that the law currently imposes upon opposite-sex
couples who marry.).
In short, [t]he personal enrichment afforded by the right to marry may be obtained by a
couple whether or not they choose to have children, and the right to marry never has been limited
to those who plan or desire to have children. In re Marriage Cases, 183 P.3d at 432. Of
course, the Named Plaintiffs and countless other class members are in fact raising children, and
they seek the benefits of marriage in large part for their children. But the absence of children,

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now or in the future and biological or otherwise, does not vitiate the basic liberty and
fundamental right to marry all people enjoy.
B.

Virginias Marriage Bans Infringe the Unmarried Plaintiffs Fundamental


Right to Marry and Other Protected Liberty Interests.

Virginias marriage bans violate the due process rights of the Unmarried Plaintiffs, by
denying each the right to marry his or her chosen partner. Plaintiffs wish to express the nature,
depth, and quality of their lifelong commitment to each other in the way that they, their family,
their friends, and society at large best understand. See SUF 13. They wish to protect each
other, and their children, in a host of tangible ways through marriage. Id. 2-6, 8-12. Those
Plaintiffs who have or wish to have children seek to ensure that their children do not grow up
feeling as though their family is less legitimate than other families. Id. 14. Above all, they
wish to marry or have their marriages recognized because they love each other, and because they
wish to spend the rest of their lives committed to each other. Id. 1, 7.
Same-sex and different-sex couples seek to marry for the same reasons, and marriage
benefits spouses and their children in both tangible and intangible ways that are equally
important to same-sex and different-sex couples and their families. Just as heterosexual persons
do, lesbian and gay individuals form loving and lasted committed relationships, which serve
basic human needs for love, attachment, and intimacy. Like heterosexual individuals, lesbian
and gay people benefit not only from close intimate relationships but from social, emotional, and
material support for their relationships. Marriage affords material benefits to spouses, fostering
psychological well-being, physical health, and longevity. Marriage would provide Plaintiffs and
other same-sex couples with a well-understood social network of in-laws, friends, and others
who can provide emotional support and tangible assistance to them as a married couple, and
allow them to draw upon shared cultural expectations and respect for the relationship. See

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generally SUF 13. In all of these ways, Plaintiffs liberty interests in marrying the person each
Plaintiff loves are the same as all other Virginians liberty interests.
By denying the Unmarried Plaintiffs access to marriage (as well as to any equivalent
relationship status recognized by the state), Virginias marriage bans infringe not only their
fundamental right to marry, but also a host of other related fundamental liberty interests. The
marriage bans burden the Unmarried Plaintiffs protected interest in autonomy over personal
decisions relating to . . . family relationships, Lawrence, 539 U.S. at 573; see also Santosky v.
Kramer, 455 U.S. 745, 753 (1982) (freedom of personal choice in matters of family life is a
fundamental liberty interest protected by the Fourteenth Amendment). The marriage bans
additionally impair Plaintiffs ability to identify themselves to others as married couples and to
participate fully in society as married couples, thus burdening their fundamental liberty interests
in intimate association and self-definition. See Griswold, 381 U.S. at 482-83 (discussing
evolving concept of a protected liberty interest in intimate association); Windsor, 133 S. Ct. at
2689 (marriage permits same-sex couples to define themselves by their commitment to each
other and so live with pride in themselves and their union and in a status of equality with all
other married persons.)
In addition, the marriage bans interfere with constitutionally protected interests in family
integrity and association by precluding the Unmarried Plaintiffs from securing legal recognition
of their relationships with their children. By foreclosing the possibility that a parent like plaintiff
Jessica Duff can marry her partner and then become a legal parent of the child they are raising
together through a presumption of parenthood, adoption, or any other procedure, the marriage
bans impair the ability of these parents to make decisions with regard to their childrens school
enrollment, travel, health care, and other important matters, thus infringing their fundamental

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liberty interest in direct[ing] the upbringing and education of their children. Pierce v. Socy of
the Sisters of the Holy Names of Jesus & Mary, 268 U.S. 510, 534-35 (1925). Such
infringements on the bonds between children and the parents raising them violate the core of the
substantive guarantees of the Due Process Clause as recognized by the Supreme Court. Moore,
431 U.S. at 503 (Our decisions establish that the Constitution protects the sanctity of the family
precisely because the institution of the family is deeply rooted in this Nations history and
tradition.); see also Jordan by Jordan v. Jackson, 15 F.3d 333, 343 (4th Cir. 1994) (The bonds
between parent and child are, in a word, sacrosanct).
Because the Unmarried Plaintiffs share the same fundamental interests as other
Virginians in accessing marriage, Virginias exclusion of same-sex couples, and therefore of
lesbian and gay individuals, from the freedom to marry infringes the Unmarried Plaintiffs due
process rights in the same ways prior attempts to exclude particular individuals and couples from
the institution of marriage have infringed the due process rights of those individuals and couples.
See Turner, 482 U.S. at 94-97; Loving, 388 U.S. at 12.
C.

Virginias Marriage Bans Also Violate the Equal Protection Clause Because
They Unjustifiably Discriminate Against Same-Sex Couples With Regard to
the Exercise of Fundamental Rights and Liberty Interests.

Virginias marriage bans discriminate against Plaintiffs in their exercise of their


fundamental rights and liberty interests, and therefore implicate both the Due Process Clause and
the Equal Protection Clause. See Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (it is
essential that courts employ strict scrutiny when a state law denies groups or types of
individuals rights such as [m]arriage and procreation [that] are fundamental); see also Erwin
Chemerinsky, Constitutional Law Principles and Policies 793 (3d ed. 2006) ([o]nce a right is
deemed fundamental, under due process or equal protection, strict scrutiny is generally used.).
Specifically with respect to classifications restricting who can enter into marriage, the Court has
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held that the right to marry is of fundamental importance, and since the classification at issue
here significantly interferes with the exercise of that right, we believe that critical examination
of the state interests advanced in support of the classification is required. Zablocki, 434 U.S. at
383 (citation omitted).
At issue in Zablocki was Wisconsins rule that no state resident under a court order to
support a child not in his custody could marry without court permission, to be granted only upon
proof of compliance with the support obligation, and a showing that his children were not
presently, nor likely to become, public charges. Id. at 375. The Supreme Court assumed that
Wisconsins proffered goals of collecting child support and counseling those entering marriage
of its financial consequences are legitimate and substantial interests, but, since the means
selected by the State for achieving these interests unnecessarily impinge on the right to marry,
the statute cannot be sustained. Id. at 388. The Court explained that, for those who could not
or would not satisfy the states concern of providing for existing offspring, the absolute
prevention of marriage was improper because it did not promote the welfare of those children
and it well might lead to harm for future children a man might beget, for whom the laws only
result [is] in the children being born out of wedlock, as in fact occurred in appellees case. Id.
at 390. Just as Wisconsins carrot and stick approach was deemed a bad fit for the states
objectives, similarly, the Virginia marriage bans fail any measure of scrutiny, in that it is
irrational either to attempt to encourage lesbians and gay men to marry someone of a different
sex or to impose legal disabilities on them and their children because their family unit differs
from some ideal model proffered by the state.

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D.

The Married Plaintiffs Also Suffer An Unconstitutional Denial of their


Fundamental Rights and Liberty Interests.

Even though the Married Plaintiffs have validly married one another in jurisdictions that
do not exclude same-sex couples from the freedom to marry, the Married Plaintiffs continue to
suffer the practical and dignitary harms of being denied recognition of their marriage by their
home state of Virginia. See, e.g., SUF 8, 13. The Supreme Court recently considered the
issue of refusal to recognize the valid marriages of same-sex couples in the context of a
constitutional challenge to DOMA. In striking down the statutory provision that had denied gay
and lesbian couples recognition of their otherwise valid marriages, the Court observed:
[The discriminatory statute] tells those couples, and all the world, that their otherwise
valid marriages are unworthy of . . . recognition. This places same-sex couples in an
unstable position of being in a second-tier marriage. The differentiation demeans the
couple, whose moral and sexual choices the Constitution protects . . . . And it humiliates
tens of thousands of children now being raised by same-sex couples. The law in question
makes it even more difficult for the children to understand the integrity and closeness of
their own family and its concord with other families in their community and in their daily
lives.
Windsor, 133 S. Ct. at 2694. Virginias refusal to honor the marriages of those Plaintiffs who
have married in other jurisdictions similarly demeans them, humiliates their children, and
complicates the childrens understanding of their own families integrity, and in all of these ways
infringes Plaintiffs liberty and equality interests as protected by the Due Process and Equal
Protection Clauses.
E.

Marriage and Its Recognition Cannot Be Denied to Plaintiffs Absent a


Compelling State Interest, Which the Commonwealth of Virginia Cannot
Demonstrate.

Because the marriage bans discriminatorily burden Plaintiffs fundamental liberty


interests, they are subject to strict scrutiny. State infringement of fundamental rights is
constitutionally permissible only when necessary to promote a compelling state interest.
Kramer v. Union Free Sch. Dist. No. 15, 395 U.S. 621, 627 (1969). And even if marriage were
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not a fundamental right, in order to justify infringing upon the significant constitutionally
protected liberty interest at stake, the marriage bans would, at a minimum, have to be necessary
to significantly serve important governmental interests in accordance with the heightened
scrutiny balancing test used in Sell v. United States, 539 U.S. 166, 179 (2003). See also Witt v.
Dept of Air Force, 527 F.3d 806, 818-19 (9th Cir. 2008); Cook v. Gates, 528 F.3d 42, 55 (1st
Cir. 2008). As discussed in Argument, Part I.C supra, not even a legitimate state interest, much
less a compelling or significant one, exists to justify the marriage bans. Virginias constitutional
and statutory exclusion of Plaintiffs from the freedom to marry and from full recognition of their
valid marriages cannot survive any level of scrutiny, and therefore violates the Due Process and
Equal Protection guarantees of the U.S. Constitution.
III.

Baker v. Nelson is not Controlling.


Defendant Raineys Answer prominently invokes the Supreme Courts 1972 summary

dismissal of the appeal for want of a substantial federal question in Baker v. Nelson, 191 N.W.2d
185 (1971), appeal dismissed w/o op., 409 U.S. 810 (1972). But the Supreme Court has
cautioned that, when doctrinal developments indicate otherwise, the lower federal courts
should not adhere to the view that if the Court has branded a question as unsubstantial, it
remains so. Hicks v. Miranda, 422 U.S. 332, 344 (1975) (quoting Port Auth. Bondholders
Protective Comm. v. Port of N.Y. Auth., 387 F.2d 259, 263 n.3 (2d Cir. 1967)); see Dorsey v.
Solomon, 604 F.2d 271, 274-75 (4th Cir. 1979) (following guidance from the Courts
subsequent, reasoned opinion as better authority than an earlier summary affirmance).
As the Second Circuit has explained, In the forty years after Baker, there have been
manifold changes to the Supreme Courts equal protection jurisprudence. Windsor, 699 F.3d at
178-79. When Baker was decided in 1971, intermediate scrutiny was not yet in the Court's
vernacular. Classifications based on illegitimacy and sex were not yet deemed quasi-suspect.
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The Court had not yet ruled that a classification of [homosexuals] undertaken for its own sake
actually lacked a rational basis. And, in 1971, the government could lawfully demean
[homosexuals] existence or control their destiny by making their private sexual conduct a
crime. Id. at 179 (citations omitted). Baker did not and could not address how any of these
doctrinal developments bear on Plaintiffs equal protection claims. Similarly, Baker could not
and did not address how Plaintiffs substantive due process claims should be evaluated in light of
the courts intervening decisions in Eisenstadt v. Baird, 405 U.S. 438 (1972), Roe v. Wade, 410
U.S. 113 (1973), Carey v. Population Services Int'l, 431 U.S. 678 (1977), Zablocki v. Redhail,
434 U.S. 374 (1978); Turner v. Safley, 482 U.S. 78 (1987), and Lawrence v. Texas, 539 U.S. 558
(2003). For all these reasons, Baker is irrelevant.

59

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CONCLUSION
For the foregoing reasons, Plaintiffs request the Court enter summary judgment in their
favor.

Dated: September 30, 2013


Respectfully submitted,
AMERICAN CIVIL LIBERTIES UNION
OF VIRGINIA FOUNDATION, INC.

AMERICAN CIVIL LIBERTIES UNION


FOUNDATION

/s/
.
Rebecca K. Glenberg (VSB No. 44099)
701 E. Franklin Street, Suite 1412
Richmond, Virginia 23219
Phone: (804) 644-8080
Fax: (804) 649-2733
rglenberg@acluva.org

James D. Esseks, pro hac vice


Amanda C. Goad, pro hac vice
Joshua A. Block, pro hac vice
125 Broad Street, 18th Floor
New York, New York 10004
Phone: (212) 549-2500
Fax: (212) 549-2650
jesseks@aclu.org
agoad@aclu.org
jblock@aclu.org

LAMBDA LEGAL DEFENSE AND EDUCATION


FUND, INC.

JENNER & BLOCK LLP

Gregory R. Nevins, pro hac vice


730 Peachtree Street, NE, Suite 1070
Atlanta, Georgia 30308
Phone: (404) 897-1880
Fax: (404) 897-1884
gnevins@lambdalegal.org
Tara L. Borelli, pro hac vice
3325 Wilshire Boulevard, Suite 1300
Los Angeles, California 90010
Phone: (213) 382-7600
Fax: (213) 351-6050
tborelli@lambdalegal.org

Paul M. Smith, pro hac vice


Luke C. Platzer, pro hac vice
Mark P. Gaber, pro hac vice
1099 New York Avenue, NW Suite 900
Washington, D.C. 20001-4412
Phone: (202) 639-6000
Fax: (202) 639-6066
psmith@jenner.com
lplatzer@jenner.com
mgaber@jenner.com

Counsel for Plaintiffs

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CERTIFICATE OF SERVICE
I hereby certify that on the 30th day of September 2013, I effected service upon counsel
for Defendants by electronically filing the foregoing with the Clerk of the Court using the
CM/ECF system.
E. Duncan Getchell, Jr.
Solicitor General of Virginia
Office of the Attorney General
900 East Main Street
Richmond, Virginia 23219
(804) 786-7240
dgetchell@oag.state.va.us
Rita W. Beale
Deputy Attorney General
rbeale@oag.state.va.us
Allyson K. Tysinger
Senior Assistant Attorney General/Chief
atysinger@oag.state.va.us
Michael H. Brady
Assistant Solicitor General
mbrady@oag.state.va.us
Counsel for Defendants Robert F. McDonnell and Janet M. Rainey
Rosalie Pemberton Fessier
Timberlake, Smith, Thomas & Moses, P.C.
25 North Central Avenue
P.O. Box 108
Staunton, VA 24402-0108
(540) 885-1517
rfessier@tstm.com
Counsel for Defendant Thomas E. Roberts
September 30, 2013

/s/
.
Rebecca K. Glenberg (VSB No. 44099)
701 E. Franklin Street, Suite 1412
Richmond, Virginia 23219
Phone: (804) 644-8080
Fax: (804) 649-2733
rglenberg@acluva.org

61

Case 3:13-cv-24068 Document 155-4 Filed 01/16/15 Page 1 of 3 PageID #: 5146

Exhibit 4. Chart With Breakdown Of


Time Spent On Standing
Opposition

Case 3:13-cv-24068 Document 155-4 Filed 01/16/15 Page 2 of 3 PageID #: 5147

Exhibit 4 Chart with Breakdown of Fees, Expenses, and Costs Billed For Opposition to
States Motion to Dismiss Non-Recognition Claim for Lack of Standing 1
Law
Billing
Date
Memorandum entry
Hours
Fee
Firm
Attorney
From Billing Attorney
Billed
Requested
Jenner LH
12/17/2013
Reviewed MTDs, including 3 hours
$ 1701
the State's and
communicated with N.T.
and T.M. re same.
LH
12/18/2013
Researched standing
1.5 hours
$ 850.5
LH
12/19/2013
Worked on MTD.
1.5 hours
$ 850.5
LH
12/20/2013
Worked on MTD.
2.5 hours
$ 1,417.50
LH
12/21/2013
Rev'd opp to State's MTD
1 hour
$ 567
LH
12/22/2013
Revised opp to State's
1.25 hours $ 708.75
MTD
LH
12/27/2013
Rev'd opp to State's MTD
1.5 hours
$ 850.5
NT
12/18/2013
Research/draft response to 8.25 hours $ 2,640
Cole's MTD and research
opp to State's MTd
NT
20-Dec
Worked on response to
4.75 hours $ 1,520
Cole's MTD and State's
MTD, rev'd Utal decision
NT
12/21/2013
Research and draft opp to
6.5 hours
$ 2,080
State's MTD
PS
12/16/2103
Rev'd Defendants MTDs
1 hour
$ 771
PS
12/23/2013
Edited/comment on
0.5 hours
$ 385.5
response to State's MTD
TM
11/27/2013
Among other activities, he
0.25 hours $ 80
lists discuss response to
State's MTD.
TM
12/22/2013
Comm re: completing
0.25 hours $ 80
affidavits (Declarations
were attached to their
response to State's MTD)
TM
12/23/2013
Read draft opp to State's
1 hour
$ 320
MTD and comm with
"team" re same
1

On many instances, Plaintiffs counsel lumped a variety of tasks into one billing entry without
accounting for the specific time spent on each task. For example, Lindsay Harrisons Time
Report states that on December 17, 2013, she spent a total of 3 hours, and requests $1,701, for
having reviewed States motion to dismiss and new motion to dismiss by clerk and
corresponded with Lambda re responses; corresponded with N. Tarasen and T. McCotter re
same. Doc. 146-1. Because it was impossible to determine from this and other similar billing
entries the specific amount of time dedicated to each task, the entire amount of time for that
billing entry is included in the total.

Case 3:13-cv-24068 Document 155-4 Filed 01/16/15 Page 3 of 3 PageID #: 5148

Law
Firm

Billing
Attorney
TM

Lambda CT
CT
CT

Tinney

Date
12/26/2013

CT
CT

12/16/2013
12/17/2013
12/19/2013 12/21/13
12/23/2013
1/1/2013

CT
KL
KL

1/9/2014
12/16/2013
12/17/2013

KL

12/20/2013

KL
KL
KL
HK
NK
JKT

12/25/2013
12/26/2013
1/9/2014
12/16/2013
12/17/2013
12/20/2013

JHTJR

12/30/2013

NK

12/30/2013

JHTJR

12/31/2013

NK

12/31/2013

HK

1/9/2014

NK

1/10/2014

Memorandum entry
From Billing Attorney
Rev'd Lambda's edits to
opp to State's MTD
Rev'd State's MTD
researched standing
Rev'd and revised opp to
MTD
revised opp to State's MTD
Affidavits to and from
defendants (affidavits were
filed in response to State's
MTD)
Rev'd State's Reply
Rev'd State's MTD
Rev'd and revised
plaintiffs' declarations
Rev'd and revised
plaintiffs' declarations
Rev'd Opp to State's MTD
Rev'd Opp to State's MTD
Rev'd State's Reply
Analyzed MTD
Rev'd State's MTD
Rev'd draft opp and discuss
w/counsel
Worked on finalizing draft
briefes and filing
Among activities listed was
to analyze and revise draft
response to State's MTD
Filed omitted exhibits to
resp in opp to State's MTD
Among activities listed was
analyze memo in opp to
State's MTD and called
clerk re missing exhibits
Reviewed State's Reply to
MTD
Reviewed State's Reply to
MTD

Hours
Billed
0.25 hours

Fee
Requested
$ 80

1 hour
0.5 hours
3.5 hours

$ 350
$ 175
$ 1225

1 hour
FedEx

$ 350
$ 111.43

0.7 hours
0.5 hours
0.5 hours

$ 245
$ 162.5
$ 162.5

0.5 hours

$ 162.5

2 hours
1.5 hours
1 hour
0.6 hours
0.5 hours
1.1 hours

$ 650
$ 487.5
$ 325
$ 135
$ 50
$ 264

2.5 hours

$ 750

3.3 hours

$ 330

0.4 hours

$ 120

1.9 hours

$ 190

0.2 hours

$ 45

0.3 hours

$ 30

Total

$21222.68

Case 3:13-cv-24068 Document 155-5 Filed 01/16/15 Page 1 of 3 PageID #: 5149

Exhibit 5. Chart Of Other


Jurisdictions Fee Awards

Case 3:13-cv-24068 Document 155-5 Filed 01/16/15 Page 2 of 3 PageID #: 5150


Exhibit 5 Chart Reflecting Comparative Fee Requests In Other Same-Sex Marriage Cases By Jurisdiction, Number Of Hours, And
Hourly Rate1
Case Name

Highest
Billable
Rate
$789.00

Number
of
Attorneys
11

Disposition

Hours
Billed

Total
Requested

Award

Trial court briefing; no appeal

959.15

$350,256.19

Pending

$425

788.6

$257,938.40

Pending

$500

Oral argument on summary


judgment briefing; appeal
Trial court briefing; appeal;
stay motions

401.2

$134,028.75

Undisclosed
settlement.

$400

1,289.3

$467,843.08

Pending

$250

Trial court briefing, stay motion


on appeal
Trial court briefing; stay motion

275.54

$66,688.00

Obergefell v. Kasich,
(Ohio) Ex. 9
Bishop v. Oklahoma,
(Okla.) Ex. 10

$450

Trial court briefing

718.45

$210,929.04

$400

Trial court briefing; appeal;


petition for certiorari

1,015.9

$371,769.87

Greiger v. Kitzhaber,
(Ore.) Ex. 11

$400

2 for trial;
3 on
appeal;
4 for
certiorari
3

$70,325.00
(included reductions
plus a $10,000
bonus)
Stayed pending
appeal.
Pending

Trial court briefing; stay motion 523.30


on appeal and to Supreme Court

$185,057.50

McGee v. Cole,
(S.D.W. Va).
Hamby v. Parnell,
(Alaska) Ex 5
Burns v.
Hickenlooper,
(Colo.), Ex. 6
Latta v. Otter,
(Idaho) Ex. 7
Bourke v. Beshear,
(Ky.) Ex. 8

Settled for $132,690


in fees and $967.50
in costs.

For the column entitled disposition, this chart reflects work reported in the publicly-filed fee request. Some cases involved
subsequent proceedings at other levels after the fee request was filed: these proceedings were not included in the fee request and
therefore are omitted from this charts disposition column. Naturally, where the fee request was resolved in an undisclosed settlement,
it is impossible to state whether the settlement reflected the work requested in the previously-filed fee request.

Case 3:13-cv-24068 Document 155-5 Filed 01/16/15 Page 3 of 3 PageID #: 5151


Case Name

Condon v. Wilson,
(S.C.) Ex. 12
Evans v. Utah, (Utah)
Ex. 13
Harris v. McDonnell,
(Va.) Ex. 14

Highest
Billable
Rate
$400

Number
of
Attorneys
7

$350

N/A

N/A

Disposition

Hours
Billed

Total
Requested

Award

Trial court briefing; appeal;


stay motion to Supreme Court
Trial court briefing; appeal

446.05

$152,709.98

Pending

310.45

$164,943.14

Class certification , appeal;


petition for certiorari

N/A

$150,000 for
appeal

Settled for $95,000


in fees and costs
Settled for $60,000

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 1 of 78 PageID #: 5152

Exhibit 6. Request For Attorneys


Fees In Alaska Federal Same-Sex
Marriage Case

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 2 of 78 PageID #: 5153

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 3 of 78 PageID #: 5154

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 4 of 78 PageID #: 5155

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 5 of 78 PageID #: 5156

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 6 of 78 PageID #: 5157

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 7 of 78 PageID #: 5158

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 8 of 78 PageID #: 5159

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 9 of 78 PageID #: 5160

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 10 of 78 PageID #: 5161

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 11 of 78 PageID #: 5162

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 12 of 78 PageID #: 5163

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 13 of 78 PageID #: 5164

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 14 of 78 PageID #: 5165

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 15 of 78 PageID #: 5166

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 16 of 78 PageID #: 5167

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 17 of 78 PageID #: 5168

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 18 of 78 PageID #: 5169

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 19 of 78 PageID #: 5170

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 20 of 78 PageID #: 5171

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 21 of 78 PageID #: 5172

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 22 of 78 PageID #: 5173

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 23 of 78 PageID #: 5174

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 24 of 78 PageID #: 5175

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 25 of 78 PageID #: 5176

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 26 of 78 PageID #: 5177

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 27 of 78 PageID #: 5178

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 28 of 78 PageID #: 5179

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 29 of 78 PageID #: 5180

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 30 of 78 PageID #: 5181

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 31 of 78 PageID #: 5182

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 32 of 78 PageID #: 5183

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 33 of 78 PageID #: 5184

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 34 of 78 PageID #: 5185

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 35 of 78 PageID #: 5186

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 36 of 78 PageID #: 5187

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 37 of 78 PageID #: 5188

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 38 of 78 PageID #: 5189

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 39 of 78 PageID #: 5190

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 40 of 78 PageID #: 5191

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 41 of 78 PageID #: 5192

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 42 of 78 PageID #: 5193

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 43 of 78 PageID #: 5194

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 44 of 78 PageID #: 5195

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 45 of 78 PageID #: 5196

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 46 of 78 PageID #: 5197

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 47 of 78 PageID #: 5198

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 48 of 78 PageID #: 5199

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 49 of 78 PageID #: 5200

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 50 of 78 PageID #: 5201

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 51 of 78 PageID #: 5202

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 52 of 78 PageID #: 5203

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 53 of 78 PageID #: 5204

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 54 of 78 PageID #: 5205

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 55 of 78 PageID #: 5206

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 56 of 78 PageID #: 5207

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 57 of 78 PageID #: 5208

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 58 of 78 PageID #: 5209

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 59 of 78 PageID #: 5210

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 60 of 78 PageID #: 5211

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 61 of 78 PageID #: 5212

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 62 of 78 PageID #: 5213

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 63 of 78 PageID #: 5214

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 64 of 78 PageID #: 5215

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 65 of 78 PageID #: 5216

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 66 of 78 PageID #: 5217

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 67 of 78 PageID #: 5218

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 68 of 78 PageID #: 5219

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 69 of 78 PageID #: 5220

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 70 of 78 PageID #: 5221

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 71 of 78 PageID #: 5222

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 72 of 78 PageID #: 5223

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 73 of 78 PageID #: 5224

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 74 of 78 PageID #: 5225

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 75 of 78 PageID #: 5226

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 76 of 78 PageID #: 5227

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 77 of 78 PageID #: 5228

Case 3:13-cv-24068 Document 155-6 Filed 01/16/15 Page 78 of 78 PageID #: 5229

Case 3:13-cv-24068 Document 155-7 Filed 01/16/15 Page 1 of 100 PageID #: 5230

Exhibit 7. Request For Attorneys


Fees In Colorado Federal Same-Sex
Marriage Case

Case 3:13-cv-24068 Document 155-7 Filed 01/16/15 Page 2 of 100 PageID #: 5231

Case 3:13-cv-24068 Document 155-7 Filed 01/16/15 Page 3 of 100 PageID #: 5232

Case 3:13-cv-24068 Document 155-7 Filed 01/16/15 Page 4 of 100 PageID #: 5233

Case 3:13-cv-24068 Document 155-7 Filed 01/16/15 Page 5 of 100 PageID #: 5234

Case 3:13-cv-24068 Document 155-7 Filed 01/16/15 Page 6 of 100 PageID #: 5235

Case 3:13-cv-24068 Document 155-7 Filed 01/16/15 Page 7 of 100 PageID #: 5236

Case 3:13-cv-24068 Document 155-7 Filed 01/16/15 Page 8 of 100 PageID #: 5237

Case 3:13-cv-24068 Document 155-7 Filed 01/16/15 Page 9 of 100 PageID #: 5238

Case 3:13-cv-24068 Document 155-7 Filed 01/16/15 Page 10 of 100 PageID #: 5239

Case 3:13-cv-24068 Document 155-7 Filed 01/16/15 Page 11 of 100 PageID #: 5240

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Case 3:13-cv-24068 Document 155-7 Filed 01/16/15 Page 30 of 100 PageID #: 5259

Case 3:13-cv-24068 Document 155-7 Filed 01/16/15 Page 31 of 100 PageID #: 5260

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Case 3:13-cv-24068 Document 155-7 Filed 01/16/15 Page 33 of 100 PageID #: 5262

Case 3:13-cv-24068 Document 155-7 Filed 01/16/15 Page 34 of 100 PageID #: 5263

Case 3:13-cv-24068 Document 155-7 Filed 01/16/15 Page 35 of 100 PageID #: 5264

Case 3:13-cv-24068 Document 155-7 Filed 01/16/15 Page 36 of 100 PageID #: 5265

Case 3:13-cv-24068 Document 155-7 Filed 01/16/15 Page 37 of 100 PageID #: 5266

Case 3:13-cv-24068 Document 155-7 Filed 01/16/15 Page 38 of 100 PageID #: 5267

Case 3:13-cv-24068 Document 155-7 Filed 01/16/15 Page 39 of 100 PageID #: 5268

Case 3:13-cv-24068 Document 155-7 Filed 01/16/15 Page 40 of 100 PageID #: 5269

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Case 3:13-cv-24068 Document 155-7 Filed 01/16/15 Page 42 of 100 PageID #: 5271

Case 3:13-cv-24068 Document 155-7 Filed 01/16/15 Page 43 of 100 PageID #: 5272

Case 3:13-cv-24068 Document 155-7 Filed 01/16/15 Page 44 of 100 PageID #: 5273

Case 3:13-cv-24068 Document 155-7 Filed 01/16/15 Page 45 of 100 PageID #: 5274

Case 3:13-cv-24068 Document 155-7 Filed 01/16/15 Page 46 of 100 PageID #: 5275

Case 3:13-cv-24068 Document 155-7 Filed 01/16/15 Page 47 of 100 PageID #: 5276

Case 3:13-cv-24068 Document 155-7 Filed 01/16/15 Page 48 of 100 PageID #: 5277

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Case 3:13-cv-24068 Document 155-7 Filed 01/16/15 Page 51 of 100 PageID #: 5280

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Case 3:13-cv-24068 Document 155-7 Filed 01/16/15 Page 57 of 100 PageID #: 5286

Case 3:13-cv-24068 Document 155-7 Filed 01/16/15 Page 58 of 100 PageID #: 5287

Case 3:13-cv-24068 Document 155-7 Filed 01/16/15 Page 59 of 100 PageID #: 5288

Case 3:13-cv-24068 Document 155-7 Filed 01/16/15 Page 60 of 100 PageID #: 5289

Case 3:13-cv-24068 Document 155-7 Filed 01/16/15 Page 61 of 100 PageID #: 5290

Case 3:13-cv-24068 Document 155-7 Filed 01/16/15 Page 62 of 100 PageID #: 5291

Case 3:13-cv-24068 Document 155-7 Filed 01/16/15 Page 63 of 100 PageID #: 5292

Case 3:13-cv-24068 Document 155-7 Filed 01/16/15 Page 64 of 100 PageID #: 5293

Case 3:13-cv-24068 Document 155-7 Filed 01/16/15 Page 65 of 100 PageID #: 5294

Case 3:13-cv-24068 Document 155-7 Filed 01/16/15 Page 66 of 100 PageID #: 5295

Case 3:13-cv-24068 Document 155-7 Filed 01/16/15 Page 67 of 100 PageID #: 5296

Case 3:13-cv-24068 Document 155-7 Filed 01/16/15 Page 68 of 100 PageID #: 5297

Case 3:13-cv-24068 Document 155-7 Filed 01/16/15 Page 69 of 100 PageID #: 5298

Case 3:13-cv-24068 Document 155-7 Filed 01/16/15 Page 70 of 100 PageID #: 5299

Case 3:13-cv-24068 Document 155-7 Filed 01/16/15 Page 71 of 100 PageID #: 5300

Case 3:13-cv-24068 Document 155-7 Filed 01/16/15 Page 72 of 100 PageID #: 5301

Case 3:13-cv-24068 Document 155-7 Filed 01/16/15 Page 73 of 100 PageID #: 5302

Case 3:13-cv-24068 Document 155-7 Filed 01/16/15 Page 74 of 100 PageID #: 5303

Case 3:13-cv-24068 Document 155-7 Filed 01/16/15 Page 75 of 100 PageID #: 5304

Case 3:13-cv-24068 Document 155-7 Filed 01/16/15 Page 76 of 100 PageID #: 5305

Case 3:13-cv-24068 Document 155-7 Filed 01/16/15 Page 77 of 100 PageID #: 5306

Case 3:13-cv-24068 Document 155-7 Filed 01/16/15 Page 78 of 100 PageID #: 5307

Case 3:13-cv-24068 Document 155-7 Filed 01/16/15 Page 79 of 100 PageID #: 5308

Case 3:13-cv-24068 Document 155-7 Filed 01/16/15 Page 80 of 100 PageID #: 5309

Case 3:13-cv-24068 Document 155-7 Filed 01/16/15 Page 81 of 100 PageID #: 5310

Case 3:13-cv-24068 Document 155-7 Filed 01/16/15 Page 82 of 100 PageID #: 5311

Case 3:13-cv-24068 Document 155-7 Filed 01/16/15 Page 83 of 100 PageID #: 5312

Case 3:13-cv-24068 Document 155-7 Filed 01/16/15 Page 84 of 100 PageID #: 5313

Case 3:13-cv-24068 Document 155-7 Filed 01/16/15 Page 85 of 100 PageID #: 5314

Case 3:13-cv-24068 Document 155-7 Filed 01/16/15 Page 86 of 100 PageID #: 5315

Case 3:13-cv-24068 Document 155-7 Filed 01/16/15 Page 87 of 100 PageID #: 5316

Case 3:13-cv-24068 Document 155-7 Filed 01/16/15 Page 88 of 100 PageID #: 5317

Case 3:13-cv-24068 Document 155-7 Filed 01/16/15 Page 89 of 100 PageID #: 5318

Case 3:13-cv-24068 Document 155-7 Filed 01/16/15 Page 90 of 100 PageID #: 5319

Case 3:13-cv-24068 Document 155-7 Filed 01/16/15 Page 91 of 100 PageID #: 5320

Case 3:13-cv-24068 Document 155-7 Filed 01/16/15 Page 92 of 100 PageID #: 5321

Case 3:13-cv-24068 Document 155-7 Filed 01/16/15 Page 93 of 100 PageID #: 5322

Case 3:13-cv-24068 Document 155-7 Filed 01/16/15 Page 94 of 100 PageID #: 5323

Case 3:13-cv-24068 Document 155-7 Filed 01/16/15 Page 95 of 100 PageID #: 5324

Case 3:13-cv-24068 Document 155-7 Filed 01/16/15 Page 96 of 100 PageID #: 5325

Case 3:13-cv-24068 Document 155-7 Filed 01/16/15 Page 97 of 100 PageID #: 5326

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Case 3:13-cv-24068 Document 155-7 Filed 01/16/15 Page 100 of 100 PageID #: 5329

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 1 of 161 PageID #: 5330

Exhibit 8. Request For Attorneys


Fees In Idaho Federal Same-Sex
Marriage Case

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 2 of 161 PageID #: 5331

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 3 of 161 PageID #: 5332

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 4 of 161 PageID #: 5333

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Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 8 of 161 PageID #: 5337

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 9 of 161 PageID #: 5338

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 10 of 161 PageID #: 5339

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 11 of 161 PageID #: 5340

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 12 of 161 PageID #: 5341

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 13 of 161 PageID #: 5342

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 14 of 161 PageID #: 5343

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 15 of 161 PageID #: 5344

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 16 of 161 PageID #: 5345

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Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 18 of 161 PageID #: 5347

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 19 of 161 PageID #: 5348

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 20 of 161 PageID #: 5349

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 21 of 161 PageID #: 5350

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 22 of 161 PageID #: 5351

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 23 of 161 PageID #: 5352

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Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 27 of 161 PageID #: 5356

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 28 of 161 PageID #: 5357

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 29 of 161 PageID #: 5358

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 30 of 161 PageID #: 5359

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 31 of 161 PageID #: 5360

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 32 of 161 PageID #: 5361

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 33 of 161 PageID #: 5362

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 34 of 161 PageID #: 5363

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 35 of 161 PageID #: 5364

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 36 of 161 PageID #: 5365

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 37 of 161 PageID #: 5366

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 38 of 161 PageID #: 5367

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 39 of 161 PageID #: 5368

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 40 of 161 PageID #: 5369

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 41 of 161 PageID #: 5370

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 42 of 161 PageID #: 5371

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 43 of 161 PageID #: 5372

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 44 of 161 PageID #: 5373

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 45 of 161 PageID #: 5374

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 46 of 161 PageID #: 5375

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 47 of 161 PageID #: 5376

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 48 of 161 PageID #: 5377

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 49 of 161 PageID #: 5378

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 50 of 161 PageID #: 5379

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 51 of 161 PageID #: 5380

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 52 of 161 PageID #: 5381

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 53 of 161 PageID #: 5382

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 54 of 161 PageID #: 5383

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 55 of 161 PageID #: 5384

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 56 of 161 PageID #: 5385

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 57 of 161 PageID #: 5386

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 58 of 161 PageID #: 5387

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 59 of 161 PageID #: 5388

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 60 of 161 PageID #: 5389

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 61 of 161 PageID #: 5390

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 62 of 161 PageID #: 5391

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 63 of 161 PageID #: 5392

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 64 of 161 PageID #: 5393

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 65 of 161 PageID #: 5394

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 66 of 161 PageID #: 5395

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 67 of 161 PageID #: 5396

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 68 of 161 PageID #: 5397

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 69 of 161 PageID #: 5398

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 70 of 161 PageID #: 5399

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 71 of 161 PageID #: 5400

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 72 of 161 PageID #: 5401

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 73 of 161 PageID #: 5402

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 74 of 161 PageID #: 5403

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 75 of 161 PageID #: 5404

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 76 of 161 PageID #: 5405

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 77 of 161 PageID #: 5406

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 78 of 161 PageID #: 5407

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 79 of 161 PageID #: 5408

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 80 of 161 PageID #: 5409

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 81 of 161 PageID #: 5410

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 82 of 161 PageID #: 5411

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 83 of 161 PageID #: 5412

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 84 of 161 PageID #: 5413

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 85 of 161 PageID #: 5414

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 86 of 161 PageID #: 5415

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 87 of 161 PageID #: 5416

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 88 of 161 PageID #: 5417

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 89 of 161 PageID #: 5418

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 90 of 161 PageID #: 5419

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 91 of 161 PageID #: 5420

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 92 of 161 PageID #: 5421

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 93 of 161 PageID #: 5422

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 94 of 161 PageID #: 5423

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 95 of 161 PageID #: 5424

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 96 of 161 PageID #: 5425

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 97 of 161 PageID #: 5426

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 98 of 161 PageID #: 5427

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 99 of 161 PageID #: 5428

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 100 of 161 PageID #: 5429

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 101 of 161 PageID #: 5430

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 102 of 161 PageID #: 5431

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 103 of 161 PageID #: 5432

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 104 of 161 PageID #: 5433

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 105 of 161 PageID #: 5434

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 106 of 161 PageID #: 5435

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 107 of 161 PageID #: 5436

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 108 of 161 PageID #: 5437

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 109 of 161 PageID #: 5438

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 110 of 161 PageID #: 5439

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 111 of 161 PageID #: 5440

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 112 of 161 PageID #: 5441

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 113 of 161 PageID #: 5442

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 114 of 161 PageID #: 5443

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 115 of 161 PageID #: 5444

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 116 of 161 PageID #: 5445

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 117 of 161 PageID #: 5446

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 118 of 161 PageID #: 5447

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 119 of 161 PageID #: 5448

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 120 of 161 PageID #: 5449

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 121 of 161 PageID #: 5450

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 122 of 161 PageID #: 5451

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 123 of 161 PageID #: 5452

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 124 of 161 PageID #: 5453

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 125 of 161 PageID #: 5454

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 126 of 161 PageID #: 5455

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 127 of 161 PageID #: 5456

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 128 of 161 PageID #: 5457

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 129 of 161 PageID #: 5458

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 130 of 161 PageID #: 5459

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 131 of 161 PageID #: 5460

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 132 of 161 PageID #: 5461

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 133 of 161 PageID #: 5462

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 134 of 161 PageID #: 5463

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 135 of 161 PageID #: 5464

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 136 of 161 PageID #: 5465

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 137 of 161 PageID #: 5466

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 138 of 161 PageID #: 5467

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 139 of 161 PageID #: 5468

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 140 of 161 PageID #: 5469

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 141 of 161 PageID #: 5470

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 142 of 161 PageID #: 5471

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 143 of 161 PageID #: 5472

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 144 of 161 PageID #: 5473

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 145 of 161 PageID #: 5474

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 146 of 161 PageID #: 5475

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 147 of 161 PageID #: 5476

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 148 of 161 PageID #: 5477

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 149 of 161 PageID #: 5478

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 150 of 161 PageID #: 5479

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 151 of 161 PageID #: 5480

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 152 of 161 PageID #: 5481

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 153 of 161 PageID #: 5482

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 154 of 161 PageID #: 5483

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 155 of 161 PageID #: 5484

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 156 of 161 PageID #: 5485

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 157 of 161 PageID #: 5486

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 158 of 161 PageID #: 5487

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 159 of 161 PageID #: 5488

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 160 of 161 PageID #: 5489

Case 3:13-cv-24068 Document 155-8 Filed 01/16/15 Page 161 of 161 PageID #: 5490

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 1 of 105 PageID #: 5491

Exhibit 9. Request For Attorneys


Fees In Kentucky Federal SameSex Marriage Case

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 2 of 105 PageID #: 5492

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 3 of 105 PageID #: 5493

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 4 of 105 PageID #: 5494

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 5 of 105 PageID #: 5495

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 6 of 105 PageID #: 5496

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 7 of 105 PageID #: 5497

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 8 of 105 PageID #: 5498

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 9 of 105 PageID #: 5499

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 10 of 105 PageID #: 5500

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 11 of 105 PageID #: 5501

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 12 of 105 PageID #: 5502

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 13 of 105 PageID #: 5503

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 14 of 105 PageID #: 5504

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 15 of 105 PageID #: 5505

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 16 of 105 PageID #: 5506

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 17 of 105 PageID #: 5507

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 18 of 105 PageID #: 5508

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 19 of 105 PageID #: 5509

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 20 of 105 PageID #: 5510

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 21 of 105 PageID #: 5511

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 22 of 105 PageID #: 5512

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 23 of 105 PageID #: 5513

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 24 of 105 PageID #: 5514

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 25 of 105 PageID #: 5515

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 26 of 105 PageID #: 5516

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 27 of 105 PageID #: 5517

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 28 of 105 PageID #: 5518

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 29 of 105 PageID #: 5519

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 30 of 105 PageID #: 5520

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 31 of 105 PageID #: 5521

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 32 of 105 PageID #: 5522

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 33 of 105 PageID #: 5523

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 34 of 105 PageID #: 5524

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 35 of 105 PageID #: 5525

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 36 of 105 PageID #: 5526

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 37 of 105 PageID #: 5527

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 38 of 105 PageID #: 5528

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 39 of 105 PageID #: 5529

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 40 of 105 PageID #: 5530

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 41 of 105 PageID #: 5531

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 42 of 105 PageID #: 5532

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 43 of 105 PageID #: 5533

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 44 of 105 PageID #: 5534

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 45 of 105 PageID #: 5535

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 46 of 105 PageID #: 5536

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 47 of 105 PageID #: 5537

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 48 of 105 PageID #: 5538

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 49 of 105 PageID #: 5539

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 50 of 105 PageID #: 5540

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 51 of 105 PageID #: 5541

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 52 of 105 PageID #: 5542

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 53 of 105 PageID #: 5543

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 54 of 105 PageID #: 5544

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 55 of 105 PageID #: 5545

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 56 of 105 PageID #: 5546

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 57 of 105 PageID #: 5547

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 58 of 105 PageID #: 5548

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 59 of 105 PageID #: 5549

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 60 of 105 PageID #: 5550

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 61 of 105 PageID #: 5551

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 62 of 105 PageID #: 5552

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 63 of 105 PageID #: 5553

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 64 of 105 PageID #: 5554

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 65 of 105 PageID #: 5555

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 66 of 105 PageID #: 5556

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 67 of 105 PageID #: 5557

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 68 of 105 PageID #: 5558

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 69 of 105 PageID #: 5559

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 70 of 105 PageID #: 5560

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 71 of 105 PageID #: 5561

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 72 of 105 PageID #: 5562

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 73 of 105 PageID #: 5563

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 74 of 105 PageID #: 5564

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 75 of 105 PageID #: 5565

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 76 of 105 PageID #: 5566

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 77 of 105 PageID #: 5567

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 78 of 105 PageID #: 5568

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 79 of 105 PageID #: 5569

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 80 of 105 PageID #: 5570

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 81 of 105 PageID #: 5571

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 82 of 105 PageID #: 5572

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 83 of 105 PageID #: 5573

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 84 of 105 PageID #: 5574

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 85 of 105 PageID #: 5575

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 86 of 105 PageID #: 5576

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 87 of 105 PageID #: 5577

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 88 of 105 PageID #: 5578

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 89 of 105 PageID #: 5579

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 90 of 105 PageID #: 5580

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 91 of 105 PageID #: 5581

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 92 of 105 PageID #: 5582

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 93 of 105 PageID #: 5583

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 94 of 105 PageID #: 5584

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 95 of 105 PageID #: 5585

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 96 of 105 PageID #: 5586

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 97 of 105 PageID #: 5587

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 98 of 105 PageID #: 5588

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 99 of 105 PageID #: 5589

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 100 of 105 PageID #: 5590

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 101 of 105 PageID #: 5591

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 102 of 105 PageID #: 5592

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 103 of 105 PageID #: 5593

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 104 of 105 PageID #: 5594

Case 3:13-cv-24068 Document 155-9 Filed 01/16/15 Page 105 of 105 PageID #: 5595

Case 3:13-cv-24068 Document 155-10 Filed 01/16/15 Page 1 of 59 PageID #: 5596

Exhibit 10.

Request For

Attorneys Fees In Ohio Federal


Same-Sex Marriage Case

Case 3:13-cv-24068 Document 155-10 Filed 01/16/15 Page 2 of 59 PageID #: 5597

Case 3:13-cv-24068 Document 155-10 Filed 01/16/15 Page 3 of 59 PageID #: 5598

Case 3:13-cv-24068 Document 155-10 Filed 01/16/15 Page 4 of 59 PageID #: 5599

Case 3:13-cv-24068 Document 155-10 Filed 01/16/15 Page 5 of 59 PageID #: 5600

Case 3:13-cv-24068 Document 155-10 Filed 01/16/15 Page 6 of 59 PageID #: 5601

Case 3:13-cv-24068 Document 155-10 Filed 01/16/15 Page 7 of 59 PageID #: 5602

Case 3:13-cv-24068 Document 155-10 Filed 01/16/15 Page 8 of 59 PageID #: 5603

Case 3:13-cv-24068 Document 155-10 Filed 01/16/15 Page 9 of 59 PageID #: 5604

Case 3:13-cv-24068 Document 155-10 Filed 01/16/15 Page 10 of 59 PageID #: 5605

Case 3:13-cv-24068 Document 155-10 Filed 01/16/15 Page 11 of 59 PageID #: 5606

Case 3:13-cv-24068 Document 155-10 Filed 01/16/15 Page 12 of 59 PageID #: 5607

Case 3:13-cv-24068 Document 155-10 Filed 01/16/15 Page 13 of 59 PageID #: 5608

Case 3:13-cv-24068 Document 155-10 Filed 01/16/15 Page 14 of 59 PageID #: 5609

Case 3:13-cv-24068 Document 155-10 Filed 01/16/15 Page 15 of 59 PageID #: 5610

Case 3:13-cv-24068 Document 155-10 Filed 01/16/15 Page 16 of 59 PageID #: 5611

Case 3:13-cv-24068 Document 155-10 Filed 01/16/15 Page 17 of 59 PageID #: 5612

Case 3:13-cv-24068 Document 155-10 Filed 01/16/15 Page 18 of 59 PageID #: 5613

Case 3:13-cv-24068 Document 155-10 Filed 01/16/15 Page 19 of 59 PageID #: 5614

Case 3:13-cv-24068 Document 155-10 Filed 01/16/15 Page 20 of 59 PageID #: 5615

Case 3:13-cv-24068 Document 155-10 Filed 01/16/15 Page 21 of 59 PageID #: 5616

Case 3:13-cv-24068 Document 155-10 Filed 01/16/15 Page 22 of 59 PageID #: 5617

Case 3:13-cv-24068 Document 155-10 Filed 01/16/15 Page 23 of 59 PageID #: 5618

Case 3:13-cv-24068 Document 155-10 Filed 01/16/15 Page 24 of 59 PageID #: 5619

Case 3:13-cv-24068 Document 155-10 Filed 01/16/15 Page 25 of 59 PageID #: 5620

Case 3:13-cv-24068 Document 155-10 Filed 01/16/15 Page 26 of 59 PageID #: 5621

Case 3:13-cv-24068 Document 155-10 Filed 01/16/15 Page 27 of 59 PageID #: 5622

Case 3:13-cv-24068 Document 155-10 Filed 01/16/15 Page 28 of 59 PageID #: 5623

Case 3:13-cv-24068 Document 155-10 Filed 01/16/15 Page 29 of 59 PageID #: 5624

Case 3:13-cv-24068 Document 155-10 Filed 01/16/15 Page 30 of 59 PageID #: 5625

Case 3:13-cv-24068 Document 155-10 Filed 01/16/15 Page 31 of 59 PageID #: 5626

Case 3:13-cv-24068 Document 155-10 Filed 01/16/15 Page 32 of 59 PageID #: 5627

Case 3:13-cv-24068 Document 155-10 Filed 01/16/15 Page 33 of 59 PageID #: 5628

Case 3:13-cv-24068 Document 155-10 Filed 01/16/15 Page 34 of 59 PageID #: 5629

Case 3:13-cv-24068 Document 155-10 Filed 01/16/15 Page 35 of 59 PageID #: 5630

Case 3:13-cv-24068 Document 155-10 Filed 01/16/15 Page 36 of 59 PageID #: 5631

Case 3:13-cv-24068 Document 155-10 Filed 01/16/15 Page 37 of 59 PageID #: 5632

Case 3:13-cv-24068 Document 155-10 Filed 01/16/15 Page 38 of 59 PageID #: 5633

Case 3:13-cv-24068 Document 155-10 Filed 01/16/15 Page 39 of 59 PageID #: 5634

Case 3:13-cv-24068 Document 155-10 Filed 01/16/15 Page 40 of 59 PageID #: 5635

Case 3:13-cv-24068 Document 155-10 Filed 01/16/15 Page 41 of 59 PageID #: 5636

Case 3:13-cv-24068 Document 155-10 Filed 01/16/15 Page 42 of 59 PageID #: 5637

Case 3:13-cv-24068 Document 155-10 Filed 01/16/15 Page 43 of 59 PageID #: 5638

Case 3:13-cv-24068 Document 155-10 Filed 01/16/15 Page 44 of 59 PageID #: 5639

Case 3:13-cv-24068 Document 155-10 Filed 01/16/15 Page 45 of 59 PageID #: 5640

Case 3:13-cv-24068 Document 155-10 Filed 01/16/15 Page 46 of 59 PageID #: 5641

Case 3:13-cv-24068 Document 155-10 Filed 01/16/15 Page 47 of 59 PageID #: 5642

Case 3:13-cv-24068 Document 155-10 Filed 01/16/15 Page 48 of 59 PageID #: 5643

Case 3:13-cv-24068 Document 155-10 Filed 01/16/15 Page 49 of 59 PageID #: 5644

Case 3:13-cv-24068 Document 155-10 Filed 01/16/15 Page 50 of 59 PageID #: 5645

Case 3:13-cv-24068 Document 155-10 Filed 01/16/15 Page 51 of 59 PageID #: 5646

Case 3:13-cv-24068 Document 155-10 Filed 01/16/15 Page 52 of 59 PageID #: 5647

Case 3:13-cv-24068 Document 155-10 Filed 01/16/15 Page 53 of 59 PageID #: 5648

Case 3:13-cv-24068 Document 155-10 Filed 01/16/15 Page 54 of 59 PageID #: 5649

Case 3:13-cv-24068 Document 155-10 Filed 01/16/15 Page 55 of 59 PageID #: 5650

Case 3:13-cv-24068 Document 155-10 Filed 01/16/15 Page 56 of 59 PageID #: 5651

Case 3:13-cv-24068 Document 155-10 Filed 01/16/15 Page 57 of 59 PageID #: 5652

Case 3:13-cv-24068 Document 155-10 Filed 01/16/15 Page 58 of 59 PageID #: 5653

Case 3:13-cv-24068 Document 155-10 Filed 01/16/15 Page 59 of 59 PageID #: 5654

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 1 of 127 PageID #: 5655

Exhibit 11.

Request For

Attorneys Fees In Oklahoma


Federal Same-Sex Marriage Case

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 2 of 127 PageID #: 5656

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 3 of 127 PageID #: 5657

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 4 of 127 PageID #: 5658

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 5 of 127 PageID #: 5659

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 6 of 127 PageID #: 5660

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 7 of 127 PageID #: 5661

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 8 of 127 PageID #: 5662

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 9 of 127 PageID #: 5663

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 10 of 127 PageID #: 5664

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 11 of 127 PageID #: 5665

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 12 of 127 PageID #: 5666

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 13 of 127 PageID #: 5667

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 14 of 127 PageID #: 5668

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 15 of 127 PageID #: 5669

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 16 of 127 PageID #: 5670

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 17 of 127 PageID #: 5671

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 18 of 127 PageID #: 5672

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 19 of 127 PageID #: 5673

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 20 of 127 PageID #: 5674

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 21 of 127 PageID #: 5675

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 22 of 127 PageID #: 5676

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 23 of 127 PageID #: 5677

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 24 of 127 PageID #: 5678

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 25 of 127 PageID #: 5679

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 26 of 127 PageID #: 5680

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 27 of 127 PageID #: 5681

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 28 of 127 PageID #: 5682

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 29 of 127 PageID #: 5683

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 30 of 127 PageID #: 5684

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 31 of 127 PageID #: 5685

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 32 of 127 PageID #: 5686

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 33 of 127 PageID #: 5687

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 34 of 127 PageID #: 5688

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 35 of 127 PageID #: 5689

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 36 of 127 PageID #: 5690

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 37 of 127 PageID #: 5691

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 38 of 127 PageID #: 5692

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 39 of 127 PageID #: 5693

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 40 of 127 PageID #: 5694

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 41 of 127 PageID #: 5695

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 42 of 127 PageID #: 5696

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 43 of 127 PageID #: 5697

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 44 of 127 PageID #: 5698

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 45 of 127 PageID #: 5699

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 46 of 127 PageID #: 5700

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 47 of 127 PageID #: 5701

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 48 of 127 PageID #: 5702

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 49 of 127 PageID #: 5703

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 50 of 127 PageID #: 5704

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 51 of 127 PageID #: 5705

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 52 of 127 PageID #: 5706

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 53 of 127 PageID #: 5707

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 54 of 127 PageID #: 5708

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 55 of 127 PageID #: 5709

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 56 of 127 PageID #: 5710

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 57 of 127 PageID #: 5711

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 58 of 127 PageID #: 5712

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 59 of 127 PageID #: 5713

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 60 of 127 PageID #: 5714

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 61 of 127 PageID #: 5715

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 62 of 127 PageID #: 5716

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 63 of 127 PageID #: 5717

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 64 of 127 PageID #: 5718

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 65 of 127 PageID #: 5719

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 66 of 127 PageID #: 5720

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 67 of 127 PageID #: 5721

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 68 of 127 PageID #: 5722

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 69 of 127 PageID #: 5723

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 70 of 127 PageID #: 5724

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 71 of 127 PageID #: 5725

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 72 of 127 PageID #: 5726

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 73 of 127 PageID #: 5727

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 74 of 127 PageID #: 5728

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 75 of 127 PageID #: 5729

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 76 of 127 PageID #: 5730

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 77 of 127 PageID #: 5731

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 78 of 127 PageID #: 5732

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 79 of 127 PageID #: 5733

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 80 of 127 PageID #: 5734

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 81 of 127 PageID #: 5735

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 82 of 127 PageID #: 5736

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 83 of 127 PageID #: 5737

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 84 of 127 PageID #: 5738

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 85 of 127 PageID #: 5739

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 86 of 127 PageID #: 5740

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 87 of 127 PageID #: 5741

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 88 of 127 PageID #: 5742

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 89 of 127 PageID #: 5743

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 90 of 127 PageID #: 5744

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 91 of 127 PageID #: 5745

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 92 of 127 PageID #: 5746

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 93 of 127 PageID #: 5747

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 94 of 127 PageID #: 5748

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 95 of 127 PageID #: 5749

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 96 of 127 PageID #: 5750

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 97 of 127 PageID #: 5751

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 98 of 127 PageID #: 5752

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 99 of 127 PageID #: 5753

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 100 of 127 PageID #: 5754

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 101 of 127 PageID #: 5755

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 102 of 127 PageID #: 5756

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 103 of 127 PageID #: 5757

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 104 of 127 PageID #: 5758

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 105 of 127 PageID #: 5759

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 106 of 127 PageID #: 5760

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 107 of 127 PageID #: 5761

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 108 of 127 PageID #: 5762

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 109 of 127 PageID #: 5763

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 110 of 127 PageID #: 5764

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 111 of 127 PageID #: 5765

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 112 of 127 PageID #: 5766

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 113 of 127 PageID #: 5767

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 114 of 127 PageID #: 5768

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 115 of 127 PageID #: 5769

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 116 of 127 PageID #: 5770

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 117 of 127 PageID #: 5771

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 118 of 127 PageID #: 5772

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 119 of 127 PageID #: 5773

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 120 of 127 PageID #: 5774

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 121 of 127 PageID #: 5775

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 122 of 127 PageID #: 5776

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 123 of 127 PageID #: 5777

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 124 of 127 PageID #: 5778

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 125 of 127 PageID #: 5779

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 126 of 127 PageID #: 5780

Case 3:13-cv-24068 Document 155-11 Filed 01/16/15 Page 127 of 127 PageID #: 5781

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 1 of 146 PageID #: 5782

Exhibit 12.

Request For

Attorneys Fees In Oregon Federal


Same-Sex Marriage Case

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 2 of 146 PageID #: 5783

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 3 of 146 PageID #: 5784

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 4 of 146 PageID #: 5785

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 5 of 146 PageID #: 5786

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 6 of 146 PageID #: 5787

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 7 of 146 PageID #: 5788

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 8 of 146 PageID #: 5789

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 9 of 146 PageID #: 5790

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 10 of 146 PageID #: 5791

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 11 of 146 PageID #: 5792

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 12 of 146 PageID #: 5793

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 13 of 146 PageID #: 5794

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 14 of 146 PageID #: 5795

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 15 of 146 PageID #: 5796

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 16 of 146 PageID #: 5797

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 17 of 146 PageID #: 5798

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 18 of 146 PageID #: 5799

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 19 of 146 PageID #: 5800

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 20 of 146 PageID #: 5801

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 21 of 146 PageID #: 5802

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 22 of 146 PageID #: 5803

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 23 of 146 PageID #: 5804

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 24 of 146 PageID #: 5805

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 25 of 146 PageID #: 5806

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 26 of 146 PageID #: 5807

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 27 of 146 PageID #: 5808

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 28 of 146 PageID #: 5809

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 29 of 146 PageID #: 5810

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 30 of 146 PageID #: 5811

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 31 of 146 PageID #: 5812

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 32 of 146 PageID #: 5813

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 33 of 146 PageID #: 5814

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 34 of 146 PageID #: 5815

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 35 of 146 PageID #: 5816

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 36 of 146 PageID #: 5817

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 37 of 146 PageID #: 5818

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 38 of 146 PageID #: 5819

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 39 of 146 PageID #: 5820

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 40 of 146 PageID #: 5821

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 41 of 146 PageID #: 5822

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 42 of 146 PageID #: 5823

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 43 of 146 PageID #: 5824

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 44 of 146 PageID #: 5825

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 45 of 146 PageID #: 5826

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 46 of 146 PageID #: 5827

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 47 of 146 PageID #: 5828

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 48 of 146 PageID #: 5829

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 49 of 146 PageID #: 5830

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 50 of 146 PageID #: 5831

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 51 of 146 PageID #: 5832

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 52 of 146 PageID #: 5833

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 53 of 146 PageID #: 5834

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 54 of 146 PageID #: 5835

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 55 of 146 PageID #: 5836

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 56 of 146 PageID #: 5837

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 57 of 146 PageID #: 5838

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 58 of 146 PageID #: 5839

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 59 of 146 PageID #: 5840

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 60 of 146 PageID #: 5841

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 61 of 146 PageID #: 5842

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 62 of 146 PageID #: 5843

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 63 of 146 PageID #: 5844

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 64 of 146 PageID #: 5845

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 65 of 146 PageID #: 5846

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 66 of 146 PageID #: 5847

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 67 of 146 PageID #: 5848

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 68 of 146 PageID #: 5849

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 69 of 146 PageID #: 5850

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 70 of 146 PageID #: 5851

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 71 of 146 PageID #: 5852

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 72 of 146 PageID #: 5853

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 73 of 146 PageID #: 5854

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 74 of 146 PageID #: 5855

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 75 of 146 PageID #: 5856

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 76 of 146 PageID #: 5857

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 77 of 146 PageID #: 5858

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 78 of 146 PageID #: 5859

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 79 of 146 PageID #: 5860

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 80 of 146 PageID #: 5861

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 81 of 146 PageID #: 5862

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 82 of 146 PageID #: 5863

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 83 of 146 PageID #: 5864

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 84 of 146 PageID #: 5865

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 85 of 146 PageID #: 5866

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 86 of 146 PageID #: 5867

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 87 of 146 PageID #: 5868

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 88 of 146 PageID #: 5869

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 89 of 146 PageID #: 5870

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 90 of 146 PageID #: 5871

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 91 of 146 PageID #: 5872

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 92 of 146 PageID #: 5873

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 93 of 146 PageID #: 5874

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 94 of 146 PageID #: 5875

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 95 of 146 PageID #: 5876

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 96 of 146 PageID #: 5877

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 97 of 146 PageID #: 5878

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 98 of 146 PageID #: 5879

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 99 of 146 PageID #: 5880

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 100 of 146 PageID #: 5881

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 101 of 146 PageID #: 5882

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 102 of 146 PageID #: 5883

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 103 of 146 PageID #: 5884

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 104 of 146 PageID #: 5885

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 105 of 146 PageID #: 5886

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 106 of 146 PageID #: 5887

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 107 of 146 PageID #: 5888

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 108 of 146 PageID #: 5889

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 109 of 146 PageID #: 5890

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 110 of 146 PageID #: 5891

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 111 of 146 PageID #: 5892

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 112 of 146 PageID #: 5893

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 113 of 146 PageID #: 5894

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 114 of 146 PageID #: 5895

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 115 of 146 PageID #: 5896

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 116 of 146 PageID #: 5897

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 117 of 146 PageID #: 5898

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 118 of 146 PageID #: 5899

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 119 of 146 PageID #: 5900

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 120 of 146 PageID #: 5901

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 121 of 146 PageID #: 5902

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 122 of 146 PageID #: 5903

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 123 of 146 PageID #: 5904

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 124 of 146 PageID #: 5905

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 125 of 146 PageID #: 5906

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 126 of 146 PageID #: 5907

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 127 of 146 PageID #: 5908

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 128 of 146 PageID #: 5909

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 129 of 146 PageID #: 5910

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 130 of 146 PageID #: 5911

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 131 of 146 PageID #: 5912

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 132 of 146 PageID #: 5913

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 133 of 146 PageID #: 5914

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 134 of 146 PageID #: 5915

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 135 of 146 PageID #: 5916

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 136 of 146 PageID #: 5917

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 137 of 146 PageID #: 5918

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 138 of 146 PageID #: 5919

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 139 of 146 PageID #: 5920

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 140 of 146 PageID #: 5921

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 141 of 146 PageID #: 5922

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 142 of 146 PageID #: 5923

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 143 of 146 PageID #: 5924

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 144 of 146 PageID #: 5925

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 145 of 146 PageID #: 5926

Case 3:13-cv-24068 Document 155-12 Filed 01/16/15 Page 146 of 146 PageID #: 5927

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 1 of 90 PageID #: 5928

Exhibit 13.

Request For

Attorneys Fees In South Carolina


Federal Same-Sex Marriage Case

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 2 of 90 PageID #: 5929

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 3 of 90 PageID #: 5930

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 4 of 90 PageID #: 5931

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 5 of 90 PageID #: 5932

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 6 of 90 PageID #: 5933

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 7 of 90 PageID #: 5934

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 8 of 90 PageID #: 5935

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 9 of 90 PageID #: 5936

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 10 of 90 PageID #: 5937

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 11 of 90 PageID #: 5938

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 12 of 90 PageID #: 5939

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 13 of 90 PageID #: 5940

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 14 of 90 PageID #: 5941

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 15 of 90 PageID #: 5942

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 16 of 90 PageID #: 5943

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 17 of 90 PageID #: 5944

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 18 of 90 PageID #: 5945

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 19 of 90 PageID #: 5946

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 20 of 90 PageID #: 5947

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 21 of 90 PageID #: 5948

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 22 of 90 PageID #: 5949

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 23 of 90 PageID #: 5950

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 24 of 90 PageID #: 5951

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 25 of 90 PageID #: 5952

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 26 of 90 PageID #: 5953

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 27 of 90 PageID #: 5954

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 28 of 90 PageID #: 5955

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 29 of 90 PageID #: 5956

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 30 of 90 PageID #: 5957

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 31 of 90 PageID #: 5958

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 32 of 90 PageID #: 5959

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 33 of 90 PageID #: 5960

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 34 of 90 PageID #: 5961

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 35 of 90 PageID #: 5962

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 36 of 90 PageID #: 5963

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 37 of 90 PageID #: 5964

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 38 of 90 PageID #: 5965

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 39 of 90 PageID #: 5966

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 40 of 90 PageID #: 5967

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 41 of 90 PageID #: 5968

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 42 of 90 PageID #: 5969

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 43 of 90 PageID #: 5970

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 44 of 90 PageID #: 5971

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 45 of 90 PageID #: 5972

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 46 of 90 PageID #: 5973

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 47 of 90 PageID #: 5974

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 48 of 90 PageID #: 5975

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 49 of 90 PageID #: 5976

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 50 of 90 PageID #: 5977

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 51 of 90 PageID #: 5978

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 52 of 90 PageID #: 5979

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 53 of 90 PageID #: 5980

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 54 of 90 PageID #: 5981

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 55 of 90 PageID #: 5982

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 56 of 90 PageID #: 5983

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 57 of 90 PageID #: 5984

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 58 of 90 PageID #: 5985

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 59 of 90 PageID #: 5986

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 60 of 90 PageID #: 5987

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 61 of 90 PageID #: 5988

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 62 of 90 PageID #: 5989

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 63 of 90 PageID #: 5990

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 64 of 90 PageID #: 5991

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 65 of 90 PageID #: 5992

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 66 of 90 PageID #: 5993

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 67 of 90 PageID #: 5994

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 68 of 90 PageID #: 5995

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 69 of 90 PageID #: 5996

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 70 of 90 PageID #: 5997

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 71 of 90 PageID #: 5998

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 72 of 90 PageID #: 5999

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 73 of 90 PageID #: 6000

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 74 of 90 PageID #: 6001

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 75 of 90 PageID #: 6002

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 76 of 90 PageID #: 6003

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 77 of 90 PageID #: 6004

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 78 of 90 PageID #: 6005

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 79 of 90 PageID #: 6006

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 80 of 90 PageID #: 6007

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 81 of 90 PageID #: 6008

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 82 of 90 PageID #: 6009

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 83 of 90 PageID #: 6010

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 84 of 90 PageID #: 6011

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 85 of 90 PageID #: 6012

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 86 of 90 PageID #: 6013

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 87 of 90 PageID #: 6014

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 88 of 90 PageID #: 6015

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 89 of 90 PageID #: 6016

Case 3:13-cv-24068 Document 155-13 Filed 01/16/15 Page 90 of 90 PageID #: 6017

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 1 of 94 PageID #: 6018

Exhibit 14.

Request For

Attorneys Fees In Utah Federal


Same-Sex Marriage Case

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 2 of 94 PageID #: 6019

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 3 of 94 PageID #: 6020

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 4 of 94 PageID #: 6021

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 5 of 94 PageID #: 6022

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 6 of 94 PageID #: 6023

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 7 of 94 PageID #: 6024

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 8 of 94 PageID #: 6025

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 9 of 94 PageID #: 6026

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 10 of 94 PageID #: 6027

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 11 of 94 PageID #: 6028

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 12 of 94 PageID #: 6029

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 13 of 94 PageID #: 6030

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 14 of 94 PageID #: 6031

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 15 of 94 PageID #: 6032

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 16 of 94 PageID #: 6033

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 17 of 94 PageID #: 6034

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 18 of 94 PageID #: 6035

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 19 of 94 PageID #: 6036

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 20 of 94 PageID #: 6037

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 21 of 94 PageID #: 6038

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 22 of 94 PageID #: 6039

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 23 of 94 PageID #: 6040

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 24 of 94 PageID #: 6041

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 25 of 94 PageID #: 6042

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 26 of 94 PageID #: 6043

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 27 of 94 PageID #: 6044

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 28 of 94 PageID #: 6045

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 29 of 94 PageID #: 6046

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 30 of 94 PageID #: 6047

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 31 of 94 PageID #: 6048

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 32 of 94 PageID #: 6049

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 33 of 94 PageID #: 6050

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 34 of 94 PageID #: 6051

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 35 of 94 PageID #: 6052

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 36 of 94 PageID #: 6053

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 37 of 94 PageID #: 6054

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 38 of 94 PageID #: 6055

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 39 of 94 PageID #: 6056

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 40 of 94 PageID #: 6057

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 41 of 94 PageID #: 6058

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 42 of 94 PageID #: 6059

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 43 of 94 PageID #: 6060

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 44 of 94 PageID #: 6061

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 45 of 94 PageID #: 6062

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 46 of 94 PageID #: 6063

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 47 of 94 PageID #: 6064

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 48 of 94 PageID #: 6065

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 49 of 94 PageID #: 6066

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 50 of 94 PageID #: 6067

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 51 of 94 PageID #: 6068

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 52 of 94 PageID #: 6069

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 53 of 94 PageID #: 6070

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 54 of 94 PageID #: 6071

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 55 of 94 PageID #: 6072

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 56 of 94 PageID #: 6073

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 57 of 94 PageID #: 6074

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 58 of 94 PageID #: 6075

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 59 of 94 PageID #: 6076

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 60 of 94 PageID #: 6077

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 61 of 94 PageID #: 6078

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 62 of 94 PageID #: 6079

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 63 of 94 PageID #: 6080

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 64 of 94 PageID #: 6081

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 65 of 94 PageID #: 6082

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 66 of 94 PageID #: 6083

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 67 of 94 PageID #: 6084

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 68 of 94 PageID #: 6085

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 69 of 94 PageID #: 6086

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 70 of 94 PageID #: 6087

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 71 of 94 PageID #: 6088

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 72 of 94 PageID #: 6089

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 73 of 94 PageID #: 6090

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 74 of 94 PageID #: 6091

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 75 of 94 PageID #: 6092

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 76 of 94 PageID #: 6093

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 77 of 94 PageID #: 6094

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 78 of 94 PageID #: 6095

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 79 of 94 PageID #: 6096

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 80 of 94 PageID #: 6097

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 81 of 94 PageID #: 6098

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 82 of 94 PageID #: 6099

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 83 of 94 PageID #: 6100

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 84 of 94 PageID #: 6101

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 85 of 94 PageID #: 6102

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 86 of 94 PageID #: 6103

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 87 of 94 PageID #: 6104

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 88 of 94 PageID #: 6105

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 89 of 94 PageID #: 6106

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 90 of 94 PageID #: 6107

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 91 of 94 PageID #: 6108

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 92 of 94 PageID #: 6109

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 93 of 94 PageID #: 6110

Case 3:13-cv-24068 Document 155-14 Filed 01/16/15 Page 94 of 94 PageID #: 6111

Case 3:13-cv-24068 Document 155-15 Filed 01/16/15 Page 1 of 27 PageID #: 6112

Exhibit 15.

Request For

Attorneys Fees In Virginia


Federal Same-Sex Marriage Case

Case 3:13-cv-24068 Document 155-15 Filed 01/16/15 Page 2 of 27 PageID #: 6113

Case 3:13-cv-24068 Document 155-15 Filed 01/16/15 Page 3 of 27 PageID #: 6114

Case 3:13-cv-24068 Document 155-15 Filed 01/16/15 Page 4 of 27 PageID #: 6115

Case 3:13-cv-24068 Document 155-15 Filed 01/16/15 Page 5 of 27 PageID #: 6116

Case 3:13-cv-24068 Document 155-15 Filed 01/16/15 Page 6 of 27 PageID #: 6117

Case 3:13-cv-24068 Document 155-15 Filed 01/16/15 Page 7 of 27 PageID #: 6118

Case 3:13-cv-24068 Document 155-15 Filed 01/16/15 Page 8 of 27 PageID #: 6119

Case 3:13-cv-24068 Document 155-15 Filed 01/16/15 Page 9 of 27 PageID #: 6120

Case 3:13-cv-24068 Document 155-15 Filed 01/16/15 Page 10 of 27 PageID #: 6121

Case 3:13-cv-24068 Document 155-15 Filed 01/16/15 Page 11 of 27 PageID #: 6122

Case 3:13-cv-24068 Document 155-15 Filed 01/16/15 Page 12 of 27 PageID #: 6123

Case 3:13-cv-24068 Document 155-15 Filed 01/16/15 Page 13 of 27 PageID #: 6124

Case 3:13-cv-24068 Document 155-15 Filed 01/16/15 Page 14 of 27 PageID #: 6125

Case 3:13-cv-24068 Document 155-15 Filed 01/16/15 Page 15 of 27 PageID #: 6126

Case 3:13-cv-24068 Document 155-15 Filed 01/16/15 Page 16 of 27 PageID #: 6127

Case 3:13-cv-24068 Document 155-15 Filed 01/16/15 Page 17 of 27 PageID #: 6128

Case 3:13-cv-24068 Document 155-15 Filed 01/16/15 Page 18 of 27 PageID #: 6129

Case 3:13-cv-24068 Document 155-15 Filed 01/16/15 Page 19 of 27 PageID #: 6130

Case 3:13-cv-24068 Document 155-15 Filed 01/16/15 Page 20 of 27 PageID #: 6131

Case 3:13-cv-24068 Document 155-15 Filed 01/16/15 Page 21 of 27 PageID #: 6132

Case 3:13-cv-24068 Document 155-15 Filed 01/16/15 Page 22 of 27 PageID #: 6133

Case 3:13-cv-24068 Document 155-15 Filed 01/16/15 Page 23 of 27 PageID #: 6134

Case 3:13-cv-24068 Document 155-15 Filed 01/16/15 Page 24 of 27 PageID #: 6135

Case 3:13-cv-24068 Document 155-15 Filed 01/16/15 Page 25 of 27 PageID #: 6136

Case 3:13-cv-24068 Document 155-15 Filed 01/16/15 Page 26 of 27 PageID #: 6137

Case 3:13-cv-24068 Document 155-15 Filed 01/16/15 Page 27 of 27 PageID #: 6138

Case 3:13-cv-24068 Document 155-16 Filed 01/16/15 Page 1 of 3 PageID #: 6139

Exhibit 16.

Chart Summarizing

Fees, Expenses, And Costs Billed


For Public Relations And Press
Efforts

Case 3:13-cv-24068 Document 155-16 Filed 01/16/15 Page 2 of 3 PageID #: 6140

Exhibit 16
Chart Summarizing Fees, Expenses, and Costs Billed For Public Relations and Press Efforts
Law Firm

Date

Billing Entry

Lambda
Lambda
Tinney

Billing
Attorney
BL
BL
JHTJR

Hours
Billed
1.5
1.2
1

Fee
Requested
$450
$360
$300

9/30/2013
10/1/2013
9/30/2013

Prep for Press Conf


Press Conf
Confer w/press officer
and other memter of
legal team re filing
complaint

Tinney

JHTJR

10/1/2013

Travel to Huntington for


press conference/review
news articles, etc.

$1,200

Tinney

JKT

10/1/2013

Examine news coverage


and complaint, discuss

2.5

$600

Tinney

HDFK

10/1/2013

Travel to Huntington for


press conference/deliver
pro hoc vice paperwork

4.2

$900

Tinney

JKT

10/2/2013

Examine press coverage


(Among other activities)

2.7

$648

Tinney

HDFK

10/4/2013

Gather media coverage


(also revise notice, work
out admin issues such as
billing and service)

1.2

$270

Tinney
Tinney

JHTJR
JKT

10/5/2013
10/10/2013

0.3
1.8

$90
$432

Tinney

JHTJR

10/16/2013

$300

Tinney

NPK

10/22/2013

Review news articles


Examine coverage
(among other activities
listed)
Review various news
articles
Analyze press (among
other activities listed)

2.1

$210

Case 3:13-cv-24068 Document 155-16 Filed 01/16/15 Page 3 of 3 PageID #: 6141

Law Firm

Date

Billing Entry

Tinney

Billing
Attorney
NPK

Hours
Billed
0.9

Fee
Requested
$90

10/23/2013

Analyze press, analyze


comm from counsel re
local reporter and
response by public
relations (among other
activities listed)

Tinney
Tinney
Tinney

JHTJR
JHTJR
JHTJR

11/8/2013
1/16/2014
1/17/2014

Review news articles


Review news articles
Reviewed order and
news articles
Review press
Review press (among
other activities listed)

1
0.3
0.4

$300
$90
$120

Tinney
Tinney

NPK
NPK

2/4/2014
2/11/2014

0.2
0.4

$20
$40

Tinney
Tinney
Tinney

JHTJR
JHTJR
NPK

3/9/2014
5/9/2014
9/18/2014

Review press
Review press
Doc Charleston Gazette
article
analyzed email string
and press
Examined news cov and
related correspondence

0.4
0.3
0.1

$120
$90
$10

Tinney

NPK

10/9/2014

0.9

$90

Tinney

JKT

10/10/2014

2.8

$672

Tinney

NPK

10/10/2014

Confer w/attys re press


cov and citizen feedback

0.5

$50

Grand
Total

$7,452