Lake James H. Perriguey, OSB No. 983213 lake@law-works.

com LAW WORKS LLC 1906 SW Madison Street Portland, OR 97205-1718 Telephone: (503) 227-1928 Facsimile: (503) 334-2340 Lea Ann Easton, OSB No. 881413 leaston@dorsayindianlaw.com DORSAY & EASTON LLP 1 SW Columbia Street, Suite 440 Portland, OR 97258 Telephone: (503) 790-9060 Facsimile: (503) 790-9068 Attorneys for Plaintiffs Geiger, Nelson, Duehmig and Griesar UNITED STATES DISTRICT COURT DISTRICT OF OREGON EUGENE DIVISION

DEANNA L. GEIGER and JANINE M. NELSON, ROBERT DUEHMIG and WILLIAM GRIESAR, Plaintiffs, v. JOHN KITZHABER, in his official capacity as Governor of Oregon, ELLEN ROSENBLUM, in her official capacity as Attorney General of Oregon, JENNIFER WOODWARD, in her official capacity as State Registrar, Center for Health Statistics, Oregon Health Authority, and RANDY WALRUFF, in his official capacity as Multnomah County Assessor, Defendants. _____________________________________

Case No.: 6:13-cv-01834-MC (Lead Case)

PLAINTIFFS GEIGER, NELSON, DUEHMIG AND GRIESARS FIRST AMENDED MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

Plaintiffs First Amended Memorandum in Support of Motion for Summary Judgment

PAUL RUMMELL and BENJAMIN WEST; LISA CHICKADONZ and CHRISTINE TANNER; BASIC RIGHTS EDUCATION FUND, Plaintiffs, v. JOHN KITZHABER, in his official capacity as Governor of Oregon, ELLEN ROSENBLUM, in her official capacity as Attorney General of Oregon, JENNIFER WOODWARD, in her official capacity as State Registrar, Center for Health Statistics, Oregon Health Authority, and RANDY WALRUFF, in his official capacity as Multnomah County Assessor, Defendants.

Case No. 6:13-cv-02256-TC

Plaintiffs First Amended Memorandum in Support of Motion for Summary Judgment

TABLE OF CONTENTS

INTRODUCTION ...............................................................................................................1 STATEMENT OF FACTS ..................................................................................................2 I. II. III. THE PLAINTIFFS...................................................................................................2 THE DEFENDANTS...............................................................................................5 OREGONS MARRIAGE LAWS ...........................................................................7 A. B. C. Oregon Constitution Article 15, 5a ..............................................................7 Oregons Marriage Statutes ............................................................................8 Oregon Domestic Partnership Statute .............................................................9

SUMMARY JUDGMENT STANDARD .........................................................................10 ARGUMENT .....................................................................................................................10 I. OREGONS MARRIAGE LAWS VIOLATE DUE PROCESS BECAUSE THEY INFRINGE ON EACH PLAINTIFFS FUNDAMENTAL RIGHT TO MARRY A PERSON OF HIS OR HER CHOICE .........................................11 A. Marriage is a Fundamental Right Protected Under the Due Process Clause of the Fourteenth Amendment ...........................................................12 1. United States Supreme Courts Jurisprudence Recognizes Marriage As A Fundamental Right ..........................................................12 2. The Right Is Not Dependent On Gender .................................................14 II. OREGONS MARRIAGE LAWS DO NOT SURVIVE STRICT SCRUTINY; OREGON OFFERS NO REASON TO EXCLUDE GAY AND LESBIAN COUPLES FROM THE FUNDAMENTAL RIGHT TO MARRY...........................................................................................................17 OREGONS MARRIAGE LAWS ALSO VIOLATE THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT .................20 A. Excluding Gays and Lesbians from a Fundamental Right the Government Offers to Heterosexuals Violates the Equal Protection Clause ..........................................................................................21

III.

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B.

Oregons Marriage Laws Violate the Equal Protection Clause of the Fourteenth Amendment Because They Irrationally Target Gay and Lesbian Couples and Treat Them as Inferior without Justification ...................................................................................................22 Oregons Marriage Laws Are Irrational and Based on Prejudice .................25 Oregons Marriage Laws Are Unconstitutional Under Windsor ..................27

C. D. IV.

THE LIMITATION ON FULL RECOGNITION OF MARRIAGES FROM OTHER JURISDICTIONS CONTAINED IN ARTICLE 15, 5A OF THE OREGON CONSTITUTION IS UNCONSTITUTIONAL UNDER THE SUPREME COURTS DECISION IN WINDSOR................................................29

CONCLUSION ..................................................................................................................31

TABLE OF AUTHORITIES

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ...................................................................................................10 Bishop v. US EX ROL. HOLDER, Case No. 04-CV-848-TCK-TLW (N.D. Oklahoma Jan. 14, 2014) ...........................15 Boddie v. Connecticut, 401 U.S. 371 (1971) ...................................................................................................13 Bolling v. Sharpe, 347 U.S. 497 (1954) ...................................................................................................22 Bostic v. Rainey, Case No. 2:13CV395 (E.D. Va. Feb. 13, 2014) .........................................................15 Bourke v. Beshear, Case No. 2:13-CV-750-H (W.D. Kentucky Feb. 12, 2014) .......................................15 Brown v. Board of Education, 347 U.S. 483 (1954) ...................................................................................................19 Carey v. Population Servs. Intl, 431 U.S. 679 (1977) ...................................................................................................17

ii - Plaintiffs First Amended Memorandum in Support of Motion for Summary Judgment

Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ...................................................................................................10 Cleveland Bd. of Educ. v. LaFleur 414 U.S. 632 (1974) ...................................................................................................13 Eisenstadt v. Baird, 405 U.S. 438 (1972) ...................................................................................................21 F.S. Royster Guano Co. v. Virginia, 253 U.S. 412 (1920) ...................................................................................................20 Garrett v. Chapman, 449 P.2d 856 (Or. 1969) .............................................................................................29 Griego v. Oliver, 2014 NMSC 3 - NM: Supreme Court 2014 ...............................................................15 Griswold v. Connecticut, 381 U.S. 479 (1965) .............................................................................................13,21 Hodgson v. Minnesota, 497 U.S. 417 (1990) ..................................................................................................13 Kitchen v. Herbert, Case No. 2:13-cv-217 (D. Utah 2013) ......................................................................15 Lawrence v. Texas, 539 U.S. 558 (2003) .........................................................................11,12,14,16,21,28 Li v. State, 110 P.3d 91 (Or. 2005) .........................................................................................7,8,18 Loving v. Virginia, 388 U.S. 1 (1967) ..................................................................................11,13,15,16,28 Matsushita Elec. Indus. Co. v. Zenith Radio Corp. 475 U.S. 574 (1986) ..................................................................................................10 Maynard v. Hill, 125 U.S. 190 (1888) ...................................................................................................12

iii - Plaintiffs First Amended Memorandum in Support of Motion for Summary Judgment

Meyer v. Nebraska, 262 U.S. 390 (1923) ...................................................................................................14 M.L.B. v. S.L.J., 519 U.S. 102 (1996) ..................................................................................................13 Obergefell v. Wymyslo, Case No. 1:13-cv-501, (S.D. Ohio Dec. 23, 2013).....................................................15 Plessy v. Ferguson, 163 U.S. 537 (1896) ..................................................................................................20 Planned Parenthood v. Casey, 505 U.S. 833 (1992) ..................................................................................................14 Roberts v. United States Jaycees, 468 U.S. 609 (1984) ..................................................................................................13 Skinner v. Oklahoma ex rel Williamson, 316 U.S. 535 (1942) ...................................................................................................12 SmithKline Beecham Corporation v. Abbott Laboratories 740 F3d 471 (9th Cir. 2014) ...........................................................................22,23,24 Turner v. Safley, 482 U.S. 78 (1987) ...............................................................................................13,14 United States v. Carolene Prods. Co., 304 U.S. 144 (1938) ...................................................................................................20 United States v. Windsor, 133 S. Ct. 2675 (2013) ....................................................................................... passim W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) ....................................................................................................1 Washington v. Glucksberg, 521 U.S. 702 (1997) ........................................................................................11,17,21 Zablocki v. Redhail, 434 U.S. 374 (1978) ..............................................................................13,15,17,18,21

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Constitutional Provisions United States Constitution ......................................................................................... passim U.S. Const. Amend. XIV, 1 .......................................................................................11,20 Oregon Constitution Article 15, 5a ......................................................................... passim Rules Fed. R. Civ. P. 56(a) ..........................................................................................................10 OAR 105-010-0018 .............................................................................................................3 Statutes ORS 40.135, Rule 311 .........................................................................................................9 ORS 40.255, Rule 505 .........................................................................................................9 ORS 106.020 .......................................................................................................................8 ORS 106.041 .......................................................................................................................8 ORS 106.150 ...................................................................................................................8,10 ORS 106.300 ........................................................................................................................9 ORS 106.305(3) ..................................................................................................................9 ORS 106.305(2) ................................................................................................................15 ORS 106.305(4) ..................................................................................................................9 ORS 106.305(6) ..................................................................................................................9 ORS 106.325 .....................................................................................................................10 ORS 106.340 ...........................................................................................................10,19,20 ORS 107.105 ........................................................................................................................4 ORS 107.635(2)(b) .............................................................................................................4 ORS 108.010 ........................................................................................................................8 ORS 108.020 ........................................................................................................................8 ORS 108.030 ........................................................................................................................8 ORS 108.040 ........................................................................................................................8 ORS 108.045 ........................................................................................................................8 ORS 108.050 ........................................................................................................................8 ORS 108.060 ........................................................................................................................8 ORS 108.080 ........................................................................................................................8 ORS 108.090 ........................................................................................................................8 ORS 108.100 ........................................................................................................................9

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ORS 108.110 ........................................................................................................................9 ORS 108.510 ........................................................................................................................9 ORS 108.530 ........................................................................................................................9 ORS 108.550 ........................................................................................................................9 ORS 112.025 ...................................................................................................................3,29 ORS 112.035 ........................................................................................................................3 ORS 127.635(2) ..................................................................................................................4 ORS 174.100(6) ..................................................................................................................1 ORS 432.030 ........................................................................................................................5 ORS 432.030(d) ...................................................................................................................5 ORS 432.030(e) ...................................................................................................................5 ORS 432.405 ........................................................................................................................5 ORS 659A.030 .....................................................................................................................1 Other Authorities Brief of Massachusetts, California, et al, as Amici Curiae In Support of Appellants (Case No 12-17668, Ninth Circuit Court of Appeals, October 25, 2013........................6,18

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INTRODUCTION The very purpose of the Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. Ones right to life, liberty. . .and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections. W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943). Ten years ago a slim majority of Oregon voters passed Measure 36 to amend the State Constitution to exclude gay and lesbian people from marriage. The Plaintiffs are gay and lesbian couples in long-term committed relationships. Plaintiffs Geiger and Nelson wish to marry in Oregon. Plaintiffs Duehmig and Griesar want their marriage that was solemnized in another jurisdiction fully recognized in Oregon. Plaintiffs challenge Measure 36, Oregons voter-enacted prohibition against samegender1 marriages codified in Article 15, 5a of the Oregon Constitution, as well as all Oregon Revised Statutes that refer to husband and wife (collectively, Oregons Marriage Laws). Enforcement of these laws denies Plaintiffs the fundamental right to marry and violates their due process and equal protection rights under the United States Constitution to enter civil marriages and to enjoy the concomitant legal rights, protections, and responsibilities of marriage. These rights were wrongly made subject to the vicissitudes of political controversy ten years ago. There is no constitutionally adequate justification for the government to deny gay and lesbian couples the same access to marriage that the state affords heterosexual couples. Plaintiffs request that this Court grant the Motion for Summary Judgment, declare that Oregons Marriage Laws violate the United States Constitution, and enjoin Defendants

Oregon civil rights and anti-discrimination laws recognize that sexual orientation includes an individuals gender identity. ORS 174.100(6), ORS 659A.030. 1 - Plaintiffs First Amended Memorandum in Support of Motion for Summary Judgment

in their respective official capacities from enforcing Oregons Marriage Laws in a manner that excludes Plaintiffs. STATEMENT OF FACTS I. THE PLAINTIFFS

Plaintiffs Deanna Geiger and Janine Nelson have been partners for 31 years and want to marry one another in Oregon. Plaintiffs Robert Duehmig and William Griesar have been together for 25 years and are the parents of two children. They seek full legal recognition

under Oregon law of their marriage that was legally officiated in Canada in 2003. Except for the single fact that each couple is of the same gender, Plaintiffs meet all the eligibility requirements for marriage in Oregon. See Geiger Decl., 8, 22, 24-25 (Dkt. 25); Nelson Decl., 8, 14 (Dkt. 26); Duehmig Decl., 2, 11 (Dkt. 27); Griesar Decl., 4, 6, & 22 (Dkt. 28). Oregons refusal to recognize same-gender marriage denies Plaintiffs access to the one universally recognized legal hallmark of a couple's commitment to build and to plan a family life together. This denial touches every aspect of their lives. Plaintiffs struggle to correct confusion about the nature, depth, and permanence of their relationships. See Geiger Decl., 10, 24, 16-22 (Dkt. 25); Nelson Decl., 9-10,12, & 14 (Dkt. 26); Duehmig Decl., 17-19, 20, 23-24, & 27 (Dkt. 27); Griesar Decl., 12-13, 17, 22, 29, 39, & 46 (Dkt. 28). Plaintiffs Duehmig and Griesar worry that Oregon's relegation of same-gender couples to second-class status sends profoundly hurtful messages to their children, teaching them that their family does not deserve the same societal status and respect as other families. See Duehmig Decl., 12-13 (Dkt. 27); Griesar Decl., 27-34, 39 & 48 (Dkt. 28). Plaintiffs have incurred considerable expenses and financial losses and have suffered tremendously

2 - Plaintiffs First Amended Memorandum in Support of Motion for Summary Judgment

because the current state of Oregon law denies them equal marriage recognition. See Geiger Decl., 17 (Dkt. 25); Nelson Decl., 13-14 (Dkt 26); Duehmig Decl., 15, 17-18 (Dkt. 27); Griesar Decl., 46, 49 (Dkt. 28). On September 23, 2013, Plaintiffs Geiger and Nelson applied for a marriage license from the office of Defendant Randy Walruff, Multnomah County Assessor, but were denied a marriage license solely because they are both women. Geiger Decl., 26 (Dkt. 25); Nelson Decl., 15 (Dkt. 26), and Defendant Walruff Answer to Amended Complaint, 27 (Dkt. 13). Plaintiffs Griesar and Duehmig were legally married in Canada on December 29, 2003. See Duehmig Decl., 10 (Dkt. 27); Griesar Decl., 22 (Dkt. 28). On October 16, 2013, the Director of the Oregon Department of Administrative Services directed state agencies to recognize same-gender marriages performed outside of Oregon in the administration of their programs. See States Answer (Dkt. 9), and States Exhibit A, (Dkt.10). On December 23, 2013, this directive was codified as temporary administrative rule OAR 105-010-0018. The rule applies to state agencies and does not apply to state courts or to local governmental entities. Plaintiffs are unable to file state tax returns as married individuals. This has caused them to incur tax obligations that they would not have incurred if Oregon law permitted them to marry or recognized their legal marriage. See Nelson Decl., 14 (Dkt. 26); Duehmig Decl., 22 (Dkt. 27). Plaintiffs have been forced to incur sizeable legal costs to create legal documents to enable their partners to inherit their property. See Geiger Decl., 17 (Dkt. 25); Nelson Decl., 14 (Dkt. 26); Duehmig Decl., 22 (Dkt. 27); Griesar Decl., 49 (Dkt. 28). ORS 112.025, ORS 112.035.

3 - Plaintiffs First Amended Memorandum in Support of Motion for Summary Judgment

Plaintiffs also are ineligible for favorable insurance rates and other discounts offered to married couples by various businesses. See Geiger Decl., 16 (Dkt. 25); Duehmig Decl., 15 (Dkt. 27). Plaintiffs are not mutually responsible for supporting their same-gender partner in the event that they separate. See ORS 107.105 (disposition of property, maintenance of parties, determination of spousal support, and other obligations upon divorce). Under ORS 127.635(2), Plaintiffs partners cannot make medical decisions automatically by operation of law like heterosexual married couples. Instead, Plaintiffs must take the extra step of procuring advanced medical directives indicating that their partners can make medical decisions on their behalf. Plaintiffs are forced to go to great expense and effort to ensure that they have the necessary legal documents in place to create the same rights and obligations between them that are automatically created for opposite-sex couples through marriage. Moreover, family members and others may still challenge Plaintiffs authority to make decisions for their partner if he or she becomes incapacitated or dies. See Geiger Decl., 17; Nelson Decl., 13; Duehmig Decl., 21; Griesar Decl., 49; see also ORS 107.635(2)(b) (spousal authority for major health care decisions). Plaintiffs feel shame, stigma, and humiliation every day as a result of Oregons Marriage Laws. Plaintiffs have been singled out for discriminatory treatment and treated as second-class citizens. Oregons Marriage Laws reflect the States rejection of their decision to marry one another and classify their families as inferior to those of opposite-gender families. See Geiger Decl., 16, 21, 22, 25-27 (Dkt. 25); Nelson Decl., 10, 14-15 (Dkt 26); Duehmig Decl., 14-21& 27 (Dkt. 27); Griesar Decl., 27-35, 39, 46-48 (Dkt 28).

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It is undisputed that Plaintiffs suffer economical and emotional harm as a result of their legal inability to fully access the rights and to assume the obligations of civil marriage afforded by state law to similarly situated heterosexual couples. II. THE DEFENDANTS Defendant John Kitzhaber is vested with the executive power as the Governor of Oregon. It is his responsibility to ensure that the States laws are enforced fairly, uniformly, and constitutionally. Defendant Ellen Rosenblum, as the Attorney General for the State of Oregon, is the chief legal officer of the State of Oregon. It is also her duty to ensure the States laws are enforced fairly, uniformly, and constitutionally. Defendant Jennifer Woodward is the State Registrar for the State of Oregon. She also is the manager of Oregons Center for Health Statistics and is custodian of its records. She directs, supervises, and controls the operation of the system of vital statistics. ORS 432.030(d). Additionally, she develops and conducts training programs to promote uniformity of policy and procedures throughout the state in matters pertaining to the system of vital statistics. ORS 432.030(d). She also prescribes and provides the rules necessary to implement the policies of the Department and the forms required to record marriage under state law. ORS 432.030(e). See also, ORS 432.030, 432.405. Defendant Randy Walruff is the Multnomah County Clerk who oversees the Countys issuance of marriage licenses and is responsible for issuing marriage licenses, certifies persons who may solemnize a marriage, and maintains marriage-related records as mandated by state law. ORS 432.405. All Defendants are state actors who are required to uphold the obligations of the United States Constitution to ensure that plaintiffs fundamental rights are not infringed by their actions. The State admits that it cannot present evidence of any narrowly tailored, compelling, legitimate, or rational governmental interest that is being served by denying Plaintiffs Geiger

5 - Plaintiffs First Amended Memorandum in Support of Motion for Summary Judgment

and Nelson their fundamental right to marry one another. See States Answer, Exhibit A, (Dkt. 10). Exhibit A is a letter from the Deputy Attorney General to Michael Jordan, Chief Operating Officer of Oregons Department of Administrative Services, which responds to Mr. Jordans question as to whether Oregon agencies can recognize same-sex marriages from other jurisdictions for purposes of administering Oregon law. In an amicus brief submitted to the Ninth Circuit Court of Appeals in support of the plaintiffs, Defendant General Rosenblum also acknowledges that exclusion of same sex couples from marriage is unconstitutional. See Second Declaration of Lea Ann Easton in Support of Motion, Exhibit A at page 2; Brief for the States of Massachusetts, California, Connecticut, Delaware, District Court Of Columbia, Illinois, Iowa, Maine, Maryland, New Hampshire, New Mexico, New York, Oregon, Rhode Island, Vermont, and Washington, in Support of Appellants Sevcik, Case No. 12-17668 (9th Cir. October 13, 2013). Defendants admit they cannot present evidence of any narrowly tailored, compelling, legitimate or rational governmental interest that is being served by refusing to fully recognize the legal marriage of plaintiffs Duehmig and Griesar. Id. The State acknowledges that it cannot identify any legitimate (much less compelling) state interest in requiring that each marriage recognized in Oregon contain one partner of each sex. Id. at 6. The State acknowledges that there is no reason to legally recognize same-gender relationships in the form of domestic partnerships while simultaneously refusing to recognize same-gender marriages. Id. In his Answer to the Amended Complaint, Defendant Walruff summarizes Multnomah Countys recognition of same-gender marriages in 2004 and the County Clerks issuance of more than 3,000 marriage licenses to same-gender couples during that time. Walruffs

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Answer, Dkt.13 at 2-3. Consistent with the Oregon Supreme Court decision in Li v. State, 110 P.3d 91 (Or. 2005), and the subsequent passage of Measure 36 amending Oregons constitution to prohibit marriage equality for gay and lesbians, Multnomah County and Defendant Walruffs office stopped granting marriage licenses to same-gender couples. Id. at 3. III. OREGONS MARRIAGE LAWS A. Oregon Constitution Article 15, 5a. It is beyond dispute that gay and lesbian individuals have historically been, and continue to be, subjected to persecution and discrimination. Indeed, Oregon has a dark history of extraordinarily public discrimination against gay and lesbian people. This discriminatory animus is expressed profoundly in the 35 anti-gay and anti-lesbian ballot measures on Oregons ballots since 1978, more than any other state in the country. See George T. Nicola, Oregon Anti-Gay Ballot Measures, available at http://www.glapn.org/6013OregonAntiGayMeasures.html, last viewed Dec. 27, 2013. Oregon voters passed Measure 36 to amend the state constitution in 2004. See Declaration of Lea Ann Easton, Exhibit A, (Dkt. 29-1). Oregons constitution now bars same-gender couples from access to marriage: "[o]nly a marriage between one man and one woman shall be valid or legally recognized as a marriage." OR. CONST. art. 15, 5A. During the 2004 campaign to enact Measure 36, many of the messages used to persuade voters to amend the State's constitution relied on false and stigmatizing messages that samegender couples are inferior to opposite-gender couples and that both the institution of marriage and children need to be protected from same-gender marriages. Id., Exhibit B, (Dkt. 29-2) (2004 Oregon Voters Guide).

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Deputy Attorney General Williams in her October 16, 2013 letter, recognizes that [p]roponents and opponents [of marriage equality] alike understand that the law targets gays and lesbians in a manner specific to their sexual orientation by denying recognition of only their valid marriages. That is the laws express purpose. States Answer, Exhibit A, Dkt. 10 at 6. B. Oregons Marriage Statutes. While Oregon statutes do not specifically prohibit same-gender couples from marrying, Article 15, 5a of Oregons Constitution forces an interpretation of the words husband and wife used in state statutes to exclude same-gender couples from all the rights associated with marriage. In litigation that arose after Multnomah County issued marriage licenses to over 3000 gay and lesbian couples in 2004, the Oregon Supreme Court held that, as a statutory matter, access to civil marriage is available only to heterosexual couples. Li v. State, 110 P.3d 91, 96 (Or. 2005) (en banc). Oregons Marriage Statues include: ORS 106.020, Prohibited and void marriage; ORS 106.041, Marriage License; application; record; ORS 106.150, Form of solemnization; witnesses; solemnization before congregation; ORS 108.010, Removal of wifes civil disabilities; wifes civil rights same as husbands; ORS 108.020, Non-liability for other spouses obligations; ORS 108.030, Liability of husband for civil injuries caused by wife; ORS 108.040, Liability of parents for expenses of family and education of children; ORS 108.045, Liability of stepparent for expenses of family and education of children; ORS 108.050, Non-liability of wifes property for husbands obligations; ORS 108.060, Noninterest of one spouse in property of other; ORS 108.080, Civil remedies between spouses in respect of separate property; ORS 108.090, Conveyances, transfers and liens between spouses; creation and dissolution of estates by entireties; validation of prior

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dissolutions; ORS 108.100, Husband and wife as attorney in fact for each other; ORS 108.110, Petition for support of spouse and children; rules, ORS 108.510, Revocation of election to come under terms of Community Property law of 1943; ORS 108.530, Removal of community property status by agreement; and ORS 108.550, Reliance on spouses right to deal with property in spouses name. The Oregon Evidence Code also uses the terms husband and wife in ORS 40.135, Rule 311, Presumptions; and ORS 40.255; Rule 505, Husband and wife privilege. C. Oregon Domestic Partnership Statute. In 2007, the Oregon legislature adopted the Oregon Family Fairness Act (the Act). ORS 106.300, et seq. which creates separate but unequal treatment for same-gender couples that is similar, but not equal, to marriage. The Acts legislative findings acknowledge that [l]egal recognition of marriage by the state is the primary and, in a number of instances, the exclusive source of numerous rights, benefits and responsibilities available to married individuals under Oregon law. ORS 106.305(3). This state has a strong interest in promoting stable and lasting families, including the families of same-sex couples and their children. All Oregon families should be provided with the opportunity to obtain necessary legal protections and status and the ability to achieve their fullest potential. ORS 106.305(4). The Act was established to ensure more equal treatment of gays and lesbians and their families under Oregon law. ORS 106.305(6). The Act provides that [a]ny privilege, immunity, right or benefit granted by statute, administrative or court rule, policy, common law or any other law to an individual because the individual is or was married, or because the individual is or was an in-law in a specified way to another individual, is granted on equivalent terms, substantive and procedural, to an individual because the individual is or was in a 9 - Plaintiffs First Amended Memorandum in Support of Motion for Summary Judgment

domestic partnership or because the individual is or was, based on a domestic partnership, related in a specified way to another individual. ORS 106.340. While there are only a few exceptions to the Acts policy of more equal treatment for same-gender registered domestic partners, the exceptions are legally significant and demonstrate how domestic partnerships are afforded a separate and unequal status when compared to marriages. For example, marriages must be solemnized pursuant to state law. ORS 106.150. In contrast, there is no state requirement to solemnize a registered domestic partnership. Rather, same-gender couples must register as domestic partners by filing a declaration with the county clerk. ORS 106.325. Additionally, domestic partnership status does not entitle gay and lesbian couples to access more than 1,000 federal benefits that are available solely to married couples. United States v. Windsor, 133 S. Ct. 2675, 2696 (2013). SUMMARY JUDGMENT STANDARD This Court must grant summary judgment when there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(A). The movant has the initial burden of demonstrating to the Court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 321-322 (1986). The non-movant(s) must then present specific facts by affidavit or other admissible evidence sufficient to raise a genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 58687 (1986). If that evidence is merely colorable, or not significantly probative, this court may grant summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). ARGUMENT Oregons Marriage Laws violate the Fourteenth Amendment to the United States Constitution, and Oregons Marriage Laws infringe on Plaintiffs fundamental liberties and

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privacy rights in violation of the Due Process Clause and also fail to provide each Plaintiff equal protection under the law in violation of the Equal Protection Clause. Accordingly, Plaintiffs ask this Court to strike down Article 15, 5a of the Oregon Constitution and to order that Oregons Marriage laws that refer to husband and wife be applicable equally to gay and lesbian couples. I. OREGONS MARRIAGE LAWS VIOLATE DUE PROCESS BECAUSE THEY INFRINGE ON EACH PLAINTIFFS FUNDAMENTAL RIGHT TO MARRY A PERSON OF HIS OR HER CHOICE

The Due Process Clause of the Fourteenth Amendment guarantees that [No] State [shall] deprive any person of life, liberty, or property without due process of law... U.S. CONST. AMEND. XIV, 1. Due Process protects not only basic procedural rights, but also protects the fundamental, substantive rights of individuals from arbitrary intrusions by the government into their private lives and liberty interests. See Washington v. Glucksberg, 521 U.S. 702, 719-20 (1997) (The Due Process Clause guarantees more than fair process . . . . The Clause also provides heightened protection against government interference with certain fundamental rights and liberty interests.). The freedom to marry has long been held a fundamental liberty and privacy right protected by the Due Process Clause. See Lawrence v. Texas, 539 U.S. 558, 574 (2003) ([O]ur laws and tradition afford constitutional protection to personal decisions relating to marriage . . . .) (citation omitted). The choice of whether to marry, and whom to marry, is protected by the Due Process Clause from coercive state limitations. Id.; see also, e.g., Loving v. Virginia, 388 U.S. 1, 12 (1967) (Under our Constitution, the freedom to marry, or not to marry, a person of another race resides with the individual and cannot be infringed by the State.).

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The United States Supreme Court in Windsor affirmed that state marriage laws are subject to constitutional guarantees and must respect the constitutional rights of persons. Windsor 133 S.Ct. at 2691 (2013). The Court cited Lawrence v. Texas in affirming that the Constitution protects the moral and sexual choices of gay and lesbian couples. The Supreme Court held that intimate relationships, including the relationships of legally married gay and lesbian couples, have the same constitutional protections as others and are entitled to be treated by the government with equal dignity. Id. at 2693-94. Marriage is a great public institution, giving character to our whole civil polity. Maynard v. Hill, 125 U.S. 190, 213 (1888). Civil marriage is an evolving legal institution. Societal changes have resulted in alterations of marriage eligibility rules and to societys collective understanding of the relative roles of the government and of the people within a marriage. See Yamin Declaration, Dkt. 30. Oregons Marriage Laws exclude Plaintiffs from participating in this great public institution and thereby violate their rights under the Due Process Clause. A. Marriage Is a Fundamental Right Protected Under the Due Process Clause of the Fourteenth Amendment 1. United States Supreme Courts Jurisprudence Recognizes Marriage As A Fundamental Right. Over the past 80 years, in multiple decisions, the United States Supreme Court has consistently recognized that the freedom to marry without government restraint or coercion is a fundamental and constitutionally protected right under the Due Process Clause of the Fourteenth Amendment because this right affects an individuals life in many profoundly intimate ways. Marriage involves private decision making about fundamental ways in which a person lives his or her life, See, Skinner v Oklahoma ex rel Williamson, 316 U.S. 535, 541

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(1942) (M]arriage is one of the basic civil rights of man.); Zablocki v. Redhail, 434 U.S. 374, 384-85 (1978) ([T]he right to marry is part of the fundamental right of privacy implicit in the Fourteenth Amendments Due Process Clause. . . . [I]t is clear that among the decisions that an individual may make without unjustified government interference are personal decisions relating to marriage . . . .) (quotation and citation omitted); M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996) (Choices about marriage, family life, and the upbringing of children are among associational rights this Court has ranked as of basic importance in our society); Hodgson v. Minnesota, 497 U.S. 417, 435 (1990) (the decision of whom a person shall marry is constitutionally protected); Turner v. Safley, 482 U.S. 78, 95-96 (1987) (holding that prison inmates have a fundamental right to marry protected by the Due Process Clause); Roberts v. United States Jaycees, 468 U.S. 609, 620 (1984) (the right of intimate association limits the States power to control the selection of ones spouse); Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639- 40 (1974) (This Court has long recognized that freedom of personal choice in the matter of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.); Boddie v. Connecticut , 401 U.S. 371, 380 81 (1971) (filing fees for divorce actions violated the due process rights of indigents unable to pay the fees, by burdening the freedom of indigents to marry another person); Loving v. Virginia, 388 U.S. 1, 10-12 (1967) (The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness. Marriage is one of the basic rights of man, fundamental to our very existence and survival.); Griswold v. Connecticut, 381 U.S. 479, 486 (1965) (Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty,

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not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.); Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (Without doubt, [the Due Process Clause] denotes not merely freedom from bodily restraint but also the right of the individual . . . to marry . . . according to the dictates of his own conscience... ). 2. The Right Applies to Sexual Orientation.

The autonomous liberty decisions incident to marriage that make it a fundamental right are not dependent on a spouses gender any more than they are dependent upon a persons status as a prisoner. See Turner, 482 U.S. at 95-96 (holding attributes of marriage, after considering prison life limitations, were sufficient to form constitutionally protected marital relationships). Indeed, the Supreme Court has recognized that the rights of gay and lesbian individuals are not distinct from those of heterosexual individuals with respect [to what] the Constitution demands for the autonomy of the person in making choices [relating to marriage]: These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State. Ibid. **2482 Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do. Lawrence v. Texas at 574 (quoting Planned Parenthood v. Casey, 505 U.S. 833, 851 (1992). Oregons Marriage Laws advance the view that while gay and lesbian individuals have the fundamental right to form enduring, private bonds of mutual love and support through the more equal, but not equal, Oregon Family Fairness Act, they are not entitled to access the admitted significant and fundamental right to marriage, solely because of the gender of their

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chosen partner. ORS 106.305(2). Marriage is a key, personal decision, and the protections of the United States Constitution shield individuals against the government serving as their statesponsored marriage broker. Judge Shelby of the United States District for the Central District of Utah citing Loving v. Virginia said instead of declaring a new right to interracial marriage, the Court held that individuals could not be restricted from exercising their existing right to marry on account of the race of their chosen partner. Kitchen v. Herbert, Case No. 2:13-cv-217 (D. Utah 2013) at 12.2 In Kitchen, Judge Shelby applied this same reasoning to gay and lesbian couples and held that [b]oth same-sex and opposite-sex marriage are simply manifestations of one right the right to marry applied to people with different sexual identities. Id. Like all other fundamental rights, the right to marriage vests in every American citizen. See Zablocki, 434 U.S. at 384 ("Although Loving arose in the context of racial discrimination,

Since Plaintiffs filed this case, four other federal district courts in addition to Judge Shelby have ruled in favor of gay and lesbian couples who asserted that the government had violated their constitutional rights by failing to recognize their right to marriage. Obergefell v. Wymyslo, Case No. 1:13-cv-501, (S.D. Ohio Dec. 23, 2013)(ruled that Ohio's ban on same-sex marriage was unconstitutional and ordered Ohio to recognize same-sex marriages from other jurisdictions on death certificates.); Bishop v. US EX REL. HOLDER, Case No. 04-CV-848-TCK-TLW (N.D. Oklahoma Jan. 14, 2014)(Held that Oklahomas same-sex marriage ban violates equal protection); Bourke v. Beshear, Case No. 3:13-CV-750-H (W.D. Kentucky Feb. 12, 2014) (Kentucky must recognize same-sex marriages from other jurisdictions because withholding recognition violates the U.S. Constitution's guarantee of equal protection) and, Bostic v. Rainey, Case No. 2:13CV395 (E.D. Va. Feb. 13, 2014) (Virginia's laws that prohibit same-sex marriage or that do not recognize a couple's right to marry are unconstitutional under the Due Process and Equal Protection Clauses.) Additionally, the New Mexico Supreme Court in Griego v. Oliver, 2014 NMSC 3 - NM: Supreme Court 2014 held "civil marriage" shall be construed to mean the voluntary union of two persons to the exclusion of all others. In addition, all rights, protections, and responsibilities that result from the marital relationship shall apply equally to both same-gender and opposite-gender married couples.

15 - Plaintiffs First Amended Memorandum in Support of Motion for Summary Judgment

prior and subsequent decisions of this Court confirm that the right to marry is of fundamental importance for all individuals."). The importance of the liberty interest is made clear in the United States v. Windsor decision in which the Court analyzed whether section 3 of the Defense of Marriage Act (DOMA), the federal ban on the recognition of same-gender marriages, violated due process. In its analysis, the Court framed the issue as whether the resulting injury and indignity [from section 3 of DOMA] is a deprivation of an essential part of the liberty protected by the Fifth Amendment. Id. at 2692. Ultimately, the Court held that Congress could not deny the liberty protected by the Due Process Clause of the Fifth Amendment, and that DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution. Id. at 2695. The Supreme Courts decision was based on a profound respect for the fundamental liberty of gay and lesbian individuals to form intimate relationships - without being demeaned or degraded by the government - based upon the personal, private, and constitutionally protected choices, akin to those set forth in Loving and Lawrence: . . . [DOMA] tells [same-gender] couples, and all the world, that their otherwise valid marriages are unworthy of federal 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, see Lawrence, 539 U. S. 558, 123 S. Ct. 2472, 156 L. Ed. 2d 508, and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by s a m e - s e x 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.

16 - Plaintiffs First Amended Memorandum in Support of Motion for Summary Judgment

The denigration and humiliation suffered by legally married gay and lesbian couples and the children whom they are raising described in Windsor as the result of DOMA mirrors the persisting denigration and humiliation Plaintiffs suffer as a result of Oregons Marriage Laws. II. OREGONS MARRIAGE LAWS DO NOT SURVIVE STRICT SCRUTINY; OREGON OFFERS NO REASON TO EXCLUDE GAY AND LESBIAN COUPLES FROM THE FUNDAMENTAL RIGHT TO MARRY.

The State of Oregon holds a monopoly over the fundamental right of civil marriage within the state. Having assumed this monopoly over a fundamental right, the State cannot categorically deny marriage to a discrete class of its citizens unless it can prove that the denial of the fundamental right is the least restrictive means of meeting the strongest of government interests. Zablocki, 434 U.S. at 388. When a statutory classification significantly interferes with the exercise of a fundamental right, it cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests. Id. Since Oregons Marriage Laws significantly interfere with Plaintiffs fundamental right to marry, these laws are subject to strict scrutiny and to critical examination. Zablocki, 434 U.S. at 383. Thus, the burden is on the State to establish that the acknowledged discrimination against Plaintiffs fundamental liberty interests is justified by compelling state interests and that these exclusionary laws are narrowly drawn to express only those interests. Carey v. Population Servs. Intl, 431 U.S. 679, 686 (1977) accord Washington v. Glucksberg, 521 U.S. 702, 721 (1997) ([T]he Fourteenth Amendment forbids the government to infringe . . . fundamental liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.) (quotation and citation omitted).

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When applying the strict scrutiny analysis set out in Zablocki, the court must have a purported government interest to scrutinize. In this case, the State admits that it cannot identify any legitimate (much less compelling) state interest in requiring that each marriage recognized in Oregon contain one partner of each sex; no benefit to Oregon results from that limitation, and no injury would result from recognizing the marriages. States Answer, Exhibit A, Dkt. 10, at 6. While the advice conveyed by the Deputy Attorney General is directed to the question of state agencies recognition of same-sex marriages from other jurisdictions, it is clear the State cannot articulate any legitimate state interest in denying the right to marry to same-gender couples in Oregon. In fact, Defendant Rosenblum acknowledges there is an important governmental interest served by including same sex couples in marriage: In sum, the states favorand therefore encouragemarriage over transient relationships because marriage promotes stable family bonds, fosters economic interdependence and security for members of the marital household, and enhances the physical and emotional well-being of both the partners to the marriage and their children. Michael Wald, Same-Sex Couple Marriage: A Family Policy Perspective, 9 VA. J. SOC. POLY & L. 291, 300-303 (2001); see also Goodridge, 798 N.E.2d at 954. All of these interests are furthered by including same-sex couples in the institution of marriage. Thus, this is not a case where the inclusion of one group promotes a legitimate governmental purpose, and the addition of other groups would not. Johnson v. Robinson, 415 U.S. 361, 383 (1974). Instead, this is a case where the exclusion of a similarly-situated group undermines the important governmental interests states promote through marriage. Second Declaration of Easton, Exhibit A, page 7. See also, Exhibit A at pages 5-12. Defendant Walruff must follow the policy and regulations promulgated by State Defendants in issuing marriage licenses. Li v. State, 110 P. 3d 91 (Or. 2005). Defendant Walruff has not articulated any legitimate government interest in denying the right to samegender couples in Oregon.

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Defendants cannot identify a single harm that it, nor that anyone else, would suffer as a result of allowing Plaintiffs to exercise their constitutionally protected liberty interest to choose a marriage partner of the same gender. If there is no harm in fully recognizing same-gender marriages performed out of state, with all of the attendant obligations and benefits provided to those already married, there is no demonstrated harm that would justify the continuing, selective legal exclusion of gay and lesbian couples from accessing the constitutionally protected fundamental right to marry in Oregon. Indeed, the only harms in the record are those that Plaintiffs suffer on a day-to-day basis as they grapple with the harsh reality of living in a state that insists on actively denying them of their fundamental right to marry. By its own admission, the State concedes that there is no basis to continue to infringe on Plaintiffs fundamental right to marry. The Oregon Domestic Partnership Act recognizes that Plaintiffs, and all gay and lesbian couples in Oregon, are deserving of more equal treatment under the law, because true equality has been neutered by the will of the majority in passing Measure 36. A key provision of the Act provides that [a]ny privilege, immunity, right or benefit granted by statute, administrative or court rule, policy, common law or any other law to an individual because the individual is or was married, or because the individual is or was an in-law in a specified way to another individual, is granted on equivalent terms, substantive and procedural, to an individual because the individual is or was in a domestic partnership or because the individual is or was, based on a domestic partnership, related in a specified way to another individual. ORS 106.340. The Act evidences an attempt by the State Legislature to create a separate but equal legal system to provide gay and lesbian couples the rights, privileges, and obligations to which they are excluded by limitations imposed by Oregon Constitution Article 15, 5a.

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Laws creating separate but equal public institutions for racial classes were struck down in Brown v. Board of Education, 347 U.S. 483 (1954). Far from providing a compelling justification for the continued exclusion of gay and lesbians from the fundamental right to marry, Oregon, by adopting the Domestic Partnership Act, has identified that gay and lesbian Oregonians are deserving of more equal treatment under the law. Defendants have no justification to continue to deny Plaintiffs the right to access civil marriage while at the same time creating a parallel scheme in which associated marriage rights are granted on equivalent terms, substantive and procedural while marriage itself is withheld solely because of the outcome of an election. ORS 106.340. III. OREGONS MARRIAGE LAWS ALSO VIOLATE THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT

The Equal Protection Clause guarantees that [no state shall] deny to any person within its jurisdiction the equal protection of the laws. U.S. CONST. AMEND. XIV, 1. Equal protection requires that all persons similarly circumstanced shall be treated alike, F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920), as the Constitution neither knows nor tolerates classes among citizens. Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting). Courts must closely scrutinize, and not simply defer to the States judgment where there is reason to suspect prejudice against discrete and insular minorities . . . which tends seriously to curtail the operation of those political processes ordinarily relied upon to protect minorities. United States v. Carolene Prods. Co., 304 U.S. 144, 152-53 n.4 (1938). ///

20 - Plaintiffs First Amended Memorandum in Support of Motion for Summary Judgment

A.

Excluding Gays and Lesbians from a Fundamental Right the Government Offers to Heterosexuals Violates the Equal Protection Clause.

The constitutional rights to due process and equal protection are related because Plaintiffs, as gay and lesbian people, are a distinct class of Oregonians who are being denied equal access to a fundamental right protected by the Due Process Clause. The States denial of this fundamental right is subject to strict scrutiny under the Equal Protection Clause, and the State must demonstrate that the denial of access to this fundamental due process right is narrowly tailored to achieve a compelling state interest. See, e.g., Zablocki v. Redhail, 434 U.S. 374, 383-91 (1978); See also Eisenstadt v. Baird, 405 U.S. 438, 447 n.7 (1972) (if we were to conclude that the Massachusetts statute [treating married and unmarried persons differently] impinges upon fundamental freedoms under Griswold, the statutory classification would have to be not merely rationally related to a valid public purpose but necessary to achievement of a compelling state interest) (emphasis in original). Oregons Marriage Laws deny a class of Oregon citizens gay and lesbian couples access to legal marriage in Oregon and access to full legal recognition in Oregon of their legal marriage performed in another jurisdiction. Because the right to marry and the right to choose a spouse are fundamental liberty and privacy rights, denying Plaintiffs access to those rights is subject to strict scrutiny and the State must prove that denying access to those rights right is narrowly tailored to achieve a compelling state interest. Glucksberg, 521 U.S. at 712. The Supreme Court has made clear that [e]quality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests. Lawrence, 539 U.S. at 575 ; cf. Windsor, 133 S.Ct. at 2695. (The liberty protected by the Fifth

21 - Plaintiffs First Amended Memorandum in Support of Motion for Summary Judgment

Amendments Due Process Clause contains within it the prohibition against denying any person the equal protection of the laws. . . . While the Fifth Amendment itself withdraws from Government the power to degrade or demean in the way [DOMA] does, the equal protection guarantee of the Fourteenth Amendment makes that Fifth Amendment right all the more specific and all the better understood and preserved.); see also Bolling v. Sharpe, 347 U.S. 497, 499 (1954) ([T]he concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive. . . . [A]s this Court has recognized, discrimination may be so unjustifiable as to violate due process.). The State concedes, however, that it cannot identify any state interest or benefit to the State to justify the infringement of Plaintiffs and other gay and lesbian couples fundamental rights and the harms it causes to them and to their families. Based on the admissions by Defendants and uncontested factual allegations by Plaintiffs and the applicable law, the court should hold that Article 15, 5a of the Oregon Constitution and all marriage laws that restrict gay and lesbian full access to, and recognition of, marriage violate the Plaintiffs rights to equal protection. B. Oregons Marriage Laws Violate the Equal Protection Clause of the Fourteenth Amendment Because They Irrationally Target Gay and Lesbian Couples and Treat Them as Inferior without Justification.

The Supreme Court in Windsor struck down DOMAs limitation on marriage to a union between a man and a woman as a violation of Equal Protection. Windsor, 133 S.Ct. at 2695-96. Oregons Marriage Laws similarly limit marriage to heterosexual couples, creating a classification based on sexual orientation that excludes Plaintiffs from equal participation. As explained below, this discrimination does not withstand scrutiny under the heightened standard of review required by the Ninth Circuits Smithkline decision applying

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Windsor to classifications based on sexual orientation. Windsor and Smithkline therefore require that this Court strike down Oregons Marriage laws. The Windsor Court did not specify the standard of review required when courts analyze classifications based on sexual orientation. The Ninth Circuit Court of Appeals recently held that the standard of review required is heightened scrutiny. Abbott Laboratories, 740 F.3d 471 (9th Cir. 2014). SmithKline Beecham Corp. v.

The Ninth Circuit concluded that United

States v. Windsor is dispositive of the question of the appropriate level of scrutiny in this case, and held Windsor requires that heightened scrutiny be applied to equal protection claims involving sexual orientation. Id. at 481. The Ninth Circuit in SmithKline analyzes the Windsor decision and makes it clear that excluding gay people must be justified and that deferential rational basis review is not applicable to exclusionary governmental action. In clarifying that Windsor requires courts to apply heightened scrutiny to laws that effectively exclude participation based on sexual orientation; the Ninth Circuit noted that Windsor looked to DOMAs design, purpose, and effect. Id. The court stated that Windsor thus requires not that we conceive of hypothetical purposes, but that we scrutinize Congresss actual purposes. Id. at 482. Windsor requires a legitimate purpose to overcome[] the disability on a class of individuals. Id. (citing Windsor). The Ninth Circuit points out that the Supreme Court was concerned with DOMAs resulting injury and indignity imposed on Edith Windsor solely because she is a lesbian. Windsor was thus concerned with the public message sent by DOMA about the status occupied by gays and lesbians in our society. This government-sponsored message was in itself a harm of great constitutional significance. Id. at 483. Windsor requires that classifications

23 - Plaintiffs First Amended Memorandum in Support of Motion for Summary Judgment

based on sexual orientation that impose inequality on gays and lesbians and send a message of second-class status be justified by some legitimate purpose. Id. Windsor requires that when state action discriminates on the basis of sexual orientation, we must examine its actual purposes and carefully consider the resulting inequality to ensure that our most fundamental institutions neither send nor reinforce messages of stigma or second-class status. Id. at 484. By denying Plaintiffs equal access to marriage, Oregons Marriage Laws stigmatize them by treating them as second-class citizens and do not afford them the same dignity, respect, and stature afforded heterosexual families. Oregons Marriage Laws together create a system of disparate treatment of gay and lesbian couples that serves no governmental objective: the classification helps no one while significantly harming Plaintiffs and their families. Oregons Marriage Laws exclude Plaintiffs access to marriage based solely on their sexual orientation. Governmental exclusions based on sexual orientation classifications require that the government justify such exclusions. In this case, Defendants can offer no justification other than the will of the majority and the outcome of an election. This justification does not suffice to survive the heightened scrutiny. Windsors reasoning reinforces the constitutional urgency of ensuring that individuals are not excluded from our most fundamental institutions because of their sexual orientation. Smithkline at 486. Defendants cannot justify the exclusion of gay and lesbian people from accessing the important rites and ritual of marriage as being related in any way to any government interest. Oregons Marriage Laws violate Plaintiffs equal protections rights. ///

24 - Plaintiffs First Amended Memorandum in Support of Motion for Summary Judgment

C. Oregons Marriage Laws Are Irrational and Based on Prejudice. In striking down DOMA, the Supreme Court held that DOMA injure[s], stigma[tizes], demean[s], and degrade[s] same-sex couples, treating their relationships as second-class, second-tier, and unworthy of [] recognition. Id. at 2692-94 & 2695-96. In addition, the Supreme Court held that DOMA humiliates tens of thousands of children now being raised by same-sex couples and financial[ly] harm[s] them by denying them federal benefits. Windsor at 2694-95. The Supreme Court further emphasized that by denying recognition to gay and lesbian couples, DOMA had a substantial societal impact . . . in the daily lives and customs of people. Id. at 2693. The Supreme Court held in Windsor that the design, purpose, and effect of DOMA should be considered as the beginning point in deciding whether it is valid under the Constitution. Windsor, 133 S.Ct. at 2689. Here, as in Windsor, Article 15, 5a of the Oregon Constitution was plainly designed to injure gay and lesbian couples who want to access civil marriage like similarly situated heterosexual couples. The definition of marriage contained in Article 15, 5a of the Oregon Constitution creates a classification to disadvantage Oregons gay and lesbian population. It does not further any other purpose. The official explanatory statement of Measure 36 stated that there was ongoing litigation concerning whether the current marriage statutes are valid under the Oregon Constitution. See Declaration of Lea Ann Easton, Exhibit B, 2004 Oregon Voters Guide (Dkt. 29-2). The arguments in the Voters Guide clarify that the purpose of Measure 36 was to create a state-sponsored institution of inequality, and to prohibit gay and lesbian couples from enjoying the same protections and benefits under the law as those extended to heterosexual couples. Measure 36 also sought to preemptively deny the rights of gay and lesbian

25 - Plaintiffs First Amended Memorandum in Support of Motion for Summary Judgment

Oregonians that they likely would have under the Oregon Constitution. As the State acknowledges, the context and history of Article 15, 15a of the Oregon Constitution includes what the voters were told about the measure during the election. States Answer, Exhibit A, Dkt. 10 at 5. The specific intent of the proponents was to demean and to stigmatize gay and lesbian Oregonians while promoting a social view steeped in religion and morality that totally discounted the fundamental rights of a significant number of gay and lesbian Oregonians, many of whom like Plaintiffs Duehmig and Griesar, are raising children. See Declaration of Easton, Exhibit B (2004 Oregon Voters Guide) (Dkt. 29-2) and Exhibit C (United States Census 2010, 2010 American Community Survey, Same-Sex Unmarried Partner or Spouse Households by Sex of Householder by Presence of Own Children, available at http://www.census.gov/prod/2011pubs/acsbr10-03.pdf), (Dkt. 29-3). While a majority of Oregon voters may have succeeded in depriving gay and lesbian couples equality and dignity under the Oregon Constitution in 2004, the protections provided by the United States Constitution remain robust in 2014. Far from having a salutary effect on society, this selective exclusion creates logistical and legal inconsistencies in the law, and it demeans same-gender relationships and families, selectively excluding them from full citizenship and depriving them of benefits that provide security to their relationships. This special disparate treatment is reserved for gay and lesbian couples alone, while similarly situated heterosexual couples are given preferential treatment under the law. This violates the Plaintiffs fundamental right to marry and their right to equal protection under the United States Constitution. ///

26 - Plaintiffs First Amended Memorandum in Support of Motion for Summary Judgment

D. Oregons Marriage Laws Are Unconstitutional Under Windsor. The Supreme Court held in Windsor that the design, purpose, and effect of laws burdening same-gender couples should be considered as the beginning point in deciding whether [they are] valid under the Constitution, and at the very least, Equal Protection mean[s] that a bare . . . desire to harm a politically unpopular group cannot justify disparate treatment of that group. Windsor, 133 S. Ct. at 2689, 2693 (quotation omitted). Like DOMA, Article 15, 15a of the Oregon Constitution and the enforcement of state statutes referencing husband and wife so as to exclude gay and lesbian couples access to marriage have an avowed purpose and practical effect [ ] to impose a disadvantage, a separate status, and so a stigma upon all who [desire to] enter into same-gender marriages Id. at 2693. Oregons Marriage Laws similarly restrict the freedom and choice of [gay and lesbian] couples, including Plaintiffs. Id. Here, as in Windsor, Oregons marriage laws effectively treat same-gender marriages as second-class marriages. Id. Accordingly, here, as in Windsor, [t]his raises a most serious question under the Constitutions [equal protection guarantees]. Id. at 2694. The Supreme Court explained that DOMAs principal effect [was] to identify a subset of relationships and make them unequal. Id. Like DOMA, Oregons Marriage Laws principal purpose is to impose inequality, not for other reasons like governmental efficiency. Id. By this dynamic, Oregons Marriage Laws undermine[] both the public and private significance of . . . same-sex marriages. Id. [I]t tells those couples, and all the world, that their relationships are unworthy of recognition in our state. Id. This places same-gender couples in an unstable position of being in a second-tier marriage. Id. The differentiation 27 - Plaintiffs First Amended Memorandum in Support of Motion for Summary Judgment

demeans the couple, whose moral and sexual choices the Constitution protects. Id. (citing Lawrence v. Texas, 539 U.S. 558 (2003)). Oregons Marriage Laws further injure and humiliate[] . . . children now being raised by same-gender couples, by making 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 their daily lives. Id. at 2694. Moreover, as in Windsor, these laws also bring[] financial harm to children of same-gender couples, by raising the cost of health care for families by taxing health benefits provided by employers to their workers same-gender [partners], and by denying or reducing state benefits allowed to families upon the loss of a spouse and parent, benefits that are an integral part of family security. Id. at 2695. In sum, like the law struck down in Windsor, Oregon Marriage laws single[] out a class of persons, and impose[] a disability on the class. They instruct[] all [state] officials, and indeed all persons with whom same-gender couples interact, including their own children, that their [relationship] is less worthy than the [relationships] of others. Id. at 2695-96. As acknowledged in Windsor, [b]y history and tradition the definition and regulation of marriage . . . has been treated as being within the authority and realm of the separate States. Id. at 2689-90. However, the Supreme Court emphasized, as it has before, that State laws defining and regulating marriage, of course, must respect the constitutional rights of persons. Id.; see also, e.g., Loving v. Virginia, 388 U.S. 1 (1967). Were there any doubt about the reach of Windsors holding, Justice Scalias dissent provides persuasive authority to this court as to logical outcome of the Court's ruling in Windsor: In my opinion, however, the view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking by 28 - Plaintiffs First Amended Memorandum in Support of Motion for Summary Judgment

today's opinion. As I have said, the real rationale of today's opinion . . . is that DOMA is motivated by "bare. . . desire to harm" couples in same-sex marriages. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying samesex couples marital status. 133 S.Ct. at 2709 (citations and internal quotation marks omitted). In conclusion, as in Windsor, Oregons Marriage Laws discriminate against gay and lesbian couples and are invalid because no legitimate purpose overcomes the purpose and effect to disparage and to injure them. Windsor, 133 S. Ct. at 2696. Because Oregons Marriage Laws treat these couples as less respected than others, they violate the Equal Protection Clause, and must be struck down. Id. IV. THE LIMITATION ON FULL RECOGNITION OF MARRIAGES FROM OTHER JURISDICTIONS CONTAINED IN ARTICLE 15, 5AOF THE OREGON CONSTITUTION IS UNCONSTITUTIONAL UNDER THE SUPREME COURTS DECISION IN WINDSOR.

Oregons Marriage Laws do not fully recognize Plaintiff Duehmigs and Plaintiff Griesars marriage legally performed in Canada. The Deputy Attorney Generals October 16, 2013 letter, issued the day after Plaintiffs filed suit, resulted in the state recognition of Plaintiffs marriage only so far as Oregons executive branch. Some marriage laws, like the right of intestate succession and the right of parties to obtain a divorce in state court, operate independently of the executive branchs reach. While these laws remain in force, Plaintiffs Duehmig and Griesar are excluded from their equal protections solely because both of them are male. See ORS 112.025. Oregon therefore provides Plaintiffs Duehmigs and Griesars marriage lesser recognition and legal rights than heterosexual marriages performed out of state. The Oregon Supreme Court has ruled that, a marriage which is recognized as valid in the state where it was performed will be recognized in Oregon, Garrett v. Chapman, 449 P.2d 856 (Or. 1969), 29 - Plaintiffs First Amended Memorandum in Support of Motion for Summary Judgment

unless, of course, it is a same-gender marriage rendered void by operation of Article 15, 5a of the Oregon Constitution. The State acknowledges that [p]roponents and opponents alike understand that the law targets gays and lesbians in a manner specific to their sexual orientation by denying recognition of only their valid marriages. This is the laws express purpose. States Answer, Exhibit A, Dkt. 10 at 6. The State further admits that it cannot identify any defensible state interest, much less a compelling one, to justify its refusal to recognize marriages performed between consenting, unrelated adults under the laws of another state marriages that would be unquestionably accorded recognition if the spouses were of the opposite sex. Id. The Supreme Court in Windsor held that laws enacted expressly in order to deny recognition to legally married same-gender couples inflict injuries of constitutional dimensions. Id. at 2694 (ruling that DOMA demeans same-sex couples, and humiliates tens of thousands of children now being raised by those couples). That holding applies directly to the limitation imposed by Article 15, 5a of the Oregon Constitution on the full recognition of lawful marriages of same-gender couples who married each other in another state. The harm inflicted by the governments refusal to recognize an existing marital relationship is no less when it is inflicted by Oregon, rather than the federal government. Similarly, the Supreme Courts analysis of the profoundly stigmatizing impact of laws that single out gay and lesbian couples for discrimination with respect to marriage applies equally to Oregons Marriage Laws. The limitation imposed by Article 15, 5a of the Oregon Constitution on full and equal recognition of same-gender marriage under the law is just as profound a constitutional violation as that in Windsor, since it effectively renders a same-gender couples lawful marriage unequal to similarly situated opposite-gender marriages for no reason.

30 - Plaintiffs First Amended Memorandum in Support of Motion for Summary Judgment

Oregons Marriage Laws take the extraordinary measure of targeting an entire class of legally married couples and excluding them from federal recognition just as Section 3 of DOMA did. Oregons Marriage Laws single out an entire class of same-gender couples who entered into legal marriages in other jurisdictions and categorically exclude these couples from the otherwise general rule that a marriage valid where celebrated will be treated as valid in Oregon as well. Like DOMA, Oregons Marriage Laws unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage here operates to deprive same-gender couples of the benefits and responsibilities that come with legal recognition of their marriage. Id. at 2693. For both Oregons Marriage Laws and DOMA, the principal effect is to identify a subset of state-sanctioned marriages and make them unequal. The principal purpose is to impose inequality[.] Id. Oregons Marriage Laws force[] same-sex couples to live as married for the purpose of some jurisdictions laws but unmarried for purposes of Oregons law. Id. at 2694. By so doing, Oregons Marriage Laws violate Plaintiffs Duehmig and Griesar rights to Equal Protection of the laws guaranteed by the United States Constitution. CONCLUSION When the government denies Plaintiffs the right to equally access the great public institution of marriage, it effectively excludes them from the benefits and obligations American citizenship promises. For all of the reasons discussed herein, Plaintiffs request the Court grant summary judgment, declare Oregon Constitution Article 15, 5a unconstitutional, ///

31 - Plaintiffs First Amended Memorandum in Support of Motion for Summary Judgment

and grant such other relief to ensure Plaintiffs and other same-gender couples have equal access to marriage in Oregon. DATED this 18th day of February 2014.

By: s/ Lake James H. Perriguey Lake James H. Perriguey, OSB No. 983213 LAW WORKS LLC 1906 SW Madison Street Portland, OR 97205-1718 Telephone: (503) 227-1928 Facsimile: (503) 334-2340 lake@law-works.com

By: s/ Lea Ann Easton Lea Ann Easton, OSB No. 881413 DORSAY & EASTON LLP 1 SW Columbia Street, Suite 440 Portland, OR 97258 Telephone: (503) 790-9060 Facsimile: (503) 790-9068 leaston@dorsayindianlaw.com

Attorneys for Plaintiffs Geiger, Nelson, Duehmig, and Grieser

32 - Plaintiffs First Amended Memorandum in Support of Motion for Summary Judgment