1:14-cv-01817 #8

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-1817-KLM CATHERINE BURNS; SHEILA SCHROEDER; MARK THRUN; GEOFFREY BATEMAN; RACHEL CATT; CASSIE RUBALD; BREANNA ALEXANDER; STACY PARRISH; ANGELA CRANMORE; JULIANNE DELOY; KAREN COLLIER; and DENISE LORD; Plaintiffs, v. JOHN W. HICKENLOOPER, JR., in his official capacity as Governor of Colorado; JOHN SUTHERS, in his official capacity as Attorney General of Colorado; PAM ANDERSON, in her official capacity as Clerk and Recorder for Jefferson County; DEBRA JOHNSON, in her official capacity as Clerk and Recorder for the City and County of Denver; Defendants. ________________________________________________________________________

PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION ________________________________________________________________________ Plaintiffs, by and through their attorneys, Mari Newman, David A. Lane, Darren M.

Jankord, and Danielle C. Jefferis of KILLMER, LANE & NEWMAN, LLP, hereby submit Plaintiffs’

Motion for Preliminary Injunction, as follows:

Case 1:14-cv-01817-REB Document 8 Filed 07/01/14 USDC Colorado of 14

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I. INTRODUCTION

This is a civil rights action for injunctive and declaratory relief seeking to declare

unconstitutional under the United States Constitution, Colorado’s Constitutional Amendment 43

and other Colorado laws banning same-sex marriage. Simply put, “A state may not deny the

issuance of a marriage license to two persons, or refuse to recognize their marriage, based solely

upon the sex of the persons in the marriage union.” Kitchen v. Herbert, 2014 U.S. App. LEXIS

11935, at *4 (10th Cir. June 25, 2014). This is because “the Fourteenth Amendment protects the

fundamental right to marry, establish a family, raise children, and enjoy the full protection of a

state’s marital laws. So held the Tenth Circuit Court of Appeals in the case of Kitchen v. Herbert,

2014 U.S. App. LEXIS 11935, at *3-4.

In direct violation of the United States Constitution, Colorado law declares that marriage

may only be recognized under law as a union between one man and one woman. The

Defendants unlawfully deny the issuance of marriages licenses, and refuse to recognize the

marriages of certain couples based solely on the sex of the persons in the marriage union. See

COLO. CONST. Art. II, Sec. 31 (“[o]nly a union of one man and one woman shall be valid or

recognized as a marriage in this state.”); see also C.R.S. § 14-2-104(1)(b); C.R.S. § 14-2-104(2).

Finding unconstitutional a very similar prohibition on marriages of people of different

races, the Supreme Court of the United States has long recognized that “[m]arriage is one of the

‘basic rights of man,’ fundamental to our very existence and survival.” Loving v. Virginia, 388

U.S. 1, 12 (1967). Yet 40 years later, as a result of an unlawful Constitutional Amendment and

similar statutory enactments, the State of Colorado discriminates against and denies its gay and

lesbian citizens access to “the fundamental right to marry, establish a family, raise children, and


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enjoy the full protection of [Colorado]’s martial laws,” in violation of the Fourteenth

Amendment to the United States Constitution. See Kitchen. 2014 U.S. App. LEXIS, at *3-4.

Colorado’s civil union statute, C.R.S. 14-15-102 et. seq., is a very poor, separate and

unequal substitute to the full legal and societal recognition of marriage.

II. PARTIES1

As set forth in the Complaint, Kate Burns and Sheila Schroeder are a same sex couple

who have repeatedly sought to obtain a Colorado marriage license, but have been denied each

time by the Denver Clerk and Recorder. Their relationship has been relegated to the separate

and unequal status of civil union.

Plaintiffs Mark and Geoffrey Bateman have been legally married in the State of

Washington, but the State of Colorado refuses to legally recognize their marriage. Their

relationship has thus been relegated to the separate and unequal status of civil union.

Plaintiffs Rachel Catt and Cassie Rubald have been legally married in the State of

California, but the State of Colorado refuses to legally recognize their marriage. Their

relationship has also been relegated to the separate and unequal status of civil union.

Plaintiffs Breanna Alexander and Stacy Parrish have sought to obtain a Colorado

marriage license which was denied by the Jefferson County Clerk and Recorder’s Office. Their

relationship has been relegated to the separate and unequal status of civil union.

1 See sworn Affidavit of each named Plaintiff, attached hereto as Exhibits 1 – 12, which further detail the backgrounds of the Plaintiffs, and the injuries they have suffered traceable to the acts of Defendants in enforcing Colorado’s unconstitutional laws banning same-sex marriage.


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Plaintiffs Angela Cranmore and Julianne Deloy desire the right to legally marry in the

State of Colorado. Their relationship has been relegated to the separate and unequal status of

civil union.

Plaintiffs Karen Collier and Denise Lord have been legally married in the State of

California, but the State of Colorado refuses to legally recognize their marriage. Their

relationship has been relegated to the separate and unequal status of civil union.

III. ARGUMENT

A. The Tenth Circuit Concluded Utah’s Ban On Marriage Equality Violates The Fourteenth Amendment.

On June 25, 2014, in Kitchen v. Herbert, the Tenth Circuit concluded that Utah’s very

similar ban prohibiting same-sex marriage was violative of the Due Process and Equal Protection

Clauses of the United States Constitution. For virtually identical reasons, the Colorado ban

prohibiting same-sex marriage is similarly unconstitutional and enforcement of this law must

immediately be enjoined by this Court.

B. Colorado’s Amendment 43 Is Substantially Similar To Utah’s Unconstitutional Ban On Marriage Equality.

Colorado’s Amendment 43 is substantially similar to Utah’s unconstitutional ban on

marriage equality. Section One of Utah’s Amendment 3 declared, “Marriage consists only of the

legal union between a man and a woman.” Similarly, Colorado’s Amendment 43 declares, “Only

a union of one man and one woman shall be valid or recognized as a marriage in this state.”

Colorado’s statutory restrictions on same-sex marriage, C.R.S. § 14-2-104(1)(b), and C.R.S. §

14-2-104(2), et seq., suffer from the same constitutional infirmity.


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IV. A PRELIMINARY INJUNCTION SHOULD ISSUE To secure a preliminary injunction, a movant “must establish the following elements: (1)

a substantial likelihood of success on the merits; (2) irreparable injury will result if the injunction

does not issue; (3) the threatened injury to the movant outweighs any damage the injunction may

cause the opposing party; and (4) issuance of the injunction would not be adverse to the public

interest.” N. Natural Gas Co. v. L.D. Drilling, Inc., 697 F.3d 1259, 1266 (10th Cir. 2012)

(internal quotation marks and citations omitted).

A. Plaintiffs’ Likelihood Of Success On The Merits Is High. The unassailable argument raised by Plaintiffs forms the very essence of the Tenth

Circuit’s ruling in Kitchen. “A state may not deny the issuance of a marriage license to two

persons, or refuse to recognize their marriage, based solely upon the sex of the persons in the

marriage union.” Kitchen, 2014 U.S. App. LEXIS 11935, at *4. Kitchen essentially ends any

debate about whether the Plaintiffs in this action will prevail. The Colorado Constitutional

Amendment does precisely what the Tenth Circuit has enjoined as unconstitutional. As such,

Plaintiffs’ likelihood of success on the merits is a virtual certainty. The Tenth Circuit in Kitchen

struck down Utah’s same-sex marriage ban — a ban substantially similar to Colorado’s

Amendment 43 and statutory bans on same-sex marriage. Because the Tenth Circuit’s decision is

binding on this Court, and because the laws in question are virtually identical, there is an

overwhelming probability that Plaintiffs shall prevail after a trial on the merits. Indeed, there is

virtually no possibility that Plaintiffs will not prevail.


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B. Colorado’s Exclusion of Same-Sex Couples From Marriage Violates Plaintiffs’ Due Process and Equal Protection Rights.

Colorado’s exclusion of same-sex couples from marriage violates Plaintiffs’ due process

and equal protection rights by depriving Plaintiffs and other same-sex couples of the freedom to

marry the person to whom each has committed his or her life and love and with whom each has

chosen to build a home and a family. “‘[A]ll fundamental rights comprised within the term

liberty are protected by the Federal Constitution from invasion by the States.’” Kitchen, 2014

U.S. App. LEXIS 11935, at *33 (quoting Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833,

846-47 (1992)).

“There can be little doubt that the right to marry is a fundamental liberty.” Id. In

decisions stretching back more than ninety years, the Supreme Court has held that marriage is a

fundamental right of liberty, see Meyer v. Nebraska, 262 U.S. 390, 399 (1923), of privacy, see

Griswold v. Connecticut, 381 U.S. 479, 486 (1965), and of association, see M.L.B. v. S.L.J., 519

U.S. 102, 116 (1996). For many people, marriage is “the most important relation in life.”

Zablocki v. Redhail, 434 U.S. 374, 384 (1978) (internal citations omitted). Indeed, the freedom to

marry is “one of the vital personal rights essential to the orderly pursuit of happiness by free

men.” Loving v. Virginia, 388 U.S. 1, 12 (1967). It “is a coming together for better or for worse,

hopefully enduring, and intimate to the degree of being sacred.” Griswold, 381 U.S. at 486.

Marriage is “the most important relation in life,” Maynard v. Hill, 125 U.S. 190, 205 (1888), and

“‘[w]ithout doubt,’ the liberty protected by the Fourteenth Amendment includes the freedom ‘to

marry, establish a home[,] and bring up children.’” Kitchen, 2014 U.S. App. LEXIS 11935, *34-

35 (quoting Meyer, 262 U.S. at 399).


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Further, the Supreme Court has long-asserted “that the freedom to marry is of

fundamental importance for all individuals.” Zablocki, 434 U.S. at 384 (emphasis added). That

freedom protects every person’s choice of whom to marry, regardless of gender or sexual

orientation. See Hodgson v. Minnesota, 497 U.S. 417, 435 (1990) (“[T]he regulation of

constitutionally protected decisions, such as . . . whom he or she shall marry, must be predicated

on legitimate state concerns other than disagreement with the choice the individual has made.”);

Roberts v. U.S. Jaycees, 468 U.S. 609, 620 (1984) (“[T]he Constitution undoubtedly imposes

constraints on the State’s power to control the selection of one’s spouse.”); Carey v. Population

Servs. Int’l, 431 U.S. 678, 684-85 (1977) (“[A]mong the decisions that an individual may make

without unjustified government interference are personal decisions related to marriage . . . .”).

For example, in Lawrence v. Texas, 539 U.S. 558, 578 (2003), the Supreme Court held

that homosexual people have the same protected liberty and privacy interests in their intimate

relationships as heterosexual people. The Court emphasized that “our laws and tradition afford

constitutional protection to personal decisions relating to marriage, procreation, contraception,

family relationships, child rearing, and education” because of “the respect the Constitution

demands for the autonomy of the person in making these choices.” Id. at 574. Such decisions

“‘involv[e] the most intimate and personal choices a person may make in a lifetime, choices

central to personal dignity and autonomy . . . .’” Id. (quoting Casey, 505 U.S. at 851). “Persons

in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons

do.” Id.

And in United States v. Windsor, 133 S. Ct. 2693 (2013), the Supreme Court powerfully

reiterated the “equal dignity” of same-sex couples’ relationships. The Court struck down the


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federal Defense of Marriage Act because the statute burdened, “in visible and public ways,”

same-sex couples’ personal, private, and constitutionally protected choices to marry. Id. at 2694.

The Court held further that due process protects not only personal choices and relationships, but

also the equal worth of families headed by same-sex couples and the dignity of the children they

are raising:

[DOMA] . . . tells [same-sex] 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, and whose relationship the State has sought to dignify. 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.

Id. at 2694 (citing Lawrence, 539 U.S. at 558). Because “the principal purpose and necessary

effect” of DOMA was to “demean” married same-sex couples and their children, the statute was

“unconstitutional as a deprivation of the liberty of the persons protected by the Fifth Amendment

of the Constitution.” Id. at 2695.

The Tenth Circuit in Kitchen held that this fundamental right to marry extends to all

couples, including same-sex couples. Rejecting Utah’s position that the right to marry to must be

linked to procreation and parenting, the Court held, “we cannot conclude that the fundamental

liberty interest in this case is limited to the right to marry a person of the opposite sex.” Kitchen,

2014 U.S. App. LEXIS 11935, at *53 . This is because, “in describing the liberty interest at

stake, it is impermissible to focus on the identity or class-membership of the individual

exercising the right.” 2014 U.S. App. LEXIS 11935, at *55. Utah’s purported justification for

the same-sex marriage ban was not, therefore, narrowly tailored to achieve a compelling state

interest and was, therefore, unconstitutional.. Critically, the Court asserted, “[a] state may not


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impinge upon the exercise of a fundamental right as to some, but not all, of the individuals who

share a characteristic urged to be relevant.” 2014 U.S. App. LEXIS 11935, at *72.

As with Utah’s same-sex marriage ban, Colorado’s Amendment 43 and statutory bans on

same-sex marriage deprive Plaintiffs of the dignity and autonomy protected by due process by

denying persons in same-sex relationships the freedom — enjoyed by other Colorado residents

— to marry the one person with whom they have forged enduring ties of love and commitment

and who, to each of them, is irreplaceable. Particularly in light of Windsor and Kitchen, it is clear

that same-sex couples are like other couples with respect to “the inner attributes of marriage that

form the core justifications for why the Constitution protects this fundamental human right.”

Kitchen v. Herbert, No. 2:13-cv-00217-RJS, 2013 WL 6697874, at *13 (D. Utah Dec. 20, 2013).

C. Colorado’s Civil Unions Act Does Not Cure Amendment 43’s Constitutional Deficiencies.

One distinction the State may attempt to draw between the Utah law and the Colorado

law is that in Colorado, civil unions are permitted, (C.R.S. § 14-15-102 et. seq.) while in Utah,

they are not. The poor substitute for full equality offered by Colorado is no more constitutional

in the context of marriage than it was in the context of education. "We conclude that…the

doctrine of 'separate but equal' has no place. Separate educational facilities are inherently

unequal." Brown v. Bd. of Educ., 347 U.S. 483, 495 (1954). Similarly, separate rules for

marriage are also inherently unequal. As Judge Kline of the California Court of Appeals wrote

regarding civil unions in his dissent in the pre-Proposition 8 Marriage Cases:

…it is similar to the doctrine of “separate but equal” in that it also serves to legitimate and perpetuate differential group treatment. Offering homosexual couples the opportunity to become domestic partners does not eradicate the stain of their exclusion from the institution of civil marriage our society venerates so highly and makes readily available to everybody else. The difference between the terms “civil marriage” and “domestic


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partnership” “is not innocuous; it is a considered choice of language that reflects a demonstrable assigning of same-sex, largely homosexual, couples to second-class status.”

In re Marriage Cases, 143 Cal. App. 4th 873, 978 (Ct. App. 2006) (J, Kline, dissenting)

(modified by statute).

All one need do to find unassailable evidence that civil unions are poor relations to

marriage is peruse the statutes and rules relating to many of the federal agencies charged with

essential tasks impacting the daily lives of hundreds of millions of Americans. For example:

• On August 29, 2013, the Internal Revenue Service (IRS) issued a ruling confirming that same-sex married couples will be treated the same as opposite-sex married couples for federal tax purposes, but that civil union couples will be treated differently. [Rev. Rul. 2013-17, at 4, 12, 2013-38 I.R.B. 201];

• The Centers for Medicare & Medicaid Services (CMS) issued a memorandum directing Medicare Advantage organizations to cover services in skilled nursing facilities for "validly married" same-sex spouses, to the same extent that services would be required for opposite-sex spouses. See Memorandum from Danielle R. Moon, Director of CMS, "Impact of United States v. Windsor on Skilled Nursing Facility Benefits for Medicare Advantage Enrollees," August 29, 2013, available at http://www.cms.gov/Medicare/HealthPlans/HealthPlansGenInfo/Downloads/SNF_Benefits_Post_Windsor.pdf. CMS determined that the term "spouse" only "includes individuals of the same sex who are lawfully married under the law of a state, territory, or foreign jurisdiction."

• On September 18, 2013, the Department of Labor issued new guidelines

concerning the agency's definitions of "spouse" and "marriage" for the purposes of the Earned Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C.A. § 1001 to -1461. See U.S. Department of Labor, "Guidance to Employee Benefit Plans on the Definition of 'Spouse' and 'Marriage' under ERISA and the Supreme Court's Decision in United States v. Windsor," http://www.dol.gov/ebsa/newsroom/tr13-04.html (Sept. 18, 2013). The guidance specifically states that the terms "do not include individuals in a formal relationship recognized by a state that is not denominated a marriage under state law, such as a domestic partnership or civil union." Ibid. This guidance has a broad scope, because most private sector employee benefits plans are governed by ERISA. See U.S. Department of Labor, "Health Benefits, Retirement Standards, and Workers' Compensation: Employee Benefit Plans," http://www.dol.gov/compliance/guide/erisa.htm (last visited Sept. 20, 2013);


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• Plaintiffs are taxed for health benefits provided by employers to their same-sex

partner, thus significantly raising the cost of health care for the families. 26 U.S.C. § 106.

See gen. Garden State Equal. v. Dow, 434 N.J. Super. 163, 183-84, 82 A.3d 336, 347-48 (2013).

These are just a few examples of numerous rights that are not afforded to members of a civil

union, but are available in legal marriage. See, e.g. Exhibits 1-12, attached.

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. See, e.g. Exhibits 1-12, attached.

D. Plaintiffs Will Suffer Irreparable Harm Unless A Preliminary Injunction Is Issued.

Plaintiffs have identified several harms that flow from this denial, including financial

injury. See Nova Health Sys. v. Gandy, 416 F.3d 1149, 1155 (10th Cir. 2005) (economic loss

may constitute injury-in-fact). Kitchen at 2014 U.S. App. LEXIS 11935, 12.

The liberty protected by the Fifth Amendment's Due Process Clause contains within it the prohibition against denying to 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 this law 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.

Windsor, at 2695. The United States Supreme Court recognized in Windsor and the Tenth Circuit

reemphasized in Kitchen that:


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DOMA "impose[d] a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages . . . ." Id. The statute "undermine[d] both the public and private significance of state-sanctioned same-sex marriages" by telling "those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition." Id. at 2694. And it "humiliate[d] tens of thousands of children now being raised by same-sex couples" by making "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." Id. Because DOMA's "differentiation demeans [same-sex] couple[s], whose moral and sexual choices the Constitution protects, see Lawrence, 539 U.S. 558, and whose relationship[s] the State has sought to dignify," the Court held that the statute violated the Fifth Amendment. Windsor, 133 S. Ct. at 2694-95.

Kitchen, 2014 U.S. App. LEXIS 11935, at *30. The Court has long recognized that marriage is "the most important relation in life."

Maynard v. Hill, 125 U.S. 190, 205 (1888). "Without doubt," the liberty protected by the

Fourteenth Amendment includes the freedom "to marry, establish a home[,] and bring up

children." Meyer v. Nebraska, 262 U.S. 390, 399 (1923); see also Loving v. Virginia, 388 U.S. 1,

12 (1967) ("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."). Kitchen, 2014 U.S. App. LEXIS

11935, 34-35. To continue to deny Plaintiffs the enjoyment and benefits of one of the most

important liberties in life is to continue to irreparably harm them.

E. The Harm to Plaintiffs If the Marriage Ban is Enforced Far Exceeds the Injury to Defendants.

Just as “DOMA’s principal effect is to identify a subset of state-sanctioned marriages and

make them unequal…[and] [t]he principal purpose is to impose inequality…” United States v.

Windsor, 133 S. Ct. at 2694, the same is true of the Colorado laws banning same sex marriages.

DOMA was struck down by the Supreme Court in part because it was designed to discriminate

unlawfully, just as the Colorado same sex marriage ban was designed to discriminate unlawfully.


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DOMA was unconstitutional as it “… place[d] same-sex couples in an unstable position of being

in a second-tier marriage.” Windsor, 133 S.Ct. at 2694.

“[I]f the moving party establishes a likelihood of success on the merits, the balance of

harms normally favors granting preliminary injunctive relief because the public interest is not

harmed by preliminarily enjoining the enforcement of a statute that is probably unconstitutional.”

ACLU of Ill. v. Alvarez, 679 F.3d 583, 589-90 (7th Cir. 2012). “When [a] law . . . is likely

unconstitutional, the[] interests [of those the government represents, such as voters] do not

outweigh a [plaintiff’s interest] in having [its] constitutional rights protected.” Hobby Lobby

Stores, Inc. v. Sebelius, 723 F.3d 1114, 1145 (10th Cir. 2013) (en banc) (plurality) (quoting

Awad v. Ziriax, 670 F.3d 1111, 1131 (10th Cir. 2012) (alterations in Hobby Lobby), aff’d

Burwell v. Hobby Lobby Stores, Inc., 2014 U.S. LEXIS 4505 (U.S. June 30, 2014).

Here, the balance of harms decisively tips in favor of Plaintiffs. Far from destroying the

institution of marriage, Plaintiffs “…desire not to redefine the institution but to participate in it.”

Kitchen, 2014 U.S. App. LEXIS 11935, at *56.

On the other side of the scale, Defendants will suffer no harm, much less irreparable

harm, if these unconstitutional laws are not enforced.

F. Injunctive Relief is in the Public Interest. “[I]t is always in the public interest to prevent the violation of a party’s constitutional

rights.” Awad, 670 F.3d at 1132 (internal quotation marks and citations omitted). Here,

Amendment 43 and C.R.S. § 14-2-104(1)(b); C.R.S. § 14-2-104(2) are violative of the

Constitution of the United States of America, and accordingly, Defendants’ enforcement thereof

violate Plaintiffs’ constitutional rights. Injunctive relief is, therefore, in the public interest.


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CONCLUSION For all the reasons stated above, Plaintiffs respectfully request that this Court grant their

Motion for Preliminary Injunction. Our nation’s longstanding commitment to equality for all

demands no lesser result.

DATED this 1st

day of July, 2014.

KILLMER, LANE & NEWMAN, LLP

Mari Newman s/ David A. Lane 0

David A. Lane Darren M. Jankord Danielle C. Jefferis 1543 Champa Street, Suite 400 Denver, CO 80202 (303) 571-1000 [email protected] [email protected] [email protected] [email protected] Attorneys for Plaintiffs


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