                 FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


SUSAN LATTA; TRACI EHLERS; LORI         No. 14-35420
WATSEN; SHARENE WATSEN;
SHELIA ROBERTSON; ANDREA                   D.C. No.
ALTMAYER; AMBER BEIERLE;                1:13-cv-00482-
RACHAEL ROBERTSON,                          CWD
              Plaintiffs-Appellees,

                 v.

C. L. OTTER, “Butch”; Governor of
the State of Idaho, in his official
capacity,
                 Defendant-Appellant,

                and

CHRISTOPHER RICH, Recorder of
Ada County, Idaho, in his official
capacity,
                          Defendant,

STATE OF IDAHO,
             Intervenor-Defendant.
2                      LATTA V. OTTER

SUSAN LATTA; TRACI EHLERS; LORI          No. 14-35421
WATSEN; SHARENE WATSEN;
SHELIA ROBERTSON; ANDREA                    D.C. No.
ALTMAYER; AMBER BEIERLE;                 1:13-cv-00482-
RACHAEL ROBERTSON,                           CWD
              Plaintiffs-Appellees,

                  v.

C. L. OTTER, “Butch”; Governor of
the State of Idaho, in his official
capacity,
                            Defendant,

                 and

CHRISTOPHER RICH, Recorder of
Ada County, Idaho, in his official
capacity,
              Defendant-Appellant,

STATE OF IDAHO,
   Intervenor-Defendant–Appellant.


      Appeal from the United States District Court
                for the District of Idaho
      Candy W. Dale, Magistrate Judge, Presiding
                      LATTA V. OTTER                     3

BEVERLY SEVCIK; MARY                    No. 12-17668
BARANOVICH; ANTIOCO CARRILLO;
THEODORE SMALL; KAREN GOODY;               D.C. No.
KAREN VIBE; FLETCHER WHITWELL;          2:12-cv-00578-
GREG FLAMER; MIKYLA MILLER;                RCJ-PAL
KATRINA MILLER; ADELE
TERRANOVA; TARA NEWBERRY;
CAREN CAFFERATA-JENKINS;                ORDER AND
FARRELL CAFFERATA-JENKINS;               OPINION
MEGAN LANZ; SARA GEIGER,
              Plaintiffs-Appellants,

                 v.

BRIAN SANDOVAL, in his official
capacity as Governor of the State of
Nevada; DIANA ALBA, in her official
capacity as the County Clerk and
Commissioner of Civil Marriages for
Clark County, Nevada; AMY
HARVEY, in her official capacity as
the County Clerk and Commissioner
of Civil Marriages for Washoe
County, Nevada; ALAN GLOVER, in
his official capacity as the Clerk
Recorder for Carson City, Nevada,
                Defendants-Appellees,

                and

COALITION FOR THE PROTECTION OF
MARRIAGE,
   Intervenor-Defendant–Appellee.
4                        LATTA V. OTTER

        Appeal from the United States District Court
                 for the District of Nevada
        Robert Clive Jones, District Judge, Presiding

                  Argued and Submitted
       September 8, 2014*—San Francisco, California

                      Filed October 7, 2014

        Before: Stephen Reinhardt, Ronald M. Gould,
           and Marsha S. Berzon, Circuit Judges.

                Opinion by Judge Reinhardt;
               Concurrence by Judge Reinhardt;
                Concurrence by Judge Berzon




  *
    A disposition in Jackson v. Abercrombie, Nos. 12-16995 & 12-16998,
is forthcoming separately.
                          LATTA V. OTTER                               5

                           SUMMARY**


                            Civil Rights

    The panel affirmed the district court’s judgment in Latta
v. Otter, 14-35420/35421, and reversed the district court’s
judgment in Sevcik v. Sandoval, 12-17668, in suits brought by
same-sex couples who live in Idaho and Nevada and wish
either to marry there or to have marriages entered into
elsewhere recognized in their home states.

    Both Idaho and Nevada passed statutes and enacted
constitutional amendments preventing same-sex couples from
marrying and refusing to recognize same-sex marriages
validly performed elsewhere. The panel held that the Idaho
and Nevada laws at issue violate the Equal Protection Clause
of the Fourteenth Amendment because they deny lesbians and
gays who wish to marry persons of the same sex a right they
afford to individuals who wish to marry persons of the
opposite sex, and do not satisfy the heightened scrutiny
standard the Court adopted in SmithKline Beecham Corp. v.
Abbott Labs., 740 F.3d 471 (9th Cir. 2014).

    In the Nevada case, Sevcik v. Sandoval, the panel held
that a case or controversy still existed, even though the
Nevada state governor and clerk recorder had declined to
continue pursuing the appeal. The panel also held that it was
not precluded from hearing the appeal by Baker v. Nelson,
409 U.S. 810 (1972), because the case presented substantial
federal questions. The panel stated that it would consider the

  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
6                     LATTA V. OTTER

briefs and oral argument offered by the Nevada intervenor,
the Coalition for the Protection of Marriage.

    In remanding Sevcik v. Sandoval, the panel instructed the
district court to promptly issue an injunction permanently
enjoining the state from enforcing any constitutional
provision, statute, regulation or policy preventing otherwise
qualified same-sex couples from marrying, or denying
recognition to marriages celebrated in other jurisdictions
which, if the spouses were not of the same sex, would be
valid under the laws of the state.

    Concurring, Judge Reinhardt wrote separately only to
explain his view that the same-sex marriage bans invalidated
also implicated plaintiffs’ substantive due process rights.

    Concurring, Judge Berzon agreed that Idaho and
Nevada’s same-sex marriage prohibitions fail because they
discriminate on the basis of sexual orientation. Judge Berzon
wrote separately because she was persuaded that Idaho and
Nevada’s same-sex marriage bans are also unconstitutional
for another reason: They are classifications on the basis of
gender that do not survive the level of scrutiny applicable to
such classifications.


                        COUNSEL

Lawrence G. Wasden, Attorney General, Steven L. Olsen,
Chief of Civil Litigation Division, W. Scott Zanzig and Clay
R. Smith, Deputy Attorneys General, Office of the Attorney
General, Boise, Idaho, for Defendant-Appellant Christopher
Rich and Intervenor-Defendant–Appellant State of Idaho.
                     LATTA V. OTTER                        7

Monte Neil Stewart (argued) and Daniel W. Bower, Stewart
Taylor & Morris PLLC, Boise, Idaho; Thomas C. Perry and
Cally A. Younger, Office of the Governor, Boise, Idaho, for
Defendant-Appellant Governor C.L. “Butch” Otter.

Tara L. Borelli (argued), Lambda Legal Defense and
Education Fund, Inc., Atlanta, Georgia; Jon W. Davidson,
Peter C. Renn, and Shelbi D. Day, Lambda Legal Defense
and Education Fund, Inc., Los Angeles, California; Carla
Christofferson, Dawn Sestito, Dimitri Portnoi, Melanie
Cristol, and Rahi Azizi, O’Melveny & Myers LLP, Los
Angeles, California; Kelly H. Dove and Marek P. Bute, Snell
& Wilmer LLP, Las Vegas, Nevada, for Plaintiffs-Appellants
Beverly Sevcik, Mary Baranovich, Antioco Carrillo,
Theodore Small, Karen Goody, Karen Vibe, Fletcher
Whitwell, Greg Flamer, Mikyla Miller, Katrina Miller, Adele
Terranova, Tara Newberry, Caren Cafferata-Jenkins, Farrell
Cafferata-Jenkins, Megan Lanz, and Sara Geiger.

Deborah A. Ferguson (argued), The Law Office of Deborah
A. Ferguson, PLLC, Boise, Idaho; Craig Harrison Durham,
Durham Law Office, PLLC, Boise, Idaho; Shannon P. Minter
and Christopher F. Stoll, National Center for Lesbian Rights,
San Francisco, California, for Plaintiffs-Appellees Susan
Latta, Traci Ehlers, Lori Watsen, Sharene Watsen, Shelia
Robertson, Andrea Altmeyer, Amber Beierle, and Rachael
Robertson.

Catherine Cortez Masto, Attorney General, C. Wayne Howle,
Solicitor General, Office of the Attorney General, Carson
City, Nevada, for Defendant-Appellee Governor Brian
Sandoval.
8                    LATTA V. OTTER

Neil A. Rombardo, District Attorney, Randal R. Munn, Chief
Deputy District Attorney, Joseph L. Ward, Jr., Senior Deputy
District Attorney, Carson City District Attorney’s Office,
Carson City, Nevada, for Defendant-Appellee Alan Glover.

Monte Neil Stewart (argued), Craig G. Taylor, and Daniel W.
Bower, Stewart Taylor & Morris PLLC, Boise, Idaho, for
Intervenor-Defendant–Appellee Coalition for the Protection
of Marriage.

                    Counsel for Amici

Shannon P. Minter, Christopher F. Stoll, and Samantha
Ames, National Center for Lesbian Rights, San Francisco,
California, for Amici Curiae 13 Public Interest and Legal
Service Organizations.

Michael L. Whitlock, Susan Baker Manning, Jared A. Craft,
Sara Carian, John A. Polito, and Erik Wilson, Bingham
McCutchen LLP, Washington, D.C., for Amici Curiae 27
Employers and Organizations Representing Employers.

Byron J. Babione, David Austin R. Nimocks, and James A.
Campbell, Alliance Defending Freedom, Scottsdale, Arizona,
for Amicus Curiae Alliance Defending Freedom.

Dean Robert Broyles, National Center for Law & Policy,
Escondido, California, for Amicus Curiae Helen M. Alvare.

Staci J. Pratt and Allen Lichtenstein, ACLU of Nevada
Foundation, Las Vegas, Nevada; Daniel M. Gluck and Lois
K. Perrin, ACLU of Hawai’i Foundation, Honolulu, Hawai’i,
for Amici Curiae American Civil Liberties Union Foundation
                     LATTA V. OTTER                      9

of Nevada and American Civil Liberties Union Foundation of
Hawai’i.

Nathalie F.P. Gilfoyle, American Psychological Association,
Washington D.C.; Paul M. Smith, Jenner & Block LLP,
Washington, D.C., for Amici Curiae American Psychological
Association, American Psychiatric Association, and National
Association of Social Workers.

Nathalie F.P. Gilfoyle, American Psychological Association,
Washington, D.C.; Paul M. Smith, Jenner & Block LLP,
Washington, D.C., for Amici Curiae American Psychological
Association, National Association of Social Workers,
American Association for Marriage and Family Therapy,
American Psychoanalytic Association, and Hawaii
Psychological Association.

Carmine D. Boccuzzi, Jr., Mark A. Lightner, Andra Troy, and
Andrew P. Meiser, Cleary Gottlieb Steen & Hamilton LLP,
New York, New York, for Amicus Curiae American
Sociological Association.

Rocky C. Tsai, Samuel P. Bickett, and Rebecca Harlow,
Ropes & Gray LLP, San Francisco, California; Steven M.
Freeman, Seth M. Marnin, and Michelle Deutchman, Anti-
Defamation League, New York, New York, for Amici Curiae
Anti-Defamation League, Americans United for the
Separation of Church and State, Bend the Arc: A Jewish
Partnership for Justice, Central Conference of American
Rabbis, Global Justice Institute, Hadassah, the Women’s
Zionist Organization of America, Hindu American
Foundation, Interfaith Alliance Foundation, Japanese
American Citizens League, Jewish Social Policy Action
Network, Keshet, Metropolitan Community Churches, More
10                    LATTA V. OTTER

Light Presbyterians, National Council of Jewish Women,
Nehirim, People for the American Way Foundation,
Presbyterian Welcome, Reconcilingworks: Lutherans for Full
Participation, Reconstructionist Rabbinical College and
Jewish Reconstructionist Communities, Sikh American Legal
Defense and Education Fund, Society for Humanistic
Judaism, T’ruah: The Rabbinic Call for Human Rights,
Women of Reform Judaism, and Women’s League for
Conservative Judaism.

Rocky C. Tsai, Samuel P. Bickett, Rebecca Harlow, and Idin
Kashefipour, Ropes & Gray LLP, San Francisco, California;
Steven M. Freeman, Seth M. Marnin, and Michelle
Deutchman, Anti-Defamation League, New York, New York;
Eric Alan Isaacson, Anti-Defamation League, San Diego,
California, for Amici Curiae Anti-Defamation League,
Americans United for Separation of Church and State, Bend
the Arc: A Jewish Partnership for Justice, Board of Trustees
of the Pacific Central District/Unitarian Universalist
Association, Hadassah, the Women’s Zionist Organization of
America, Hindu American Foundation, Interfaith Alliance
Foundation, Interfaith Alliance Hawai’i, Japanese American
Citizens League, Keshet, National Council of Jewish Women,
Metropolitan Community Churches, More Light
Presbyterians, Nehirim, Pacific Central District/Unitarian
Universalist Association, Pacific Southwest District/Unitarian
Universalist Association, People for the American Way
Foundation, Reconcilingworks: Lutherans for Full
Participation, Religious Institute, Inc., Sikh American Legal
Defense and Education Fund, Society for Humanistic
Judaism, South Asian Americans Leading Together, Southern
California Nevada Conference of the United Church of
Christ, T’ruah: The Rabbinic Call for Human Rights, Union
for Reform Judaism, Central Conference of American Rabbis,
                     LATTA V. OTTER                     11

Women of Reform Judaism, Unitarian Universalist
Association, Universal Fellowship of Metropolitan
Community Churches, and Women’s League for
Conservative Judaism.

Jyotin Hamid and Joseph Rome, Debevoise & Plimpton LLP,
New York, New York, for Amicus Curiae Professor Carlos
A. Ball.

Daniel McNeel Lane, Jr., Akin Gump Strauss Hauer & Feld
LLP, San Antonio, Texas; Jessica M. Weisel, Akin Gump
Strauss Hauer & Feld LLP, Los Angeles, California, for
Amici Curiae Historians of Marriage Peter W. Bardaglio,
Norma Basch, Stephanie Coontz, Nancy F. Cott, Toby L.
Ditz, Laura F. Edwards, Michael Grossberg, Hendrik Hartog,
Ellen Herman, Martha Hodes, Linda K. Kerber, Alice
Kessler-Harris, Elaine Tyler May, Serena Mayeri, Steve
Mintz, Elizabeth Pleck, Carole Shammas, Mary L. Shanley,
Amy Dru Stanley, and Barbara Welke.

Jerome C. Roth and Amelia L. B. Sargent, Munger, Tolles &
Olson LLP, San Francisco, California, for Amici Curiae Bay
Area Lawyers for Individual Freedom, et al.

Jeffrey S. Trachtman, Norman C. Simon, Jason M. Moff,
Kurt M. Denk, and Jessica N. Witte, Kramer Levin Naftalis
& Frankel LLP, New York, New York, for Amici Curiae
Bishops of the Episcopal Church in Idaho, General Synod of
the United Church of Christ, Mormons for Equality,
Reconstructionist Rabbinical Association, Reconstructionist
Rabbinical College and Jewish Reconstructionist
Communities, Union for Reform Judaism, Unitarian
Universalist Association, Affirmation, Covenant Network of
Presbyterians, Methodist Federation for Social Action, More
12                    LATTA V. OTTER

Light Presbyterians, Presbyterian Welcome, Reconciling
Ministries Network, Reconcilingworks: Lutherans for Full
Participation, Religious Institute, Inc., and 38 Faith Leaders
in the State of Idaho.

John C. Eastman, Center for Constitutional Jurisprudence,
Chapman University, Orange, California; D. John Sauer,
Clark & Sauer, LLC, St. Louis, Missouri, for Amici Curiae
Center for Constitutional Jurisprudence and 27 Scholars of
Federalism and Judicial Restraint.

Lynn D. Wardle, J. Reuben Clark Law School, Provo, Utah;
Stephen Kent Ehat, Lindon, Utah, for Amici Curiae Center
for Urban Renewal and Education, Coalition of African-
American Pastors USA, and Frederick Douglass Foundation,
Inc.

Suzanne B. Goldberg, Columbia Law School Sexuality and
Gender Law Clinic, New York, New York, for Amicus
Curiae Columbia Law School Sexuality and Gender Law
Clinic.

Holly Carmichael, San Jose, California, for Amicus Curiae
Concerned Women for America.

Lawrence J. Joseph, Law Office of Lawrence J. Joseph,
Washington, D.C., for Amicus Curiae Eagle Forum
Education and Legal Defense Fund.

Katherine Keating and Robert Esposito, Bryan Cave LLP,
San Francisco, California, for Amicus Curiae Family Equality
Council and Colage.
                     LATTA V. OTTER                     13

K. Lee Marshall, Katherine Keating, Tracy Talbot, and
Robert Esposito, Bryan Cave LLP, San Francisco, California,
for Amici Curiae Family Equality Council, Equality Hawaii
Foundation, We Are Family, and Colage.

Joanna L. Grossman, Hofstra Law School, Hempstead, New
York; Marjory A. Gentry, Arnold & Porter LLP, San
Francisco, California, for Amici Curiae Family Law and
Conflict of Laws Professors.

Joan Heifetz Hollinger, Berkeley School of Law, Berkeley,
California; Courtney Joslin, UC Davis School of Law, Davis,
California; Laura W. Brill and Meaghan L. Field, Kendall
Brill & Klieger LLP, Los Angeles, California, for Amici
Curiae Family Law Professors.

Elizabeth L. Deeley, Sarah E. Piepmeier, and Raghay
Krishnapriyan, Kirkland & Ellis LLP, San Francisco,
California, for Amicus Curiae Gary J. Gates.

Brad W. Seiling and Benjamin G. Shatz, Manatt, Phelps &
Phillips, LLP, Los Angeles, California, for Amicus Curiae
Gary J. Gates.

Mary L. Bonauto, Gay & Lesbian Advocates & Defenders,
Boston, Massachusetts, for Amicus Curiae Gay & Lesbian
Advocates & Defenders.

Charles S. Limandri, Freedom of Conscience Defense Fund,
Rancho Santa Fe, California, for Amici Curiae Robert P.
George, Sherif Girgis, and Ryan T. Anderson.
14                   LATTA V. OTTER

Nicholas M. O’Donnell, Sullivan & Worcester LLP, Boston,
Massachusetts, for Amicus Curiae GLMA - Health
Professionals Advancing LGBT Equality.

Lynn D. Wardle, Brigham Young University Law School,
Provo, Utah, for Amici Curiae Professors Alan J. Hawkins
and Jason S. Carroll.

Rita F. Lin and Sara Bartel, Morrison & Foerster LLP, San
Francisco, California, for Amici Curiae Joan Heifetz
Hollinger, Courtney Joslin, and 63 Other Family Law
Professors.

Catherine E. Stetson, Erica Knievel-Songer, Mary Helen
Wimberly, Madeline H. Gitomer, Jenna N. Jacobson, Hogan
Lovells US LLP, Washington D.C., for Amicus Curiae
Historians of Antigay Discrimination.

Aderson Bellegarde François, Howard University School of
Law Civil Rights Clinic, Washington, D.C.; Brad W. Seiling
and Benjamin G. Shatz, Manatt, Phelps & Phillips, LLP, Los
Angeles, California, for Amicus Curiae Howard University
School of Law Civil Rights Clinic.

Gregory F. Zoeller, Attorney General, and Thomas M. Fisher,
Solicitor General, Office of the Attorney General of Indiana,
Indianapolis, Indiana; Luther Strange, Attorney General,
State of Alabama; Michael C. Geraghty, Attorney General,
State of Alaska; Thomas C. Horne, Attorney General, State
of Arizona; John Suthers, Attorney General, State of
Colorado; Lawrence G. Wasden, Attorney General, State of
Idaho; Timothy C. Fox, Attorney General, State of Montana;
Jon Bruning, Attorney General, State of Nebraska; E. Scott
Pruitt, Attorney General, State of Oklahoma; Alan Wilson,
                     LATTA V. OTTER                      15

Attorney General, State of South Carolina; Sean Reyes,
Attorney General, State of Utah, for Amici Curiae States of
Indiana, Alabama, Alaska, Arizona, Colorado, Idaho,
Montana, Nebraska, Oklahoma, South Carolina and Utah.

Robert H. Tyler and Jennifer L. Bursch, Advocates for Faith
and Freedom, Murrieta, California, for Amicus Curiae
Institute for Marriage and Public Policy.

G. David Carter, Joseph P. Bowser, and Hunter T. Carter,
Arent Fox LLP, Washington, D.C., for Amici Curiae Law
Enforcement Officers, First Responders, and Organizations.

Stephen M. Crampton, Mary E. McAlister, and Mandi D.
Campbell, Liberty Counsel, Lynchburg, Virginia; Mathew D.
Staver and Anita L. Staver, Liberty Counsel, Orlando,
Florida, for Amici Curiae Liberty Counsel.

William C. Duncan, Marriage Law Foundation, Lehi, Utah,
for Amicus Curiae Marriage Law Foundation.

Martha Coakley, Attorney General, Genevieve C. Nadeau and
Jonathan B. Miller, Assistant Attorneys General,
Commonwealth of Massachusetts, Office of the Attorney
General, Boston, Massachusetts; Kamala D. Harris, Attorney
General of California, Sacramento, California; George
Jepsen, Attorney General of Connecticut, Hartford,
Connecticut; Joseph R. Biden, III, Attorney General of
Delaware, Department of Justice, Wilmington, Delaware;
Irvin B. Nathan, Attorney General for the District of
Columbia, Washington, D.C.; Lisa Madigan, Attorney
General of Illinois, Chicago, Illinois; Tom Miller, Attorney
General of Iowa, Des Moines, Iowa; Janet T. Mills, Attorney
General of Maine, Augusta, Maine; Douglas F. Gansler,
16                   LATTA V. OTTER

Attorney General of Maryland, Baltimore, Maryland; Joseph
A. Foster, Attorney General of New Hampshire, Concord,
New Hampshire; Gary K. King, Attorney General of New
Mexico, Santa Fe, New Mexico; Eric T. Schneiderman,
Attorney General of New York, New York, New York; Ellen
F. Rosenblum, Attorney General of Oregon, Salem, Oregon;
William H. Sorrell, Attorney General of Vermont,
Montpelier, Vermont; Robert W. Ferguson, Attorney General
of Washington, Olympia, Washington, for Amici Curiae
Massachusetts, California, Connecticut, Delaware, District of
Columbia, Illinois, Iowa, Maine, Maryland, New Hampshire,
New Mexico, New York, Oregon, Vermont, and Washington.

Gerard V. Bradley, Notre Dame Law School, Notre Dame,
Indiana, for Amicus Curiae Dr. Paul McHugh.

Sherrilyn Ifill, Christina A. Swarns, Natasha M. Korgaonkar,
and Ria Tabacco Mar, NAACP Legal Defense & Educational
Fund, Inc., New York, New York, for Amicus Curiae
NAACP Legal Defense & Educational Fund, Inc.

Bruce A. Wessel, Moez M. Kaba, C. Mitchell Hendy, and
Brian Eggleston, Irell & Manella LLP, Los Angeles,
California, for Amici Curiae National and Western States
Women’s Rights Organizations.

Marcia D. Greenberger and Emily J. Martin, National
Women’s Law Center, Washington, D.C., for Amici Curiae
National Women’s Law Center, Gender Justice, Legal
Momentum, Legal Voice, National Association of Women
Lawyers, National Partnership for Women & Families,
Southwest Women’s Law Center, Women Lawyers
Association of Michigan, Women’s Law Project, and
Professors of Law Associated with the Williams Institute.
                     LATTA V. OTTER                      17

Marcia D. Greenberger, Emily J. Martin, and Cortelyou C.
Kenney, National Women’s Law Center, Washington, D.C.;
David C. Codell, Williams Institute, UCLA School of Law,
Los Angeles, California, for Amici Curiae National Women’s
Law Center, Williams Institute Scholars of Sexual
Orientation and Gender Law, and Women’s Legal Groups.

Abbe David Lowell and Christopher D. Man, Chadbourne &
Parke LLP, Washington, D.C., for Amici Curiae Outserve -
SLDN and American Military Partner Association.

Kevin T. Snider, Pacific Justice Institute, Sacramento,
California, for Amicus Curiae Pacific Justice Institute.

Jiyun Cameron Lee and Andrew J. Davis, Folger Levin LLP,
San Francisco, California, for Amicus Curiae Parents,
Families and Friends of Lesbians and Gays, Inc.

Mark W. Mosier and Jennifer Schwartz, Covington & Burling
LLP, Washington, D.C., for Amici Curiae Political Science
Professors.

Abram J. Pafford, Pafford Lawrence & Childress PLLC,
Washington, D.C., for Amici Curiae Professors of Social
Science.

David Alan Robinson, North Haven, Connecticut, for Amicus
Curiae David Alan Robinson.

Alexander Dushku, R. Shawn Gunnarson, and Justin W.
Starr, Kirton & McConkie, Salt Lake City, Utah, for Amici
Curiae United States Conference of Catholic Bishops,
National Association of Evangelicals, Church of Jesus Christ
of Latter-Day Saints, Ethics & Religious Liberty Commission
18                         LATTA V. OTTER

of the Southern Baptist Convention, and Lutheran Church -
Missouri Synod.


                                ORDER

     These cases are consolidated for purposes of disposition.



                               OPINION

REINHARDT, Circuit Judge:

    Both Idaho and Nevada have passed statutes and enacted
constitutional amendments preventing same-sex couples from
marrying and refusing to recognize same-sex marriages
validly performed elsewhere.1 Plaintiffs, same-sex couples
who live in Idaho and Nevada and wish either to marry there


 1
     Idaho Const. Art. III, § 28 (“A marriage between a man and a woman
is the only domestic legal union that shall be valid or recognized in this
state.”); Idaho Code §§ 32-201 (“Marriage is a personal relation arising
out of a civil contract between a man and a woman . . . .”), 32-202
(identifying as qualified to marry “[a]ny unmarried male . . . and
unmarried female” of a certain age and “not otherwise disqualified.”); 32-
209 (“All marriages contracted without this state, which would be valid
by the laws of the state or country in which the same were contracted, are
valid in this state, unless they violate the public policy of this state.
Marriages that violate the public policy of this state include, but are not
limited to, same-sex marriage, and marriages entered into under the laws
of another state or country with the intent to evade the prohibitions of the
marriage laws of this state.”); Nev. Const. Art. 1, § 21 (“Only a marriage
between a male and female person shall be recognized and given effect in
this state.”); Nev. Rev. Stat. § 122.020(1) (“[A] male and female person
. . . may be joined in marriage.”).
                           LATTA V. OTTER                              19

or to have marriages entered into elsewhere recognized in
their home states, have sued for declaratory relief and to
enjoin the enforcement of these laws. They argue that the
laws are subject to heightened scrutiny because they deprive
plaintiffs of the fundamental due process right to marriage,
and because they deny them equal protection of the law by
discriminating against them on the bases of their sexual
orientation and their sex. In response, Governor Otter,
Recorder Rich, and the State of Idaho, along with the Nevada
intervenors, the Coalition for the Protection of Marriage (“the
Coalition”), argue that their laws survive heightened scrutiny,
primarily because the states have a compelling interest in
sending a message of support for the institution of opposite-
sex marriage. They argue that permitting same-sex marriage
will seriously undermine this message, and contend that the
institution of opposite-sex marriage is important because it
encourages people who procreate to be responsible parents,
and because opposite-sex parents are better for children than
same-sex parents.

    Without the benefit of our decision in SmithKline
Beecham Corp. v. Abbott Labs., 740 F.3d 471 (9th Cir. 2014),
reh’g en banc denied, 759 F.3d 990 (9th Cir. 2014), the
Sevcik district court applied rational basis review and upheld
Nevada’s laws. Sevcik v. Sandoval, 911 F. Supp. 2d 996 (D.
Nev. 2012). After we decided SmithKline, the Latta district
court concluded that heightened scrutiny applied to Idaho’s
laws because they discriminated based on sexual orientation,
and invalidated them.2 Latta v. Otter, No. 1:13-CV-00482-


   2
     The Latta court also found a due process violation because, it
concluded, the laws curtailed plaintiffs’ fundamental right to marry. Latta
v. Otter, No. 1:13-CV-00482-CWD, 2014 WL 1909999, at *9–13 (D.
Idaho May 13, 2014).
20                        LATTA V. OTTER

CWD, 2014 WL 1909999, at *14–18 (D. Idaho May 13,
2014). We hold that the Idaho and Nevada laws at issue
violate the Equal Protection Clause of the Fourteenth
Amendment because they deny lesbians and gays3 who wish
to marry persons of the same sex a right they afford to
individuals who wish to marry persons of the opposite sex,
and do not satisfy the heightened scrutiny standard we
adopted in SmithKline.

                                   I.

    Before we reach the merits, we must address two
preliminary matters: first, whether an Article III case or
controversy still exists in Sevcik, since Nevada’s government
officials have ceased to defend their laws’ constitutionality;
and second, whether the Supreme Court’s summary dismissal
in Baker v. Nelson, 409 U.S. 810 (1972), is controlling
precedent that precludes us from considering plaintiffs’
claims.

                                   A.

    Governor Sandoval and Clerk-Recorder Glover initially
defended Nevada’s laws in the district court. However, they
have since withdrawn their answering briefs from
consideration by this Court, in light of our decision in
SmithKline, 740 F.3d at 480–81 (holding heightened scrutiny


 3
   We have recognized that “[s]exual orientation and sexual identity are
immutable; they are so fundamental to one’s identity that a person should
not be required to abandon them.” Hernandez-Montiel v. I.N.S., 225 F.3d
1084, 1093 (9th Cir. 2000), overruled on other grounds by Thomas v.
Gonzales, 409 F.3d 1177, 1187 (9th Cir. 2005), vacated, 547 U.S. 183
(2006).
                       LATTA V. OTTER                         21

applicable). Governor Sandoval now asserts that United
States v. Windsor, 133 S. Ct. 2675 (2013), “signifies that
discrimination against same-sex couples is unconstitutional,”
and that “[a]ny uncertainty regarding the interpretation of
Windsor was . . . dispelled” by SmithKline. As a result, we
have not considered those briefs, and the Governor and Clerk-
Recorder were not heard at oral argument, pursuant to Fed. R.
App. P. 31(c).

     The Nevada Governor and Clerk Recorder remain parties,
however, and continue to enforce the laws at issue on the
basis of a judgment in their favor below. As a result, we are
still presented with a live case or controversy in need of
resolution. Despite the fact that Nevada “largely agree[s] with
the opposing party on the merits of the controversy, there is
sufficient adverseness and an adequate basis for jurisdiction
in the fact the [state] intend[s] to enforce the challenged law
against that party.” Windsor, 133 S. Ct. at 2686–87 (citation
and quotation marks omitted). Although the state defendants
withdrew their briefs, we are required to ascertain and rule on
the merits arguments in the case, rather than ruling
automatically in favor of plaintiffs-appellants. See Carvalho
v. Equifax Info. Servs., LLC, 629 F.3d 876, 887 n.7 (9th Cir.
2010) (“[Defendant’s] failure to file a brief does not compel
a ruling in [plaintiff’s] favor, given that the only sanction for
failure to file an answering brief is forfeiture of oral
argument.”).

    There remains a question of identifying the appropriate
parties to the case before us—specifically, whether we should
consider the arguments put forward by the Nevada intervenor,
the Coalition for the Protection of Marriage. As plaintiffs
consented to their intervention in the district court—at a point
in the litigation before Governor Sandoval and Clerk-
22                       LATTA V. OTTER

Recorder Glover indicated that they would no longer argue in
support of the laws—and continue to so consent, the propriety
of the intervenor’s participation has never been adjudicated.

    Because the state defendants have withdrawn their merits
briefs, we face a situation akin to that in Windsor. There, a
case or controversy remained between Windsor and the
United States, which agreed with her that the Defense of
Marriage Act was unconstitutional but nonetheless refused to
refund the estate tax she had paid. Here as there, the state
defendants’ “agreement with [plaintiffs’] legal argument
raises the risk that instead of a real, earnest and vital
controversy, the Court faces a friendly, non-adversary
proceeding . . . .” 133 S. Ct. at 2687 (citations and quotation
marks omitted). Hearing from the Coalition helps us “to
assure that concrete adverseness which sharpens the
presentation of issues upon which the court so largely
depends for illumination of difficult constitutional questions.”
Baker v. Carr, 369 U.S. 186, 204 (1962). As a result, we
consider the briefs and oral argument offered by the
Coalition, which, Governor Sandoval believes, “canvass the
arguments against the Appellants’ position and the related
policy considerations.”4

                                  B.

    Defendants argue that we are precluded from hearing this
case by Baker, 409 U.S. 810. In that case, the Minnesota


  4
     For the sake of convenience, we refer throughout this opinion to
arguments advanced generally by “defendants”; by this we mean the
parties that continue actively to argue in defense of the laws—the Idaho
defendants and the Nevada intervenor—and not Governor Sandoval and
Clerk-Recorder Glover.
                          LATTA V. OTTER                              23

Supreme Court had rejected due process and equal protection
challenges to a state law limiting marriage to a man and a
woman. 191 N.W.2d 185, 186–87 (Minn. 1971). The United
States Supreme Court summarily dismissed an appeal from
that decision “for want of a substantial federal question.”
Baker, 409 U.S. at 810. Such summary dismissals “prevent
lower courts from coming to opposite conclusions on the
precise issues presented and necessarily decided by those
actions,” Mandel v. Bradley, 432 U.S. 173, 176 (1977) (per
curiam), until “doctrinal developments indicate otherwise,”
Hicks v. Miranda, 422 U.S. 332, 343–44 (1975) (citation and
quotation marks omitted). Defendants contend that this
decades-old case is still good law, and therefore bars us from
concluding that same-sex couples have a due process or equal
protection right to marriage.

    However, “subsequent decisions of the Supreme Court”
not only “suggest” but make clear that the claims before us
present substantial federal questions.5 Wright v. Lane Cnty.
Dist. Ct., 647 F.2d 940, 941 (9th Cir. 1981); see Windsor,
133 S. Ct. at 2694–96 (holding unconstitutional under the
Fifth Amendment a federal law recognizing opposite-sex-sex
but not same-sex marriages because its “principal purpose


  5
    To be sure, the Court made explicit in Windsor and Lawrence that it
was not deciding whether states were required to allow same-sex couples
to marry. Windsor, 133 S. Ct. at 2696 (“This opinion and its holding are
confined to those lawful marriages [recognized by states].”); Lawrence v.
Texas, 539 U.S. 558, 578 (2003) (“The present case . . . does not involve
whether the government must give formal recognition to any relationship
that homosexual persons seek to enter.”). The Court did not reach the
question we decide here because it was not presented to it. Although these
cases did not tell us the answers to the federal questions before us,
Windsor and Lawrence make clear that these are substantial federal
questions we, as federal judges, must hear and decide.
24                     LATTA V. OTTER

[was] to impose inequality, not for other reasons like
governmental efficiency”); Lawrence v. Texas, 539 U.S. 558,
578–79 (2003) (recognizing a due process right to engage in
intimate conduct, including with a partner of the same sex);
Romer v. Evans, 517 U.S. 620, 631–34 (1996) (invalidating
as an irrational denial of equal protection a state law barring
protection of lesbians and gays under state or local anti-
discrimination legislation or administrative policies). Three
other circuits have issued opinions striking down laws like
those at issue here since Windsor, and all agree that Baker no
longer precludes review. Accord Baskin v. Bogan, No. 14-
2386, 2014 WL 4359059, at *7 (7th Cir. Sept. 4, 2014);
Bostic v. Schaefer, 760 F.3d 352, 373–75 (4th Cir. 2014);
Kitchen v. Herbert, 755 F.3d 1193, 1204–08 (10th Cir. 2014).
As any observer of the Supreme Court cannot help but
realize, this case and others like it present not only substantial
but pressing federal questions.

                               II.

     Plaintiffs are ordinary Idahoans and Nevadans. One
teaches deaf children. Another is a warehouse manager. A
third is an historian. Most are parents. Like all human beings,
their lives are given greater meaning by their intimate, loving,
committed relationships with their partners and children.
“The common vocabulary of family life and belonging that
other[s] [] may take for granted” is, as the Idaho plaintiffs put
it, denied to them—as are all of the concrete legal rights,
responsibilities, and financial benefits afforded opposite-sex
                           LATTA V. OTTER                                25

married couples by state and federal law6—merely because of
their sexual orientation.

    Defendants argue that their same-sex marriage bans do
not discriminate on the basis of sexual orientation, but rather
on the basis of procreative capacity. Effectively if not
explicitly, they assert that while these laws may disadvantage
same-sex couples and their children, heightened scrutiny is
not appropriate because differential treatment by sexual
orientation is an incidental effect of, but not the reason for,


  6
     Nevada, unlike Idaho, has enacted a domestic partnership regime.
Since 2009, both same-sex and opposite-sex couples have been allowed
to register as domestic partners. Nev. Rev. Stat. §§ 122A.100, 122A.010
et seq. Domestic partners are generally treated like married couples for
purposes of rights and responsibilities—including with respect to
children—under state law. However, domestic partners are denied nearly
all of the benefits afforded married couples under federal law—including,
since Windsor, same-sex couples married under state law.

     The fact that Nevada has seen fit to give same-sex couples the
opportunity to enjoy the benefits afforded married couples by state law
makes its case for the constitutionality of its regime even weaker than
Idaho’s. With the concrete differences in treatment gone, all that is left is
a message of disfavor. The Supreme Court has “repeatedly emphasized
[that] discrimination itself, by perpetuating ‘archaic and stereotypic
notions’ or by stigmatizing members of the disfavored group as ‘innately
inferior’ and therefore as less worthy participants,” can cause serious
“injuries to those who are denied equal treatment solely because of their
membership in a disfavored group.” Heckler v. Mathews, 465 U.S. 728,
739–40 (1984) (citation omitted).

     If Nevada were concerned, as the Coalition purports it to be, that state
recognition of same-sex unions would make the institution of marriage
“genderless” and thereby undermine opposite-sex spouses’ commitments
to each other and their children, it would be ill-advised to permit opposite-
sex couples to participate in the alternative domestic partnership regime
it has established. However, Nevada does just that.
26                     LATTA V. OTTER

those laws. However, the laws at issue distinguish on their
face between opposite-sex couples, who are permitted to
marry and whose out-of-state marriages are recognized, and
same-sex couples, who are not permitted to marry and whose
marriages are not recognized. Whether facial discrimination
exists “does not depend on why” a policy discriminates, “but
rather on the explicit terms of the discrimination.” Int’l
Union, United Auto., Aerospace & Agr. Implement Workers
of Am., UAW v. Johnson Controls, Inc., 499 U.S. 187, 199
(1991). Hence, while the procreative capacity distinction that
defendants seek to draw could in theory represent a
justification for the discrimination worked by the laws, it
cannot overcome the inescapable conclusion that Idaho and
Nevada do discriminate on the basis of sexual orientation.

    In SmithKline, we held that classifications on the basis of
sexual orientation are subject to heightened scrutiny. 740 F.3d
at 474. We explained:

        In its words and its deed, Windsor established
        a level of scrutiny for classifications based on
        sexual orientation that is unquestionably
        higher than rational basis review. In other
        words, Windsor requires that heightened
        scrutiny be applied to equal protection claims
        involving sexual orientation.

Id. at 481.

   Windsor, we reasoned, applied heightened scrutiny in
considering not the Defense of Marriage Act’s hypothetical
                           LATTA V. OTTER                                27

rationales but its actual, motivating purposes.7 SmithKline,
740 F.3d at 481. We also noted that Windsor declined to
adopt the strong presumption in favor of constitutionality and
the heavy deference to legislative judgments characteristic of
rational basis review. Id. at 483. We concluded:

         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.

    We proceed by applying the law of our circuit regarding
the applicable level of scrutiny. Because Idaho and Nevada’s
laws discriminate on the basis of sexual orientation, that level
is heightened scrutiny.

                                    III.

    Defendants argue that their marriage laws survive
heightened scrutiny because they promote child welfare by

  7
    Although as discussed in the text, SmithKline instructs us to consider
the states’ actual reasons, and not post-hoc justifications, for enacting the
laws at issue, these actual reasons are hard to ascertain in this case. Some
of the statutory and constitutional provisions before us were enacted by
state legislatures and some were enacted by voters, and we have been
informed by all parties that the legislative histories are sparse. We shall
assume, therefore, that the justifications offered in defendants’ briefs were
in fact the actual motivations for the laws.
28                         LATTA V. OTTER

encouraging optimal parenting. Governor Otter argues that
same-sex marriage “teaches everyone—married and
unmarried, gay and straight, men and women, and all the
children—that a child knowing and being reared by her
mother and father is neither socially preferred nor officially
encouraged.” Governor Otter seeks to have the state send the
opposite message to all Idahoans: that a child reared by its
biological parents is socially preferred and officially
encouraged.

    This argument takes two related forms: First, defendants
make a “procreative channeling” argument: that the norms of
opposite-sex marriage ensure that as many children as
possible are raised by their married biological mothers and
fathers. They claim that same-sex marriage will undermine
those existing norms, which encourage people in opposite-sex
relationships to place their children’s interests above their
own and preserve intact family units, instead of pursuing their
own emotional and sexual needs elsewhere. In short, they
argue that allowing same-sex marriages will adversely affect
opposite-sex marriage by reducing its appeal to heterosexuals,
and will reduce the chance that accidental pregnancy will lead
to marriage. Second, Governor Otter and the Coalition (but
not the state of Idaho) argue that limiting marriage to
opposite-sex couples promotes child welfare because children
are most likely to thrive if raised by two parents of opposite
sexes, since, they assert, mothers and fathers have
“complementary” approaches to parenting.8 Thus, they



 8
   These arguments are not novel. The Bipartisan Legal Advisory Group
(BLAG) relied in part on similar contentions about procreative channeling
and gender complementarity in its attempt to justify the federal Defense
of Marriage Act, but the Court did not credit them. Brief on the Merits for
                       LATTA V. OTTER                        29

contend, children raised by opposite-sex couples receive a
better upbringing.

                              A.

    We pause briefly before considering the substance of
defendants’ arguments to address the contention that their
conclusions about the future effects of same-sex marriage on
parenting are legislative facts entitled to deference.
Defendants have not demonstrated that the Idaho and Nevada
legislatures actually found the facts asserted in their briefs;
even if they had, deference would not be warranted.

    Unsupported legislative conclusions as to whether
particular policies will have societal effects of the sort at
issue in this case—determinations which often, as here,
implicate constitutional rights—have not been afforded
deference by the Court. To the contrary, we “retain[] an
independent constitutional duty to review factual findings
where constitutional rights are at stake. . . . Uncritical
deference to [legislatures’] factual findings in these cases is
inappropriate.” Gonzales v. Carhart, 550 U.S. 124, 165–66
(2007); see also Hodgson v. Minnesota, 497 U.S. 417,
450–55 (1990).

                              B.

    Marriage, the Coalition argues, is an “institution directed
to certain great social tasks, with many of those involving a
man and a woman united in the begetting, rearing, and
education of children”; it is being “torn away,” they claim,


Respondent BLAG at 44–49, Windsor, 133 S. Ct. 2675 (No. 12-307),
2013 U.S. S. Ct. Briefs LEXIS 280 at *74–82.
30                         LATTA V. OTTER

“from its ancient social purposes and transformed into a
government-endorsed celebration of the private desires of two
adults (regardless of gender) to unite their lives sexually,
emotionally, and socially for as long as those personal desires
last.” Defendants struggle, however, to identify any means by
which same-sex marriages will undermine these social
purposes. They argue vehemently that same-sex marriage will
harm existing and especially future opposite-sex couples and
their children because the message communicated by the
social institution of marriage will be lost.

    As one of the Nevada plaintiffs’ experts testified, there is
no empirical support for the idea that legalizing same-sex
marriage would harm—or indeed, affect—opposite-sex
marriages or relationships. That expert presented data from
Massachusetts, a state which has permitted same-sex
marriage since 2004, showing no decrease in marriage rates
or increase in divorce rates in the past decade.9 See Amicus
Brief of Massachusetts et al. 23–27; see also Amicus Brief of
American Psychological Association et al. 8–13. It would
seem that allowing couples who want to marry so badly that
they have endured years of litigation to win the right to do so
would reaffirm the state’s endorsement, without reservation,
of spousal and parental commitment. From which aspect of
same-sex marriages, then, will opposite-sex couples intuit the



 9
   The Coalition takes issue with this conclusion, arguing that the effects
of same-sex marriage might not manifest themselves for decades, because
“something as massive and pervasive in our society and humanity as the
man-woman marriage institution, like a massive ocean-going ship, does
not stop or turn in a short space or a short time.” Given that the
discriminatory impact on individuals because of their sexual orientation
is so harmful to them and their families, such unsupported speculation
cannot justify the indefinite continuation of that discrimination.
                      LATTA V. OTTER                        31

destructive message defendants fear? Defendants offer only
unpersuasive suggestions.

    First, they argue that since same-sex families will not
include both a father and a mother, a man who has a child
with a woman will conclude that his involvement in that
child’s life is not essential. They appear to contend that such
a father will see a child being raised by two women and
deduce that because the state has said it is unnecessary for
that child—who has two parents—to have a father, it is also
unnecessary for his child to have a father. This proposition
reflects a crass and callous view of parental love and the
parental bond that is not worthy of response. We reject it out
of hand. Accord Kitchen, 755 F.3d at 1223 (concluding that
it was “wholly illogical” to think that same-sex marriage
would affect opposite-sex couples’ choices); Windsor v.
United States, 699 F.3d 169, 188 (2d Cir. 2012); Golinski v.
Office of Pers. Mgmt., 824 F. Supp. 2d 968, 998 (N.D. Cal.
2012); Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 972
(N.D. Cal. 2010).

    Defendants also propose another possible means by which
endorsing same-sex marriage could discourage opposite-sex
marriage, albeit less explicitly: opposite-sex couples who
disapprove of same-sex marriage will opt less frequently or
enthusiastically to participate in an institution that allows
same-sex couples to participate. However, the fear that an
established institution will be undermined due to private
opposition to its inclusive shift is not a legitimate basis for
retaining the status quo. In United States v. Virginia, the
Court explained:

       The notion that admission of women would
       downgrade VMI’s stature, destroy the
32                       LATTA V. OTTER

         adversative system and, with it, even the
         school, is a judgment hardly proved, a
         prediction hardly different from other “self-
         fulfilling prophec[ies],” see Mississippi Univ.
         for Women [v. Hogan], 458 U.S. [718,] 730
         [(1982)], once routinely used to deny rights or
         opportunities.

         ...

         A like fear, according to a 1925 report,
         accounted for Columbia Law School’s
         resistance to women’s admission, although
         “[t]he faculty . . . never maintained that
         women could not master legal learning10. . . .
         No, its argument has been . . . more practical.
         If women were admitted to the Columbia Law
         School, [the faculty] said, then the choicer,
         more manly and red-blooded graduates of our
         great universities would go to the Harvard
         Law School!” The Nation, Feb. 18, 1925, p.
         173.

518 U.S. 515, 542–44 (1996); see also Palmore v. Sidoti,
466 U.S. 429, 433 (1984) (“The Constitution cannot control
such prejudices but neither can it tolerate them. Private biases
may be outside the reach of the law, but the law cannot,
directly or indirectly, give them effect.”). The Sevcik district


  10
     Likewise, Governor Otter assures us that Idaho’s laws were not
motivated by judgments about the relative emotional commitments of
same-sex and opposite-sex couples; his argument is about an “ethos,” he
claims, and so is not weakened by the fact that same-sex couples may, as
he admits, be just as child-oriented.
                          LATTA V. OTTER                              33

court thus erred in crediting the argument that “a meaningful
percentage of heterosexual persons would cease to value the
civil institution as highly as they previously had and hence
enter it less frequently . . . because they no longer wish to be
associated with the civil institution as redefined,” both
because defendants failed to produce any support for that
prediction, and because private disapproval is a categorically
inadequate justification for public injustice. Sevcik, 911 F.
Supp. 2d at 1016.

    Same-sex marriage, Governor Otter asserts, is part of a
shift towards a consent-based, personal relationship model of
marriage, which is more adult-centric and less child-centric.11
The Latta district court was correct in concluding, however,
that “marriage in Idaho is and has long been a designedly
consent-based institution. . . . Idaho law is wholly indifferent
to whether a heterosexual couple wants to marry because they
share this vision” of conjugal marriage. Latta, 2014 WL
1909999, at *23.

    Idaho focuses on another aspect of the procreative
channeling claim. Because opposite-sex couples can
accidentally conceive (and women may choose not to
terminate unplanned pregnancies), so the argument goes,
marriage is important because it serves to bind such couples
together and to their children. This makes some sense.
Defendants’ argument runs off the rails, however, when they


 11
    He also states, in conclusory fashion, that allowing same-sex marriage
will lead opposite-sex couples to abuse alcohol and drugs, engage in
extramarital affairs, take on demanding work schedules, and participate in
time-consuming hobbies. We seriously doubt that allowing committed
same-sex couples to settle down in legally recognized marriages will drive
opposite-sex couples to sex, drugs, and rock-and-roll.
34                           LATTA V. OTTER

suggest that marriage’s stabilizing and unifying force is
unnecessary for same-sex couples, because they always
choose to conceive or adopt a child.12 As they themselves
acknowledge, marriage not only brings a couple together at
the initial moment of union; it helps to keep them together,
“from [that] day forward, for better, for worse, for richer, for
poorer, in sickness and in health.” Raising children is hard;
marriage supports same-sex couples in parenting their
children, just as it does opposite-sex couples.

    Moreover, marriage is not simply about procreation, but
as much about

           expressions of emotional support and public
           commitment . . . . [M]any religions recognize
           marriage as having spiritual significance; . . .

 12
      As Judge Richard Posner put it, bluntly:

           [These states] think[] that straight couples tend to be
           sexually irresponsible, producing unwanted children by
           the carload, and so must be pressured . . . to marry, but
           that gay couples, unable as they are to produce children
           wanted or unwanted, are model parents—model
           citizens really—so have no need for marriage.
           Heterosexuals get drunk and pregnant, producing
           unwanted children; their reward is to be allowed to
           marry. Homosexual couples do not produce unwanted
           children; their reward is to be denied the right to marry.
           Go figure.

Baskin, 2014 WL 4359059, at *10 (7th Cir. Sept. 4, 2014).

    Idaho and Nevada’s laws are both over- and under-inclusive with
respect to parental fitness. A man and a woman who have been convicted
of abusing their children are allowed to marry; same-sex partners who
have been adjudicated to be fit parents in an adoption proceeding are not.
                       LATTA V. OTTER                         35

        therefore, the commitment of marriage may
        be an exercise of religious faith as well as an
        expression of personal dedication . . . .
        [M]arital status often is a precondition to the
        receipt of government benefits (e. g., Social
        Security benefits), property rights (e. g.,
        tenancy by the entirety, inheritance rights),
        and other, less tangible benefits (e. g.,
        legitimation of children born out of wedlock).

Turner v. Safley, 482 U.S. 78, 95–96 (1987) (recognizing that
prisoners, too, enjoyed the right to marry, even though they
were not allowed to have sex, and even if they did not already
have children).

    Although many married couples have children, marriage
is at its essence an “association that promotes . . . a bilateral
loyalty, not commercial or social projects.” Griswold v.
Connecticut, 381 U.S. 479, 486 (1965) (recognizing that
married couples have a privacy right to use contraception in
order to prevent procreation). Just as “it would demean a
married couple were it to be said marriage is simply about the
right to have sexual intercourse,” Lawrence, 539 U.S. at 567,
it demeans married couples—especially those who are
childless—to say that marriage is simply about the capacity
to procreate.

    Additionally, as plaintiffs argue persuasively, Idaho and
Nevada’s laws are grossly over- and under-inclusive with
respect to procreative capacity. Both states give marriage
licenses to many opposite-sex couples who cannot or will not
reproduce—as Justice Scalia put it, in dissent, “the sterile and
the elderly are allowed to marry,” Lawrence, 539 U.S. at
36                         LATTA V. OTTER

604–05—but not to same-sex couples who already have
children or are in the process of having or adopting them.13

    A few of Idaho and Nevada’s other laws, if altered, would
directly increase the number of children raised by their
married biological parents. We mention them to illustrate, by
contrast, just how tenuous any potential connection between
a ban on same-sex marriage and defendants’ asserted aims is.
For that reason alone, laws so poorly tailored as those before
us cannot survive heightened scrutiny.

    If defendants really wished to ensure that as many
children as possible had married parents, they would do well
to rescind the right to no-fault divorce, or to divorce
altogether. Neither has done so. Such reforms might face
constitutional difficulties of their own, but they would at least
further the states’ asserted interest in solidifying marriage.
Likewise, if Idaho and Nevada want to increase the
percentage of children being raised by their two biological
parents, they might do better to ban assisted reproduction
using donor sperm or eggs, gestational surrogacy, and
adoption, by both opposite-sex and same-sex couples, as well
as by single people. Neither state does. See Idaho Code
§§ 39-5401 et seq.; Nev. Rev. Stat. §§ 122A.200(1)(d),
126.051(1)(a), 126.510 et seq., 127.040; see also Carla
Spivack, The Law of Surrogate Motherhood in the United



     13
         Defendants acknowledge this, but argue that it would be
unconstitutionally intrusive to determine procreative capacity or intent for
opposite-sex couples, and that the states must therefore paint with a broad
brush to ensure that any couple that could possibly procreate can marry.
However, Idaho and Nevada grant the right to marry even to those whose
inability to procreate is obvious, such as the elderly.
                           LATTA V. OTTER                              37

States, 58 Am. J. Comp. L. 97, 102 & n.15 (2010); Idaho is
a destination for surrogacy, KTVB.com (Dec. 5, 2013).

    In extending the benefits of marriage only to people who
have the capacity to procreate, while denying those same
benefits to people who already have children, Idaho and
Nevada materially harm and demean same-sex couples and
their children.14 Windsor, 133 S. Ct. at 2694. Denying
children resources and stigmatizing their families on this
basis is “illogical and unjust.” Plyler v. Doe, 457 U.S. 202,
220 (1982) (citation omitted). It is counterproductive, and it
is unconstitutional.

                                    C.

    Governor Otter and the Coalition, but not the state of
Idaho, also argue that children should be raised by both a
male parent and a female parent. They assert that their
marriage laws have “recognized, valorized and made
normative the roles of ‘mother’ and ‘father’ and their uniting,
complementary roles in raising their offspring,” and insist
that allowing same-sex couples to marry would send the



 14
    Idaho attempts to rebut testimony by the Idaho plaintiffs’ expert that
children of unmarried same-sex couples do just as well as those of married
opposite-sex couples; the state mistakenly argues that this evidence shows
that the children of same-sex couples are not harmed when the state
withholds from their parents the right to marry. A more likely explanation
for this expert’s findings is that when same-sex couples raise children,
whether adopted or conceived through the use of assisted reproductive
technology, they have necessarily chosen to assume the financial,
temporal, and emotional obligations of parenthood. This does not lead,
however, to the conclusion that these children, too, would not benefit from
their parents’ marriage, just as children with opposite-sex parents do.
38                     LATTA V. OTTER

message that “men and women are interchangeable [and that
a] child does not need a mother and a father.”

    However, as we explained in SmithKline, Windsor
“forbid[s] state action from ‘denoting the inferiority’” of
same-sex couples. 740 F.3d at 482 (citing Brown v. Bd. of
Educ., 347 U.S. 483, 494 (1954)).

        It is the identification of such a class by the
        law for a separate and lesser public status that
        “make[s] them unequal.” Windsor, 133 S. Ct.
        at 2694. DOMA was “practically a brand
        upon them, affixed by the law, an assertion of
        their inferiority.” Strauder v. West Virginia,
        100 U.S. 303, 308 (1879). Windsor requires
        that classifications 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.

SmithKline, 740 F.3d at 482. Windsor makes clear that the
defendants’ explicit desire to express a preference for
opposite-sex couples over same-sex couples is a categorically
inadequate justification for discrimination. Expressing such
a preference is precisely what they may not do.

    Defendants’ argument is, fundamentally, non-responsive
to plaintiffs’ claims to marriage rights; instead, it is about the
suitability of same-sex couples, married or not, as parents,
adoptive or otherwise. That it is simply an ill-reasoned excuse
for unconstitutional discrimination is evident from the fact
that Idaho and Nevada already allow adoption by lesbians and
gays. The Idaho Supreme Court has determined that “sexual
orientation [is] wholly irrelevant” to a person’s fitness or
                      LATTA V. OTTER                        39

ability to adopt children. In re Adoption of Doe, 326 P.3d
347, 353 (Idaho 2014). “In a state where the privilege of
becoming a child’s adoptive parent does not hinge on a
person’s sexual orientation, it is impossible to fathom how
hypothetical concerns about the same person’s parental
fitness could possibly relate to civil marriage.” Latta, 2014
WL 1909999, at *23. By enacting a domestic partnership law,
Nevada, too, has already acknowledged that no harm will
come of treating same-sex couples the same as opposite-sex
couples with regard to parenting. Nev. Rev. Stat.
§ 122A.200(1)(d) affords same-sex domestic partners
parenting rights identical to those of married couples,
including those related to adoption, custody and visitation,
and child support. See also St. Mary v. Damon, 309 P.3d
1027, 1033 (Nev. 2013) (en banc) (“Both the Legislature and
this court have acknowledged that, generally, a child’s best
interest is served by maintaining two actively involved
parents. To that end, the Legislature has recognized that the
children of same-sex domestic partners bear no lesser rights
to the enjoyment and support of two parents than children
born to married heterosexual parents.”).

    To allow same-sex couples to adopt children and then to
label their families as second-class because the adoptive
parents are of the same sex is cruel as well as
unconstitutional. Classifying some families, and especially
their children, as of lesser value should be repugnant to all
those in this nation who profess to believe in “family values.”
In any event, Idaho and Nevada’s asserted preference for
opposite-sex parents does not, under heightened scrutiny,
come close to justifying unequal treatment on the basis of
sexual orientation.
40                          LATTA V. OTTER

    Thus, we need not address the constitutional restraints the
Supreme Court has long imposed on sex-role stereotyping,
which may provide another potentially persuasive answer to
defendants’ theory. See Virginia, 518 U.S. at 533 (explaining
that justifications which “rely on overbroad generalizations
about the different talents, capacities, or preferences of males
and females” are inadequate to survive heightened scrutiny);
see also Caban v. Mohammed, 441 U.S. 380, 389 (1979)
(rejecting the claim that “any universal difference between
maternal and paternal relations at every phase of a child’s
development” justified sex-based distinctions in adoption
laws). We note, in addition, that defendants have offered no
probative evidence in support of their “complementarity”
argument.

                                    IV.

     Both the Idaho defendants and the Coalition advance a
few additional justifications, though all are unpersuasive.15
First, they argue that the population of each state is entitled to
exercise its democratic will in regulating marriage as it sees
fit. Each state “has an undeniable interest in ensuring that its
rules of domestic relations reflect the widely held values of
its people.” Zablocki v. Redhail, 434 U.S. 374, 399 (1978)
(Powell, J., concurring). True enough. But a primary purpose
of the Constitution is to protect minorities from oppression by
majorities. As Windsor itself made clear, “state laws defining

  15
     None of the arguments advanced by other states in defense of their
bans is any more persuasive. In particular, we agree with the Seventh
Circuit that states may not “go slow” in extending to same-sex couples the
right to marry; “it is sufficiently implausible that allowing same-sex
marriage would cause palpable harm to family, society, or civilization to
require the state to tender evidence justifying [if not proving] its fears; it
has provided none.” Baskin, 2014 WL 4359059, at *16–17.
                           LATTA V. OTTER                               41

and regulating marriage, of course, must respect the
constitutional rights of persons.” 133 S. Ct. at 2691 (citing
Loving v. Virginia, 388 U.S. 1 (1967)). Thus, considerations
of federalism cannot carry the day for defendants. They must
instead rely on the substantive arguments that we find lacking
herein.

    Second, defendants argue that allowing same-sex couples
to marry would threaten the religious liberty of institutions
and people in Idaho and Nevada. Whether a Catholic hospital
must provide the same health care benefits to its employees’
same-sex spouses as it does their opposite-sex spouses, and
whether a baker is civilly liable for refusing to make a cake
for a same-sex wedding, turn on state public accommodations
law, federal anti-discrimination law, and the protections of
the First Amendment.16 These questions are not before us. We
merely note that avoiding the enforcement of anti-
discrimination laws that “serv[e] compelling state interests of
the highest order” cannot justify perpetuation of an otherwise


  16
     See, e.g., Elane Photography, LLC v. Willock, 284 P.3d 428 (N.M.
2012) (holding that a wedding photographer was liable for discrimination
against a same-sex couple under state public accommodations law, and
that this law did not violate the First Amendment), cert. denied, 134 S. Ct.
1787 (2014). Nevada law currently prohibits discrimination based on
sexual orientation in public accommodations, while Idaho law does not.
Nev. Rev. Stat. §§ 651.050(3), 651.070; Dan Popkey, Idaho doesn’t
protect gays from discrimination, but Otter says that does not make the
state anti-gay, Idaho Statesman (Feb. 23, 2014).

    We note also that an increasing number of religious denominations do
sanctify same-sex marriages. Amicus Brief of Bishops of the Episcopal
Church in Idaho et al. 8–9. Some religious organizations prohibit or
discourage interfaith and interracial marriage, but it would obviously not
be constitutional for a state to do so. Amicus Brief of the Anti-Defamation
League et al. 23–25.
42                     LATTA V. OTTER

unconstitutionally discriminatory marriage regime. Bd. of
Dirs. of Rotary Int’l v. Rotary Club of Duarte, 481 U.S. 537,
549 (1987) (citation omitted).

    Third, the Coalition argues that Nevada’s ban is justified
by the state’s interest in protecting “the traditional institution
of marriage.”17 Modern marriage regimes, however, have
evolved considerably; within the past century, married
women had no right to own property, enter into contracts,
retain wages, make decisions about children, or pursue rape
allegations against their husbands. See generally Claudia
Zaher, When A Woman's Marital Status Determined Her
Legal Status: A Reserach Guide on the Common Law
Doctrine of Coverture, 94 Law Libr. J. 459, 460–61 (2002)
(“Under coverture, a wife simply had no legal existence. She
became . . . ‘civilly dead.’”). Women lost their citizenship
when they married foreign men. See Kristin Collins, When
Father’s Rights Are Mothers’ Duties, 109 Yale L.J. 1669,
1686–89 (2000). (In fact, women, married or not, were not
allowed to serve on juries or even to vote. See J.E.B. v.
Alabama ex rel. T.B., 511 U.S. 127, 131–35 (1994).). Before
no-fault divorce laws were enacted, separated spouses had to
fabricate adulterous affairs in order to end their marriages.
Lawrence M. Friedman, A History of American Law 577–78
(2005). As plaintiffs note, Nevada has been a veritable
pioneer in changing these practices, enacting (and benefitting
economically from) laws that made it among the easiest
places in the country to get married and un-married. Both
Idaho and Nevada’s marriage regimes, as they exist today,
bear little resemblance to those in place a century ago. As a
result, defendants cannot credibly argue that their laws

    17
       This argument was not advanced to this Court by the Idaho
defendants.
                          LATTA V. OTTER                              43

protect a “traditional institution”; at most, they preserve the
status quo with respect to one aspect of marriage—exclusion
of same-sex couples.

    Certainly, the exclusion of same-sex couples from
marriage is longstanding. However, “it is circular reasoning,
not analysis, to maintain that marriage must remain a
heterosexual institution because that is what it historically has
been.” Goodridge v. Dep't of Pub. Health, 798 N.E. 2d 941,
961 n.23 (Mass. 2003). The anti-miscegenation laws struck
down in Loving were longstanding. Here as there, however,
“neither history nor tradition [can] save [the laws] from
constitutional attack.” Lawrence, 539 U.S. at 577–78 (quoting
Bowers v. Hardwick, 478 U.S. 186, 216 (1986) (Stevens, J.,
dissenting)).

                                   V.

    Idaho and Nevada’s marriage laws, by preventing same-
sex couples from marrying and refusing to recognize same-
sex marriages celebrated elsewhere,18 impose profound legal,
financial, social and psychic harms on numerous citizens of
those states. These harms are not inflicted on opposite-sex
couples, who may, if they wish, enjoy the rights and assume
the responsibilities of marriage. Laws that treat people
differently based on sexual orientation are unconstitutional
unless a “legitimate purpose . . . overcome[s]” the injury


 18
    Because we hold that Idaho and Nevada may not discriminate against
same-sex couples in administering their own marriage laws, it follows that
they may not discriminate with respect to marriages entered into
elsewhere. Neither state advances, nor can we imagine, any
different—much less more persuasive—justification for refusing to
recognize same-sex marriages performed in other states or countries.
44                   LATTA V. OTTER

inflicted by the law on lesbians and gays and their families.
SmithKline, 740 F.3d at 481–82.

    Defendants’ essential contention is that bans on same-sex
marriage promote the welfare of children, by encouraging
good parenting in stable opposite-sex families. Heightened
scrutiny, however, demands more than speculation and
conclusory assertions, especially when the assertions are of
such little merit. Defendants have presented no evidence of
any such effect. Indeed, they cannot even explain the manner
in which, as they predict, children of opposite-sex couples
will be harmed. Their other contentions are equally without
merit. Because defendants have failed to demonstrate that
these laws further any legitimate purpose, they unjustifiably
discriminate on the basis of sexual orientation, and are in
violation of the Equal Protection Clause.

    The official message of support that Governor Otter and
the Coalition wish to send in favor of opposite-sex marriage
is equally unconstitutional, in that it necessarily serves to
convey a message of disfavor towards same-sex couples and
their families. This is a message that Idaho and Nevada
simply may not send.

    The lessons of our constitutional history are clear:
inclusion strengthens, rather than weakens, our most
important institutions. When we integrated our schools,
education improved. See Brown v. Bd. of Educ. of Topeka,
347 U.S. 483, 492–95 (1954). When we opened our juries to
women, our democracy became more vital. See Taylor v.
Louisiana, 419 U.S. 522, 535–37 (1975). When we allowed
lesbian and gay soldiers to serve openly in uniform, it
enhanced unit cohesion. See Witt v. Dep’t of Air Force,
527 F.3d 806, 821 n.11 (9th Cir. 2008). When same-sex
                       LATTA V. OTTER                        45

couples are married, just as when opposite-sex couples are
married, they serve as models of loving commitment to all.

    The judgment of the district court in Latta v. Otter is
AFFIRMED. The judgment of the district court in Sevcik v.
Sandoval is REVERSED, and the case is REMANDED to
the district court for the prompt issuance of an injunction
permanently enjoining the state, its political subdivisions, and
its officers, employees, and agents, from enforcing any
constitutional provision, statute, regulation or policy
preventing otherwise qualified same-sex couples from
marrying, or denying recognition to marriages celebrated in
other jurisdictions which, if the spouses were not of the same
sex, would be valid under the laws of the state.

   AFFIRMED; REVERSED and REMANDED.



REINHARDT, Circuit Judge, concurring:

    I, of course, concur without reservation in the opinion of
the Court. I write separately only to add that I would also
hold that the fundamental right to marriage, repeatedly
recognized by the Supreme Court, in cases such as Loving v.
Virginia, 388 U.S. 1 (1967), Zablocki v. Redhail, 434 U.S.
374 (1978), and Turner v. Safley, 482 U.S. 78 (1987), is
properly understood as including the right to marry an
individual of one’s choice. That right applies to same-sex
marriage just as it does to opposite-sex marriage. As a result,
I would hold that heightened scrutiny is appropriate for an
additional reason: laws abridging fundamental rights are
subject to strict scrutiny, and are invalid unless there is a
“compelling state interest” which they are “narrowly tailored”
46                     LATTA V. OTTER

to serve. United States v. Juvenile Male, 670 F.3d 999, 1012
(9th Cir. 2012) (citing Reno v. Flores, 507 U.S. 292, 302
(1993)), cert. denied, 133 S. Ct. 234 (2012). Because the
inadequacy of the states’ justifications has been thoroughly
addressed, I write only to explain my view that the same-sex
marriage bans invalidated here also implicate plaintiffs’
substantive due process rights.

    Like all fundamental rights claims, this one turns on how
we describe the right. Plaintiffs and defendants agree that
there is a fundamental right to marry, but defendants insist
that this right consists only of the right to marry an individual
of the opposite sex. In Washington v. Glucksberg, 521 U.S.
702, 720–21 (1997), the Supreme Court explained “that the
Due Process Clause specially protects those fundamental
rights and liberties which are, objectively, deeply rooted in
this Nation’s history and tradition.” Our articulation of such
fundamental rights must, we are told, be “carefully
formulat[ed].” Id. at 722 (citations and quotation marks
omitted).

     However, “careful” does not mean “cramped.” Our task
is to determine the scope of the fundamental right to marry as
inferred from the principles set forth by the Supreme Court in
its prior cases. Turner held that prisoners who had no children
and no conjugal visits during which to conceive
them—people who could not be biological parents—had a
due process right to marry. 482 U.S. at 94–97. Zablocki held
that fathers with outstanding child support obligations—
people who were, at least according to adjudications in family
court, unable to adequately provide for existing
children—had a due process right to marry. 434 U.S. at
383–87.
                           LATTA V. OTTER                                47

    In each case, the Supreme Court referred to—and
considered the historical roots of—the general right of people
to marry, rather than a narrower right defined in terms of
those who sought the ability to exercise it. These cases
rejected status-based restrictions on marriage not by
considering whether to recognize a new, narrow fundamental
right (i.e., the right of prisoners to marry or the right of
fathers with unpaid child support obligations to marry) or
determining whether the class of people at issue enjoyed the
right as it had previously been defined, but rather by deciding
whether there existed a sufficiently compelling justification
for depriving plaintiffs of the right they, as people,
possessed.1 See id. at 384 (“[D]ecisions of this Court confirm
that the right to marry is of fundamental importance for all
individuals.”).

    The third and oldest case in the fundamental right to
marry trilogy, Loving, is also the most directly on point. That
case held that Virginia’s anti-miscegenation laws, which
prohibited and penalized interracial marriages, violated the
Fourteenth Amendment’s Equal Protection and Due Process
Clauses. 388 U.S. at 2–6. In a rhetorical stroke as
uncomprehending as it is unavailing, defendants contend that
lesbians and gays are not denied the freedom to marry by
virtue of the denial of their right to marry individuals of the
same sex, as they are still free to marry individuals of the

 1
   Turner and Zablocki illustrate another important point, pertinent to the
adequacy of defendants’ justifications for curtailing the right. The first of
these cases involved plaintiffs whom the state was entitled to prevent from
procreating, and the second involved those who were unable to support
existing offspring financially. If the fundamental right to marry extends to
them, it certainly cannot be limited only to those who can procreate or to
those who, in the eyes of the state, would form part of an ideal parenting
unit.
48                         LATTA V. OTTER

opposite sex. Defendants assert that their same-sex marriage
bans are unlike the laws in Turner and Zablocki because they
do not categorically bar people with a particular characteristic
from marrying, but rather limit whom lesbians and gays, and
all other persons, may marry. However, Loving itself squarely
rebuts this argument. Mildred Jeter and Richard Loving were
not barred from marriage altogether. Jeter was perfectly free
to marry a black person, and Loving was perfectly free to
marry a white person. They were each denied the freedom,
however, to marry the person whom they chose—the other.
The case of lesbians and gays is indistinguishable. A
limitation on the right to marry another person, whether on
account of race or for any other reason, is a limitation on the
right to marry.2

    Defendants urge that “man-woman” and “genderless”
marriage are mutually exclusive, and that permitting the latter
will “likely destroy[]” the former. Quite the opposite is true.
Loving teaches that Virginia’s anti-miscegenation laws did
not simply “deprive the Lovings of liberty without due
process of law.” 388 U.S. at 12. They did far worse; as the
Court declared, the laws also “surely . . . deprive[d] all the
State’s citizens of liberty without due process of law.” Id.
(emphasis added). When Virginia told Virginians that they
were not free to marry the one they loved if that person was


      2
        Defendants are apparently concerned that if we recognize a
fundamental right to marry the person of one’s choice, this conclusion will
necessarily lead to the invalidation of bans on incest, polygamy, and child
marriage. However, fundamental rights may sometimes permissibly be
abridged: when the laws at issue further compelling state interests, to
which they are narrowly tailored. Although such claims are not before us,
it is not difficult to envision that states could proffer substantially more
compelling justifications for such laws than have been put forward in
support of the same-sex marriage bans at issue here.
                       LATTA V. OTTER                        49

of a different race, it so grievously constrained their “freedom
of choice to marry” that it violated the constitutional rights
even of those citizens who did not themselves wish to enter
interracial marriages or who were already married to a person
of the same race. Id. When Idaho tells Idahoans or Nevada
tells Nevadans that they are not free to marry the one they
love if that person is of the same sex, it interferes with the
universal right of all the State’s citizens—whatever their
sexual orientation—to “control their destiny.” Lawrence v.
Texas, 539 U.S. 558, 578 (2003).

    To define the right to marry narrowly, as the right to
marry someone of the opposite sex, would be to make the
same error committed by the majority in Bowers v. Hardwick,
478 U.S. 186, 190 (1986), which considered whether there
was a “fundamental right to engage in homosexual sodomy.”
This description of the right at issue “fail[ed] to appreciate
the extent of the liberty at stake,” the Court stated in
Lawrence, 539 U.S. at 567. Lawrence rejected as
wrongheaded the question whether “homosexuals” have
certain fundamental rights; “persons”—of whatever
orientation—are rights-holders. See id. Fundamental rights
defined with respect to the subset of people who hold them
are fundamental rights misdefined. The question before us is
not whether lesbians and gays have a fundamental right to
marry a person of the same sex; it is whether a person has a
fundamental right to marry, to enter into “the most important
relation in life,” Maynard v. Hill, 125 U.S. 190, 205 (1888),
with the one he or she loves. Once the question is properly
defined, the answer follows ineluctably: yes.

    Historically, societies have strictly regulated intimacy and
thereby oppressed those whose personal associations, such as
committed same-sex relationships, were, though harmful to
50                    LATTA V. OTTER

no one, disfavored. Human intimacy, like “liberty[,] [has]
manifold possibilities.” Lawrence, 539 U.S. at 578. Although
“times can blind us to certain truths and later generations can
see that laws once thought necessary and proper in fact serve
only to oppress[,] [a]s the Constitution endures, persons in
every generation can invoke its principles in their own search
for greater freedom.” Id. at 578–79.

    We, as judges, deal so often with laws that confine and
constrain. Yet our core legal instrument comprehends the
rights of all people, regardless of sexual orientation, to love
and to marry the individuals they choose. It demands not
merely toleration; when a state is in the business of marriage,
it must affirm the love and commitment of same-sex couples
in equal measure. Recognizing that right dignifies them; in so
doing, we dignify our Constitution.



BERZON, Circuit Judge, concurring:

    I agree that Idaho and Nevada’s same-sex marriage
prohibitions fail because they discriminate on the basis of
sexual orientation and I join in the Opinion of the Court. I
write separately because I am persuaded that Idaho and
Nevada’s same-sex marriage bans are also unconstitutional
for another reason: They are classifications on the basis of
gender that do not survive the level of scrutiny applicable to
such classifications.
                          LATTA V. OTTER                              51

       I. The Same-Sex Marriage Prohibitions Facially
          Classify on the Basis of Gender

    “[S]tatutory classifications that distinguish between males
and females are ‘subject to scrutiny under the Equal
Protection Clause.’” Craig v. Boren, 429 U.S. 190, 197
(1976) (quoting Reed v. Reed, 404 U.S. 71, 75 (1971)). “To
withstand constitutional challenge, . . . classifications by
gender must serve important governmental objectives and
must be substantially related to achievement of those
objectives.” Id. “The burden of justification” the state
shoulders under this intermediate level of scrutiny is
“demanding”: the state must convince the reviewing court
that the law’s “proffered justification” for the gender
classification “is ‘exceedingly persuasive.’” United States v.
Virginia, 518 U.S. 515, 533 (1996) (“VMI”). Idaho and
Nevada’s same-sex marriage bans discriminate on the basis
of sex and so are invalid unless they meet this “demanding”
standard.

    A. Idaho and Nevada’s same-sex marriage prohibitions
facially classify on the basis of sex.1 Only women may marry
men, and only men may marry women.2 Susan Latta may not


   1
    “Sex” and “gender” are not necessarily coextensive concepts; the
meanings of these terms and the difference between them are highly
contested. See, e.g., Katherine Franke, The Central Mistake of Sex
Discrimination Law: The Disaggregation of Sex from Gender, 144 U. Pa.
L. Rev 1 (1995). For present purposes, I will use the terms “sex” and
“gender” interchangeably, to denote the social and legal categorization of
people into the generally recognized classes of “men” and “women.”
  2
    Idaho Const. art. III § 38 (“A marriage between a man and a woman
is the only domestic legal union that shall be valid or recognized in this
state.”); Idaho Code § 32-201(1) (“Marriage is a personal relation arising
52                         LATTA V. OTTER

marry her partner Traci Ehlers for the sole reason that Latta
is a woman; Latta could marry Ehlers if Latta were a man.
Theodore Small may not marry his partner Antioco Carillo
for the sole reason that Small is a man; Small could marry
Carillo if Small were a woman. But for their gender,
plaintiffs would be able to marry the partners of their choice.
Their rights under the states’ bans on same-sex marriage are
wholly determined by their sex.

    A law that facially dictates that a man may do X while a
woman may not, or vice versa, constitutes, without more, a
gender classification. “[T]he absence of a malevolent motive
does not convert a facially discriminatory policy into a
neutral policy with a discriminatory effect. Whether [a
policy] involves disparate treatment through explicit facial
discrimination does not depend on why the [defendant]
discriminates but rather on the explicit terms of the
discrimination.” UAW v. Johnson Controls, Inc., 499 U.S.
187, 199 (1991).3 Thus, plaintiffs challenging policies that


out of a civil contract between a man and a woman . . . .”); Nev. Const.
art. I, § 21 (“Only a marriage between a male and female person shall be
recognized and given effect in this state.”); Nev. Rev. Stat. § 122.020
(“[A] male and a female person . . . may be joined in marriage.”).
  3
    UAW v. Johnson Controls was a case brought under Title VII of the
Civil Rights act of 1964, which, inter alia, bans employment policies that
discriminate on the basis of sex. Title VII provides it is

         an unlawful employment practice for an
         employer—(1) to fail or refuse to hire or to discharge
         any individual, or otherwise to discriminate against any
         individual with respect to his compensation, terms,
         conditions, or privileges of employment, because of
         such individual’s race, color, religion, sex, or national
         origin; (2) to limit, segregate, or classify his employees
                           LATTA V. OTTER                                53

facially discriminate on the basis of sex need not separately
show either “intent” or “purpose” to discriminate. Personnel
Adm’r of Massachusetts v. Feeney, 442 U.S. 256, 277–78
(1979).

    Some examples help to illuminate these fundamental
precepts. Surely, a law providing that women may enter into
business contracts only with other women would classify on
the basis of gender. And that would be so whether or not men
were similarly restricted to entering into business
relationships only with other men.



         . . . in any way which would deprive or tend to deprive
         any individual of employment opportunities or
         otherwise adversely affect his status as an employee,
         because of such individual’s race, color, religion, sex,
         or national origin.

42 U.S.C. § 2000e-2(a). The Supreme Court has “analog[ized]” to its
decisions interpreting what constitutes discrimination “because of” a
protected status under Title VII in analyzing Fourteenth Amendment equal
protection claims and vice versa. See, e.g., Gen. Elec. Co. v. Gilbert,
429 U.S. 125, 133 (1976), superseded by statute on other grounds as
recognized in Johnson Controls, 499 U.S. at 219 (“While there is no
necessary inference that Congress . . . intended to incorporate into Title
VII the concepts of discrimination which have evolved from court
decisions construing the Equal Protection Clause of the Fourteenth
Amendment, the similarities between the congressional language and
some of those decisions surely indicate that the latter are a useful starting
point in interpreting the former.”). As the Court has explained,
“[p]articularly in the case of defining the term ‘discrimination,’” Title VII
must be interpreted consistently with Fourteenth Amendment equal
protection principles, because Congress does not define “discrimination”
in Title VII. See Gilbert, 429 U.S. at 133; see also 42 U.S.C. § 2000e. I
therefore rely on Title VII cases throughout this Opinion for the limited
purpose of determining whether a particular classification is or is not sex-
based.
54                         LATTA V. OTTER

    Likewise, a prison regulation that requires correctional
officers be the same sex as the inmates in a prison “explicitly
discriminates . . . on the basis of . . . sex.” Dothard v.
Rawlinson, 433 U.S. 321, 332, 332 n. 16 (1977). Again, that
is so whether women alone are affected or whether men are
similarly limited to serving only male prisoners.4

    Further, it can make no difference to the existence of a
sex-based classification whether the challenged law imposes
gender homogeneity, as in the business partner example or
Dothard, or gender heterogeneity.          Either way, the
classification is one that limits the affected individuals’
opportunities based on their sex, as compared to the sex of the
other people involved in the arrangement or transaction.

    As Justice Johnson of the Vermont Supreme Court noted,
the same-sex marriage prohibitions, if anything, classify more
obviously on the basis of sex than they do on the basis of
sexual orientation: “A woman is denied the right to marry
another woman because her would-be partner is a woman, not
because one or both are lesbians. . . . [S]exual orientation

 4
   Dothard in fact dealt with a regulation that applied equally to men and
women. See 433 U.S. at 332 n. 16 (“By its terms [the regulation at issue]
applies to contact positions in both male and female institutions.”); see
also id. at 325 n. 6. Dothard ultimately upheld the sex-based
discrimination at issue under Title VII’s “bona fide occupational
qualification” exception, 42 U.S.C. § 2000e-2(e), because of the especially
violent, sexually charged nature of the particular prisons involved in that
case, and because the regulation applied only to correctional officers in
“contact positions” (i.e. working in close physical proximity to inmates)
in maximum security institutions. See Dothard, 433 U.S. at 336–37
(internal quotation marks omitted). For present purposes, the salient
holding is that the same-sex restriction was overtly a sex-based
classification, even if it could be justified by a sufficiently strong BFOQ
showing. Id. at 332–33.
                           LATTA V. OTTER                                55

does not appear as a qualification for marriage” under these
laws; sex does. Baker v. State, 744 A.2d 864, 905 (Vt. 1999)
(Johnson, J., concurring in part and dissenting in part).

   The statutes’ gender focus is also borne out by the
experience of one of the Nevada plaintiff couples:

         When Karen Goody and Karen Vibe went to
         the Washoe County Marriage Bureau to
         obtain a marriage license, the security officer
         asked, “Do you have a man with you?” When
         Karen Vibe said they did not, and explained
         that she wished to marry Karen Goody, she
         was told she could not even obtain or
         complete a marriage license application . . .
         [because] “[t]wo women can’t apply” . . .
         [and] marriage is “between a man and a
         woman.”

Notably, Goody and Vibe were not asked about their sexual
orientation; Vibe was told she was being excluded because of
her gender and the gender of her partner.

    Of course, the reason Vibe wants to marry Goody, one
presumes, is due in part to their sexual orientations.5 But that
does not mean the classification at issue is not sex-based.

 5
   The need for such a presumption, as to a factor that does not appear on
the face of the same-sex marriage bans, suggests that the gender
discrimination analysis is, if anything, a closer fit to the problem before
us than the sexual orientation rubric. While the same-sex marriage
prohibitions obviously operate to the disadvantage of the people likely to
wish to marry someone of the same gender—i.e. lesbians, gay men,
bisexuals, and otherwise-identified persons with same-sex attraction—the
individuals’ actual orientation is irrelevant to the application of the laws.
56                     LATTA V. OTTER

Dothard also involved a facial sex classification intertwined
with presumptions about sexual orientation, in that instance
heterosexuality. The Supreme Court in Dothard agreed that
the state was justified in permitting only male officers to
guard male inmates, because there was “a real risk that other
inmates, deprived of a normal heterosexual environment,
would assault women guards because they were women.”
433 U.S. at 335. Thus, Dothard’s reasoning confirms the
obvious: a statute that imposes a sex qualification, whether
for a marriage license or a job application, is sex
discrimination, pure and simple, even where assumptions
about sexual orientation are also at play.

    Lawrence v. Texas, 539 U.S. 558 (2003) also underscores
why the continuation of the same-sex marriage prohibitions
today is quite obviously about gender. Lawrence held that it
violates due process for states to criminalize consensual,
noncommercial same-sex sexual activity that occurs in
private between two unrelated adults. See id. at 578. After
Lawrence, then, the continuation of the same-sex marriage
bans necessarily turns on the gender identity of the spouses,
not the sexual activity they may engage in. To attempt to bar
that activity would be unconstitutional. See id. The Nevada
intervenors recognize as much, noting that Lawrence
“differentiates between the fundamental right of gay men and
lesbians to enter an intimate relationship, on one hand, and,
on the other hand, the right to marry a member of one’s own
sex.” The “right to marry a member of one’s own sex”
expressly turns on sex.

    B. In concluding that these laws facially classify on the
basis of gender, it is of no moment that the prohibitions “treat
men as a class and women as a class equally” and in that
                           LATTA V. OTTER                              57

sense give preference to neither gender, as the defendants6
fervently maintain. That argument revives the long-
discredited reasoning of Pace v. Alabama, which upheld an
anti-miscegenation statute on the ground that “[t]he
punishment of each offending person, whether white or black,
is the same.” 106 U.S. 583, 585 (1883), overruled by
McLaughlin v. Florida, 379 U.S. 184 (1964). Plessy v.
Ferguson, 163 U.S. 537 (1896), overruled by Brown v. Board
of Education, 347 U.S. 483 (1954), similarly upheld racial
segregation on the reasoning that segregation laws applied
equally to black and white citizens.

    This narrow view of the reach of the impermissible
classification concept is, of course, no longer the law after
Brown. Loving v. Virginia reinforced the post-Brown
understanding of impermissible classification under the
Fourteenth Amendment in a context directly analogous to the
present one. Addressing the constitutionality of anti-
miscegenation laws banning interracial marriage, Loving
firmly “reject[ed] the notion that the mere ‘equal application’
of a statute containing racial classifications is enough to
remove the classifications from the Fourteenth Amendment’s
proscription of all invidious racial discrimination.” 388 U.S.
1, 8 (1967). As Loving explained, “an even-handed state
purpose” can still be “repugnant to the Fourteenth
Amendment,” id. at 11 n. 11, because restricting individuals’
rights, choices, or opportunities “solely because of racial
classifications violates the central meaning of the Equal
Protection Clause” even if members of all racial groups are


 6
   Following the style of the Opinion of the Court, see Op. Ct. at 22 n. 4,
I will refer throughout this Opinion to arguments advanced generally by
“defendants,” meaning the parties that continue actively to argue in
defense of the laws, i.e. the Idaho defendants and the Nevada intervenors.
58                     LATTA V. OTTER

identically restricted with regard to interracial marriage. Id.
at 12. “Judicial inquiry under the Equal Protection Clause . . .
does not end with a showing of equal application among the
members of the class defined by the legislation.”
McLaughlin, 379 U.S. 184 at 191.

    If more is needed to confirm that the defendants’ “equal
application” theory has no force, there is more—cases
decided both before and after Loving. Shelley v. Kraemer, for
example, rejected the argument that racially restrictive
covenants were constitutional because they would be
enforced equally against both black and white buyers.
Shelley v. Kraemer 334 U.S. 1, 21–22 (1948). In so holding,
Shelley explained: “The rights created by the first section of
the Fourteenth Amendment are, by its terms, guaranteed to
the individual. The rights established are personal rights.”
Id. at 22. Shelley also observed that “a city ordinance which
denied to colored persons the right to occupy houses in blocks
in which the greater number of houses were occupied by
white persons, and imposed similar restrictions on white
persons with respect to blocks in which the greater number of
houses were occupied by colored persons” violated the
Fourteenth Amendment despite its equal application to both
black and white occupants. See id. at 11 (describing
Buchanan v. Warley, 245 U.S. 60 (1917)).

    The same individual rights analysis applies in the context
of gender classifications.        Holding unconstitutional
peremptory strikes on the basis of gender, J.E.B. explained
that “individual jurors themselves have a right to
nondiscriminatory jury selection procedures . . . . [T]his right
extends to both men and women.” J.E.B. v. Alabama ex rel.
T.B., 511 U.S. 127, 140–41 (1994). “The neutral phrasing of
the Equal Protection Clause, extending its guarantee to ‘any
                        LATTA V. OTTER                          59

person,’ reveals its concern with rights of individuals, not
groups (though group disabilities are sometimes the
mechanism by which the State violates the individual right in
question).” Id. at 152 (Kennedy, J., concurring).

    City of Los Angeles, Dep’t of Water & Power v. Manhart
further explains why, even in “the absence of a discriminatory
effect on women as a class” or on men as a class, the same-
sex marriage bars constitute gender classifications, because
they “discriminate against individual[s] . . . because of their
sex.” 435 U.S. 702, 716 (1978) (emphasis added). In that
case, the parties recognized that women, as a class, lived
longer than men. Id. at 707–09. The defendant Department
argued that this fact justified a policy that facially required all
women to contribute larger monthly sums to their retirement
plans than men, out of fairness to men as a class, who
otherwise would subsidize women as a class. Id. at 708–09.
Manhart rejected this justification for the sex distinction,
explaining that the relevant focus must be “on fairness to
individuals rather than fairness to classes,” and held,
accordingly, that the policy was unquestionably sex
discriminatory. Id. at 709, 711.

    Under all these precedents, it is simply irrelevant that the
same-sex marriage prohibitions privilege neither gender as a
whole or on average. Laws that strip individuals of their
rights or restrict personal choices or opportunities solely on
the basis of the individuals’ gender are sex discriminatory and
must be subjected to intermediate scrutiny. See J.E.B.,
511 U.S. at 140–42. Accordingly, I would hold that Idaho
and Nevada’s same-sex marriage prohibitions facially
classify on the basis of gender, and that the “equal
60                         LATTA V. OTTER

application” of these laws to men and women as a class does
not remove them from intermediate scrutiny.7

    C. The same-sex marriage prohibitions also constitute
sex discrimination for the alternative reason that they
impermissibly prescribe different treatment for similarly
situated subgroups of men and women. That is, the same-sex
marriage laws treat the subgroup of men who wish to marry
men less favorably than the otherwise similarly situated
subgroup of women who want to marry men. And the laws
treat the subgroup of women who want to marry women less



   7
     Several courts have so held. See Golinski v. U.S. Office of Pers.
Mgmt., 824 F. Supp. 2d 968, 982 n. 4 (N.D. Cal. 2012) (“Ms. Golinski is
prohibited from marrying Ms. Cunninghis, a woman, because Ms.
Golinski is a woman. If Ms. Golinski were a man, DOMA would not
serve to withhold benefits from her. Thus, DOMA operates to restrict Ms.
Golinski’s access to federal benefits because of her sex.”), initial hearing
en banc denied, 680 F.3d 1104 (9th Cir. 2012) and appeal dismissed,
724 F.3d 1048 (9th Cir. 2013) ; In re Levenson, 560 F.3d 1145, 1147 (9th
Cir. EDR 2009) (Reinhardt, J., presiding) (“If [Levenson’s husband] were
female, or if Levenson himself were female, Levenson would be able to
add [his husband] as a beneficiary. Thus, the denial of benefits at issue
here was sex-based and can be understood as a violation of the . . .
prohibition of sex discrimination.”); Perry v. Schwarzenegger, 704 F.
Supp. 2d 921, 996 (N.D. Cal. 2010) (“Perry is prohibited from marrying
Stier, a woman, because Perry is a woman. If Perry were a man,
Proposition 8 would not prohibit the marriage. Thus, Proposition 8
operates to restrict Perry’s choice of marital partner because of her sex.”),
aff’d sub nom. Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012), vacated
and remanded sub nom. Hollingsworth v. Perry, 133 S. Ct. 2652 (2013);
Baehr v. Lewin, 852 P.2d 44, 59 (Haw. 1993) (plurality op.) (a same-sex
marriage bar, “on its face, discriminates based on sex”); Baker, 744 A.2d
at 905 (Johnson, J., concurring in part and dissenting in part) (a same-sex
marriage bar presents “a straightforward case of sex discrimination”
because it “establish[es] a classification based on sex”).
                      LATTA V. OTTER                       61

favorably than the subgroup of otherwise identically situated
men who want to marry women.

    The Supreme Court has confirmed that such differential
treatment of similarly-situated sex-defined subgroups also
constitutes impermissible sex discrimination. Phillips v.
Martin Marietta Corp., for example, held that an employer’s
refusal to hire women with preschool-age children, while
employing men with children the same age, was facial sex
discrimination, even though all men, and all women without
preschool-age children, were treated identically. See
400 U.S. 542, 543–44 (1971) (per curiam). And the Seventh
Circuit held an airline’s policy requiring female flight
attendants, but not male flight attendants, to be unmarried
was discrimination based on sex, relying on Phillips and
explaining that a classification that affects only some
members of one gender is still sex discrimination if similarly
situated members of the other gender are not treated the same
way. “The effect of the statute is not to be diluted because
discrimination adversely affects only a portion of the
protected class.” Sprogis v. United Air Lines, Inc., 444 F.2d
1194, 1198 (7th Cir. 1971).

    Of those individuals who seek to obtain the state-created
benefits and obligations of legal marriage to a woman, men
may do so but women may not. Thus, at the subclass
level—the level that takes into account the similar situations
of affected individuals—women as a group and men as a
group are treated differently. For this reason as well I would
hold that Idaho and Nevada’s same-sex marriage prohibitions
facially classify on the basis of gender. They must be
reviewed under intermediate scrutiny.
62                     LATTA V. OTTER

    D. One further point bears mention. The defendants note
that the Supreme Court summarily rejected an equal
protection challenge to a same-sex marriage bar in Baker v.
Nelson, 409 U.S. 810 (1972), holding there was no substantial
federal question presented in that case. But the Court did not
clarify that sex-based classifications receive intermediate
scrutiny until 1976. See Craig, 429 U.S. at 221, 218
(Rehnquist, J., dissenting) (describing the level of review
prescribed by the majority as “new,” and as “an elevated or
‘intermediate’ level scrutiny”). As this fundamental doctrinal
change postdates Baker, Baker is no longer binding as to the
sex discrimination analysis, just as it is no longer binding as
to the sexual orientation discrimination analysis. See Op. Ct.
at 22–24.

     II. Same-Sex Marriage Bars Are Based in Gender
         Stereotypes

    Idaho and Nevada’s same sex marriage laws not only
classify on the basis of sex but also, implicitly and explicitly,
draw on “archaic and stereotypic notions” about the
purportedly distinctive roles and abilities of men and women.
Eradicating the legal impact of such stereotypes has been a
central concern of constitutional sex-discrimination
jurisprudence for the last several decades. See, e.g.,
Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 725
(1982). The same-sex marriage bans thus share a key
characteristic with many other sex-based classifications, one
that underlay the Court’s adoption of intermediate scrutiny
for such classifications.

    The Supreme Court has consistently emphasized that
“gender-based classifications . . . may be reflective of
‘archaic and overbroad’ generalizations about gender, or
                      LATTA V. OTTER                        63

based on ‘outdated misconceptions concerning the role of
females in the home rather than in the marketplace and world
of ideas.’” J.E.B., 511 U.S. at 135 (quoting Schlesinger v.
Ballard, 419 U.S. 498, 506–07 (1975); Craig, 429 U.S. at
198–99) (some internal quotation marks omitted). Laws that
rest on nothing more than “the ‘baggage of sexual
stereotypes,’ that presume[] the father has the ‘primary
responsibility to provide a home and its essentials,’ while the
mother is the ‘center of home and family life’” have been
declared constitutionally invalid time after time. Califano v.
Westcott, 443 U.S. 76, 89 (1979) (quoting Orr v. Orr,
440 U.S. 268, 283 (1979); Stanton v. Stanton, 421 U.S. 7, 10
(1975); Taylor v. Louisiana, 419 U.S. 522 (1975)).
Moreover, “gender classifications that rest on impermissible
stereotypes violate the Equal Protection Clause, even when
some statistical support can be conjured up for the
generalization.” J.E.B., 511 U.S. at 139 n. 11. And hostility
toward nonconformance with gender stereotypes also
constitutes impermissible gender discrimination.           See
generally Price Waterhouse v. Hopkins, 490 U.S. 228 (1989);
accord Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864,
874 (9th Cir. 2001) (harassment against a person for “failure
to conform to [sex] stereotypes” is gender-based
discrimination) (internal quotation marks omitted).

    The notion underlying the Supreme Court’s anti-
stereotyping doctrine in both Fourteenth Amendment and
Title VII cases is simple, but compelling: “[n]obody should
be forced into a predetermined role on account of sex,” or
punished for failing to conform to prescriptive expectations
of what behavior is appropriate for one’s gender. See Ruth
Bader Ginsburg, Gender and the Constitution, 44 U. Cin. L.
Rev. 1, 1 (1975). In other words, laws that give effect to
“pervasive sex-role stereotype[s]” about the behavior
64                     LATTA V. OTTER

appropriate for men and women are damaging because they
restrict individual choices by punishing those men and
women who do not fit the stereotyped mold. Nev. Dep’t of
Human Resources v. Hibbs, 538 U.S. 721, 731, 738 (2003).

    Idaho and Nevada’s same-sex marriage prohibitions, as
the justifications advanced for those prohibitions in this Court
demonstrate, patently draw on “archaic and stereotypic
notions” about gender. Hogan, 458 U.S. at 725. These
prohibitions, the defendants have emphatically argued,
communicate the state’s view of what is both “normal” and
preferable with regard to the romantic preferences,
relationship roles, and parenting capacities of men and
women. By doing so, the laws enforce the state’s view that
men and women “naturally” behave differently from one
another in marriage and as parents.

     The defendants, for example, assert that “gender diversity
or complementarity among parents . . . provides important
benefits” to children, because “mothers and fathers tend on
average to parent differently and thus make unique
contributions to the child’s overall development.” The
defendants similarly assert that “[t]he man-woman meaning
at the core of the marriage institution, reinforced by the law,
has always recognized, valorized, and made normative the
roles of ‘mother’ and ‘father’ and their uniting,
complementary roles in raising their offspring.”

    Viewed through the prism of the Supreme Court’s
contemporary anti-stereotyping sex discrimination doctrine,
these proferred justifications simply underscore that the
same-sex marriage prohibitions discriminate on the basis of
sex, not only in their form—which, as I have said, is
sufficient in itself—but also in reviving the very infirmities
                       LATTA V. OTTER                         65

that led the Supreme Court to adopt an intermediate scrutiny
standard for sex classifications in the first place. I so
conclude for two, somewhat independent, reasons.

    A. First, and more obviously, the gender stereotyping at
the core of the same-sex marriage prohibitions clarifies that
those laws affect men and women in basically the same way
as, not in a fundamentally different manner from, a wide
range of laws and policies that have been viewed consistently
as discrimination based on sex. As has been repeated again
and again, legislating on the basis of such stereotypes limits,
and is meant to limit, the choices men and women make
about the trajectory of their own lives, choices about work,
parenting, dress, driving—and yes, marriage. This focus in
modern sex discrimination law on the preservation of the
ability freely to make individual life choices regardless of
one’s sex confirms that sex discrimination operates at, and
must be justified at, the level of individuals, not at the broad
class level of all men and women. Because the same-sex
marriage prohibitions restrict individuals’ choices on the
basis of sex, they discriminate based on sex for purposes of
constitutional analysis precisely to the same degree as other
statutes that infringe on such choices—whether by
distributing benefits or by restricting behavior—on that same
ground.

    B. Second, the long line of cases since 1971 invalidating
various laws and policies that categorized by sex have been
part of a transformation that has altered the very institution at
the heart of this case, marriage.             Reviewing that
transformation, including the role played by constitutional
sex discrimination challenges in bringing it about, reveals that
the same sex marriage prohibitions seek to preserve an
outmoded, sex-role-based vision of the marriage institution,
66                     LATTA V. OTTER

and in that sense as well raise the very concerns that gave rise
to the contemporary constitutional approach to sex
discrimination.

    (i) Historically, marriage was a profoundly unequal
institution, one that imposed distinctly different rights and
obligations on men and women. The law of coverture, for
example, deemed the “the husband and wife . . . one person,”
such that “the very being or legal existence of the woman
[was] suspended . . . or at least [was] incorporated and
consolidated into that of the husband” during the marriage.
1 William Blackstone, Commentaries on the Laws of England
441 (3d rev. ed. 1884). Under the principles of coverture, “a
married woman [was] incapable, without her husband’s
consent, of making contracts . . . binding on her or him.”
Bradwell v. Illinois, 83 U.S. 130, 141 (1872) (Bradley, J.,
concurring). She could not sue or be sued without her
husband’s consent. See, e.g., Nancy F. Cott, Public Vows: A
History of Marriage and the Nation 11–12 (2000). Married
women also could not serve as the legal guardians of their
children. Frontiero v. Richardson, 411 U.S. 677, 685 (1973)
(plurality op.).

    Marriage laws further dictated economically disparate
roles for husband and wife. In many respects, the marital
contract was primarily understood as an economic
arrangement between spouses, whether or not the couple had
or would have children. “Coverture expressed the legal
essence of marriage as reciprocal: a husband was bound to
support his wife, and in exchange she gave over her property
and labor.” Cott, Public Vows, at 54. That is why “married
women traditionally were denied the legal capacity to hold or
convey property . . . .” Frontiero, 411 U.S. at 685. Notably,
husbands owed their wives support even if there were no
                        LATTA V. OTTER                          67

children of the marriage. See, e.g., Hendrik Hartog, Man and
Wife in America: A History 156 (2000).

    There was also a significant disparity between the rights
of husbands and wives with regard to physical intimacy. At
common law, “a woman was the sexual property of her
husband; that is, she had a duty to have intercourse with
him.” John D’Emilio & Estelle B. Freedman, Intimate
Matters: A History of Sexuality in America 79 (3d ed. 2012).
Quite literally, a wife was legally “the possession of her
husband, . . . [her] husband’s property.” Hartog, Man and
Wife in America, at 137. Accordingly, a husband could sue
his wife’s lover in tort for “entic[ing]” her or “alienat[ing]”
her affections and thereby interfering with his property rights
in her body and her labor. Id. A husband’s possessory
interest in his wife was undoubtedly also driven by the fact
that, historically, marriage was the only legal site for licit sex;
sex outside of marriage was almost universally criminalized.
See, e.g., Ariela R. Dubler, Immoral Purposes: Marriage and
the Genus of Illicit Sex, 115 Yale L.J. 756, 763–64 (2006).

    Notably, although sex was strongly presumed to be an
essential part of marriage, the ability to procreate was
generally not. See, e.g., Chester Vernier, American Family
Laws: A Comparative Study of the Family Law of the Forty-
Eight American States, Alaska, the District of Columbia, and
Hawaii (to Jan. 1, 1931) (1931) I § 50, 239–46 (at time of
survey, grounds for annulment typically included impotency,
as well as incapacity due to minority or “non-age”; lack of
understanding and insanity; force or duress; fraud; disease;
and incest; but not inability to conceive); II § 68, at 38–39
(1932) (at time of survey, grounds for divorce included
“impotence”; vast majority of states “generally held that
impotence . . . does not mean sterility but must be of such a
68                    LATTA V. OTTER

nature as to render complete sexual intercourse practically
impossible”; and only Pennsylvania “ma[d]e sterility a cause”
for divorce).

    The common law also dictated that it was legally
impossible for a man to rape his wife. Men could not be
prosecuted for spousal rape. A husband’s “incapacity” to
rape his wife was justified by the theory that “‘the marriage
constitute[d] a blanket consent to sexual intimacy which the
woman [could] revoke only by dissolving the marital
relationship.’” See, e.g., Jill Elaine Hasday, Contest and
Consent: A Legal History of Marital Rape, 88 Calif. L. Rev
1373, 1376 n. 9 (2000) (quoting Model Penal Code and
Commentaries, § 213.1 cmt. 8(c), at 342 (Official Draft and
Revised Comments 1980)).

    Concomitantly, dissolving the marital partnership via
divorce was exceedingly difficult. Through the mid-twentieth
century, divorce could be obtained only on a limited set of
grounds, if at all. At the beginning of our nation’s history,
several states did not permit full divorce except under the
narrowest of circumstances; separation alone was the remedy,
even if a woman could show “cruelty endangering life or
limb.” Peter W. Bardaglio, Reconstrucing the Household:
Families, Sex, and the Law in the Nineteenth-Century South
33 (1995); see also id. 32–33. In part, this policy dovetailed
with the grim fact that, at English common law, and in
several states through the beginning of the nineteenth century,
“a husband’s prerogative to chastise his wife”—that is, to
beat her short of permanent injury—was recognized as his
marital right. Reva B. Siegel, “The Rule of Love”: Wife
Beating as Prerogative and Privacy, 105 Yale L.J. 2117,
2125 (1996).
                      LATTA V. OTTER                        69

     Perhaps unsurprisingly, the profoundly unequal status of
men and women in marriage was frequently cited as
justification for denying women equal rights in other arenas,
including the workplace. “[S]tate courts made clear that the
basis, and validity, of such laws lay in stereotypical beliefs
about the appropriate roles of men and women.” Hibbs v.
Dep’t of Human Res., 273 F.3d 844, 864 (9th Cir. 2001), aff’d
sub nom. Nevada Dep’t of Human Res. v. Hibbs, 538 U.S.
721. Justice Bradley infamously opined in 1887 that “the
civil law, as well as nature herself, has always recognized a
wide difference in the respective spheres and destinies of man
and woman.” Bradwell, 83 U.S. at 141 (Bradley, J.,
concurring). On this view, women could be excluded from
various professions because “[t]he natural and proper timidity
and delicacy which belongs to the female sex evidently unfits
it for many of the occupations of civil life.” Id. Instead, the
law gave effect to the belief that “[t]he paramount destiny and
mission of woman are to fulfil the noble and benign offices
of wife and mother.” Id.

    As a result of this separate-spheres regime,
“‘[h]istorically, denial or curtailment of women’s
employment opportunities has been traceable directly to the
pervasive presumption that women are mothers first, and
workers second.’ . . . Stereotypes about women’s domestic
roles [we]re reinforced by parallel stereotypes presuming a
lack of domestic responsibilities for men.” Hibbs, 538 U.S.
at 736 (quoting the Joint Hearing before the Subcommittee on
Labor–Management Relations and the Subcommittee on
Labor Standards of the House Committee on Education and
Labor, 99th Cong., 2d Sess., at 100 (1986)). Likewise, social
benefits programs historically distinguished between men and
women on the assumption, grounded in the unequal marital
status of men and women, that women were more likely to be
70                    LATTA V. OTTER

homemakers, supported by their working husbands. See, e.g.,
Califano v. Goldfarb, 430 U.S. 199, 205–07 (1977);
Weinberger v. Wiesenfeld, 420 U.S. 636, 644–45 (1975).

    (ii) This asymmetrical regime began to unravel slowly in
the nineteenth century, starting with the advent of Married
Women’s Property Acts, which allowed women to possess
property in their own right for the first time. See, e.g., Reva
B. Siegel, The Modernization of Marital Status Law:
Adjudicating Wives’ Rights to Earnings, 1860–1930, 82 Geo.
L. Rev. 2127(1994). Eventually, state legislatures revised
their laws. Today, of course, a married woman may enter
contracts, sue and be sued without her husband’s
participation, and own and convey property. The advent of
“no fault” divorce regimes in the late 1960s and early 1970s
made marital dissolutions more common, and legislatures
also directed family courts to impose child and spousal
support obligations on divorcing couples without regard to
gender. See Cott, Public Vows, at 205–06. As these
legislative reforms were taking hold, “in 1971 . . . the Court
f[ou]nd for the first time that a state law violated the Equal
Protection Clause because it arbitrarily discriminated on the
basis of sex.” Hibbs, 273 F.3d at 865 (citing Reed, 404 U.S.
71).

    This same legal transformation extended into the marital
(and nonmarital) bedroom.          Spousal rape has been
criminalized in all states since 1993. See, e.g., Sarah M.
Harless, From the Bedroom to the Courtroom: The Impact of
Domestic Violence Law on Marital Rape Victims, 35 Rutgers
L.J. 305, 318 (2003). Griswold v. Connecticut, 381 U.S. 479
(1965), held that married couples have a fundamental privacy
right to use contraceptives, and Eisenstadt v. Baird, 405 U.S.
438 (1972), later applied equal protection principles to extend
                       LATTA V. OTTER                         71

this right to single persons. More recently, Lawrence
clarified that licit, consensual sexual behavior is no longer
confined to marriage, but is protected when it occurs, in
private, between two consenting adults, regardless of their
gender. See 539 U.S. at 578.

    In the child custody context, mothers and fathers today
are generally presumed to be equally fit parents. See, e.g.,
Cott, Public Vows, at 206. Stanley v. Illinois, 405 U.S. 645,
658 (1972), for example, held invalid as an equal protection
violation a state law that presumed unmarried fathers, but not
unwed mothers, unfit as parents. Later, the Supreme Court
expressly “reject[ed] . . . the claim that . . . [there is] any
universal difference between maternal and paternal relations
at every phase of a child’s development.” Caban v.
Mohammed, 441 U.S. 380, 389 (1979). Likewise, both
spouses in a marriage are now entitled to economic support
without regard to gender. See Cott, at 206–07. Once again,
equal protection adjudication contributed to this change: Orr,
440 U.S. at 278–79, struck down a state statutory scheme
imposing alimony obligations on husbands but not wives.

    In short, a combination of constitutional sex-
discrimination adjudication, legislative changes, and social
and cultural transformation has, in a sense, already rendered
contemporary marriage “genderless,” to use the phrase
favored by the defendants. See Op. Ct. at 25 n. 6. For, as a
result of these transformative social, legislative, and doctrinal
developments, “[g]ender no longer forms an essential part of
marriage; marriage under law is a union of equals.” Perry,
704 F. Supp. 2d at 993. As a result, in the states that
currently ban same-sex marriage, the legal norms that
currently govern the institution of marriage are “genderless”
in every resepect except the requirement that would-be
72                    LATTA V. OTTER

spouses be of different genders. With that exception, Idaho
and Nevada’s marriage regimes have jettisoned the rigid roles
marriage as an institution once prescribed for men and
women. In sum, “the sex-based classification contained in
the[se] marriage laws,” as the only gender classification that
persists in some states’ marriage statutes, is, at best, “a
vestige of sex-role stereotyping” that long plagued marital
regimes before the modern era, see Baker, 744 A.2d at 906
(Johnson, J., concurring in part and dissenting in part), and,
at worst, an attempt to reintroduce gender roles.

    The same-sex marriage bars constitute gender
discrimination both facially and when recognized, in their
historical context, both as resting on sex stereotyping and as
a vestige of the sex-based legal rules once imbedded in the
institution of marriage. They must be subject to intermediate
scrutiny.

     III.   Idaho and Nevada’s Same-Sex Marriage
            Prohibitions Fail Under Intermediate Scrutiny

    For Idaho and Nevada’s same-sex marriage prohibitions
to survive the intermediate scrutiny applicable to sex
discriminatory laws, it must be shown that these laws “serve
important governmental objectives and [are] substantially
related to achievement of those objectives.” Craig, 429 U.S.
at 197. “The purpose of requiring that close relationship is to
assure that the validity of a classification is determined
through reasoned analysis rather than through the mechanical
application of traditional, often inaccurate, assumptions about
the proper roles of men and women.” Hogan, 458 U.S. at
725–26.
                            LATTA V. OTTER                                73

    In part, the interests advanced by the defendants fail
because they are interests in promoting and enforcing gender
stereotyping and so simply are not legitimate governmental
interests. And even if we assume that the other governmental
objectives cited by the defendants are legitimate and
important, the defendants have not shown that the same-sex
marriage prohibitions are substantially related to achieving
any of them.

    The asserted interests fall into roughly three categories:
(1) ensuring children are raised by parents who provide them
with the purported benefits of “gender complementarity,” also
referred to as “gender diversity”; (2) “furthering the stability
of family structures through benefits targeted at couples
possessing biological procreative capacity,” and/or
discouraging “motherlessness” or “fatherlessness in the
home”; and (3) promoting a “child-centric” rather than
“adult-centric” model of marriage.”8 The defendants insist
that “genderless marriage run[s] counter to . . . [these] norms
and ideals,” which is why “man-woman marriage” must be
preserved.




    8
        The defendants also assert that the state has an interest in
“accommodating religious freedom and reducing the potential for civic
strife.” But, as the Opinion of the Court notes, even if allowing same-sex
marriage were likely to lead to religious strife, which is highly doubtful,
to say the least, that fact would not justify the denial of equal protection
inherent in the gender-based classification of the same-sex marriage bars.
See Watson v. City of Memphis, 373 U.S. 526, 535 (1963) (rejecting the
city’s proffered justification that delay in desegregating park facilities was
necessary to avoid interracial “turmoil,” and explaining “constitutional
rights may not be denied simply because of hostility to their assertion or
exercise”).
74                      LATTA V. OTTER

    The Opinion of the Court thoroughly demonstrates why
all of these interests are without merit as justifications for
sexual orientation discrimination. I add this brief analysis
only to show that the justifications are likewise wholly
insufficient under intermediate scrutiny to support the sex-
based classifications at the core of these laws.

    A. The Idaho defendants assert that the state has an
interest in ensuring children have the benefit of parental
“gender complementarity.” There must be “space in the law
for the distinct role of ‘mother’ [and] the distinct role of
‘father’ and therefore of their united, complementary role in
raising offspring,” the Idaho defendants insist. On a slightly
different tack, the Nevada intervenors similarly opine that
“[s]ociety has long recognized that diversity in education
brings a host of benefits to students,” and ask, “[i]f that is true
in education, why not in parenting?”

    Under the constitutional sex-discrimination jurisprudence
of the last forty years, neither of these purported justifications
can possibly pass muster as a justification for sex
discrimination. Indeed, these justifications are laden with the
very “‘baggage of sexual stereotypes’” the Supreme Court
has repeatedly disavowed. Califano v. Westcott, 443 U.S. at
89 (quoting Orr, 440 U.S. at 283).

    (i) It should be obvious that the stereotypic notion “that
the two sexes bring different talents to the parenting
enterprise,” runs directly afoul of the Supreme Court’s
repeated disapproval of “generalizations about ‘the way
women are,’” VMI, 518 U.S. at 550, or “the way men are,” as
a basis for legislation. Just as Orr, 440 U.S. at 279–80,
rejected gender-disparate alimony statutes “as effectively
announcing the State’s preference for an allocation of family
                          LATTA V. OTTER                              75

responsibilities under which the wife plays a dependent role,”
so a state preference for supposed gender-specific parenting
styles cannot serve as a legitimate reason for a sex-based
classification.

    This conclusion would follow “[e]ven [if] some statistical
support can be conjured up for the generalization” that men
and women behave differently as marital partners and/or
parents, because laws that rely on gendered stereotypes about
how men and women behave (or should behave) must be
reviewed under intermediate scrutiny. See J.E.B., 511 U.S.
at 140. It has even greater force where, as here, the supposed
difference in parenting styles lacks reliable empirical support,
even “on average.”9 Communicating such archaic gender-
role stereotypes to children, or to parents and potential
parents, is not a legitimate governmental interest, much less
a substantial one.

    (ii) The assertion that preserving “man-woman marriage”
is permissible because the state has a substantial interest in
promoting “diversity” has no more merit than the “gender
complementarity” justification. Diversity is assuredly a
weighty interest in the context of public educational
institutions, with hundreds or thousands of individuals. But
“[t]he goal of community diversity has no place . . . as a
requirement of marriage,” which, by law, is a private
institution consisting only of two persons. Baker v. State,
744 A.2d at 910 (Johnson, J., concurring in part and
dissenting in part). “To begin with, carried to its logical


  9
    As one of the plaintiffs’ expert psychologists, Dr. Michael Lamb,
explained, “[t]here . . . is no empirical support for the notion that the
presence of both male and female role models in the home enhances the
adjustment of children and adolescents.”
76                     LATTA V. OTTER

conclusion, the [Nevada intervenors’] rationale could require
all marriages to be between [two partners], not just of the
opposite sex, but of different races, religions, national origins,
and so forth, to promote diversity.” Id. Such an absurd
requirement would obviously be unconstitutional. See
Loving, 388 U.S. 1.

     Moreover, even if it were true that, on average, women
and men have different perspectives on some issues because
of different life experiences, individual couples are at least as
likely to exhibit conformity as diversity of personal
characteristics. Sociological research suggests that individual
married couples are more likely to be similar to each other in
terms of political ideology, educational background, and
economic background than they are to be dissimilar; despite
the common saying that “opposites attract,” in actuality it
appears that “like attracts like.” See, e.g., John R. Alford et
al., The Politics of Mate Choice, 73:2 J. Politics 362, 376
(2011) (“[S]pousal concordance in the realm of social and
political attitudes is extremely high.”); Jeremy Greenwood et
al., Marry Your Like: Assortative Mating and Income
Inequality (Population Studies Ctr., Univ. Of Penn., Working
Paper No. 14-1, at 1, 2014) (Since the 1960s, “the degree of
assortative mating [with regard to educational level] has
increased.”). Further, there is no evidence of which I am
aware that gender is a better predictor of diversity of
viewpoints or of parenting styles than other characteristics.
Such “gross generalizations that would be deemed
impermissible if made on the basis of race [do not become]
somehow permissible when made on the basis of gender.”
J.E.B., 511 U.S. at 139–40.

   In short, the defendants’ asserted state interests in “gender
complementarity” and “gender diversity” are not legitimate
                       LATTA V. OTTER                        77

“important governmental objectives.” See Craig, 429 U.S. at
197. Accordingly, I do not address whether excluding same-
sex couples from marriage is substantially related to this goal.

    B. The defendants also argue that their states have an
important interest in “encouraging marriage between
opposite-sex partners” who have biological children, so that
those children are raised in an intact marriage rather than in
a cohabiting or single-parent household. Assuming that this
purpose is in fact a “important governmental objective,” the
defendants have entirely failed to explain how excluding
same-sex couples from marriage is substantially related to
achieving the objective of furthering family stability.

     (i) I will interpret the asserted state goal in preventing
“fatherlessness” and “motherlessness” broadly. That is, I
shall assume that the states want to discourage parents from
abandoning their children by encouraging dual parenting over
single parenting. If the asserted purpose were instead read
narrowly, as an interest in ensuring that a child has both a
mother and a father in the home (rather than two mothers or
two fathers), the justification would amount to the same
justification as the asserted interest in “gender
complementarity,” and would fail for the same reason. That
is, the narrower version of the family stability justification
rests on impermissible gender stereotypes about the relative
capacities of men and women.

    Discouraging single parenting by excluding same-sex
couples from marriage is oxymoronic, in the sense that it will
likely achieve exactly the opposite of what the states say they
seek to accomplish. The defendants’ own evidence suggests
that excluding same-sex couples from marriage renders their
78                       LATTA V. OTTER

unions less stable, increasing the risk that the children of
those couples will be raised by one parent rather than two.

    True, an increasing number of children are now born and
raised outside of marriage, a development that may well be
undesirable.10 But that trend began apace well before the
advent of same-sex marriage and has been driven by entirely
different social and legal developments. The trend can be
traced to declines in marriage rates, as well as to the rise in
divorce rates after the enactment of “no fault” divorce
regimes in the late 1960s and early 1970s. “The proportion
of adults who declined to marry at all rose substantially
between 1972 and 1998 . . . . [In the same period,] [t]he
divorce rate rose more furiously, to equal more than half the
marriage rate, portending that at least one in two marriages
would end in divorce.” Cott, Public Vows, at 203. The
defendants’ assertion that excluding same-sex couples from
marriage will do anything to reverse these trends is utterly
unsubstantiated.

    (ii) The defendants’ appeal to biology is similarly
without merit. Their core assertion is that the states have a
substantial interest in channeling opposite-sex couples into
marriage, so that any accidentally produced children are more
likely to be raised in a two-parent household. But the
exclusion of same-sex couples from the benefits and
obligations of state-sanctioned marriage is assuredly not

     10
       According to the defendants, “[b]etween 1970 and 2005, the
proportion of children living with two married parents dropped from 85
percent to 68 percent,” and as of 2008, “[m]ore than a third of all U.S.
children [were] . . . born outside of wedlock.” See Benjamin Scafidi,
Institute for American Values, The Taxpayer Costs of Divorce and Unwed
Childbearing: First-Ever Estimates for the Nation and All Fifty States 7
(2008).
                       LATTA V. OTTER                        79

“substantially related,” Craig, 429 U.S. at 197, to achieving
that goal.

    The reason only opposite-sex couples should be allowed
to marry, we are told by the defendants, is that they “possess
the unique ability to create new life.” But both same-sex and
opposite-sex couples can and do produce children
biologically related only to one member of the couple, via
assisted reproductive technology or otherwise. And both
same-sex and opposite-sex couples adopt children, belying
the notion that the two groups necessarily differ as to their
biological connection to the children they rear.

    More importantly, the defendants “cannot explain how the
failure of opposite-sex couples to accept responsibility for the
children they create relates at all to the exclusion of same-sex
couples from the benefits of marriage.” Baker, 744 A.2d at
911 (Johnson, J., concurring in part and dissenting in part).
For one thing, marriage has never been restricted to opposite-
sex couples able to procreate; as noted earlier, the spousal
relationship, economic and otherwise, has always been
understood as a sufficient basis for state approval and
regulation. See supra pp. 65–68. For another, to justify sex
discrimination, the state must explain why the discriminatory
feature is closely related to the state interest. See Hogan,
458 U.S. at 725–26. The states thus would have to explain,
without reliance on sex-stereotypical notions, why the bans
on same-sex marriage advance their interests in inducing
more biological parents to marry each other. No such
showing has been or can be made.

   Biological parents’ inducements to marry will remain
exactly what they have always been if same-sex couples can
marry. The legal benefits of marriage—taxation, spousal
80                    LATTA V. OTTER

support, inheritance rights, familial rights to make decisions
concerning the illness and death of a spouse, and so on—will
not change. See, e.g., Turner v. Safley, 482 U.S. 78, 95–96
(1987). The only change will be that now-excluded couples
will enjoy the same rights. As the sex-based exclusion of
same-sex couples from marrying does not in any way
enhance the marriage benefits available to opposite-sex
couples, that exclusion does not substantially advance—or
advance at all—the state interest in inducing opposite-sex
couples to raise their biological children within a stable
marriage.

    (iii) Finally, the defendants argue that “the traditional
marriage institution” or “man-woman marriage . . . is
relatively but decidedly more child-centric” than “genderless
marriage,” which they insist is “relatively but decidedly more
adult-centric.”

    These assertions are belied by history. As I have noted,
see supra pp. 65–71, “traditional marriage” was in fact quite
“adult-centric.” Marriage was, above all, an economic
arrangement between spouses. See, e.g., Cott, Public Vows,
at 54. Whether or not there were children, the law imposed
support obligations, inheritance rules, and other rights and
burdens upon married men and women. Moreover, couples
unwilling or unable to procreate have never been prevented
from marrying. Nor was infertility generally recognized as a
ground for divorce or annulment under the old fault-based
regime, even though sexual impotence was. See, e.g.,
Vernier, I §50, II § 68.

   Further, the social concept of “companionate
marriage”—that is, legal marriage for companionship
purposes without the possibility of children—has existed
                         LATTA V. OTTER                             81

since at least the 1920s. See Christina Simmons, Making
Marriage Modern: Women’s Sexuality from the Progressive
Era to World War II 121 (2009). The Supreme Court called
on this concept when it recognized the right of married
couples to use contraception in 1965. Griswold, 381 U.S. at
486. Griswold reasoned that, with or without procreation,
marriage was “an association for as noble a purpose as any.”
Id.

   Same-sex marriage is thus not inherently less “child-
centric” than “traditional marriage.”11 In both versions, the
couple may bear or adopt and raise children, or not.

    Finally, a related notion the defendants advance, that
allowing same-sex marriage will render the marriage
institution “genderless,” in the sense that gender roles within
opposite-sex marriages will be altered, is also ahistorical. As
I have explained, those roles have already been profoundly
altered by social, legislative, and adjudicative changes. All
these changes were adopted toward the end of eliminating
the gender-role impositions that previously inhered in the
legal regulation of marriage.

    In short, the “child-centric”/“adult-centric” distinction is
an entirely ephemeral one, at odds with the current realities
of marriage as an institution. There is simply no substantial



 11
     Moreover, if the assertion that same-sex marriages are more “adult-
centric” is meant to imply state disapproval of the sexual activity
presumed to occur in same-sex marriages, that disapproval could not be
a legitimate state purpose. After Lawrence, the right to engage in same-
sex sexual activity is recognized as a protected liberty interest. See
539 U.S. at 578.
82                       LATTA V. OTTER

relationship between discouraging an “adult-centric” model
of marriage and excluding same-sex couples.

     IV. Conclusion

    “Intentional discrimination on the basis of gender by state
actors violates the Equal Protection Clause, particularly
where, as here, the discrimination serves to ratify and
perpetuate invidious, archaic, and overbroad stereotypes
about the relative abilities of men and women.” J.E.B.,
511 U.S. at 130–31. Idaho and Nevada’s same-sex marriage
proscriptions are sex based, and these bans do serve to
preserve “invidious, archaic, and overbroad stereotypes”
concerning gender roles. The bans therefore must fail as
impermissible gender discrimination.

    I do not mean, by presenting this alternative analysis, to
minimize the fact that the same-sex marriage bans necessarily
have their greatest effect on lesbian, gay, bisexual, and
transgender individuals. Still, it bears noting that the social
exclusion and state discrimination against lesbian, gay,
bisexual, and transgender people reflects, in large part,
disapproval of their nonconformity with gender-based
expectations.12    That is, such individuals are often
discriminated against because they are not acting or speaking
or dressing as “real men” or “real women” supposedly do.
“[S]tereotypes about homosexuality are directly related to our
stereotypes about the proper roles of men and women.”


     12
       Although not evidently represented among the plaintiff class,
transgender people suffer from similar gender stereotyping expectations.
See, e.g., Schwenk v. Hartford, 204 F.3d 1187, 1201–02 (9th Cir. 2000)
(discrimination on the basis of transgender status is also gender
discrimination).
                      LATTA V. OTTER                        83

Centola v. Porter, 183 F. Supp. 2d 403, 410 (D. Mass. 2002);
see also Andrew Koppelman, Why Discrimination Against
Lesbians and Gay Men is Sex Discrimination, 69 N.Y.U. L.
Rev. 197 (1994). The same-sex marriage prohibitions, in
other words, impose harms on sexual orientation and gender
identity minorities precisely because they impose and enforce
gender-normative behavior.

    I do recognize, however, that the gender classification
rubric does not adequately capture the essence of many of the
restrictions targeted at lesbian, gay, and bisexual people.
Employment discrimination, housing discrimination, and
peremptory strikes on the basis of sexual orientation, to name
a few of the exclusions gays, lesbians, and other sexual
orientation minorities have faced, are primarily motivated by
stereotypes about sexual orientation; by animus against
people based on their nonconforming sexual orientation; and
by distaste for same-sex sexual activity or the perceived
personal characteristics of individuals who engage in such
behavior. See, e.g., Romer v. Evans, 517 U.S. 620 (1996);
SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471
(2014). And those sorts of restrictions do not turn directly on
gender; they do not withhold a benefit, choice, or opportunity
from an individual because that individual is a man or a
woman. Although the gender stereotyping so typical of sex
discrimination may be present, see generally Koppelman, 69
N.Y.U. L. Rev. 197, those restrictions are better analyzed as
sexual orientation discrimination, as we did in SmithKline.
740 F.3d at 480–84.

    As to the same-sex marriage bans in particular, however,
the gender discrimination rubric does squarely apply, for the
reasons I have discussed. And as I hope I have shown, the
concepts and standards developed in more than forty years of
84                    LATTA V. OTTER

constitutional sex discrimination jurisprudence rest on the
understanding that “[s]anctioning sex-based classifications on
the grounds that men and women, simply by virtue of their
gender, necessarily play different roles in the lives of their
children and in their relationships with each other causes
concrete harm to women and to men throughout our society.”
Deborah A. Widiss et al., Exposing Sex Stereotypes in Recent
Same-Sex Marriage Jurisprudence, 30 Harv. J. L. & Gender
461, 505 (2007). In my view, the same-sex marriage bans
belie that understanding, and, for that reason as well, cannot
stand.
