District Court of Guam

4
Mitchell F. Thompson, Esq.

R. Todd Thompson, Esq.
Thompson Gutierrez & Alcantara, P.C.
238 Archbishop Flores Street, Suite 801
Hagatfia, Guam 96910
Telephone: (671)472-2089
Facsimile: (671)477-5206
William D. Pesch, Esq.
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5Tit
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DISTRICT COURT OF GUAM

APR 73 2015
Guam Family Law Office

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173 Aspinall Avenue, Suite 203

Hagatna, Guam 96910
Telephone: (671) 472-8472
Facsimile: (671)477-5873
CLERK OF COURT
Attorneys for Plaintiffs Kathleen M. Aguero and

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Loretta M. Pangelinan
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IN THE DISTRICT COURT OF GUAM
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TERRITORY OF GUAM
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KATHLEEN M. AGUERO and LORETTA
CIVIL CASE NO.
M. PANGELINAN,
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Plaintiffs,
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EDDIE BAZA CALVO in his official capacity as

16
Governor of Guam; and CAROLYN GARRIDO
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in her official capacity as Registrar in the Office

of Vital Statistics, Department of Public
Health and Social Services,
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Defendants.
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MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
PLAINTIFFS' MOTION FOR
SUMMARY JUDGMENT
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ORIGINAL
Case 1:15-cv-00009 Document 3 Filed 04/13/15 Page 1 of 34
00 0 0
TABLE OF CONTENTS
2
INTRODUCTION
STATEMENT OF FACTS
ANALYSIS
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4
I.
SUMMARY JUDGMENT SHOULD BE GRANTED
EXPEDITIOUSLY BECAUSE THE LAW IS SETTLED;
AND NO AMOUNT OF DISCOVERY OR FUTURE

PROCEEDINGS CAN ALTER OR AMPLIFY ON THE
MATERIAL FACTS OR CONTROLLING LAW
A.
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B.
10
11
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II.
Summary Judgment is Appropriate under the

Circumstances at Bar
Given the Ninth Circuit's Controlling Precedent

in Latta v. Otter, Summary Judgment Should be
Granted Expeditiously and Without Delay
WHILE MOST OF GUAM'S MARRIAGE LAWS ARE
PURPORTEDLY GENDER-NEUTRAL, TOGETHER

THEY IMPERMISSIBLY RESTRICT MARRIAGE
13
LICENSES TO "OPPOSITE-SEX" APPLICANTS
13
14
A.
Guam's Marriage Eligibility Laws are Ostensibly

Gender-Neutral
15
16
B.
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The Office of Vital Statistics Statute Defines
Marriage as for Persons of "Opposite-Sex"
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Similar Marriage License Bans have been Struck

Down to the Extent they have been Applied in a
Discriminatory Manner
15
DPHSS's Application of Guam's Marriage Licensing

Laws in a Discriminatory Fashion Violates the
Constitution's Guarantee of Equal Protection
17
17
C.
18
19
D.
20
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III.
GUAM'S BAN ON MARRIAGES FOR SAME-SEX
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COUPLES DOES NOT SURVIVE HEIGHTENED
23
CONTROLLING CIRCUIT PRECEDENT
EQUAL PROTECTION SCRUTINY UNDER

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IV.

COUPLES UNCONSTITUTIONALLY VIOLATES
PLAINTIFFS' FUNDAMENTAL RIGHT TO MARRY
CONCLUSION
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n
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TABLE OF AUTHORITIES
CASES
PAGE(S)
Anderson v. Liberty Lobby, Inc.,

3
477 U.S. 242 (1986)
Aydin Corp. v. Loral Corp.,

718 F.2d 897 (9th Cir.1983)
5
6
7
Baskin v. Bo pan.
766F.3d648 (7th Cir.), cert, denied, 135 S. Ct. 316(2014)
Bishop v. Smith.
760 F.3d 1070 (10th Cir.), cert, denied, 135 S. Ct. 271 (2014)
2,18
2,11, 12
8
9
Bishop v. United States ex rel. Holder.

962 F. Supp. 2d 1252 (N.D. Okla.), affdsub mm. Bishop. 760 F.3d 1070,
cert, denied, 135 S. Ct. 271 (2014)
10
Bostic v. Rainey,
11
970 F. Supp. 2d 456 (E.D. Va.), affdsub mm. Bostic. 760 F.3d 352,
cert, denied sub mm. Rainey v. Bostic. 135 S. Ct. 286 (2014)
12
Bostic v. Schaefer.
13
14
Bourke v. Beshear.
_ S. Ct. _, 2015 WL 213651 (2015)
2, 10,11,24
15
Bourke v. Beshear.
16
996 F. Supp. 2d 542 (W.D. Ky. 2014), rev 'dsub mm. DeBoer. 772 F.3d 388,
cert, granted. Bourke v. Beshear.
S. Ct._,2015 WL 213651 (2015)
Bowling v. Pence.
_ F. Supp. 2d _, 2014 WL 4104814 (S.D. Ind. 2014)
17
18
19
Bradacs v. Haley.
_ F. Supp. 3d _, 2014 WL 6473727 (D.S.C. 2014)
20
Brenner v. Scott.
21
999 F. Supp. 2d 1278 (N.D. Fla. 2014)
22
Burns v. Hickenlooper.
No. 14-cv-1817,2014 WL 3634834 (D. Colo. July 23, 2014)
23
in
24
Campaign for S. Equal, v. Bryant.

_ F. Supp. 3d _, 2014 WL 6680570 (S.D. Miss. 2014)
Condon v. Halev.
3
4
2014 WL 5897175
10,12
Condon v. Halev.
21 F. Supp. 3d 572 (D.S.C. 2014)
2,11
6
7
Country Classic Dairies, Inc. v. State of Montana, Dep't of Commerce Milk Control Bureau.
847 F.2d 593 (9th Cir. 1988)
17
De Leon v. Perry.
975 F. Supp. 2d 632 (W.D. Tex. 2014)
DeBoer v. Snyder.
9
10
772 F.3d 388 (6th Cir. 2014)
Dobbs v. Anthem Blue Cross and Blue Shield,
600 F.3d 1275 (10th Cir. 1990)
11
11
First Nat'l Bank v. Cities Servs. Co..

12
391 U.S. 253 (1968)
13
Freeman v. City of Santa Ana.
68 F.3d 1180 (9th Cir. 1995)
18
14
Geieer v. Kitzhaber.
15
994 F. Supp. 2d 1128 (D. Or. 2014)
16
General Synod of the United Church of Christ v. Resinger.
12 F. Supp. 3d 790 (W.D.N.C. 2014)
17
Gray v. Orr,
18
19
4 F. Supp. 3d 984 (N.D. 111. 2013)
Griego v. Oliver.
316 P.3d 865 (N.M. 2013)
16
20
Guam v. Guerrero.
21
290 F.3d 1210 (9th Cir. 2002)
22
Guzzo v. Mead.
17,23
No. 14-cv-200,2014 WL 5317797 (D. Wyo. Oct. 17,2014)

23
IV
24
2, 11,12
Hambv v. Parnell,
_ F. Supp. 3d _, 2014 WL 5089399 (D. Alaska 2014)
2, 8,10,22
Hart v. Massanari.
3
266 F.3d 1155 (9th Cir. 2001)
Henry v. Himes,
14 F. Supp. 3d 1036 (S.D. Ohio), rev'dsub nom. DeBoer. 772 F.3d 388,
cert, grantedsub nom. Obergefell v. Hodges.
S. Ct. ,
2015 WL 213646 (2015)
19
Jernigan v. Crane.
7
8
_ F. Supp. 3d _, 2014 WL 6685391 (E.D. Ark. 2014)
Kitchen v. Herbert.
2,11,12,24
Kitchen v. Herbert,
10
961F. Supp. 2d 1181 (D. Utah 2013), affd, 755 F.3d 1193,
cert, denied, 135 S. Ct. 265 (2014)
11
12
Laforge v. Consol. Rail Corp.,

1988 WL 38321 (E.D. Pa. Apr. 22,1988)
13
Latta v. Otter.
19 F. Supp. 3d 1054 (D. Idaho 2014), affd, 11\ F.3d456
24
20
14
Latta v. Otter.
15
16
771 F.3d 456 (9th Cir. 2014)
passim
Lawson v. Kelly,
_F. Supp. 3d_, 2014 WL 5810215 (W.D. Mo. 2014)
17
Lee v. Orr.
18
No. 13-cv-8719,2013 WL 6490577 (N.D. 111. Dec. 10,2013)
19
Love v. Beshear,
20
989 F. Supp. 2d 536 (W.D. Ky.), rev'dsub nom. DeBoer v. Snvder.

772 F.3d 388 (6th Cir. 2014), cert, grantedsub nom. Bourke v. Beshear.
_ S.Ct._, 2015 WL 213651 (2015)
21
22
Loving v. Virginia.
388 U.S. 1 (1967)
23
24
24
Majors v. Home.
14 F. Supp. 3d 1313 (D. Ariz. 2014)
passim
Marie v. Moser.
3
_F. Supp. 3d_, 2014 WL 5598128 (D. Kan. 2014)
2, 12, 15
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574(1986)
McCabe v. Gen. Foods Corp..

81 lF.2d 1336 (9th Cir. 1987)
6
7
McGee v. Cole.
_ F. Supp. 3d _, 2014 WL 5802665 (S.D. W. Va. 2014)
McGee v. Cole.
9
10
2014 WL 5802665 (S.D. W. Va. Nov. 7,2014)
11
Obergefell v. Hodges,
_ S. Ct. _, 2015 WL 213646 (2015)
11
Obergefell v. Wvmyslo.
962 F. Supp. 2d 968 (S.D. Ohio 2013), rev'don other grounds sub nom.
DeBoer. 772 F.3d 388, cert, granted, Obergefell. 2015 WL 213646
14
Ogawa v. U.S. Explore & Study. Inc..

CIVIL CASE No. 11-00002,2013 WL 2256220 (D. Guam May 20, 2013)
15
Rainey v. Bostic.
12
13
135S.Ct.286(2014)
16
Rolando v. Fox,
17
18
23 F. Supp. 3d 1227 (D. Mont. 2014)
2, 8,10,22
Rosenbrahn v. Daugaard.
_F. Supp. 3d_, 2015 WL 144567 (D.S.D. 2015)
Searcy v. Strange.
No. 14-cv-0208-CG-N (S.D. Ala. Jan. 23, 2015)
19
20
21
Sevcik v. Sandoval,
911 F.Supp.2d996(D.Nev.2012)
20
22
23
SmithKline Beecham Corp. v. Abbott Labs.

740 F.3d 471 (9th Cir. 2014), reh 'g en banc denied,
vi
24
759 F.3d 990 (9th Cir. 2014)
Tanco v. Haslam.
18,20,22
_ S.Ct._, 2015. WL 213648 (2015)
Tanco v. Haslam.
4
7 F. Supp. 3d 759 (M.D. Tenn.), rev 'dsub nom. DeBoer.

772 F.3d 388, cert, granted sub nom. Tanco v. Haslam,
_ S. Ct. _, 2015. WL 213648 (2015)
Turner v. Safley.
482 U.S. 78(1987)
24
U.S. v. Windsor,
8
U.S.
, 133 S.Ct. 2675 (2013)
20,21,22
United States v. Spedalieri.

910 F.2d 707 (10th Cir. 1990)
10
11
Washington v. Glucksberg,
521 U.S. 702 (1997)
12
Whitewood v. Wolf.
23
992 F. Supp. 2d 410 (M.D. Pa. 2014)
13
Wolf v.Walker.
14
15
16
986 F. Supp. 2d 982 (W.D. Wis.), affdsub nom. Baskin.

766 F. 3d 648 (7th Cir.), cert, denied sub nom. Walker v. Wolf.
135 U.S. 316 (2014)
Zablocki v. Redhail.
434 U.S. 374 (1978)
24
17
18
STATUTES
PAGE(S)
19
10 GCA 3207(h)
14
20
19 GCA 3101
13
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19 GCA 3202(a)(8)
14
22
19 GCA 3202(b)
14
23
vn
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OTHER AUTHORITIES
PAGE(S)
Fed. R. Civ. P. 56
4,6,7
Kansas Stat. Ann. 23 101
15
NMSA 1978, Section 40-1-1 (1862-63)
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7
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9
10
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14
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Vlll
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Plaintiffs Loretta M. Pangelinan and Kathleen M. Aguero submit this memorandum of
points and authorities in support their motion for summary judgment. Plaintiffs request that
this Court declare unconstitutional under the United States Constitution and Guam's Bill of
Rights Guam's marriage laws, namely 10 G.C.A. 3207(h), and any other sources of Guam
law to the extent that they preclude same-sex couples from marriage or refuse to recognize their
lawful marriages (hereinafter the "Marriage Ban"), and enjoin Defendants and their officers,
employees, and agents from enforcing them.

INTRODUCTION
Plaintiffs only seek to enjoy the same Constitutional right to marry and equal protection
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of the laws that every other person in Guamindeed, every other person within the Ninth
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Circuitalready enjoys. They have enjoyed a committed, loving relationship for over nine
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years. From the beginning, they have been committed to wed each other, but have not done so
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because they were not sure the Guam authorities would allow them to marry. Now they know.
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Despite binding and clear federal precedent proscribing the denial of marriage to same-sex
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couples, DefendantsGuam public officialsrefused to accept Plaintiffs' Guam Marriage
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License Application, based on a facially discriminatory statute similar to those that have failed
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to withstand scrutiny under the Equal Protection and Due Process Clauses of the Fourteenth
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Amendment of the United States Constitution in nearly every jurisdiction where such laws have
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been challenged.
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Fortunately, however, this honorable Court may make quick work of the instant action
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because Plaintiffs' civil rights action only seeks to enforce the clear and unequivocal law in the
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Ninth Circuit that government officials must allow same-sex couples the freedom to marry.
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The near-unanimous pronouncement of scores of federal district and appellate courts across the
1
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United States that state laws precluding same-sex couples from marriage or refusing to
recognize their lawful marriages violate the constitutional guarantees of due process and equal
protection has occurred swiftly across this country and has settled the manner within this
Circuit.1 As a result, numerous courts have comprehensively rejected all of the purported
justifications for the denial of marriage licenses to same-sex couples.
1 See, e.g., Latta v. Otter. 771 F.3d 456 (9th Cir. 2014); Baskin v. Boean. 766 F.3d 648 (7th Cir.),
7
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cert, denied, 135 S. Ct. 316 (2014); Bostic v. Schaefer. 760 F.3d 352 (4th Cir.), cert, denied, 135 S. Ct.
308 (2014); Bishop v. Smith. 760 F.3d 1070 (10th Cir.), cert, denied, 135 S. Ct. 271 (2014); Kitchen v.
Herbert. 755 F.3d 1193 (10th Cir.), cert, denied, 135 S. Ct. 265 (2014); Searcy v. Strange. No. 14-cv0208-CG-N (S.D. Ala. Jan. 23, 2015); Rosenbrahn v. Daueaard. _ F. Supp. 3d _, 2015 WL 144567
(D.S.D. 2015); Jernigan v. Crane. _ F. Supp. 3d , 2014 WL 6685391 (E.D. Ark. 2014); Campaign
for S. Equal, v. Bryant. _ F. Supp. 3d _^ 2014 WL 6680570 (S.D. Miss. 2014); Rolando v. Fox. 23 F.
Supp. 3d 1227 (D. Mont. 2014); Bradacs v. Halev. _ F. Supp. 3d _, 2014 WL 6473727 (D.S.C. 2014);
Condon v. Halev. 21 F. Supp. 3d 572 (D.S.C. 2014); McGee v. Cole. _ F. Supp. 3d _, 2014 WL
5802665 (S.D. W. Va. 2014); Lawson v. Kelly.
F. Supp. 3d _, 2014 WL 5810215 (W.D. Mo. 2014);
Marie v. Moser. _ F. Supp. 3d _, 2014 WL 5598128 (D. Kan. 2014); Guzzo v. Mead. No. 14-cv-200,
2014 WL 5317797 (D. Wyo. Oct. 17, 2014); Hambv v. Parnell. _ F. Supp. 3d _, 2014 WL 5089399
(D. Alaska 2014); General Synod of the United Church of Christ v. Resinger. 12 F. Supp. 3d 790
(W.D.N.C. 2014); Majors v. Home. 14 F. Supp. 3d 1313 (D. Ariz. 2014); Brenner v. Scott. 999 F. Supp.
2d 1278 (N.D. Fla. 2014); Bowling v. Pence. _ F. Supp. 2d _, 2014 WL 4104814 (S.D. Ind. 2014);
Burns v. Hickenlooper. No. 14-cv-1817, 2014 WL 3634834 (D. Colo. July 23, 2014); Love v. Beshear.
989 F. Supp. 2d 536 (W.D. Ky.), rev'dsub nom. DeBoer v. Snvder. 772 F.3d 388 (6th Cir. 2014), cert.
granted sub nom. Bourke v. Beshear. _ S. Ct. , 2015 WL 213651 (2015); Whitewood v. Wolf. 992
F. Supp. 2d 410 (M.D. Pa. 2014); Baskin v. Boean. 12 F. Supp. 3d 1144 (S.D. Ind.), aff'd, 766 F.3d 648
(7th Cir.), cert, denied, 135 S. Ct. 316 (2014); Wolf v. Walker. 986 F. Supp. 2d 982 (W.D. Wis.), aff'd
sub nom. Baskin. 766 F. 3d 648 (7th Cir.), cert, denied sub nom. Walker v. Wolf. 135 U.S. 316 (2014);
Geigerv.Kitzhaber. 994 F. Supp. 2dl 128 (D. Or. 2014); Latta v. Otter. 19 F. Supp. 3d 1054 (D. Idaho),
affd, 771 F.3d 456 (9th Cir. 2014); Henry v. Himes. 14 F. Supp. 3d 1036 (S.D. Ohio), rev'dsub nom.
DeBoer. 772 F.3d 388, cert, granted sub nom. Obergefell v. Hodges. _ S. Ct. _, 2015 WL 213646
(2015); DeBoer v. Snvder. 973 F. Supp. 2d 757 (E.D. Mich. 2014), rev'd, 772 F.3d 388, cert, granted,
_ S. Ct. _, 2015 WL 213650 (2015); Bourke v. Beshear. 996 F. Supp. 2d 542 (W.D. Ky. 2014), rev'd
sub nom. DeBoer. 772 F.3d 388, cert, granted, Bourke v. Beshear. _ S. Ct. _, 2015 WL 213651
(2015); Tanco v. Haslam. 7 F. Supp. 3d 759 (M.D. Tenn.), rev'dsub nom. DeBoer. 772 F.3d 388, cert,
granted sub nom. Tanco v. Haslam. _ S. Ct. _, 2015. WL 213648 (2015); De Leon v. Perry. 975 F.
Supp. 2d 632 (W.D. Tex. 2014); Bostic v. Rainey. 970 F. Supp. 2d 456 (E.D. Va.), affd sub nom.
Bostic. 760 F.3d 352, cert, denied sub nom. Rainey v. Bostic. 135 S. Ct. 286 (2014); Bishop v. United
States ex rel. Holder. 962 F. Supp. 2d 1252 (N.D. Okla.), aff'd sub nom. Bishop. 760 F.3d 1070, cert.
denied, 135 S. Ct. 271 (2014); Obergefell v. Wvmvslo. 962 F. Supp. 2d 968 (S.D. Ohio 2013), rev'd on
othergrounds sub nom. DeBoer. 772 F.3d 388, cert, granted, Obergefell. 2015 WL 213646; Kitchen v.
Herbert. 96IF. Supp. 2d 1181 (D. Utah 2013), aff'd, 755 F.3d 1193, cert, denied, 135 S. Ct. 265 (2014);
Lee v. Orr. No. 13-cv-8719, 2013 WL 6490577 (N.D. III. Dec. 10, 2013); Gray v. Orr. 4 F. Supp. 3d
984 (N.D. 111.2013).
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While Defendants may disagree with the avalanche of federal court decisions ruling that
states may not, consistent with constitutional guarantees of liberty and equal protection,
prohibit same-sex couples and their families from the privileges and protections of marriage,
they may not disregard the rule of law. The legal issue is now completely settled in this
jurisdiction. In the Ninth Circuit, any doubt about the matter was put to rest late last year when
the court held that it is a violation of the Equal Protection clause of the Fourteenth Amendment
of the United States Constitution for a jurisdiction to forbid an otherwise qualified same sex
couple from being married. See Latta v. Otter. 771 F.3d 456 (9th Cir. 2014),pet. for reh'g en
banc denied, 779 F.3d 902 (9th Cir. Jan 9,2015).
10
In Latta. the United States Court of Appeals for the Ninth Circuit unequivocally ruled
11
that laws barring same-sex couples from marriage "unjustifiably discriminate on the basis of
12
sexual orientation, and are in violation of the Equal Protection Clause." 771 F.3d at 476. In
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doing so, the Ninth Circuit rejected every justification the States of Idaho and Nevada had
14
conjured to justify their exclusions of same-sex couples from marriage. Id. Attempts to obtain
15
en banc review or to have the decision in Latta stayed were rejected by the Ninth Circuit and
16
the U.S. Supreme Court, respectively. See Otter v. Latta. 135 S. Ct. 345 (2014); Latta. 779
17
F.3d 902. As a result, the Ninth Circuit issued its mandate and, accordingly, it is undeniable
18
that same-sex couples throughout the Ninth Circuit must now be allowed to get married.
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Consequently, Plaintiffs only seek from this Court what Latta requires: A timely ruling
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declaring Guam's Marriage Ban unconstitutional under the U.S. Constitution and Guam Bill of
21
Rights, and enjoining the enforcement of Guam laws that prevent same-sex couples from
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marrying because such laws violate the constitutional guarantees of equal protection and due
23
process.
24
STATEMENT OF FACTS
As specified in the separate CVLR Rule 56(g) Concise Statement of Undisputed Facts
accompanying this memorandum, the facts material to the resolution of this motion are entirely
undisputed.
Loretta M. ("Lo") Pangelinan and Kathleen M. ("Kate") Aguero have been in a
5
6
committed, loving relationship for over nine years.
Kate works for a local bank, and Lo runs
her own maintenance and cleaning firm.3 Both Kate and Lo were born and raised on Guam.4
They are hard working life-long Guam residents with deep roots in the local community.5 Both
Kate and Lo feel that it is important to give back to the community by helping to raise and care
10
for children in need on Guam.6 Both are registered foster parents with Department of Public
11
Health and Social Services ("DPHSS"), and together they have cared for numerous foster
12
children through the years.7 They are currently caring for three foster children.8
13
Kate and Lo wish to marry each other because they love each other and are committed
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to each other for life.9 They want to celebrate their mutual love through marriage, and they
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wish to marry in Guam so that all their friends and family may attend and participate in their
16
joyous occasion.10 While Kate and Lo could travel thousands ofmiles to get married inanother
17
jurisdiction where marriage for same-sex couples is recognized, such travel would be costly
18
19
2 Declaration of Kathleen M. Aguero ("Aguero Decl."), at \ 1 (Apr. 13, 2015); Declaration of

Loretta M. Pangelinan ("Pangelinan Decl."), at y 1 (Apr. 13,2015).
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22
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3 Aguero Decl. atU2; Pangelinan Decl. atH2.

4
5
6
7
8
9
10
Aguero Decl. at U3; Pangelinan Decl. at%3.

Aguero Decl. at TJ 4; Pangelinan Decl. at ^ 4.
Aguero Decl. at U5; Pangelinan Decl. at| 5.
Aguero Decl. at H6; Pangelinan Decl. at II 6.
Aguero Decl. at U6; Pangelinan Decl. atH6.
Aguero Decl. at U7; Pangelinan Decl. at II7.
Aguero Decl. atJ 8; Pangelinan Decl. atII8.
4
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and difficult to arrange, given their busy schedules, responsibilities, and limited financial
resources.'' More importantly, they want to be able to invite their family and friends on Guam
to bear witness to their love and commitment for each other in the same way that different-sex
couples in Guam are able to do through marriage.12 Kate and Lo believe that they should not
have to leave Guam to have their love and commitment recognized.13
On April 8, 2015, Plaintiffs personally brought their application for a marriage license
to the Vital Statistics Office of DPHSS, in Mangilao, the office that processes marriage license
applications on Guam.14 DPHSS officials refused to accept the application and handed the
women two documents: (1) a 2009 opinion letter from the Acting Guam Attorney General
10
regarding "common-law" unions in Guam; and (2) a copy of certain provisions from Tile 10 of
11
the Guam Code Annotated, including 10 GCA Section 3207(h), indicating that, "[mjarriage
12
means the legal union of persons of the opposite sex."15 At no time has any government
13
official articulated any reason for failing to issue a marriage license to Plaintiffs aside from
14
their status as a same sex couple.
15
16
/ /
17
18
/ /
19
20
/ /
21
Aguero Decl. at ^ 9; Pangelinan Decl. at H9.

22
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12 Aguero Decl. at ^f 10; Pangelinan Decl. at ^J10.

13 Aguero Decl. at TI11; Pangelinan Decl. at^ 11.
14 Aguero Decl. at ^12; Pangelinan Decl. at i 12.

15 Aguero Decl. atH13; Pangelinan Decl. at ^13.
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ANALYSIS
I.
SUMMARY JUDGMENT SHOULD BE GRANTED

EXPEDITIOUSLY BECAUSE THE LAW IS SETTLEDAND NO AMOUNT OF DISCOVERY OR FUTURE
PROCEEDINGS CAN ALTER OR AMPLIFY ON THE
MATERIAL FACTS OR CONTROLLING LAW
A,
According to Rule 56(b) of the Federal Rules of Civil Procedure, "[ujnless adifferent
time is set by local rule or the court orders otherwise, aparty may file amotion for summary
judgment at any time until 30 days after the close of all discovery." Rule 56(c) provides that,
"[tjhe court shall grant summary judgment ifthe movant shows that there is no genuine dispute
10
Summary Judgment is Annrnpriate under th* rircumstanrps at iw
11
as to any material fact and the movant is entitled to judgment as amatter of law." Fed. R. Civ.
12
P. 56(c). To demonstrate that amaterial fact cannot be genuinely disputed, the movant may:
13
(A)
14
cit[e] to particular parts of materials in the record,

including depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion

only), admissions, interrogatory answers, or other
15
materials; or
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(B)
showf ] that the materials cited do not establish the ...
presence ofa genuine dispute, or that an adverse party

cannot produce admissible evidence to support the
fact.
Fed. R. Civ. P. 56(c)(1).
Afact is material if it might affect the outcome of the suit under the governing
substantive law. See Anderson v. Liberty Lohhv1 Inr 477 U.S. 242, 248 (1986). Thus, the
evidence presented in opposition to summary judgment must be "enough to require ajury or
judge to resolve the parties' differing versions ofthe truth at trial." Avdin Com, v. Loral fWp
6
718 F.2d 897, 902 (9th Cir.1983) (quotinz First Nat'l Bank v. Cities Servs. Co.. 391 U.S. 253,
288-89 (1968)). "The opposing party's evidence must be sufficient to create a genuine issue of
fact that is material to the outcome of the suit, whether or not it has the burden ofproof at
trial" Oeawa v. U.S. Explore & Study. Inc., CIVIL CASE No. 11-00002, 2013 WL 2256220,
at *3 (D. Guam May 20, 2013) (per Tydingco-Gatewood, C.J.) (emphasis in the original), citing
McCabe v. Gen. Foods Corp.. 811 F.2d 1336, 1340 (9th Cir. 1987). Thus, "[w]hen the moving
party has carried its burden ..., its opponent must do more than simply show that there is some
metaphysical doubt as to the material facts . . . Where the record taken as a whole could not
lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial.'"
10
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.. 475 U.S. 574, 586-87 (1986).
11
Furthermore, the Advisory Committee's Notes to the 2010 F.R.C.P. Amendments
12
recognize that Rule 56(b) eliminated the timing provisions in former subdivisions (a) and (c)
13
and "allows a motion for summary judgment to be filed at the commencement of an action."
14
The Notes recognize that, in many cases, the motion will be premature until the nonmovant has
15
had time to file a responsive pleading or other pretrial proceedings have been had.
16
Nevertheless, the new Rule clearly permits summary judgment motions to be brought,
17
maintained and ruled upon expeditiously, and in advance of discovery in appropriate cases.
18
B.
Id.
Given the Ninth Circuit's Controlling Precedent in Latta v. Otter* Summary

Judgment Should be Granted Expeditiously and Without Delay
19
Because the Ninth Circuit in Latta held that state laws barring same-sex couples from
20
marriage "unjustifiably discriminate on the basis of sexual orientation, and are in violation of
21
the Equal Protection Clause," 771 F.3d at 476, Plaintiffs respectfully request that this Court act
22
promptly to resolve the issues presented in this motion for summary judgment and lift the cloud
23
24
of inferiority cast upon Plaintiffs and similarly-situated Guam residents. Simply put, the people
of Guam enjoy the same constitutional rights under the Fourteenth Amendment as every other
American. There is no reason to delay the vindication of such rights, particularly, when the law
is completely settled within this Circuit.
Because Latta is binding precedent, expedited summary judgment is appropriate in the
instant case. Indeed, upon the issuance of Latta, multiple districtcourts across the Ninth Circuit
expeditiously granted injunctive and declaratory relief against state laws, similar to Guam's
Marriage Ban, barring same-sex couples from marriage in direct response to the Ninth Circuit's
clear pronouncement that laws barring same-sex couples from marriage are unconstitutional.
10
See, e.g.. Rolando. 2014 WL 6476196, *4 (Granting summary judgment invalidating Montana's
11
ban on marriage for same-sex couples one month after Latta because "Latta represents binding
12
Ninth Circuit precedent and provides the framework that this Court must follow."); Hamby,
13
2014 WL 5089399, *12, n. 35 (Granting summary judgment invalidating Alaska's ban on
14
marriage for same-sex couples one week after Latta because "Latta is the controlling law of this
15
Circuit."); Majors, 14 F. Supp. 3d at 1315 (Granting summary judgment invalidating Arizona's
16
ban on marriage for same-sex couples ten days after Latta because "[t]his court is bound by
17
decisions of the Court of Appeals for the Ninth Circuit."); see also United States v. Spedalieri,
18
910 F.2d 707, 709 n. 2 (10th Cir. 1990) (when no Supreme Court decision establishes
19
controlling precedent, a district court "must follow the precedent of [its] circuit, regardless of its
20
views [about] the advantages of precedent from elsewhere).
21
Given that the law in the Ninth Circuit is now settled, summary judgment should be
22
granted without delay. There is no need for extensive briefing or oral argument. Nor is it
23
8
24
necessary for this Court to write a lengthy opinion. Summary judgment should be granted
without delay because Ninth Circuit law controls the disposition of the instant case.
As previously noted, in Majors v. Home. 141 F. Supp. 3d 1313, the District Court for
the District of Arizona, which also sits in the Ninth Circuit, promptly granted pending summary
judgment motions challenging Arizona's ban on marriage for same-sex couples just ten days
after issuance of the Ninth Circuit's opinion in Latta. In so holding, the court's two-page Order
and Opinion stated:
When the pending motions were filed the law of this circuit
was not clear.
9
10
11
12
13
14
15
16
17
18
19
Thus, resolution of the motions would have
required this court to write a lengthy decision. However, the

Court of Appeals for the Ninth Circuit recently ruled that
substantially identical provisions of Nevada and Idaho law
that prohibit same-sex marriages are invalid because they
deny same-sex couples equal protection of the law, the right to
which is guaranteed by the Constitution of the United States.
This court is bound by decisions of the Court of Appeals
for the Ninth Circuit. For that reason, plaintiffs are
entitled to a declaration that the challenged laws are
unconstitutional together with a permanent injunction
prohibiting enforcement of the challenged laws.
Id. at 1315 (emphasis added and internal citations omitted).
The Majors court refused to stay its ruling, noting that no request for appellate or
certiorari relief would likely succeed:

A stay of this decision to allow defendants to appeal is not
warranted. It is clear that an appeal to the Ninth Circuit would
not succeed. It is also clearbased on the Supreme Court's
denial of petitions for writs of certiorari filed in connection
20
with several circuit court decisions which held that same-sex
21
marriage must be recognized in Indiana, Oklahoma, Utah,

Virginia, and Wisconsinthat the High Court will turn a deaf
ear on any request for relief from the Ninth Circuit's decision.
22
Majors. 14 F. Supp. 3d at 1315 (internal citations omitted).

23
24
At the same time Majors was decided, another district court sitting within the Ninth
Circuit rendered a similar, iflonger, opinion and order granting summary judgment finding that
Alaska's ban onmarriage for same-sex couples is unconstitutional as a deprivation of basic due
process and equal protection principles under the Fourteenth Amendment of the U.S.
Constitution. Hambv v. Parnell. 2014 WL 5089399 (D. Alaska Oct. 12, 2014). In so holding,
the court noted that "Latta is the controlling law of this Circuit," and that neither the mere
pendency of an appeal nor a petition for rehearing destroyed the finality of Latta as binding
authority. Hambv. 2014 WL 5089399, at *12, n. 35. A month later the District Court for the
District of Montana also granted summary judgment invalidating Montana's marriage ban in
10
light of Latta. Rolando. 2014 WL 6476196, *4.
11
Elsewhere, courts have not hesitated to act expeditiously in the face of binding circuit
12
court rulings on the constitutionality of laws barring same-sex couples from marriage. For
13
example, in Condon v. Halev. 2014 WL 5897175, a district court judgesitting in South Carolina
14
granted summary judgment in favor of a same-sex couple less than one month after the filing of
15
an action similar to the one at bar. In Condon, the plaintiffs applied for a marriage license on
16
October 8,2014. Their application was accepted by the clerk but the Attorney General of South
17
Carolina then immediately initiated a state court action prohibiting the clerk from granting a
18
marriage license to Plaintiffs until a pending federal constitutional challenge had been heard and
19
decided. On October 15, 2014, the couple that was denied the license sued in District Court for
20
the District of South Carolina and moved for a preliminary injunction and summary judgment
21
just 6 days later, on October 22, 2104. The court granted the motions on November 12, 2014
22
based on controlling Fourth Circuit authority on point. Id., citing Bostic v. Schaefer. 760 F.3d
23
352 (4th Cir. 2014). In so holding, the district judge said the following:
24
10
While this debate over precedent and constitutional principle

is interesting, this Court finds most persuasive the clearly
stated authority of the Fourth Circuit's seminal decision in

Bostic. It is axiomatic that a decision of a circuit court, not
overruled by the United States Supreme Court, is controlling

precedent for the district courts within the circuit.
Condon v. Halev. No. CIV.A. 2:14-4010-RMG, 2014 WL 5897175 (D. S.C. Nov. 12, 2014)
5
(internal citation omitted).
Similarly, a district court in West Virginia granted summary
judgment invalidating West Virginia's ban on marriage for same-sex couples one month after
7
the Fourth Circuit's precedent in Bostic became binding because "[t]he holding in Bostic
8
controlled] th[e] case." McGee v. Cole. 2014 WL 5802665 (S.D. W. Va. Nov. 7,2014).
9
The grant of expeditious relief has not been limited to district courts within the Fourth
10
and Ninth Circuits, however. Faced with binding precedent from the Tenth Circuit in Kitchen
11
and Bishop, a district court in Wyoming granted a preliminary injunction enjoining enforcement
12
of Wyoming's ban on marriage for same-sex couples a mere ten days after the filing of the
13
original complaint and entered summary judgment less than one month after the filing of the
14
action was commenced. See Guzzo. 2014 WL 5317797 (D. Wyo., Oct. 17, 2014) *9. In
15
granting prompt relief, the Guzzo court stated that, "[w]hile the Tenth Circuit's decisions in
16
Kitchen v. Herbert. 755 F.3d 1193 (10th Cir. 2014), and Bishop v. Smith. 760 F.3d 1070 (10th
17
Cir. 2014), may be publicly debated, one thing remains undebatable:
'[A] district court is
18
bound by decisions made by its circuit court.'" Id., quoting Dobbs v. Anthem Blue Cross and
19
Blue Shield. 600 F.3d 1275, 1279 (10th Cir. 1990). In similarly prompt fashion, a district court
20
in Kansas enjoined enforcement of Kansas's ban on marriage for same-sex couples less than
21
one month after the commencement of the action "[b]ecause Tenth Circuit precedent is binding
22
23
24
11
on this Court, Kitchen and Bishop dictate the result here." See Marie v. Moser. 2014 WL
5598128 (D. Kan. Nov. 4,2014).
Moreover, as seen from the above examples, the grant of expeditious relief in cases
concerning the validity of state laws barring same-sex couples from marriage is not limited to
pending cases. In multiple instances, federal courts faced with binding precedent have granted
relief within a matter of a few weeks, if not days, after the commencement of an action. See,
e.g., Condon. 2014 WL 5897175 (granting summary judgment invalidating South Carolina's
marriage ban less than one month after the filing of the complaint); Guzzo. 2014 WL 5317797
(D. Wyo., Oct. 17, 2014) *9 (enjoining enforcement of Wyoming's marriage ban a mere ten
10
days after the filing of the complaint); Marie. 2014 WL 5598128 (enjoining enforcement of
11
Kansas's marriage ban less than one month after the commencement of the action).
12
As in all of the aforementioned cases, the Court here faces the unequivocal precedent of
13
a circuit court decision holding laws barring same-sex couples from marriage unconstitutional.
14
Because such precedent has not been overruled by the United States Supreme Court, it is
15
controlling and dispositive with respect to this action. Just as the district judges in Alaska,
16
Arizona, Kansas, Montana, South Carolina, West Virginia, and Wyoming were bound by
17
controlling Circuit precedent; this Court is bound by the Ninth Circuit's precedent in Latta. As
18
with the aforementioned courts, this Court should act expeditiously and enter summary
19
judgment without delay.
20
These and other cases demonstrate that Defendants have no legitimate justification to
21
continue to deny or delay justice to Plaintiffs, or similarly situated same-sex couples. There is
22
no effective or meaningful remedy for the loss of Constitutional rights; the only remedy of any
23
value is swift justice. This Court can rule expeditiously, as a matter of law, that the Guam's
12
24
marriage ban violates Plaintiffs' fundamental constitutional rights to marry the person they
choose by faithful application ofcontrolling law as set out by the Ninth Circuit in Latta v. Otter.
This case is ripe for review without further delay; and this Court should put an end to the
unnecessary suffering, humiliation, stigma, and anxieties attendant to Guam's purported
marriage ban on Plaintiffs and all committed same-sex couples and their children who want, and
need, the security of marriage. As discussed below, every conceivable "justification" for bans
on marriage for same-sex couples has been considered and rejected by the Ninth Circuit in
Latta. Thus, itwould be a colossal waste ofjudicial resources to prolong this case.
II.
WHILE MOST OF GUAM'S MARRIAGE LAWS ARE

PURPORTEDLY GENDER-NEUTRAL, TOGETHER
THEY IMPERMISSIBLY RESTRICT MARRIAGE
LICENSES TO "OPPOSITE-SEX" APPLICANTS
10
11
12
13
14
A.
Guam's Marriage Eligibility Laws are Ostensibly Gender-Neutral
Guam's marriage laws are gender neutral insofar as they specify who is or is not
eligible for marriage. The key statute defining marriage on Guam reads as follows:
15
3101. What Constitutes Marriage.

16
17
18
Marriage is a personal relation arising out of a civil contract,

to whichthe consent of parties capable of making that contract
is necessary. Consent alone will not constitute marriage; it

must be followed by a solemnization authorized by this Title.
19 GCA 3101 (2015).
19
20
Amongst all the provisions of Title 19 regulating marriage, only a few make any
distinction at all between the gender of the marriage applicants; and none purports to ban
21
22
23
13
24
marriage for same-sex couples.16 For example, none of the statutory grounds for denial of a
marriage license, set forth in Title 19 Section 3202(b) ofthe Code, has anything to do with the
gender ofthe applicants.17
B.
The Office of Vital Statistics Statute Defines Marriage as for Persons of

"Opposite-Sex"
However, gender-specific language regarding marriage licensing is found in a

6
completely separate Title of the Guam Code Annotated, Title 10. That provision falls within a
7
chapter of the Code establishing and regulating the DPHSS Office of Vital Statistics, and
8
amongst other definitions provides that, "[mjarriage means the legal union of persons of the
9
opposite sex." 10 GCA 3207(h). It is this provision that purportedly supports DPHSS's
10
denial of a license to Plaintiffs.

11
12
13
14
15
16
17
18
19
20
21
22
23
16 Sections 3108 and 3109 thereof provide that "the wife is the sole member of the contracted
union or subsequent family who may elect to use her maiden name as surname." See also 3202(a)(8)
(Providing that marriage license must indicate, "[w]hether the female elects to retain her maiden name
as her surname upon marriage as provided for by 3108.").
17 Section 3202(b) provides as follows:

(b) No license shall be issued when either of the applicants therefore is an imbecile, insane as
determined by the proper authority or who, at the time of making of the application of proof required
for said license, is under the influence of intoxicating liquor or narcotic drug. If an applicant is under
the age of eighteen (18) and has not been previously married, no license shall be issued unless the
consent in writing of a parent or guardian of the person under age is presented with the application. A
consent must be verified and such consent shall be retained with the application in the files of the
Department of Public Health and Social Services. The fact of the consent shall be noted upon the
license. In addition to the consent required, no license shall be issued for any person betweenthe age of
sixteen (16) and eighteen (18) unless the marriage of that person has been approved by an order in
writing issued from the Superior Court. A license to marry shall not be issued to any person under the
ageof sixteen (16) unless the court authorizes a license to be issued to an applicant who is under sixteen
(16) and with a child. No license shall be issued permitting marriage between first cousins, between an
adoptive parent and an adoptive child, between a step-parent anda step-child or between a guardian and
a ward unless a written order authorizing such a marriage has been issued by the Superior Court.
14
24
C.
Similar Marriage License Bans have been Struck Down to the Extent they
have been Applied in a Discriminatory Manner
To the extent that DPHSS relies on the Guam Code's "opposite sex" definition of
3
4
marriage to justify its rejection of marriage licenses to same-sex couples, its reliance is
misplaced. While the particular language of purported marriage bans varies slightly from
jurisdiction to jurisdiction, there can be no doubt in the wake ofLatta that such laws violate the
Equal Protection Clause of the Fourteenth Amendment to the extent that they "deny lesbians
and gays who wish to marry persons ofthe same sex a right they afford to individuals who wish
8
to marry persons of the opposite sex." Latta. 771 F.3d at 464-65. [See also Part III of this
9
memorandum, infra.] Forthis reason, the court in Marie v. Moser. 2014 WL 5598128 (D. Kan.
10
Nov. 4, 2014), followed similar Tenth Circuit precedent on point in holding unconstitutional a
11
Kansas statutenearly identical to the Guam statute at issue herethat defined marriage as "a
12
civil contract between two parties who are of opposite sex" (together with a state constitutional
13
provision defining marriage as between "one man and one woman."). Id., at *4; Kansas Stat.
14
Ann. 23 101.
15
Because Guam's marriage statutes are similar to the corresponding statutes found in the
16
state of New Mexico, it is also useful to look to New Mexico law on point. The New Mexico
17
statutes, in kind with Guam's, describe marriage as a gender-neutral contractual arrangement

18
solemnized by the parties and sanctioned by the government.18 The substantive New Mexico
19
laws addressing eligibility to marry, like those of Guam, neither sanctioned nor prohibited
20
21
22
23
18 The New Mexico statutes provide that "marriage is contemplated by the law as a civil contract,
for which the consent of the contracting parties, capable in law of contracting, is essential." "Each
couple desiring to marry pursuant to the laws of New Mexico shall first obtain a license from the county
clerk of this stateand following a ceremony concluded in this statewhile the license for recording in the
county issuing the license." NMSA 1978, Section 40-1-1 (1862-63).
15
24
marriage for same-sex couples. However, in New Mexico (circa 2013), the official marriage
license application only provided for asingle "male applicant" and a single "female applicant,"
which are the identical terms found on the Guam Marriage License Application Form.
some county clerks inNew Mexico denied same-sex couples marriage licenses.
Thus,
The Supreme Court of New Mexico in Grieeo v. Oliver, 316 P.3d 865 (N.M. 2013),
unanimously held that county clerks of that state must issue marriage licenses to same-sex
couples that meet the statutory requirements for marriage. Despite generally gender-neutral
marriage statutes, the court found statutory differentiation between same-sex and opposite-sex
couples based on a 1961 enactment authorizing the use of the gender-specific terms "male
10
applicant" and "female applicant." Id. p. 875. The New Mexico Supreme Court held that the
11
use of these terms, as well as the terms "bride" and "groom" in the marriage license form
12
evidenced a legislative intent that that a civil marriage be between a man and a woman. Id. at
13
875.20 Finding no defensible legal justification for treating same-sex couples differently than
14
opposite-sex couples, the New Mexico high court ordered county clerks to allow qualified
15
same-sex couples to wed and also required the clerks to provide gender-neutral marriage
16
license application forms. Id.
17
As indicated, the identical terms "male applicant" and "female applicant" are used in
18
Guam's Marriage Application form. As in New Mexico, it appears that the Guam Legislature
19
20
19 See Aguero Decl. at H12, Exh. A.

20 The New Mexico Supreme Courtconcluded that while none of the marriage statutes specifically
21
22
23
prohibited same-gender marriages, when read as a whole, the statutes had the effect of precluding samesex couples from marrying and benefiting from the rights, protections, and responsibilities that flowed
from a civil marriage, and, therefore, the statutory scheme was subject to state constitutional equal
protection challenge, where the phrasing of many statutes limited the concomitant state-based rights,
protections, and responsibilities of marriage to opposite-gender married couples. Griego v. Oliver. 316
P.3d at 876.
16
24
had a hand in shaping these application forms, to the extent that it adopted the statute defining
marriage as "the legal union of persons of the opposite sex" and other language suggesting
gender-specific solemnization. In Guam, as in New Mexico, the legislature's tinkering with
otherwise gender-neutral marriage laws amounts to impermissible discrimination against same-
sex couples.
D.
DPHSS's Application of Guam's
Marriage
Licensing Laws in
Discriminatory Fashion Violates the Constitution's Guarantee of Equal

7
Protection
The Equal Protection clause of the Fourteenth Amendment of the federal Constitution
applies to Guam by virtue of48 USC Section 1421b(u) as well as Section 1421b(n). See Guam
10
v. Guerrero, 290 F.3d 1210, 1214 (9th Cir. 2002) (noting that Subsection (u) extended to Guam
11
"article I, section 9, clauses 2 and 3; article IV, section 1 and section 2, clause 1; the first to
12
ninth amendments inclusive; the thirteenth amendment; the second sentence of section 1 of the
13
fourteenth amendment; and the fifteenth and nineteenth amendments.").
14
The only reason the marriage license application submitted by Plaintiffs was treated any
15
differently than all the others is the fact that both applicants happened to be of the same gender.
16
DPHSS's failure to accept Plaintiffs' application can only been viewed as invidious
17
enforcement of a statue in a manner that discriminates against same-sex couples seeking to be
18
married. Plaintiffs have been denied equal protection under the law and are entitled to the
19
relief they seek herein.
20
21
22
As the Ninth Circuit has instructed:
'The first step in equal protection analysis is to identify the

[defendants'] classification of groups.' Country Classic
Dairies, Inc. v. State of Montana, Dep't of Commerce Milk
Control Bureau, 847 F.2d 593, 596 (9th Cir. 1988). To
23
accomplish this, a plaintiff can show that the law is applied in

17
24
a discriminatory manner or imposes different burdens on

different classes of people. Christy v. Model, 857 F.2d 1324,
1331 (9th Cir. 1988), cert, denied, 490 U.S. 1114, 109 S.Ct.
3176, 104 L.Ed.2d 1038 (1989). "The next step ... [is] to
determine the level of scrutiny." Country Classic Dairies, 847
F.2d at 596.
4
Freeman v. Citv of Santa Ana. 68 F.3d 1180, 1187 (9th Cir. 1995), as amended on denial of
reh'pandreh'genbanc (Dec. 29,1995).

6
7
8
9
10
11
12
13
14
15
16
17
Here, "laws [that] distinguish on their face between opposite-sex couples, who are
permitted to marry ... and same-sex couples, who are not permitted to marry .. .discriminate
on the basis ofsexual orientation." Latta, 771 F.3d at 467-468. Thus, there can be no question
that Guam's marriage licensing laws are being applied in a discriminatory manner, namely to
the complete exclusion of same-sex couples. It is now settled law in the Ninth Circuit that laws
purporting to deny marriage licenses to same-sex couples "discriminate on the basis of sexual
orientation" and "are subject to heightened scrutiny." Id. at 468 {citing SmithKIine Beecham
Com, v. Abbott Labs. 740 F.3d 471 (9th Cir. 2014), reh'g en banc denied, 759 F.3d 990 (9th
Cir. 2014)); see also Baskin v. Bogan, 766 F.3d 648, 654, 656-657 (7th Cir. 2014). Likewise,
they discriminate on the basis of gender and are also subject to heightened scrutiny on that
basis. Latta. 771 F.3d at 480 (Berzon, J., concurring). Because Defendants have failed to and
cannot offer any legitimatelet alone, compellingjustification for such discrimination,
18
Plaintiffs are entitled to summary judgment in their favor.

19
20
/ /
21
22
/ /
23
18
24
HI.
1
2

COUPLES DOES NOT SURVIVE HEIGHTENED
EQUAL
PROTECTION
SCRUTINY
UNDER
CONTROLLING CIRCUIT PRECEDENT

4
As discussed, in Latta. the Ninth Circuit held that it is a violation of the Equal
5
Protection guarantee of the United States Constitution for a jurisdiction to forbid an otherwise
6
qualified same-sex couple from being married. See Latta v. Otter, 771 F.3d 456. Of course it
is well settled that "[a] district court bound by circuit authority ... has no choice but to follow
8
it, even if convinced that such authority was wrongly decided." Hart v. Massanari, 266 F.3d
9
1155, 1175 (9th Cir. 2001). Thus, to the extent that Guam's marriage laws are construed and
10
enforced as restricting marriage to opposite-sex couples, such classification simply does not
11
survive the heightened level of equal protection scrutiny required by binding, Ninth Circuit
12
authority as announced in Latta.

13
Because Latta is controlling Circuit precedent, it is useful to review the court's opinion
14
in some detail. Latta involved interpretation of Idaho and Nevada statutes and constitutional
15
amendments preventing same-sex couples from marrying and refusing to recognize the
16
marriages of same-sex couples validly performed elsewhere.
Plaintiffs in the separate
17
underlying cases were same-sex couples living in Idaho and Nevada and either wished to marry
18
there or have their out-of-state unions recognized there. They had sued for declaratory relief
19
and to enjoin the enforcement of the laws, because they deprived plaintiffs of the fundamental
20
due process right to marriage, and because they denied them equal protection of the law by
21
discriminating against them on the basis of theirsexual orientation and their sex.
22
23
19
24
In the Nevada case, Sevcik v. Sandoval, 911 F.Supp.2d 996 (D. Nev. 2012), rev'd sub
nom. Latta. 771 F.3d 456, the court applied a "rational basis" standard of review and upheld
Nevada's laws. Subsequently, the Ninth Circuit handed down its decision in SmithKIine
Beecham Corp.. supra, 759 F.3d 990, which held that laws purporting to deny marriage
licenses to same-sex couples were subject to "heightened" equal protection scrutiny. After the
Ninth Circuit's decision in SmithKIine. the district court hearing the Idaho lawsuit concluded
that heightened scrutiny applied to Idaho's laws because they discriminated based on sexual
orientation, and invalidated them. Latta v. Otter. 19 F. Supp. 3d 1054 (D. Idaho 2014), aff'd,
771F.3d456.
10
On a consolidated appeal of both the Idaho and Nevada rulings, the Ninth Circuit in
11
Latta held that "the Idaho and Nevada laws at issue violate the Equal Protection Clause of the
12
Fourteenth Amendment because they deny lesbians and gays who wish to marry persons of the
13
same sex a right they afford to individuals who wish to marry persons of the opposite sex, and
14
do not satisfy the heightened scrutiny standard we adopted in SmithKIine."
15
Initially, the Latta court rejected the defendants' claims that the lawsuits did not present
16
substantial federal questions, stating, "[a]s any observer of the Supreme Court cannot help but
17
realize, this case and others like it present not only substantial but pressing federal questions."
18
Id. at 467, citing U.S. v. Windsor.
19
rejected the defendants' claim that the Idaho and Nevada marriage bans for same-sex couples
20
did not discriminate on the basis of sexual orientation, but rather on the basis of procreative
21
capacity, noting that the laws at issuelike the Guam statute at bardistinguished on their
22
face between opposite-sex couples and same-sex couples. Id. at 485. The court noted that the
23
Idaho and Nevada laws were "grossly over- and under-inclusive with respect to procreative
U.S.
, 133 S.Ct. 2675, 2694-96 (2013). Latta next
20
24
capacity," because the states issued marriage licenses to many opposite-sex couples who cannot
or will not reproduce but not to same-sex couples who already have children or are in the
process of having or adopting them. Id. at 472.
The court then discussed its earlier ruling in SmithKIine. in which the court had held
that the Supreme Court in Windsor had "established a level of scrutiny for classifications based
on sexual orientation that is unquestionably higher than rational basis review," thus requiring
that heightened scrutiny be applied to equal protection claims involving sexual orientation." Id.
at 468, quoting SmithKIine at 481. Accordingly, the Latta court applied heightened scrutiny to
its review of the Idaho and Nevada laws, finding that the laws discriminated on the basis of
10
sexual orientation. Id. at 468.
11
Applying the heightened scrutiny standard, the Latta court then rejected, one by one, as
12
unfounded the defendants' purported justifications for the marriage bans. For example, in
13
addressing the perceived threat marriage between people of the same sex posed to the
14
institution of marriage, the court said, ". . . the fear that an established institution will be
15
undermined due to private opposition to its inclusive shift is not a legitimate basis for retaining
16
the status quo." Id. at 470. In rejecting the argument that differential treatment wasjustified in
17
order to promote an "optimal" male-female parenting model, the court said:
18
To allow same-sex couples to adopt children and then to label

their families as second-class because the adoptive parents are
19
of the same sex is cruel as well as
20
21
22
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. Id. at
474.
23
21
24
The Latta court concluded that, "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." Id. at 473. As the court said,
Idaho and Nevada's marriage laws, by preventing same-sex
couples from marrying and refusing to recognize same-sex

marriages celebrated elsewhere, impose profound legal,
financial, social and psychic harms on numerous citizens of
those states. These harms are not inflicted on opposite-sex
9
10
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
inflicted by the law on lesbians and gays and their families.
Id. at 475, quoting SmithKIine. 740 F.3d at 481-82.
11
In short, under a heightened scrutiny standard, the Ninth Circuit in Latta
12
comprehensively and convincingly rejected all of the defendants' purported justifications for
13
the Idaho and Nevada marriage bans.
14
It is clear in the wake of Latta, that district courts sitting within the Ninth Circuit are
15
bound to apply a heightened scrutiny to any state or territorial attempt to deny same-sex
16
partners the right to a marriage license. See, e.g., Rolando, 2014 WL 6476196, *4 ("Latta
17
represents binding Ninth Circuit precedent and provides the framework that this Court must
18
follow."); Hambv. 2014 WL 5089399, *12, n. 35 ("Latta is the controlling law of this
19
Circuit."); Majors. 14 F. Supp. 3d at 1315 ("This court is bound by decisions of the Court of
20
Appeals for the Ninth Circuit."). Unquestionably, the Defendants' unjustified and unjustifiable
21
refusal to issue a marriage license to Plaintiffs in the instant case fails to survive any level of
22
equal protection scrutiny, must less heightened scrutiny. Because Guam's statute restricting
23
marriage to "opposite sex" couples is functionally identical to the Idaho and Nevada statutes
22
24
restricting marriage to "a man and a woman," the Guam statute cannot withstand heightened
equal protection scrutiny.21 As a matter oflaw, Plaintiffs are entitled to summary judgment.
There can be no dispute but that the marriage ban at issue in the instant case, like
similar marriage bans throughout the country that have been struck down, imposes "profound
legal, financial, social and psychic harms on numerous citizens in those states." Latta, at 476.
Latta is binding authority within the circuit, regardless of any futile attempts by Defendants to
avoid its application. Just as district courts in Arizona, Alaska, Colorado and Wyoming
following the Ninth Circuit's decision in Latta, which struck down the Idaho and Nevada
marriage bans, this Court should apply the controlling law and grant Plaintiffs prompt and
10
comprehensive relief.
IV.
11

COUPLES
UNCONSTITUTIONALLY
VIOLATES
PLAINTIFFS' FUNDAMENTAL RIGHT TO MARRY
12
13
Furthermore, aside from violating the constitutional guarantee to equal protection,
14
15
Guam's Marriage Ban also deprives Plaintiffs of their fundamental right to marry.
16
depriving Plaintiffs of their fundamental right to marry, the Marriage Ban violates the
17
Constitution's guarantee of due process, which protects individuals from arbitrary
18
governmental intrusion into fundamental rights. See, e.g., Washington v. Glucksberg, 521 U.S.
19
702, 719-720 (1997). The Due Process Clause of the Fourteenth Amendment of the federal
20
Constitution applies to Guam by virtue of 48 USC Section 1421b(u) as well as Section
21
1421b(e). See Guerrero. 290 F.3d at 1214.
22
23
21
See Latta. at n. 2.
23
24
By
As the Fourth Circuit held in Bostic. marriage bans, such as Guam's, "unquestionably
... impede the right to marry by preventing same-sex couples from marrying and nullifying the
legal import of their out-of-state marriages." 370 F.3d at 377. The freedom to marry "is a
fundamental right," Turner v. Saflev. 482 U.S. 78, 95 (1987), that "has long been recognized as
one of the vital personal rights essential to the orderly pursuit of happiness by free men,"
Loving v. Virginia, 388 U.S. 1, 12 (1967). Moreover, "[t]he choice of whether and whom to
marry is an intensely personal decision that alters the course of an individual's life. Denying
same-sex couples this choice prohibits them from participating fully in our society, which is
precisely the type of segregation that the Fourteenth Amendment cannot countenance." Bostic,
10
370 F.3d at 384. "[T]he fundamental right to marriage, repeatedly recognized by the Supreme
11
Court, in cases such as Loving v. Virginia. 388 U.S. 1 (1967), Zablocki v. Redhail, 434 U.S.
12
374 (1978), and Turner v. Saflev. 482 U.S. 78 (1987), is properly understood as including the
13
right to marry an individual of one's choice. That right applies to same-sex marriage just as it
14
does to opposite-sex marriage." Latta. 771 F.3d at 477 (Reinhardt, J., concurring). As such,
15
"those who wish to marry a person of the same sex are entitled to exercise the same
16
fundamental right as is recognized for persons who wish to marry a person of theopposite sex."
17
Kitchen. 755 F.3d at 1229-1230.
18
19
"Thatthe adage 'justice delayed is justicedenied' may by now be trite, that makes it no
20
less true." Laforee v. Consol. Rail Corp.. 1988 WL 38321, at *1 (E.D. Pa. Apr. 22, 1988).
21
This truth has particular application here, where interference with rights as fundamental as
22
familial integrity and the choice of whom to marry are infringed. As special as Guam is, there
23
is nothing special about its marriage ban or the justifications supporting it that would warrant
24
24
continued delay. Plaintiffs, and all same-sex couples who wish to marry on Guam, should be
afforded their constitutional rights without further delay or governmental obstruction.

CONCLUSION
3
4
This brief is lengthy, but only for the sake ofthoroughness. In fact, the Court's task is
simple and straightforward. No extended opinion and order is required. Based on controlling
Ninth Circuit authority, the denial of a marriage license to same-sex couples on Guam is a
violation of the Constitutional guarantee of equal protection. It is also a deprivation of the
Plaintiffs fundamental right to marry. Accordingly, Plaintiffs' motion for summary judgment
should be GRANTED, and the Court should enjoin enforcement of Guam's ban of same-sex
10
couples from marriage and declare that same-sex couples are entitled to marry on Guam on the
11
same terms as different-sex couples.
12
Respectfully submitted this 13lh day ofApril, 2015.
13
THOMPSON GUTIERREZ & ALCANTARA, P.C.
Attorneys for Plaintiffs Kathleen M. Aguero and
14
Loretta M. Pangelinan
15
By.
16
RANDALISTOBD THOMPSON
17
PI 51021.RTT
18
19
20
21
22
23
25
24

District Court of Guam

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4

Mitchell F. Thompson, Esq.

William D. Pesch, Esq.

DISTRICT COURT OF GUAM

Guam Family Law Office

173 Aspinall Avenue, Suite 203

Attorneys for Plaintiffs Kathleen M. Aguero and

IN THE DISTRICT COURT OF GUAM

KATHLEEN M. AGUERO and LORETTA

CIVIL CASE NO.

EDDIE BAZA CALVO in his official capacity as

Governor of Guam; and CAROLYN GARRIDO

in her official capacity as Registrar in the Office

MEMORANDUM OF POINTS AND

Case 1:15-cv-00009 Document 3 Filed 04/13/15 Page 1 of 34

SUMMARY JUDGMENT SHOULD BE GRANTED

EXPEDITIOUSLY BECAUSE THE LAW IS SETTLED;

AND NO AMOUNT OF DISCOVERY OR FUTURE

Summary Judgment is Appropriate under the

Given the Ninth Circuit's Controlling Precedent

WHILE MOST OF GUAM'S MARRIAGE LAWS ARE

PURPORTEDLY GENDER-NEUTRAL, TOGETHER

LICENSES TO "OPPOSITE-SEX" APPLICANTS

Guam's Marriage Eligibility Laws are Ostensibly

The Office of Vital Statistics Statute Defines

Marriage as for Persons of "Opposite-Sex"

Similar Marriage License Bans have been Struck

DPHSS's Application of Guam's Marriage Licensing

GUAM'S BAN ON MARRIAGES FOR SAME-SEX

COUPLES DOES NOT SURVIVE HEIGHTENED

CONTROLLING CIRCUIT PRECEDENT

EQUAL PROTECTION SCRUTINY UNDER

Case 1:15-cv-00009 Document 3 Filed 04/13/15 Page 2 of 34

GUAM'S BAN ON MARRIAGES FOR SAME-SEX

PLAINTIFFS' FUNDAMENTAL RIGHT TO MARRY

Case 1:15-cv-00009 Document 3 Filed 04/13/15 Page 3 of 34

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242 (1986)

Aydin Corp. v. Loral Corp.,

Bishop v. United States ex rel. Holder.

_ S. Ct. _, 2015 WL 213651 (2015)

_ F. Supp. 3d _, 2014 WL 6473727 (D.S.C. 2014)

999 F. Supp. 2d 1278 (N.D. Fla. 2014)

Case 1:15-cv-00009 Document 3 Filed 04/13/15 Page 4 of 34

Campaign for S. Equal, v. Bryant.

21 F. Supp. 3d 572 (D.S.C. 2014)

975 F. Supp. 2d 632 (W.D. Tex. 2014)

772 F.3d 388 (6th Cir. 2014)

Dobbs v. Anthem Blue Cross and Blue Shield,

600 F.3d 1275 (10th Cir. 1990)

First Nat'l Bank v. Cities Servs. Co..

391 U.S. 253 (1968)

Freeman v. City of Santa Ana.

68 F.3d 1180 (9th Cir. 1995)

994 F. Supp. 2d 1128 (D. Or. 2014)

General Synod of the United Church of Christ v. Resinger.

12 F. Supp. 3d 790 (W.D.N.C. 2014)

4 F. Supp. 3d 984 (N.D. 111. 2013)

316 P.3d 865 (N.M. 2013)

290 F.3d 1210 (9th Cir. 2002)

No. 14-cv-200,2014 WL 5317797 (D. Wyo. Oct. 17,2014)

Case 1:15-cv-00009 Document 3 Filed 04/13/15 Page 5 of 34