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DEFENDANT CHRISTOPHER R ICH’S MOTION TO DISMISS - 1

LAWRENCE G. WASDEN

ATTORNEY GENERAL

STEVEN L. OLSEN

Chief of Civil Litigation Division

W. SCOTT ZANZIG, ISB # 9361

CLAY R. SMITH, ISB # 6385

Deputy Attorneys General

Civil Litigation Division

Office of the Attorney General

954 W. Jefferson Street, 2nd Floor

P. O. Box 83720

Boise, ID 83720-0010

Telephone: (208) 334-2400

Fax: (208) 854-8073

[email protected] [email protected]

Attorneys for Defendant Christopher Rich

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

SUSAN LATTA and TRACI EHLERS, LORI

WATSEN and SHARENE WATSEN, SHELIAROBERTSON and ANDREA ALTMAYER,

AMBER BEIERLE and RACHAEL

ROBERTSON,

Plaintiffs,

vs.

C.L. “BUTCH” OTTER, as Governor of the

State of Idaho, in his official capacity, and

CHRISTOPHER RICH, as Recorder of AdaCounty, Idaho, in his official capacity,

Defendants.

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Case No. 1:13-cv-00482-CWD

DEFENDANT CHRISTOPHER

RICH’S MOTION TO DISMISS

Case 1:13-cv-00482-CWD Document 30 Filed 01/09/14 Page 1 of 3

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Defendant Christopher Rich hereby requests dismissal of the complaint pursuant

to Fed. R. Civ. P. 12(b)(6),

AND AS GROUNDS THEREFOR states that the complaint fails to state a claim

against him for which relief may be granted for the reasons set forth in the accompanying

memorandum.

DATED this 9th day of January 2014.

STATE OF IDAHO

OFFICE OF THE ATTORNEY GENERAL

By: /s/

W. SCOTT ZANZIG

CLAY R. SMITH

Deputy Attorneys General


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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the 9th day of January 2014, I electronically filed

the foregoing Memorandum in Support of Defendant Christopher Rich’s Motion to

Dismiss with the Clerk of the Court using the CM/ECF system which sent a Notice of

Electronic Filing to the following Persons:

Deborah A. Ferguson

[email protected]

Craig Harrison Durham

[email protected]

Shannon P. Minter

[email protected]

Christopher F. Stoll

[email protected]

Thomas Perry

[email protected]

Cally Ann Younger

[email protected]

/s/

W. SCOTT ZANZIG


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LAWRENCE G. WASDENATTORNEY GENERAL

STEVEN L. OLSEN Chief of Civil Litigation Division

W. SCOTT ZANZIG, ISB # 9361CLAY R. SMITH, ISB # 6385Deputy Attorneys GeneralCivil Litigation DivisionOffice of the Attorney General954 W. Jefferson Street, 2nd FloorP. O. Box 83720Boise, ID 83720-0010Telephone: (208) 334-2400Fax: (208) 854-8073

[email protected] [email protected]

Attorneys for Defendant Christopher Rich

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

SUSAN LATTA and TRACI EHLERS, LORI

WATSEN and SHARENE WATSEN, SHELIAROBERTSON and ANDREA ALTMAYER,AMBER BEIERLE and RACHAELROBERTSON,

Plaintiffs,

vs.

C.L. “BUTCH” OTTER, as Governor of theState of Idaho, in his official capacity, and

CHRISTOPHER RICH, as Recorder of AdaCounty, Idaho, in his official capacity,

Defendants.

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Case No. 1:13-cv-00482-CWD

MEMORANDUM IN SUPPORT

OF DEFENDANT

CHRISTOPHER RICH’S

MOTION TO DISMISS

Case 1:13-cv-00482-CWD Document 30-1 Filed 01/09/14 Page 1 of 26

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- i -

TABLE OF CONTENTS

I. BACKGROUND ......................................................................................... 1

II. APPLICABLE RULE 12(b)(6) STANDARDS .......................................... 1

III. ARGUMENT .............................................................................................. 2

A. BAKER v. NELSON BARS PLAINTIFFS’ CHALLENGETO IDAHO’S LAWS DEFINING MARRIAGE AS AUNION BETWEEN A MAN AND A WOMAN ............................ 2

1. Baker’s Presumed Controlling Status ................................... 22. Baker’s Continued Controlling Status .................................. 4

B. IDAHO NEED ONLY SATISFY THE RATIONALBASIS STANDARD TO SUSTAIN THECHALLENGED LAWS ................................................................... 6

1. Substantive Due Process ....................................................... 72. Equal Protection .................................................................... 93. Rational Basis Standard ........................................................ 9

C. IDAHO’S INTEREST IN FURTHERING THESTABILITY OF FAMILY STRUCTURES THROUGH

BENEFITS TARGETED AT COUPLES POSSESSINGBIOLOGICAL PROCREATIVE CAPACITY ISSUBSTANTIAL AND EASILY SATISFIES THERATIONAL BASIS STANDARD .................................................. 11

1. Relevant Idaho Demographic Data ....................................... 122 Focusing Governmental Resources to Encourage

Stable Biological Parents’ Households ................................. 133. Application of Rational Basis Standard to Article

III, Section 28 and § 32-201 .................................................. 154. Application of Rational Basis Standard to § 32-209 ............. 17

IV. CONCLUSION .............................................................................................. 19


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- ii -

TABLE OF CASES AND AUTHORITIES

Cases

Atonio v. Wards Cove Packing Co., 10 F.3d 1485 (9th Cir. 1993) ........................ 11

Baehr v. Lewin, 852 P.2d 44 (Haw. 1993) ............................................................. 8, 11

Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971), appeal dismissed forwant of substantial federal question, 409 U.S. 810 (1972) ................................. passim

Barron v. Reich, 13 F.3d 1370 (9th Cir. 1994)....................................................... 2

Bd. of Natural Res. v. Brown, 992 F.2d 937 (9th Cir. 1993) .................................. 11

Bowen v. Gilliard , 483 U.S. 587 (1987) ................................................................. 15

Branch v. Tunnell, 14 F.3d 449 (9th Cir. 1994) ..................................................... 2

Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006) ............... 6

City of Cleburne v. Cleburne Living Center , 473 U.S. 432 (1985) ........................ 9

City of Los Angeles v. Preferred Commc’ns, Inc., 476 U.S. 488 (1986) ............... 10

Cleveland Board of Education v. LaFleur , 414 U.S. 632 (1974) ........................... 16

Coalition to Defend Affirmative Action v. Brown,674 F.3d 1128 (9th Cir. 2012) ............................................................................. 17

Collins v. Harker Heights, 503 U.S. 115 (1992) .................................................... 7

Dandridge v. Williams, 397 U.S. 471 (1970) ......................................................... 16

Ex parte Young, 209 U.S. 123 (1908) .................................................................... 17

FCC v. Beach Commc’ns, Inc., 508 U.S. 307 (1993) ............................................ 9

Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002) ..................... 2

Hal Roach Studios, Inc. v. Richard Feiner and Co.,896 F.2d 1542 (9th Cir. 1990) ............................................................................. 2


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- iii -

Heller v. Doe, 509 U.S. 312 (1993) ........................................................................ 10

Hicks v. Miranda, 422 U.S. 332 (1975) ................................................................. 3

High Tech Gays v. Defense Indus. Sec. Clearance Office,

895 F.2d 563 (9th Cir. 1990) ............................................................................... 9

In re Duncan, 83 Idaho 254, 360 P.2d 987 (1961) ................................................. 18

In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004) ......................................... 3

In re Syntex Corp. Sec. Litigation, 95 F.3d 922 (9th Cir. 1996) ............................ 1

Jackson v. Abercrombie, 884 F. Supp. 2d 1065 (D. Haw. 2012) ........................... passim

Kitchen v. Herbert , No. 2:13-cv-217, 2013 WL 6697874(D. Utah Dec. 20, 2013) ...................................................................................... 8, 17

Kadrmas v. Dickenson Pub. Schs., 487 U.S. 450 (1988) ....................................... 5

Lawrence v. Texas, 539 U.S. 558 (2003) ............................................................... 4, 5, 8

Lee v. City of Los Angeles, 250 F.3d 668 (9th Cir. 2002) ...................................... 2

Los Angeles County v. Humphries, 131 S. Ct. 447 (2010) ..................................... 17

Loving v. Virginia, 388 U.S. 1 (1967) .................................................................... 8

Obergefell v. Wymoyslo, No. 1:13-cv-501, 2013 WL 6726688(S.D. Ohio Dec. 23, 2013) ................................................................................... 18

Mack v. South Bay Beer Distrib., Inc., 798 F.2d 1279 (9th Cir. 1986) .................. 2

Mandel v. Bradley, 432 U.S. 173 (1977) ................................................................ 3

Massachusetts v. Dep’t of Health & Human Servs.,682 F.3d 1 (1st Cir. 2012) ................................................................................... 6

Maynard v. Hill, 125 U.S. 190 (1888) .................................................................... 11

Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456 (1981) ............................. 10

Mintun v. Peterson, No. CV06-447-S-BLW, 2010 WL 1338148


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- iv -

(D. Idaho Mar. 30, 2010) ..................................................................................... 9

M.L.B. v. S.L.J., 519 U.S. 102 (1996) ..................................................................... 16

Moore v. City of East Cleveland , 431 U.S. 494 (1977) .......................................... 7

Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012)vacated and remanded , 133 S. Ct. 2652 (2013) .................................................. 6

Philips v. Perry, 106 F.3d 1420 (9th Cir. 1997) ..................................................... 9

Romer v. Evans, 517 U.S. 620 (1996) .................................................................... 4, 9

Sevcik v. Sandoval, 911 F. Supp. 2d 996 (D. Nev. 2012) ...................................... 6

Silveira v. Lockyer , 312 F.3d 1052 (9th Cir. 2002) ................................................ 11

Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942) ............................. 11, 17

Snyder v. Commonwealth, 291 U.S. 97 (1934) ...................................................... 8

South Carolina State Highway Dep’t v. Barnwell Bros.,303 U.S. 177 (1938) ............................................................................................ 17

Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 (2007) ....................... 2

Turner v. Safley, 482 U.S. 78 (1987) ...................................................................... 11

Tutor-Saliba Corp. v. City of Hailey, 452 F.3d 1055 (9th Cir. 2006) .................... 10

United States v. Windsor , 133 S. Ct. 2675 (2013) .................................................. passim

United States R.R. Ret. Bd. v. Fritz, 449 U.S. 166 (1980) ...................................... 11

Washington v. Glucksberg, 521 U.S. 702 (1997) ................................................... 7

Witt v. Dep’t of Air Force, 527 F.3d 806 (9th Cir. 2008) ....................................... 9

Wright v. Incline Vill. Gen. Improvement Dist.,665 F.3d 1128 (9th Cir. 2011) ............................................................................. 10

Wright v. Lane County Dist. Ct., 647 F.2d 940 (9th Cir. 1981) ............................. 3


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- v -

Zager v. Lara (In re Lara), 731 F.2d 1455 (9th Cir. 1984) .................................... 10

United States Constitution

Art. IV, § 1 .......................................................................................................... 18

United States Code

1 U.S.C. § 7 .......................................................................................................... 528 U.S.C. § 1738C .................................................................................................. 1842 U.S.C. § 1983 .................................................................................................... 17

Idaho Constitution

Art. III, sec. 28 ........................................................................................................ 1, 6, 15

Art. XX, sec. 1 ........................................................................................................ 11

Idaho Statutes

Idaho Code § 32-201 .............................................................................................. passimIdaho Code § 32-209 .............................................................................................. passim

Idaho Session Laws

1995 Idaho Sess. Laws ch. 104, § 3 ....................................................................... 1

1996 Idaho Sess. Laws ch. 331, § 1 ....................................................................... 12006 Idaho Sess. Laws H.J.R. No. 2 ...................................................................... 1

Other Authorities

Paul R. Amato , The Impact of Family Formation Change on theCognitive, Social, and Emotional Well-Being of the Next Generation,15 Future of Children No. 2 (Fall 2005).............................................................. 14

Kristen Anderson Moore et al., Marriage from a Child’s Perspective: How Does Family Structure Affect Children, and What Can We Do

About It?, Child Research Brief (June 2002) ...................................................... 14Benjamin Scafide, Principal Investigator, The Taxpayer Costs of Divorce

and Unwed Childbearing: First Ever Estimate for the Nation and All

Fifty States (2008) ............................................................................................... 15Elizabeth Wildsmith et al., Childbearing Outside of Marriage: Estimates

and Trends in the United States, Child Research Brief (No. 2011) .................... 15W. Bradford Wilson et al., Why Marriage Matters: Thirty Conclusions from Social Sciences (3d ed. 2011) ..................................................................... 13


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MEMORANDUM IN SUPPORT OF DEFENDANT CHRISTOPHER R ICH’S MOTION TO DISMISS - 1

I.

BACKGROUND

Plaintiffs are same-sex couples who seek to invalidate several Idaho marriage laws

on the alleged ground that they violate the United States Constitution. They challenge

Article III, section 28 of the Idaho Constitution; Idaho Code § 32-201; and Idaho Code

§ 32-209. Plaintiffs contend that these laws deprive them of due process and equal

protection guaranteed by the Fourteenth Amendment.

Article III, section 28 of the Idaho Constitution provides: “A marriage between a

man and a woman is the only domestic legal union that shall be valid or recognized in

this state.” Section 32-201 of the Idaho Code provides in relevant part: “Marriage is a

personal relation arising out of a civil contract between a man and a woman.” Section

32-209 of the Idaho Code provides:

All marriages contracted without this state, which would bevalid by the laws of the state or country in which the samewere 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-sexmarriages, and marriages entered into under the laws ofanother state or country with the intent to evade the prohibitions of the marriage laws of this state.

None of these provisions is of immediate vintage. Article III, section 28 was proposed by

the Legislature (2006 Idaho Sess. Laws H.J.R. No. 2) and approved by the Idaho

electorate as a constitutional amendment in November 2006 pursuant to Article XX,

section 1. Sections 32-201 and -209 were enacted, respectively, in 1995 and 1996.

1995 Idaho Sess. Laws ch. 104, § 3; 1996 Idaho Sess. Laws ch. 331, § 1.

II.

APPLICABLE RULE 12(b)(6) STANDARDS

Under the basic Rule 12(b)(6) standard, “[a]ll allegations of material fact are

accepted as true and should be construed in the light most favorable to Plaintiffs.” In re


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Syntex Corp. Sec. Litigation, 95 F.3d 922, 926 (9th Cir. 1996). Conclusory allegations of

law, however, are insufficient to defeat a Rule 12(b)(6) motion. Id. Although generally

matters outside the complaint’s allegations may not be considered (e.g., Hal Roach

Studios, Inc. v. Richard Feiner and Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990)), this

Circuit has recognized that “[a] court may take judicial notice of ‘matters of public

record’ without converting a motion to dismiss into a motion for summary judgment.”

Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2002); see Barron v. Reich, 13

F.3d 1370, 1377 (9th Cir. 1994); Mack v. South Bay Beer Distrib., Inc., 798 F.2d 1279,

1282 (9th Cir. 1986). A court also may consider documents referred to by the complaint

when authenticity is not challenged. Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994),

overruled on other grounds, Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir.

2002); see also Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).

III.

ARGUMENT

A. BAKER v. NELSON BARS PLAINTIFFS’ CHALLENGE TO IDAHO’SLAWS DEFINING MARRIAGE AS A UNION BETWEEN A MAN AND A

WOMAN1. Baker’s Presumed Controlling Status. In Baker v. Nelson, 191 N.W.2d

185 (Minn. 1971), appeal dismissed for want of substantial federal question, 409 U.S.

810 (1972), Minnesota interpreted its marriage statute to prohibit same-sex marriage. A

same-sex couple challenged the constitutionality of the statute as applied. They argued,

among other things, that they were deprived of due process and equal protection

guaranteed by the Fourteenth Amendment. Id. at 186. The Minnesota Supreme Court

rejected these arguments. It held that there is no fundamental right to marry without

regard to the sex of the parties. Id. at 186-87. The court also held that the marriage

statute did not violate the Equal Protection Clause. Id. at 187.

The plaintiffs appealed to the United States Supreme Court, which dismissed the


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appeal for want of a substantial federal question. 409 U.S. 810. The Supreme Court’s

summary dismissal constituted a decision on the merits. See Hicks v. Miranda, 422 U.S.

332, 343-44 (1975). As such, “lower courts are bound by summary decisions by [the

Supreme] Court until such time as the Court informs [them] that [they] are not.” Hicks,

422 U.S. at 344-45 (internal quotation marks omitted); see also Wright v. Lane County

Dist. Ct., 647 F.2d 940, 941 (9th Cir. 1981) (“[s]ummary dismissals for want of a

substantial federal question are decisions on the merits that bind lower courts until

subsequent decisions of the Supreme Court suggest otherwise”). The core, and

dispositive, question here is whether the Supreme Court has “inform[ed]” the lower

courts that Baker is no longer binding. It has not.

“Summary . . . dismissals for want of a substantial federal question . . . reject the

specific challenges presented in the statement of jurisdiction and do leave undisturbed the

judgment appealed from. They do 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). The jurisdictional statements

presented to the United States Supreme Court in Baker follow:

1. Whether appellee’s refusal to sanctify appellants’ marriage deprivesappellants of their liberty to marry and of their property without due process oflaw under the Fourteenth Amendment.

2. Whether appellee’s refusal, pursuant to Minnesota marriage statutes, tosanctify appellants’ marriage because both are of the male sex violates theirrights under the equal protection clause of the Fourteenth Amendment.

3. Whether appellee’s refusal to sanctify appellants’ marriage deprivesappellants of their right to privacy under the Ninth and Fourteenth Amendments.

In re Kandu, 315 B.R. 123, 137 (Bankr. W.D. Wash. 2004). The first two issues

presented in the jurisdictional statement in Baker are identical to the issues plaintiffs raise

in their claims challenging Idaho’s laws that limit marriage to a union between a man and

a woman— i.e., whether the State’s refusal to permit same-sex marriage violates the


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(citing Kadrmas v. Dickinson Pub. Schs., 487 U.S. 450, 462 (1988)). The Court’s

opinion makes no mention of same-sex marriage or Baker .

In Lawrence, the Court held that a Texas statute forbidding persons of the same

sex to engage in intimate sexual conduct violated the Due Process Clause. The Court

noted that the case did “not involve whether the government must give formal

recognition to any relationship that homosexual persons seek to enter.” 539 U.S. at 578.

The decision instead focused on the right of “two adults who, with full and mutual

consent from each other, engaged in sexual practices common to a homosexual

lifestyle . . . without intervention of the government.” Id. Here, plaintiffs seek such

intervention to secure access to certain governmental benefits through “formal

recognition” of their private relationship through marriage.

In Windsor , the Court held that a federal statute, section 3 of the Defense of

Marriage Act (“DOMA”), 1 U.S.C. § 7, was “unconstitutional as a deprivation of the

liberty of the person protected by the Fifth Amendment of the Constitution.” 133 S. Ct.

at 2695. DOMA’s section 3 provided a federal definition of “marriage” and “spouse”

that applied to all federal laws. It provided that “the word ‘marriage’ means only a legal

union between one man and one woman as husband and wife.” Id. at 2683. The Court

noted that the “definition and regulation of marriage” is “within the authority and realm

of the separate States,” id. at 2689-90; certain States have chosen to recognize same-sex

marriage; and section 3 of DOMA impermissibly deprived same-sex couples married in

those States of the “rights and responsibilities” that should have come along with their

state-sanctioned same-sex marriages. Id. at 2694; see also id. at 2693-94 (“[t]he Act's

demonstrated purpose is to ensure that if any State decides to recognize same-sex

marriages, those unions will be treated as second-class marriages for purposes of federal

law”) (emphasis added).

Windsor did not mention Baker . It also did not hold that all States are required

constitutionally to permit or recognize same-sex marriage. Quite the contrary, the Court


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went out of its way to make clear that the flaw in section 3 was Congress’ failure to give

effect to a State’s—there, New York’s—determination as to who is eligible to enter into

the marriage relationship. It neither held nor suggested that States really have no choice

in the exceptionally sensitive area of whether marriage should be limited to opposite-sex

couples.1

Whatever else Windsor may stand for, it did not alter Baker ’s control over the

issues in this case—a control that had been acknowledged repeatedly.2

B. IDAHO NEED ONLY SATISFY THE RATIONAL BASIS STANDARD TOSUSTAIN THE CHALLENGED LAWS

Baker binds this Court. Even were the contrary true, plaintiffs’ challenge must be

measured against the rational basis standard, not any species of heightened review. This

is so because neither a fundamental right protected under the Due Process Clause nor a

suspect class for equal protection purposes exists here. The Idaho laws easily pass

1 Justice Scalia’s concern about the implications of the majority’s reasoning as to future

challenges to provisions like Article III, section 28 and §§ 32-201 and -209 does not further plaintiffs’ cause. 133 S. Ct. at 2710-11 (Scalia, J., dissenting). First, his dissent spoke only on behalf of himself and Justice Thomas as to that concern. Id. at 2697. Second, Justice Scaliaspoke prospectively through his reference to “the view that this Court will take of state

prohibition of same-sex marriage” as being “indicated beyond mistaking by today’s opinion.” Id. at 2709. His prediction says nothing about whether lower courts have leeway to ignore Baker .2 See, e.g., Massachusetts v. Dep’t of Health & Human Servs., 682 F.3d 1, 8 (1st Cir. 2012);

Citizens for Equal Protection v. Bruning, 455 F.3d 859, 870 (8th Cir. 2006); Sevcik v. Sandoval,911 F. Supp. 2d 996, 1003 (D. Nev. 2012); Jackson v. Abercrombie, 884 F. Supp. 2d 1065,1084-88 (D. Haw. 2012). The Sevcik court noted, given Perry v. Brown, 671 F.3d 1052(9th Cir. 2012), vacated and remanded , 133 S. Ct. 2652 (2013), a “potentially applicable”argument that some limited portion of the plaintiffs’ claims might not be barred by Baker .911 F. Supp. 2d at 1003. However, Perry’s subsequent vacatur on subject-matter jurisdictiongrounds voided the Court of Appeals’ merits determination and any attendant law-of-circuitweight. Even were the contrary true, the Perry majority expressly distinguished Baker becausethe question as to the California constitutional amendment was “whether the people of a statemay by plebiscite strip a group of a right or benefit, constitutional or otherwise, that they had previously enjoyed on terms of equality with all others in the state.” 671 F.3d at 1082 n.14. Thechallenged Idaho constitutional and statutory provisions, in contrast, substantially predated plaintiffs’ application to marry in Idaho or their marriages in California and New York. There isalso no allegation that Idaho has ever authorized same-sex marriages to be contracted within itsterritorial jurisdiction or has ever recognized such marriages contracted to in any other State.


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muster under the rational basis standard.

1. Substantive Due Process. Substantive due process challenges to state

laws that do not implicate a fundamental right are subject to rational basis review. See

Washington v. Glucksberg, 521 U.S. 702, 722 (1997) (challenged state action must

“implicate a fundamental right” before courts will require “more than a reasonable

relation to a legitimate state interest”). Plaintiffs’ substantive due process claims are

subject to rational basis review because same-sex marriage is not a fundamental right.

The doctrine of substantive due process is not favored in the law. “[B]ecause

guideposts for responsible decisionmaking in this unchartered area are scarce and open-

ended,” courts should be “reluctant to expand the concept of substantive due process.”

Glucksberg, 521 U.S. at 720. As the Supreme Court has explained:

By extending constitutional protection to an asserted right orliberty interest, we, to a great extent, place the matter outsidethe arena of public debate and legislative action. We musttherefore “exercise the utmost care whenever we are asked to break new ground in this field,” lest the liberty protected bythe Due Process Clause be subtly transformed into the policy preferences of the Members of this Court.

Id. (quoting Collins v. Harker Heights, 503 U.S. 115, 125 (1992), and citing Moore v.

City of East Cleveland, 431 U.S. 494, 502 (1977)). Before a court will recognize a right

as fundamental, it must undertake a careful, two-step analysis.

First , in order to warrant heightened protection, a right or interest must be,

“objectively, deeply rooted in this Nation's history and tradition.” Glucksberg, 521 U.S.

at 720-21 (internal quotation omitted). It must be “implicit in the concept of ordered

liberty” such that “neither liberty nor justice would exist if [it was] sacrificed.” Id . at721. Second , the fundamental liberty interest at stake must also be subject to a “careful

description.” Id . The “crucial ‘guideposts for responsible decision-making’” in

evaluating the existence of a fundamental right are the nation's “history, legal traditions,

and practices.” Id . The question is whether the right is “so rooted in the traditions and


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conscience of our people as to be ranked as fundamental.” Snyder v. Commonwealth,

291 U.S. 97, 105 (1934).

Neither the Supreme Court nor the Ninth Circuit has ever held that same-sex

marriage is a fundamental right. Plaintiffs may argue that, because the Supreme Court

has deemed marriage between heterosexuals to be a fundamental right, see, e.g., Loving

v. Virginia, 388 U.S. 1 (1967), this Court should expand that right to include same-sex

marriage. This Court should reject such a request. All of the Supreme Court decisions

recognizing the fundamental right to marry involved opposite-sex couples. Jackson,

884 F. Supp. 2d at 1095. Plaintiffs’ request that this Court create a new fundamental

right to same-sex marriage ignores the fact that same-sex marriage is a relatively new

phenomenon first judicially sanctioned not because it involved a fundamental right but

because limiting its availability to opposite-sex couples was held to be impermissible sex

discrimination under a state constitution. Baehr v. Lewin, 852 P.2d 44, 56 (Haw. 1993)

(“[t]he foregoing case law demonstrates that the federal construct of the fundamental

right to marry—subsumed within the right to privacy implicitly protected by the United

States Constitution—presently contemplates unions between men and women”).3 Same-

sex marriage cannot satisfy the requirement that it be deeply rooted in the nation’s history

and tradition. It is instead a radical modification of such history and tradition.

Accordingly, there is no historical basis for extending “fundamental” status to same-sex

marriage. Lacking the necessary “crucial guideposts for responsible decisionmaking,”

the Court should decline plaintiffs’ request to expand substantive due process in this area.

3 The recent decision in Kitchen v. Herbert , No. 2:13-cv-217, 2013 WL 6697874 (D. Utah

Dec. 20, 2013), relied principally upon Lawrence for the conclusion that the Supreme Court has“removed the only ground—moral disapproval—on which the State could have at one timerelied to distinguish the rights of gay and lesbian individuals from the rights of heterosexualindividuals.” Id., at *18. As Glucksberg reiterated, however, fundamental rights protected underthe Due Process Clause of the Fourteenth Amendment do not suddenly arise but must be drawnwith close attention to their historically settled nature. Whatever else may be said about the civilinstitution of marriage, it has historically been limited to heterosexual partners—a fact reflectedin every Supreme Court marriage decision discussed by the Kitchen court. Id., at *10-*13.


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2. Equal Protection. Plaintiffs’ equal protection claims are subject to review

under the rational basis standard. When a law is challenged under the Equal Protection

Clause, the rational basis standard applies unless the law burdens a fundamental right or

targets a suspect class. Romer , 517 U.S. at 630. As discussed above, there is no

fundamental right to same-sex marriage. Accordingly Idaho’s marriage laws do not

burden plaintiffs’ fundamental rights. Nor do those laws target a suspect class.

Plaintiffs claim that Idaho’s marriage laws discriminate on the basis of sexual

orientation. In this Circuit, such claims are subject to rational basis review. The Court of

Appeals has held that “homosexuals do not constitute a suspect or quasi-suspect class

entitled to greater than rational basis scrutiny.” High Tech Gays v. Defense Indus. Sec.

Clearance Office, 895 F.2d 563, 574 (9th Cir. 1990). Subsequent Ninth Circuit authority

has confirmed the holding in High Tech Gays and continued to apply the rational basis

standard in sexual orientation cases. See, e.g., Philips v. Perry, 106 F.3d 1420, 1425

(9th Cir. 1997) ( High Tech Gays controlled and precluded strict scrutiny); accord Witt v.

Dep’t of Air Force, 527 F.3d 806, 821 (9th Cir. 2008); Mintun v. Peterson, No. CV06-

447-S-BLW, 2010 WL 1338148, at *10 (D. Idaho Mar. 30, 2010).

In an apparent effort to avoid the force of Ninth Circuit precedent requiring

rational basis review of plaintiffs’ claims, plaintiffs also allege that this Court should

view their claims as sex discrimination claims and thereby subject the Idaho laws to

heightened, “intermediate” scrutiny. See, e.g., City of Cleburne v. Cleburne Living

Center , 473 U.S. 432, 440-41 (1985). There is a fundamental flaw in plaintiffs’

argument: Idaho’s marriage laws do not treat men and women differently. Neither is

permitted to marry a person of the same sex. Accordingly, “the vast majority of courts”

considering the issue have held that “an opposite-sex definition of marriage does not

constitute gender discrimination.” Jackson, 884 F. Supp. 2d at 1098.

3. Rational Basis Standard. “[E]qual protection is not a license for courts to

judge the wisdom, fairness, or logic of legislative choices.” FCC v. Beach Commc’ns,


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brokers rational under the Fourteenth Amendment solely on the basis of legislative

findings). Once plausible grounds are asserted, the “inquiry is at an end”— i.e., rebuttal is

not permitted. United States R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 179 (1980); see also

Atonio v. Wards Cove Packing Co., 10 F.3d 1485, 1494 (9th Cir. 1993) (“[i]t is enough

that plausible reasons for Congress’ action exist”). The rational-basis test, in short, is a

relatively relaxed standard reflecting the awareness that the drawing of lines that create

distinctions is primarily a task of the legislative branch. Silveira v. Lockyer, 312 F.3d

1052, 1088 (9th Cir. 2002).

C. IDAHO’S INTEREST IN FURTHERING THE STABILITY OF FAMILY

STRUCTURES THROUGH BENEFITS TARGETED AT COUPLES

POSSESSING BIOLOGICAL PROCREATIVE CAPACITY ISSUBSTANTIAL AND EASILY SATISFIES THE RATIONAL BASIS

STANDARD

Until the Hawaii Supreme Court’s construction of its State’s equal protection

provision in Baehr , the notion of same-sex marriage would have been deemed

oxymoronic. The reason is obvious: Marriage has served traditionally as the primary

societal basis for ordering conjugal relationships whose purpose or practical effect lie in

the creation of new human life. As the Supreme Court recognized in Maynard v. Hill,

125 U.S. 190 (1888), “[i]t is an institution, in the maintenance of which in its purity the

public is deeply interested, for it is the foundation of the family and of society, without

which there would be neither civilization nor progress.” Id. at 211. The Court reiterated

this fundamental proposition in Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535

(1942), with the observation that “[m]arriage and procreation are fundamental to the very

existence and survival of the race.” Id. at 541. This is not to say that the only purpose for

heterosexual marriage lay in encouraging family stability for rearing the couple’s

biological offspring;4 it is to say, however, that such stability furthers a core and

4 See Turner v. Safley, 482 U.S. 78, 96 (1987) (recognizing that marriages “are expressions of

emotional support and public commitment” to which “spiritual significance” and governmental benefits may be attached).


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uncontested public interest in the child’s wellbeing. Marriage, for present purposes, is

simply another arrow in a quiver of constitutional and statutory protections used to

advance that interest. The question here is whether Idaho’s determination to target its

limited resources on fostering long-lived opposite-sex relationships through the

availability of marital status benefits is rational when those relationships produce

virtually all children and also account for a sizable majority of family households in the

State. That determination plainly is.

1. Relevant Idaho Demographic Data. Several demographic facts informIdaho’s marriage policy choice. First , 2010 Census data reflect that husband-wife

households in Idaho constituted 55.3 percent of all households—the second highest of

any State. Dkt. 30-2 at 10. Idaho also ranked second at 24 percent as to husband–wife

households with their own children under 18 years of age, or 73.4 percent of all family

households with such children. Id. The national averages were 20.2 and 68 percent

respectively. Id. Second , these percentages are unsurprising because the Idaho marriage

rate in 2011 was 8.6 percent—the third highest of any State in the nation if the

matrimonial destination outliers of Hawaii and Nevada are excluded (Dkt. 30-4)—and its

2012 preliminary data birth rate was 14.4 percent—the fifth highest State in the nation

(Dkt. 30-5 at 14). Third , the “preferred percentages” derived from the 2010 Census

reflect that same-sex couples account for .4 percent of all households in Idaho. Dkt. 30-2

at 16. Given these data, one may conclude reasonably that a minute fraction, presumably

less than .2 percent of total households, of same-sex couples in Idaho have resident

children under the age of 18.5

The distinguishing characteristics of opposite-sex and same-sex couples for

5 The United States Census Bureau estimated “[a]bout 0.1 percent of all households in the United

States in 2010 . . . [were] same-sex partner households with own children of the householder present.” Dkt. 30-2 at 9. That percentage, if applied to Idaho, equals 5795 households. Id. at 10.


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marriage purposes are, in short, the procreative capacity of the former and the statistically

minute fraction of the latter, not the participants’ sexual orientation. The Idaho

Legislature in 1995, as well as the Idaho electorate in 2006, thus had a rational basis to

conclude that targeting the very tangible legislative benefits of marriage to opposite-sex

couples would further the State’s interest in encouraging stable families for child-rearing

purposes and that extending such benefits to same-sex couples was not warranted in light

of the miniscule number of households affected and the corresponding de minimis likely

impact on the public interest.6

2. Focusing Governmental Resources to Encourage Stable Biological

Parents’ Households. Key to resolution of plaintiffs’ substantive due process and equal

protection claims is a single clearly reasonable, if not uncontested, proposition: Children

generally thrive best in intact family structures where their biological parents are married.

A recent report from the Institute for American Values, National Marriage Project, stated:

Children are less likely to thrive in cohabiting households, compared to

intact, married families. On many social, educational, and psychologicaloutcomes, children in cohabiting households do significantly worse than childrenin intact, married families, and about as poorly as children living in single-parent

families. And when it comes to abuse, recent federal data indicate that childrenin cohabiting households are markedly more likely to be physically, sexually,and emotionally abused than children in both intact, married families and single- parent families. . . . Only in the economic domain do children in cohabitinghouseholds fare consistently better than children in single-parent families.

W. Bradford Wilson et al., Why Marriage Matters: Thirty Conclusions from Social

Sciences at 7 (3d ed. 2011) (Dkt. 30-6). Others have concluded that “[r]esearch findings

linking family structure and parents’ marital status with children’s well-being are very

consistent” and that “it is not simply the presence of two parents, . . . but the presence of

6 Census Bureau data indicate a national increase in the “preferred estimate” of same-sex couples

from .03 percent in the 2000 Census to .06 percent in the 2010 Census. Dkt. 30-2 at 15. Thus,although the number of same-sex couples roughly doubled between the 2000 and 2010 Censuscounts, it remained a miniscule portion of all family households generally and, as explainedabove, an even smaller portion of those households with children under 18.


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two biological parents that seems to support children’s development.” Kristen Anderson

Moore et al., Marriage from a Child’s Perspective: How Does Family Structure Affect

Children, and What Can We Do About It?, Child Research Brief at 1-2 (June 2002)

(Dkt. 30-7). Even if some details of the proposition remain open for further analysis, its

central premise is plainly plausible. See Paul R. Amato, The Impact of Family Formation

Change on the Cognitive, Social, and Emotional Well-Being of the Next Generation ,

15 Future of Children No. 2 at 79 (Fall 2005) (“Amato”) (“If cohabiting parents marry

after the birth of a child, is the child at any greater risk than if the parents marry before

having the child? Correspondingly, do children benefit when their cohabiting parents get

married? To the extent that marriage increases union stability and binds fathers more

strongly to their children, marriage among cohabiting parents may improve children’s

long-term well-being. Few studies, however, have addressed this issue.”) (Dkt. 30-8).

Correlative to this core proposition is the keen interest that States have in

encouraging marriage between opposite-sex partners. As Professor Amato observed,

“[s]ince social science research shows so clearly the advantages enjoyed by children

raised by continuously married parents, it is no wonder that policymakers and

practitioners are interested in programs to strengthen marriage and increase the

proportion of children who grow up in such families.” Amato, 15 Future of Children

No. 2 at 85 (Dkt. 30-8). He estimated, for example, that “if the share of adolescents

living with two biological parents increased to its 1960 level, the share of adolescents

repeating a grade would fall to 21 percent”—or approximately 750,000 less repeaters. Id.

at 87, 88; id. at 90 (“interventions that increase the share of children growing up with two

continuously married biological parents will have modest effects on the percentage of

U.S. children experiencing various problems, but could have substantial effects on the

number of children experiencing them”). Another set of researchers has concluded that

“[r]educing nonmarital childbearing and promoting marriage among unmarried parents

remain important goals of federal and state policies and programs designed to improve


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the well-being of children and to reduce their reliance on public assistance.” Elizabeth

Wildsmith et al., Childbearing Outside of Marriage: Estimates and Trends in the United

States, Child Research Brief at 5 (Nov. 2011) (Dkt. 30-9).

A third study has concluded that “[r]esearch suggests that many of the social

problems and disadvantages addressed by federal and state government programs occur

more frequently among children born to and/or raised by single parents than among

children whose parents get and stay married” and “leads to higher costs to taxpayers

through higher spending on antipoverty programs and throughout the justice and

educational systems, as well as losses to government coffers in foregone tax revenues.”

Benjamin Scafide, Principal Investigator, The Taxpayer Costs of Divorce and Unwed

Childbearing: First Ever Estimate for the Nation and All Fifty States at 9 (2008)

(Dkt. 30-10). The study conservatively estimated family fragmentation costs to be at

least $112 billion each year for the nation as a whole. Id. at 5. Family fragmentation, in

sum, not only imposes these very substantial fiscal burdens on the public fisc but also

forces federal and state policymakers to make difficult, cost-based choices that may run

counter to affected children’s best interests. See Bowen v. Gilliard , 483 U.S. 587, 615

(1987) (Brennan, J., dissenting) (“[t]he Government's insistence that a child living with

an AFDC mother relinquish its child support deeply intrudes on the father-child

relationship, for child support is a crucial means of sustaining the bond between a child

and its father outside the home”).

3. Application of Rational Basis Standard to Article III, Section 28 and §

32-201. Marriage’s relationship to fostering stable environments for childrearing by

biological parents constitutes a rational basis for Idaho’s determination to limit the

availability of marital status to opposite-sex couples. See Jackson, 884 F. Supp. 2d at

1072 (“the legislature could rationally conclude that defining marriage as a union

between a man and woman provides an inducement for opposite-sex couples to marry,

thereby decreasing the percentage of children accidentally conceived outside of a stable,


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long-term relationship”). Heterosexual couples possess the unique ability to create new

life and, with that ability, the responsibility for raising the offspring of their conjugal

relationship. Although same-sex partners may have a child in their household

biologically attributable to one member, they cannot have a child attributable to both.

Distinguishing between opposite and same-sex couples under this rationale accordingly

relates not to their sexual orientation but to their procreative capacity. Idaho cannot be

faulted for determining to select opposite-sex couples for marital status given its function

as a gateway to various governmental benefits and an incentive for those couples to

create long-lived familial environments where both biological parents reside and which

account for a large percentage of such households.

7

Same-sex couples, in contrast, approach a virtual statistical null set on the

demographic scale—contributing as discussed earlier to likely less than .2 percent (.002)

of households with children under 18. As explained above, the rational basis standard

does not require a legislature to address social and economic issues—here providing

incentives for family structures conducive to children’s thriving—in the most

7 The fact that not all opposite-sex couples may desire to have children or may be incapable ofhaving them does not negate the reasonableness of Idaho’s policy choice. Any inquiry into theissue of why two persons, other than minors, wish to marry or whether they intend to raise afamily would be precluded by substantive due process-based privacy rights. See, e.g., M.L.B. v.S.L.J., 519 U.S. 102, 116 (1996) (“[c]hoices about marriage, family life, and the upbringing ofchildren are among associational rights this Court has ranked as ‘of basic importance in oursociety,’ . . . rights sheltered by the Fourteenth Amendment against the State's unwarrantedusurpation, disregard, or disrespect”) (citation omitted); Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639-640 (1974) (“[t]his Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the DueProcess Clause of the Fourteenth Amendment”). Predicating the distinction on broad biologicaldistinctions rationally attempts to walk between Scylla—the constitutional privacy right—andCharybdis—the objective of encouraging stable families composed of fathers, mothers and their biological children. See Dandridge v. Williams, 397 U.S. 471, 485 (1970) (“In the area ofeconomics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has somereasonable basis, it does not offend the Constitution simply because the classification is not madewith mathematical nicety or because in practice it results in some inequality.”) (internalquotations omitted).


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comprehensive manner so long as the manner selected is reasonably calculated to achieve

the desired end. See Skinner , 348 U.S. at 489 (“the reform may take one step at a time,

addressing itself to the phase of the problem which seems the most acute to the legislative

mind”). Here, it is “fairly debatable” that the de minimis presence of same-sex

households with children does not warrant extending the marital status incentive to those

couples. South Carolina State Highway Dep’t v. Barnwell Bros., 303 U.S. 177, 190

(1938) (“[w]hen the action of a Legislature is within the scope of its power, fairly

debatable questions as to its reasonableness, wisdom, and propriety are not for the

determination of courts, but for the legislative body, on which rests the duty and

responsibility of decision”). The incentive’s purpose, again, is directed at encouraging

the child’s biological parents to form a permanent legal union.8

4. Application of Rational Basis Standard to § 32-209. The challenge to

§ 32-209 by four plaintiffs—Latta, Ehlers, and the Watsens—fails for identical reasons.9

That section merely complements the definition of marriage in § 32-201 and, as such,

8 The district court in Kitchen rejected what the court characterized as the “responsible

procreation” justification offered by the defendants for Utah’s constitutional prohibition of same-

sex marriages. 2013 WL 6697874, at *25. It reasoned that the defendants had “presented noevidence that the number of opposite-sex couples choosing to marry each other is likely to beaffected in any way by the ability of same-sex to marry.” Id. Even if one ignores the lack of anyduty on the defendants’ part to come forward with “evidence” of the hypothesized disincentive,the analysis above focuses not on any perceived impact on opposite-sex couples’ acquiringmarital status from denying such status to same-sex couples but on Idaho’s desire to focus itsresources where they will best advance the objective of creating stable households for biological parents and their offspring.9 Defendant Rich has no enforcement responsibility with respect to § 32-209 because any

recognition of an out-of-state marriage arises by operation of law and not issuance of a marriagelicense under §§ 32-401 to -404. Because no effective relief can be entered against him withrespect to Plaintiffs’ claim predicated on that statute, he is entitled to its dismissal as against himregardless of whether he acts as a local government or state official with respect toadministration of Idaho’s marriage statutes. E.g., Los Angeles County v. Humphries, 131 S. Ct.447, 452 (2010) (under 42 U.S.C. § 1983, a “municipality may be held liable when execution ofa government's policy or custom . . . inflicts the injury”) (internal quotation omitted); Coalitionto Defend Affirmative Action v. Brown, 674 F.3d 1128, 1134 (9th Cir. 2012) (under Ex parteYoung, 209 U.S. 123 (1908), “[t]he individual state official sued must have some connectionwith the enforcement of the act”) (internal quotation omitted).


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partakes of the same legitimate purpose identified above. As a threshold matter, these

Plaintiffs neither challenge section 2 of DOMA, 28 U.S.C. § 1738C, nor otherwise claim

that the Full Faith and Credit Clause, U.S. Const. Art. IV, § 1, requires recognition of

their out-of-state marriage. They therefore stand in no different position than other same-

sex couples desiring to acquire marital status in Idaho. Indeed, a contrary conclusion

would lead to the anomalous result of those couples’ being able to circumvent the

limitation of marriage to opposite-sex couples by simply marrying in another State. That

simple workaround, in turn, would undermine and potentially eviscerate the objective of

focusing availability of marital status benefits to couples with inter sese procreative

capacity. It would also eviscerate “the long-established precept that the incidents,

benefits, and obligations of marriage are uniform for all married couples within each

State, though they may vary, subject to constitutional guarantees, from one State to the

next.” Windsor , 133 S. Ct. at 2692; see In re Duncan, 83 Idaho 254, 259-60, 360 P.2d

987, 990 (1961) (States possess “the power to regulate the qualifications of the

contracting parties and the proceedings essential to constitute a marriage”). The

challenge to § 32-209, in short, rises or falls with the validity of § 32-201.

To the extent that the ruling in Obergefell v. Wymoyslo, No. 1:13-cv-501,

2013 WL 6726688 (S.D. Ohio Dec. 23, 2013), found unpersuasive the argument that

legislators could conclude rationally “that children raised by heterosexual couples are

better off than children raised by gay or lesbian couples” because “Ohio’s marriage

recognition bans do not prevent gay couples from having children” (id., at *20), no such

claim need be resolved here. The issue, once more, is whether Idaho is constitutionally

prohibited from deciding to focus its governmental resources on incentivizing couples

capable of conjugal procreation to form permanent legal relationships through the civil

contract of marriage. Even if children reared in same-sex households thrive equally well

to those in households with married biological parents, it remains reasonable for Idaho to

use marital status as a mechanism to further the stability of the latter households; i.e., if


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same-sex household children in fact do thrive equally well without marriage, less need to

incentivize those households’ stability exists than in the opposite-sex context where the

correlation of marital status to improved outcomes is plainly plausible.

IV.

CONCLUSION

The Court should grant defendant Rich’s Rule 12(b)(6) motion and dismiss

plaintiffs’ claims for failure to state a claim upon which relief may be granted.

DATED this 9th day of January 2014.

STATE OF IDAHO

OFFICE OF THE ATTORNEY GENERAL

By: /s/W. SCOTT ZANZIG CLAY R. SMITH Deputy Attorneys General


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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the 9th day of January 2014, I electronically filedthe foregoing Memorandum in Support of Defendant Christopher Rich’s Motion toDismiss with the Clerk of the Court using the CM/ECF system which sent a Notice of

Electronic Filing to the following Persons:

Deborah A. [email protected]

Craig Harrison [email protected]

Shannon P. [email protected]

Christopher F. [email protected]

Thomas [email protected]

Cally Ann [email protected]

/s/

W. SCOTT ZANZIG


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ATTACHMENT A (Part 1)

Households and Families: 2010

2010 Census Briefs

(Pages 1-16)


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U.S. Department of Commerce Economics and Statistics Administration U.S. CENSUS BUREAU

Issued April 2012

C2010BR-14

Households and Families: 20102010 Census Briefs

By

Daphne Lofquist,

Terry Lugaila,

Martin O’Connell,

and

Sarah Feliz

INTRODUCTION

The 2010 Census enumerated 308.7

million people in the United States,

a 9.7 percent increase from 281.4

million in Census 2000. Of the total

population in 2010, 300.8 million

lived in 116.7 million households

for an average of 2.58 people per

household. This was down from an

average of 2.59 in 2000 when 273.6

million people lived in 105.5 millionhouseholds. The remaining 8.0 million

people in 2010 lived in group-quarters

arrangements such as school dormito-

ries, nursing homes, or military barracks.

This report presents information on the

number and types of living arrangements

of American households in 2010 derived

from the relationship question on the

2010 Census.

HOUSEHOLD RELATIONSHIP

QUESTIONThe relationship item (Figure 1), a version

of which has been on the census since

1880, asks the relationship of each mem-

ber of the household to the householder

or the person designated as the individual

who owns or rents the housing unit.1 This

question provides information about indi-

viduals as well as the composition of fami-

lies and households. Three separate cat-

egories describe the sons and daughters

1 In a case of joint ownership, one individual is

chosen as the householder. If this choice cannot bemade, the first person 15 years and over listed on theform is chosen as the householder.

of the householder in 2010: biological,

adopted, or stepchild. Relatives identified

in the questionnaire are spouses, brothers,

sisters, and parents of the householder, as

well as grandchildren, parents-in-law, and

sons/daughters-in-law.

Those who live in households but who

were not related to the householder were

identified as housemates/roommates,roomers or boarders, and unmarried part-

ners of the householder. This latter group

includes people who initially identified

themselves as being same-sex spouses of

the householder. The tables with same-sex

couples show these groups in two ways.

One estimate shows households as origi-

nally reported on the census forms. The

second presents improved and preferred

estimates of the same-sex household

population, accounting for marking errors

that inadvertently overestimated that

Figure 1.

Reproduction of the Question onRelationship to Householder Fromthe 2010 Census

Source: U.S. Census Bureau, 2010 Census questionnaire.


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2 U.S. Census Bureau

population’s size.2 This report uses

this set of estimates in the text, as

it represents the best set of num-

bers from the 2010 Census.

People related to thehouseholder

Despite the diversity of households

in the United States, three rela-

tionship categories made up the

majority of people in 2010. The

householder, his or her spouse, andhis or her sons and daughters com-

prised 262.0 million people or 87

percent of the population (Table 1).

Of the 88.8 million children of

householders, 93 percent were

biological children. There were

approximately twice as many step-

children (4.2 million) as adopted

children (2.1 million).

As expected, most of the children

living with their parents were

under 18 years old. These threechild types exhibit different age

distributions. About 73 percent

of either biological or adopted

2 See Martin O’Connell and Sarah Feliz,“Same-sex Couple Household Statistics Fromthe 2010 Census,” SEHSD Working PaperNumber 2011-26, September 27, 2011,.

children were under 18, compared

with 67 percent of stepchildren.

Stepchildren were more likely to be

young adults ages 18 to 29 years

(26 percent) than either biological

or adopted children (19 percent

each). Stepchildren were older in

general as they reflect the blending

of two different families where the

spouse already has older children

from a prior marriage.

In the same generation as thechildren of the householder are the

sons-in-law and daughters-in-law

of the householder. They numbered

1.2 million in 2010, and almost half

of them were young adults who

depended on their in-laws for hous-

ing assistance. Given their age,

most were probably recently mar-

ried. About one-third of all brothers

and sisters of the householder (3.4

million) were 18-to-29 years old.

Another 1.1 million young adults

were grandchildren of the house-

holder. This age group made up

16 percent of the 7.1 million

grandchildren living with their

grandparents—the majority of

these grandchildren were under 18

(82 percent). At the other end of

the generational continuum were

the parents and parents-in-law of

the householder, comprising about

3.0 million and 926,000 relatives,

respectively. Unlike people in any

other relationship category, the

majority of these were 65 years

and over—57 percent of parents

and 69 percent of parents-in-law

were this age.

Although not specified by detailed

type in the 2010 Census, another4.7 million were “other relatives”

who lived in households. About

one-third of them were under

18 and were often nephews and

nieces of the householder.3

Nonrelatives of thehouseholder

People who were not related to

the householder numbered 18.3

million in 2010 (6.1 percent of the

household population), up from14.6 million in 2000 (5.2 percent

of the household population). In

fact, 1 out of every 8 homes in

3 There were 845,000 nephews and niecesof the householder under 18 in Census 2000.See Terry Lugaila and Julia Overturf, “Childrenand the Households They Live In: 2000,”Census 2000 Special Reports , CENSR-14(March 2004), Table 1.

Table 1.

Relationship to Householder by Age: 2010(For information on confidentiality protection, nonsampling errors, and definitions, see www.census.gov/prod/cen2010/doc/sf1.pdf )

Relationship typeTotal

Number

Under 18years

18 to 29years

30 to 44years

45 to 64years

65 years andover

Total household population . . . . . 300,758,215 73,920,881 47,903,506 59,766,531 80,357,019 38,810,278

Householder . . . . . . . . . . . . . . . . . . . . . . . 116,716,292 28,297 13,862,048 30,758,709 46,247,402 25,819,836Spouse . . . . . . . . . . . . . . . . . . . . . . . . . . . 56,510,377 8,793 4,863,702 17,524,307 24,935,103 9,178,472Biological son or daughter . . . . . . . . . . . . . 82,582,058 60,466,596 16,007,784 3,941,728 2,093,818 72,132Adopted son or daughter . . . . . . . . . . . . . . 2,072,312 1,527,020 403,558 99,376 41,282 1,076Stepson or stepdaughter . . . . . . . . . . . . . . 4,165,886 2,784,531 1,100,511 217,220 61,226 2,398Brother or sister . . . . . . . . . . . . . . . . . . . . . 3,433,951 298,242 1,125,419 848,247 922,338 239,705Father or mother . . . . . . . . . . . . . . . . . . . . 3,033,003 (X) (X) 128,343 1,187,041 1,717,619Grandchild . . . . . . . . . . . . . . . . . . . . . . . . . 7,139,601 5,825,229 1,117,324 180,096 16,926 26Parent-in-law . . . . . . . . . . . . . . . . . . . . . . . 925,713 (X) (X) 10,178 281,266 634,269Son-in-law or daughter-in-law . . . . . . . . . . 1,216,299 25,063 593,674 428,186 158,997 10,379Other relative . . . . . . . . . . . . . . . . . . . . . . . 4,662,672 1,631,262 1,268,787 774,403 648,580 339,640Roomer or boarder . . . . . . . . . . . . . . . . . . 1,526,210 142,899 559,814 376,180 363,573 83,744Housemate or roommate . . . . . . . . . . . . . . 5,223,365 42,515 3,163,824 1,084,638 769,490 162,898Unmarried partner . . . . . . . . . . . . . . . . . . . 7,744,711 11,651 2,622,772 2,724,034 2,020,431 365,823Other nonrelative . . . . . . . . . . . . . . . . . . . . 3,805,765 1,128,783 1,214,289 670,886 609,546 182,261

(X) Not applicable

Source: U.S. Census Bureau, 2010 Census Summary File 1.


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U.S. Census Bureau 3

2010 contained one or more people

not related to the householder.4

Roomers or boarders comprised

1.5 million individuals who repre-

sented a wide array of people such

as students, migrants to an area

waiting for better accommodations,

or people who could not afford

4 Proportion derived from U.S. CensusBureau, 2010 Census Summary File 1,Table P27.

to rent their own home.5 About

143,000 (9.4 percent) of roomers

and boarders were less than 18

years old, suggesting they might

be children of displaced families

living in boarding homes. Another

61.3 percent (936,000) were in the

prime working ages of 18 to 44

years, compared with 35.8 percent

5 A historical perspective and the growthand characteristics of roomers and board-ers is presented in Melissa Scopilliti andMartin O’Connell, “Roomers and Boarders:1880–2005,” paper presented at the AnnualMeetings of the Population Association ofAmerica, New Orleans, LA, April 17–19,2008, .

for the household population as a

whole.

Housemates or roommates who

were coequals with the house-

holder and who shared mainte-

nance of the housing unit had more

economic equality with the house-

holder. Looking at the age structureof these 5.2 million people, 61

percent were young adults ages

18 to 29 who might be sharing

living expenses. The percentage

declined sharply for the next older

age group, 30 to 44 years old (21

percent).

Overall, the unmarried partner

population numbered 7.7 million in

2010 and grew 41 percent between

2000 and 2010, four times as fast

as the overall household population(10 percent). Unmarried partners

were generally older than house-

mates: 2.6 million (34 percent)

were 18 to 29 years old, while 2.7

million (35 percent) were 30 to 44

years old. In addition, 26 percent of

unmarried partners were 45-to-64

year olds, compared with 15 per-

cent of housemates. This difference

in age profiles reflects the transi-

tions occurring first when a young

person shares expenses as a house-mate or roommate after leaving the

parent’s home and later when that

person develops a more permanent

and personal relationship with an

unmarried partner.

UNMARRIED PARTNER HOUSEHOLDS

An “unmarried partner household” consists of a householder and a

person living in the household who reports that he or she is (1) an

unmarried partner of the householder and of the opposite sex;

(2) an unmarried partner of the householder and of the same sex; or

(3) a spouse of the householder and of the same sex. Procedures for

the 2010 Census edited same-sex spouse households as unmarriedpartner households, and these households appear as such in pub-

lished Summary File 1 tabulations. During the review of the data,

counts of same-sex spouses appeared inflated due to mismarking

errors in the gender item on the census forms. Up to 28 percent of

the total number of same-sex unmarried partner households may

actually be opposite-sex households: 62 percent of reported same-

sex spouses were probably marked in error compared with 7 per-

cent of reported same-sex unmarried partners. This report presents

data both for same-sex households as shown in Summary File 1

tabulations and for a set of “preferred estimates” that attempts to

remove statistically same-sex households that are likely opposite-

sex households.


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HOUSEHOLDS

All of these various relationship

types contribute to the forma-

tion of households, both family

and nonfamily households. Who

lives in a household has impor-

tant consequences for economic

resources available to housingunits and for access to everyday

social support systems such as

care for young children or older

parents. The following sections

show the different types of

households in 2010 and their

growth over the decade.

The number of householdsgrew by over 11 millionsince 2000.

The number of households in

the United States increased

11 percent, from 105.5 mil-

lion in 2000 to 116.7 million in

2010. While family households

increased 8 percent, from 71.8

million in 2000 to 77.5 million

in 2010, nonfamily households

increased faster, 16 percent,

from 33.6 million in 2000 to

39.2 million in 2010. As a

proportion of all households,

family households declined from

68 percent in 2000 to 66 percent

in 2010, while the proportion of

nonfamily households increased

from 32 percent to 34 percent,

respectively.

Table 2 shows that husband-wife

households numbered 56.5 million

in 2010 and made up 73 percent

of all family households in 2010

(households containing at least one

person related to the householder

by birth, marriage, or adoption).

Family households maintained by a

female householder with no spouse

present numbered 15.3 million,

more than twice the number main-

tained by a male householder with

no spouse present (5.8 million).

Among nonfamily households,

one-person households predomi-

nated (31.2 million) and were more

than three times as common as

nonfamily households with two

or more people (8.0 million). More

women than men lived alone (17.2

million and 13.9 million, respec-

tively). A geographic look at one-

person households follows later in

this report.

Despite increases in both the num-

ber of households and of people in

the United States since 2000, the

HOUSEHOLD DEFINITIONS

A “household” includes all of the people who occupy a housing unit.

One person in each household is designated as the “householder.”

In most cases, this is the person, or one of the people, in whose

name the home is owned, being bought, or rented. If there is no

such person in the household, any household member 15 years old

and over can be designated as the householder.

A family consists of a householder and one or more other people

living in the same household who are related to the householder by

birth, marriage, or adoption. Biological, adopted, and stepchildren

of the householder who are under 18 are the “own children” of the

householder. Own children do not include other children present in

the household, regardless of the presence or absence of the other

childrens’ parents.

A family household may also contain people not related to the

householder. A family in which the householder and his or her

spouse of the opposite sex are enumerated as members of the

same household is a husband-wife household. In this report,husband-wife households only refer to opposite-sex spouses and do

not include households that were originally reported as same-sex

spouse households. Same-sex spousal households are included in

the category, “same-sex unmarried partner households” but may be

either a family or nonfamily household depending on the presence

of another person who is related to the householder. The remain-

ing types of family households not maintained by a husband-wife

couple are designated by the sex of the householder.

A nonfamily household consists of a householder living alone

or with nonrelatives only, for example, with roommates or an

unmarried partner.


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average household size decreased

over the decade, from 2.59 to 2.58,but average family size stayed

the same, 3.14.6 These indicators

show a slowing of the downward

trends that have existed since

the end of the Baby Boom in the

1960s. In 1960, the average house-

hold size was 3.29 people per

6 Average family size is the number offamily members in the household (personsrelated to the householder including thehouseholder) per family household. Thiscomputation excludes persons not related tothe householder.

household, and the average family

size was 3.65 people per family.7

The number of households within

each category type increased in the

last 10 years, including husband-

wife households, which increased

7 Average household size for 1960 maybe found in Frank Hobbs and Nicole Stoops,“Demographic Trends in the 20th Century,”Census 2000 Special Reports , CENSR-4(November 2002), Figure 5-3. Averagefamily size for 1960 may be found in U.S.Census Bureau, 1960 Census of Population,Supplementary Reports, PC(S1)-38, Families inthe United States: 1960 , Table 280.

by 2.0 million. Figure 2 shows that,

despite this increase, in 2010 lessthan half of all households (48 per-

cent) were husband-wife house-

holds, down from 52 percent in

2000 and 55 percent in 1990. This

is the first time that husband-wife

families fell below 50 percent of

all households in the United States

since data on families were first

Table 2.

Households by Type: 2000 and 2010(For information on confidentiality protection, nonsampling errors, and definitions, see www.census.gov/prod/cen2010/doc/sf1.pdf )

Household type2000 2010 Change, 2000 to 2010

Number Percent Number Percent Number Percent

Total households . . . . . . . . . . . . . . . . . . . . 105,480,101 100.0 116,716,292 100.0 11,236,191 10.7

Family household. . . . . . . . . . . . . . . . . . . . . . . . . . 71,787,347 68.1 77,538,296 66.4 5,750,949 8.0 Husband-wife households . . . . . . . . . . . . . . . . . 54,493,232 51.7 56,510,377 48.4 2,017,145 3.7

With own children . . . . . . . . . . . . . . . . . . . . . . 24,835,505 23.5 23,588,268 20.2 –1,247,237 –5.0 Without own children . . . . . . . . . . . . . . . . . . . 29,657,727 28.1 32,922,109 28.2 3,264,382 11.0 Female householder, no spouse present . . . . . . 12,900,103 12.2 15,250,349 13.1 2,350,246 18.2 With own children . . . . . . . . . . . . . . . . . . . . . . 7,561,874 7.2 8,365,912 7.2 804,038 10.6 Without own children . . . . . . . . . . . . . . . . . . . 5,338,229 5.1 6,884,437 5.9 1,546,208 29.0 Male householder, no spouse present . . . . . . . . 4,394,012 4.2 5,777,570 5.0 1,383,558 31.5 With own children . . . . . . . . . . . . . . . . . . . . . . 2,190,989 2.1 2,789,424 2.4 598,435 27.3 Without own children . . . . . . . . . . . . . . . . . . . 2,203,023 2.1 2,988,146 2.6 785,123 35.6Nonfamily households . . . . . . . . . . . . . . . . . . . . . . 33,692,754 31.9 39,177,996 33.6 5,485,242 16.3 Male householder . . . . . . . . . . . . . . . . . . . . . . . 15,556,103 14.7 18,459,253 15.8 2,903,150 18.7 Living alone . . . . . . . . . . . . . . . . . . . . . . . . . . 11,779,106 11.2 13,906,294 11.9 2,127,188 18.1 Not living alone . . . . . . . . . . . . . . . . . . . . . . . . 3,776,997 3.6 4,552,959 3.9 775,962 20.5 Female householder . . . . . . . . . . . . . . . . . . . . . 18,136,651 17.2 20,718,743 17.8 2,582,092 14.2 Living alone . . . . . . . . . . . . . . . . . . . . . . . . . . 15,450,969 14.6 17,298,615 14.8 1,847,646 12.0 Not living alone . . . . . . . . . . . . . . . . . . . . . . . . 2,685,682 2.5 3,420,128 2.9 734,446 27.3

Unmarried couple households1

. . . . . . . . . . . . . . . 5,475,768 5.2 7,744,711 6.6 2,268,943 41.4 Opposite-sex partners . . . . . . . . . . . . . . . . . . . . 4,881,377 4.6 6,842,714 5.9 1,961,337 40.2 Same-sex partners2

Summary File 1 counts . . . . . . . . . . . . . . . . . 594,391 0.6 901,997 0.8 307,606 51.8 Preferred estimates . . . . . . . . . . . . . . . . . . . . 358,390 0.3 646,464 0.6 288,074 80.4

Average household size . . . . . . . . . . . . . . . . . . . . 2.59 (X) 2.58 (X) – 0.01 (X)Average family size . . . . . . . . . . . . . . . . . . . . . . . . 3.14 (X) 3.14 (X) 0.00 (X)

(X) Not applicable.

1 Unmarried couple households can be family or nonfamily households depending on the relationship of others in the household to the householder. In thistable, it is the sum of opposite-sex partners and same-sex partners from Summary File 1 counts.

2 Summary File 1 counts in this table are consistent with Summary File 1 counts shown in American FactFinder.

Sources: U.S. Census Bureau, Census 2000 Summary File 1 and 2010 Census Summary File 1.


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tabulated in 1940.8 For each of the

other types of households shown in

Figure 2, the percentage share has

increased since 1990.

Opposite-sex unmarried partner

households increased by 40 percent

8 See the Census Bureau’s Families andLiving Arrangements Web page, HistoricalTable HH-1, .

since 2000, almost four times the

national average. For same-sex

households, the preferred esti-

mates for 2000 and 2010 showed

an 80 percent increase. However,

same-sex partner households made

up less than 1 percent of all house-

holds in both 2000 and 2010.

Household types varied byrace of householder in 2010.

Two-thirds of all households in the

United States were family house-

holds (Table 3). This proportion

varied considerably by race: 64 per-

cent of non-Hispanic White alone

households were family house-

holds, compared with 78 percent

of Hispanic or Latino households.

Figure 2.

Households by Type: 1990, 2000, and 2010

Sources: U.S. Census Bureau, Census 2010 Summary File 1; Census 2000 Summary File 1; 1990 Census of Population, SummaryPopulation and Housing Characteristics, United States (1990 CPH-1-1) .

Husband-wife family household

Female householder, other family

Male householder, other family

Two or more people, nonfamily

One person, nonfamily

201020001990

(Percent distribution. For information on confidentiality protection, nonsampling error, and definitions, see www.census.gov/prod/cen2010/doc/sf1.pdf)

55.248.4

11.6

13.1

3.4

5.0

51.7

6.1

26.7

34.3

12.2

4.2

6.8

35.9

5.2

24.6 25.8


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Households containing husband-

wife families varied as well:

29 percent of all Black or African

American alone households were

husband-wife households, while 60

percent of Asian alone households

were husband-wife families.

Three in 10 Black or AfricanAmerican alone households were

female householder, no spouse

present families, three times as

high as White alone households

(9.9 percent) and Asian alone

households (9.5 percent). The

majority of female family house-

holds with no spouse present

contained own children of the

householder, except for Asian

alone households. Male family

households with no spouse pres-ent represented 5 percent of all

households. Almost one-half of all

of these households contained own

children of the householder.

Households containing unmarried

couples can be family or nonfamily

households, depending on the

presence of relatives of the house-

holder. Nationally, 6.6 percent of all

households were unmarried partner

households. American Indian and

Alaska Native alone householdsreported the largest percentage

of unmarried partner households

(10.9 percent). Asian alone house-

holds had the lowest proportion

of unmarried couple households,

3.6 percent. The majority of all

DEFINITION OF RACE CATEGORIES USED IN THE2010 CENSUS

The U.S. Census Bureau collects race and Hispanic origin infor-

mation following the guidance of the U.S. Office of Management

and Budget’s (OMB) 1997 Revisions to the Standards for the

Classification of Federal Data on Race and Ethnicity . These federal

standards mandate that race and Hispanic origin (ethnicity) areseparate and distinct concepts and that when collecting these

data via self-identification, two different questions must be

used. Individuals who responded to the q

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