Full opinion text
ORDER GRANTING HFF’S MOTION FOR SUMMARY JUDGMENT AND DEFENDANT FUDDY’S MOTION FOR SUMMARY JUDGMENT, DENYING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND HFF’S MOTION TO DISMISS DEFENDANT ABERCROMBIE, AND DENYING AS MOOT DEFENDANT ABERCROMBIE’S MOTION FOR SUMMARY JUDGMENT ALAN C. KAY, Senior District Judge. TABLE OF CONTENTS SYNOPSIS....................................................................1070 PROCEDURAL BACKGROUND................................................1072 FACTUAL BACKGROUND.....................................................1074 I.Same-Sex Marriage in Hawaii............................................1074 II.Same-Sex Marriage Nationwide...........................................1077 III. Federal Defense of Marriage Act..........................................1078 IV. The Parties in This Case.................................................1079 STANDARD...................................................................1080 DISCUSSION..................................................... 1081 I.Defendant Abercrombie’s Status as a Party.................................1081 A. Sovereign Immunity.................................................1081 B. Article III ............................................ 1082 II.Baker v. Nelson.........................................................1084 A. The Due Process Claim..............................................1086 B. The Equal Protection Claim..........................................1086 III.The Merits of Plaintiffs’ Claims...........................................1088 A. Perry v. Brown.....................................................1088 B. Romer v. Evans ....................................................1092 C. Plaintiffs’ Due Process Claim.........................................1093 1. Description of the Asserted Fundamental Right.....................1094 2. The Nation’s History and Tradition................................1096 D. Plaintiffs’ Equal Protection...........................................1098 1. Gender Discrimination...........................................1098 2. Sexual Orientation Discrimination............................. 1099 E. Rational Basis Review........................................... 1102 1. Standard................................................... 1102 2. Application................................................. 1105 a. Plaintiffs’ and Defendant Abercrombie’s Overarching Arguments................................................ 1106 i. The Relevant Question.............................. 1106 ii. Effect of the Civil Unions Law....................... 1107 b. Encouraging the Stability of Relationships that Have the Ability to Procreate Naturally........................... 1111 c. Promoting the Ideal, Where Possible, Children Are Raised by Them Mother and Father in a Stable Relationship ......... 1114 d. Cautiously Experimenting With Social Change.............. 1116 CONCLUSION........................... 1119 SYNOPSIS This action is one of multiple lawsuits that have been filed in state and federal courts seeking to invalidate laws that reserve marriage to those relationships between a man and woman. Specifically, Plaintiffs’ complaint asserts that Article 1, Section 23 of the Hawaii Constitution, which provides that “[t]he legislature shall have the power to reserve marriage to opposite-sex couples,” and Hawaii Revised Statutes § 572-1, which states that marriage “shall be only between a man and a woman,” violate the Due Process and Equal Protection Clauses of the United States Constitution. The Court is mindful of the Supreme Court’s cautionary note that “[b]y extending constitutional protection to an asserted right or liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action.” Washington v. Glucksberg, 521 U.S. 702, 720, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997). Thus, “[t]he doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field.” Collins v. City of Harker Heights, 503 U.S. 115, 125, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992). “This note of caution is especially important in cases ... where moral and personal passions run high and where there is great risk that ‘the liberty protected by the Due Process Clause [will] be subtly transformed into the policy preferences’ of uhelected judges.” Log Cabin Republicans v. United States, 658 F.3d 1162, 1174 (9th Cir.2011) (O’Scannlain, J., concurring) (second alteration in original) (quoting Glucksberg, 521 U.S. at 720, 117 S.Ct. 2258). In discussing the importance of judicial restraint in certain circumstances, the Hawaii Supreme Court has likewise acknowledged the need to “recognize that, although courts, at times, in arriving at decisions have taken into consideration social needs and policy, it is the paramount role of the legislature as a coordinate branch of our government to meet the needs and demands of changing times and legislative accordingly.” Bissen v. Fujii, 51 Haw. 636, 466 P.2d 429, 431 (1970). For the reasons set forth herein, Plaintiffs’ claims are foreclosed by the Supreme Court’s summary dismissal for want of a substantial federal question in Baker v. Nelson, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972) (mem.). In Baker, the Supreme Court dismissed an appeal from the Minnesota Supreme Court’s decision holding that a Minnesota statute that defined marriage as a union between persons of the opposite sex did not violate the First, Eighth, Ninth, and Fourteenth Amendments of the federal Constitution. See Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185 (1971), appeal dismissed, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972). Alternatively, Plaintiffs’ claims fail on the merits. The Court first notes that Perry v. Brown, 671 F.3d 1052 (9th Cir.2012), a case in which the Ninth Circuit held that an amendment to the California Constitution that stated “[o]nly marriage between a man and a woman is valid or recognized in California” (“Proposition 8”) violated the Equal Protection Clause of the United States Constitution, does not control this case. The Ninth Circuit repeatedly asserted that its holding was limited to the unique facts of California’s same-sex marriage history, i.e., “California had already extended to committed same-sex couples both the incidents of marriage and the official designation of ‘marriage,’ and Proposition 8’s only effect was to take away that important and legally significant designation, while leaving in place all of its incidents.” Id. at 1064 (“We need not and do not answer the broader question in this case ... [The] unique and strictly limited effect of Proposition 8 allows us to address the amendment’s constitutionality on narrow grounds.”). No same-sex couples have been married in Hawaii nor have ever had the legal right to do so. Thus the legislature’s amendment to § 572-1 and Hawaii’s marriage amendment did not take away from same-sex couples the designation of marriage while leaving in place all of its incidents as Hawaii, unlike California, did not have a civil unions law at the time the legislature amended § 572-1 or when the people ratified the marriage amendment. Consequently, this case does not involve the same unique facts determined dispositive in Perry. Carefully describing the right at issue, as required by both the Supreme Court and Ninth Circuit, the right Plaintiffs seek to exercise is the right to marry someone of the same-sex. See Glucksberg, 521 U.S. at 721, 117 S.Ct. 2258; Raich v. Gonzales, 500 F.8d 850, 863-64 (9th Cir.2007). The right to marry someone of the same-sex, is not “objectively, deeply rooted in this Nation’s history and tradition” and thus it is not a fundamental right. See Glucksberg, 521 U.S. at 720-21, 117 S.Ct. 2258 (“[w]e have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, ‘deeply rooted in this Nation’s history and tradition.’ ... This approach tends to rein in the subjective elements that are necessarily present in due-process judicial review”) (citations omitted); In re Kandu, 315 B.R. 123, 140 (Bankr. W.D.Wash.2004) (holding that because same-sex marriage is not deeply rooted in the history and tradition of our Nation, it is not a fundamental right). Because a fundamental right or suspect classification is not at issue, Plaintiffs’ due process claim is subject to rational basis review. Plaintiffs’ equal protection claim is also subject to rational basis review. Hawaii’s marriage laws do not treat males and females differently as a class; consequently, the laws do not discriminate on the basis of gender. The United States Supreme Court has never held that heightened scrutiny applies to classifications based on sexual orientation and every circuit that has addressed this issue, i.e., all circuits but the Second and Third Circuits, have unanimously declined to treat sexual orientation classifications as suspect. See Romer v. Evans, 517 U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996) (applying rational basis review to a classification based on sexual orientation); infra, n. 25 (collecting circuit court cases). Significantly, the Ninth Circuit, which is binding authority on this Court, has affirmatively held that homosexuals are not a suspect class. See High Tech Gays v. Defense Indus. Sec. Clear ance Office, 895 F.2d 563, 573-74 (9th Cir. 1990). Rational basis review is the “paradigm of judicial restraint.” F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307, 313-14, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993). Under rational basis review, a law is presumed constitutional and “[t]he burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it.” Heller v. Doe, 509 U.S. 312, 320, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993) (alteration in original) (internal quotations omitted). Rational basis review does not authorize “the judiciary [to] sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines.” Id. at 319, 113 S.Ct. 2637 (alteration in original) (internal quotations omitted). Plaintiffs have failed to meet their burden. Specifically, 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, long-term relationship. The Supreme Court has stated that a classification subject to rational basis review will be upheld when “the inclusion of one group promotes a legitimate governmental purpose, and the addition of other groups would not.” Johnson v. Robison, 415 U.S. 361, 382-83, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974). It is undisputed opposite-sex couples can naturally procreate and same-sex couples cannot. Thus, allowing opposite-sex couples to marry furthers this interest and allowing same-sex couples to marry would not do so. The legislature could also rationally conclude that other things being equal, it is best for children to be raised by a parent of each sex. Under rational basis review, as long as the rationale for a classification is at least debatable, the classification is constitutional. Both sides presented evidence on this issue and both sides pointed out flaws in their opponents’ evidence. Thus, the Court concludes this rationale is at least debatable and therefore sufficient. Finally, the state could rationally conclude that it is addressing a divisive social issue with caution. In 1997, the legislature extended certain rights to same-sex couples through the creation of reciprocal-beneficiary relationships. In 2011, the legislature passed a civil unions law, conferring all of the state legal rights and benefits of marriage (except the title marriage) on same-sex couples who enter into a civil union. In this situation, to suddenly constitutionalize the issue of same-sex marriage “would short-circuit” the legislative actions with regard to the rights of same-sex couples that have been taking place in Hawaii. See Dist. Attorney’s Office v. Osborne, 557 U.S. 52, 72-73, 129 S.Ct. 2308, 174 L.Ed.2d 38 (2009). Accordingly, Hawaii’s marriage laws are not unconstitutional. Nationwide, citizens are engaged in a robust debate over this divisive social issue. If the traditional institution of marriage is to be restructured, as sought by Plaintiffs, it should be done by a democratically-elected legislature or the people through a constitutional amendment, not through judicial legislation that would inappropriately preempt democratic deliberation regarding whether or not to authorize same-sex marriage. PROCEDURAL BACKGROUND On December 7, 2011, Plaintiffs Natasha N. Jackson and Janin Kleid filed suit against Hawaii Governor Neil S. Abercrombie and Loretta J. Fuddy, Director of Hawaii’s Department of Health. Doc. No. 1. On January 27, 2012, Plaintiffs filed a First Amended Complaint (“Am. Compl.”), adding Gary Bradley as a plaintiff (collectively with Jackson and Kleid, “Plaintiffs”) and expanding their claims. Doc. No. 6. Specifically, Plaintiffs challenge Hawaii Revised Statutes (“H.R.S.”) § 572-1, which states that a valid marriage contract shall be only between a man and woman, and Article I, Section 28 of the Hawaii Constitution (the “marriage amendment”), which provides that “[t]he legislature shall have the power to reserve marriage to opposite-sex couples.” Plaintiffs assert that these two laws (together, “Hawaii’s marriage laws”) violate the Equal Protection and Due Process Clauses of the United States Constitution. Am. Compl. ¶¶ 94-104. On February 21, 2012, Defendant Fuddy and Defendant Abercrombie filed separate answers to the Amended Complaint. Doc. Nos. 9 & 10. In his answer, Defendant Abercrombie stated that he “admits that to the extent HRS § 572-1 allows opposite sex couples, but not same sex couples, to get married, it violates the Due Process Clause and Equal Protection Clause of the United States Constitution.” Doc. No. 9, at 2. In Defendant Fuddy’s answer, she denies that § 572-1 and the marriage amendment violate the Constitution. Doc. No. 10, at 6-7. On March 1, 2012, Hawaii Family Forum (“HFF”) filed a motion to intervene in this case as a defendant. Doc. No. 15. HFF also filed a proposed answer denying that Hawaii’s marriage laws are unconstitutional. Doc. No. 16. On May 2, 2012, 282 F.R.D. 507 (D.Hawaii 2012), the Court granted HFF’s motion to intervene. Doc. No. 43. On June 15, 2012, Defendant Fuddy filed a motion for summary judgment (“Defendant Fuddy’s Motion”), accompanied by a supporting memorandum (“Fuddy’s Mot. Mem.”) and a concise statement of facts (“Fuddy’s CSF”). Doc. Nos. 63 & 64. The same day, Plaintiffs filed a motion for summary judgment (“Plaintiffs’ Motion”), accompanied by a supporting memorandum (“Pis.’ Mot. Mem.”) and concise statement of facts (“Pis.’ CSF”). Doc. Nos. 65 & 66. Also on June 15, 2012, HFF filed a motion for summary judgment and to dismiss Defendant Abercrombie (“HFF’s Motion”), accompanied by a supporting memorandum (“HFF’s Mot. Mem.”) and a concise statement of facts (“HFF’s CSF”). Doc. Nos. 67 & 68. On June 29, 2012, Defendant Abercrombie filed a countermotion for partial summary judgment (“Abercrombie’s Countermotion”). Doc. No. 92. Defendant Abercrombie filed a single memorandum in support of the Countermotion, in response to Plaintiffs’ Motion, and in opposition to HFF and Defendant Fuddy’s motions (“Abercrombie’s Mot. Mem.”). Id. Defendant Abercrombie also filed a concise statement of facts in support of the Countermotion (“Abercrombie’s CSF”), a response to Defendant Fuddy’s CSF, a response to HFF’s CSF, and a response to Plaintiffs’ CSF. Doc. Nos. 89-91, 93. On June 29, 2012, Defendant Fuddy filed an opposition to Plaintiffs’ Motion (“Fuddy’s Opp’n”), a response to Plaintiffs’ CSF, and a statement of no opposition to HFF’s Motion. Doc. Nos. 78-80. The same day, HFF filed an opposition to Plaintiffs’ Motion (“HFF’s Opp’n”), a response to Plaintiffs’ CSF, and a statement of no opposition to Defendant Fuddy’s Motion. Doc. Nos. 82, 84, & 85. Plaintiffs filed a single memorandum in opposition to HFF and Defendant Fuddy’s motions on June 29, 2012 (“Pis.’ Opp’n”). Doc. No. 86. Plaintiffs also filed a combined response to Defendant Fuddy’s CSF and HFF’s CSF (“Pis.’ Resp. to CSFs”). Doc. No. 87. On June 29, 2012, Equality Hawaii and Hawaii LGBT Legal Association (“Equality Hawaii”) filed a motion for leave to file brief of amici curiae. Doc. No. 83. Equality Hawaii submitted a proposed brief in support of Plaintiffs’ Opposition (“Equality Hawaii’s Br.”). Id. On July 2, 2012, the Court granted Equality Hawaii’s Motion. Doc. No. 94. On July 10, 2012, Defendant Fuddy filed a response to Defendant Abercrombie’s CSF and a combined memorandum in opposition to Defendant Abercrombie’s Countermotion and reply to Plaintiffs’ Opposition (“Fuddy’s Reply”). Doc. Nos. 99 & 100. On July 10, 2012, HFF filed a combined memorandum opposing Defendant Abercrombie’s Countermotion and replying to Plaintiffs’ Opposition (“HFF’s Reply”), along with a response to Defendant Abercrombie’s CSF. Doc. Nos. 101 & 102. Also on July 10, 2012, Plaintiffs filed a reply to HFF’s Opposition (“Pis.’ Reply to HFF”), a reply to Defendant Fuddy’s Opposition (“Pis.’ Reply to Fuddy”), and a statement of no opposition to Defendant Abercrombie’s Countermotion. Doc. Nos. 103-05. On July 17, 2012, Defendant Abercrombie filed a reply in support of his countermotion (“Abercrombie’s Reply”). Doc. No. 108. On July 24, 2012, the Court held a hearing on Plaintiffs’ Motion, Defendant Fuddy’s Motion, HFF’s Motions, and Defendant Abercrombie’s Countermotion. FACTUAL BACKGROUND I. Same-Sex Marriage in Hawaii In Hawaii, same-sex marriage has been the subject of litigation and legislation for years. In May 1991, several same-sex couples filed a lawsuit seeking a declaration that § 572-1 violated the equal protection, due process, and privacy components of the Hawaii Constitution in so far as it had been interpreted and applied by the Hawaii Department of Health to deny marriage licenses to same-sex couples. See Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44, 48-49 (1993). The trial court rejected the plaintiffs’ claims and granted a motion for judgment on the pleadings in favor of the defendants. See id. at 52. On appeal, the Hawaii Supreme Court, relying on federal case law, held that there is no fundamental right to marriage for same-sex couples under the Hawaii Constitution “arising out of the right to privacy or otherwise.” Id. at 57. A plurality of the Hawaii Supreme Court held that the Hawaii statute restricting marriage to opposite-sex couples discriminates on the basis of sex, which constitutes a suspect category for purposes of equal protection analysis under the Hawaii Constitution. Id. at 63-67. Because the trial court had reviewed the marriage laws for a rational basis, the Hawaii Supreme Court remanded to the trial court to review it under the strict scrutiny standard that applies to suspect categories. Id. at 68-69. On December 3, 1996, on remand, the trial court ruled that § 572-1 violated the equal protection component of the Hawaii Constitution. See Baehr v. Miike, Civ. No. 91-13945, 1996 WL 694235 (Haw.Cir. Ct. Dec. 3, 1996). Consequently, the court ordered that the state could not deny an application for a marriage license solely because the applicants were the same sex. Id. at *22. The trial court suspended the implementation of his decision, however, to provide time for the case to be reviewed by the Hawaii Supreme Court. See Baehr v. Miike, Civ. No. 91-13945, Doc. No. 190 (Dec. 12,1996). Meanwhile, in 1994, the legislature responded to the Hawaii Supreme Court’s remand in Baehr by amending § 572-1 to clarify the legislature’s intention that marriage should be limited to those of the opposite-sex. Act of June 22, 1994, No. 217, 1994 Haw. Sess. Laws 526 (codified as amended at Haw.Rev.Stat. § 572-1). The legislature did so by adding the following underlined language to § 572-1: “In order to make valid the marriage contract, which shall be only between a man and a woman. ... ” Id. The preface to the House bill, H.B. No. 2312, set forth the legislature’s findings and purpose. The legislature stated that the Hawaii Supreme Court’s Baehr opinion “effaces the recognized tradition of marriage in this State and, in so doing, impermissibly negates the constitutionally mandated role of the legislature as a co-equal, coordinate branch of government.” 1994 Hawaii Laws Act 217, H.B. 2312, § 1. Specifically, it states that “[pjolicy determinations of this nature are clearly for nonjudicial discretion, and are more properly left to the legislature or the people of the State through a constitutional convention.” Id. The legislature additionally found that Hawaii’s marriage licensing statutes “were intended to foster and protect the propagation of the human race through male-female marriages.” Id. In 1997, the legislature passed a proposed amendment to the Hawaii Constitution to include a new section titled “Marriage” that states “[t]he legislature shall have the power to reserve marriage to opposite-sex couples.” See 1997 Haw. Sess. Laws 1247, H.B. 117, § 2. The statement of intent in the final form of the bill for the marriage amendment provided: “[T]he unique social institution of marriage involving the legal relationship of matrimony between a man and a woman is a protected relationship of fundamental and unequaled importance to the State, the nation, and society.” Id. at 1246. It reasserted that marriage should be dealt with by the legislature, not the courts: “[T]he question of whether or not to issue marriage licenses to couples of the same sex is a fundamental policy issue to be decided by the elected representatives of the people.” Id. at 1246-47. Finally, it noted that the proposed amendment would not impose a permanent bar to same-sex marriage: “This constitutional measure is ... designed ... to ensure that the legislature will remain open to the petitions of those who seek a change in the marriage laws, and that such petitioners can be considered on an equal basis with those who oppose a change in our current marriage statutes.” Id. at 1247. During the same legislative session, in April 1997, the legislature passed H.B. No. 118, the Reciprocal Beneficiaries Act, which granted persons who are legally prohibited from marrying the ability to register as reciprocal beneficiaries and obtain certain rights associated with marriage. See Hawaii Reciprocal Beneficiaries Act, 1997 Haw. Sess. Laws 383 (codified in part at H.R.S. § 572C). The findings under the Act state: The legislature finds that the people of Hawaii choose to preserve the tradition of marriage as a unique social institution based upon the committed union of one man and one woman. The legislature further finds that because of its unique status, marriage provides access to a multiplicity of rights and benefits throughout our laws that are contingent upon that status. As such, marriage should be subject to restrictions such as prohibiting respective parties to a valid marriage contract from standing in relation to each other.... However, the legislature concurrently acknowledges that there are many individuals who have significant personal, emotional, and economic relationships with another individual yet are prohibited by such legal restrictions from marrying. For example, two individuals who are related to one another, such as a widowed mother and her unmarried son, or two individuals who are of the same gender. Therefore, the legislature believes that certain rights and benefits presently available only to married couples should be made available to couples comprised of two individuals who are legally prohibited from marrying one another. H.R.S. § 572C-2. In November 1998, the people of Hawaii ratified the marriage amendment. See Haw. Const, art. I, § 23. Sixty-nine percent of the electorate voted for the amendment, twenty-nine percent voted against the amendment, and two percent left their ballots blank. See David Orgon Coolidge, The Hawaii Marriage Amendment: Its Origins, Meaning and Fate, 22 U. Haw. L.Rev. 19,101 (2000). Thereafter, on December 9, 1999, the Hawaii Supreme Court issued a four-page unpublished summary disposition of the appeal of the trial court’s decision finding § 572-1 violated the Hawaii Constitution. Baehr v. Miike, 92 Hawai'i 634, 994 P.2d 566, No. 20371, 1999 Haw. LEXIS 391 (Haw. Dec. 9, 1999). The Hawaii Supreme Court held that the case was moot in light of the marriage amendment. Id. at *8. Specifically, the court explained: “The marriage amendment validated HRS § 572-1 by taking the statute out of the ambit of the equal protection clause of the Hawaii Constitution, at least insofar as the statute, both on its face and as applied, purported to limit access to the marital status to opposite-sex couples.” Id. at *6. The court elaborated that “whether or not in the past it was violative of the equal protection clause in the foregoing respect, HRS § 572-1 no longer is. In light of the marriage amendment, HRS § 572-1 must be given full force and effect.” Id. at *6-7. After several failed attempts, in 2011, the legislature passed a civil unions bill. See H.R.S. § 572B. On February 23, 2011, Governor Abercrombie signed the bill into law (the “civil unions law”). See B.J. Reyes, Hawaii Now Seventh State to Legalize Civil Unions, Star Advertiser (Feb. 23, 2011, 2:10 PM HST), www. staradvertiser.comAiews/breaking/ 116776119.html?id=116776119. Pursuant to H.R.S. § 572B-2, which took effect on January 1, 2012, a person is eligible to enter into a civil union if the person is: (1) Not a partner in another civil union or a spouse in a marriage (2) At least eighteen years of age; and (3) Not related to the other proposed partner in the civil union, as provided in section 572B-3. H.R.S. § 572B-2, as amended by 2012 Haw. Laws Act 267 (H.B. 2569). The civil unions law gives partners to a civil union all of the same state legal rights granted to married couples. See H.R.S. § 572B-9. II. Same-Sex Marriage Nationwide Hawaii is not alone in the political and legal debate over official recognition of same-sex relationships. The right to same-sex marriage has been established through litigation in Iowa, Connecticut, Massachusetts, and California. See Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009) (holding state statute limiting civil marriage to opposite-sex couples violated the Iowa Constitution’s equal protection clause); Kerrigan v. Comm’r of Pub. Health, 289 Conn. 135, 957 A.2d 407 (2008) (holding Connecticut laws restricting civil marriage to opposite-sex couples violated the equal protection rights of the Connecticut Constitution); Goodridge v. Dep’t of Pub. Health, 440 Mass. 309, 798 N.E.2d 941 (2003) (holding that licensing statute which did not provide for same-sex marriage violated the equal protection and due process liberty principles of the Massachusetts Constitution); Perry v. Brown, 671 F.3d 1052 (9th Cir.2012) (holding California’s constitutional amendment banning same-sex marriage violated the United States Constitution in the unique circumstances of same-sex marriage in California). New York, Washington D.C., New Hampshire, and Vermont, recognize same-sex marriage through legislative enactment. See N.Y. Dom. Rel. Law § 10-a (McKinney 2011); D.C.Code § 46-401 (2010); N.H.Rev.Stat. Ann. § 457:l-a (2010); Vt. Stat. Ann. tit. 15, § 8 (2009). Washington recently passed legislation allowing same-sex marriage. See Act of Feb. 13, 2012, 2012 Wash. Legis. Serv. ch. 3 (S.S.B.6239) (West). In March 2012, Maryland’s governor signed a measure legalizing same-sex marriage. See John Wagner, Md. Marriage Petitioners Told of Success, The Washington Post (July 10, 2012, 4:23 PM ET), http://www. washingtonpost.com/blogs/marylandpolitics/post/md-marriage-petitioners-toldof-success/2012/07/10/gJQAqVBIbW — blog, html. The law is scheduled to take effect in January 2013. See id. The laws in Washington and Maryland are subject to voter referendum in November 2012. See id.; Michael Winter, November referendum blocks Wash, same-sex marriage law, USAToday (June 6, 2012, 10:28 PM), http:// content.usatoday.com/communities/ ondeadline/post/2012/06/novemberreferendum-blocks-wash-same-sex-marriage-law/1# .T_3ekRehQWI. The New Jersey legislature recently adopted legislation to legalize same-sex marriage, but Governor Chris Christie vetoed the legislation and there were insufficient votes to override the veto. See Garden State Equality v. Dow, 2012 WL 540608, at *9 n. 8 (N.J.Super.L. Feb. 21, 2012) (unpublished). Governor Christie called for the legislature to put a referendum on same-sex marriage on the ballot in November 2012, stating: “An issue of this magnitude and importance, which requires a constitutional amendment, should be left to the people of New Jersey to decide.” Kate Zernike, Christie Keeps His Promise to Veto Gay Marriage Bill, The New York Times (February 17, 2012), http://www. nytimes.com/2012/02/18/nyregion/christie vetoes-gay-marriage-bill.html. Shortly after Governor Christie’s veto, Garden State Equality, an advocacy organization, seven same-sex couples, and ten of the couples’ children filed suit against state officials asserting that the New Jersey Civil Union Act violates the Fourteenth Amendment. See Garden State Equality, 2012 WL 540608, at *2,10. In addition to Hawaii, states that recognize civil unions (or their equivalent) are Delaware, Illinois, Rhode Island, Nevada, and Oregon. See Del. Code Ann. tit. 13 §§ 201-217 (2011); 750 111. Comp. Stat. Ann. 75/1 (West' 2011); R.I. Gen. Laws § 8-3-19 (2009); Nev.Rev.Stat. § 122A.010-.510 (2009); Or.Rev.Stat. § 106.300, et seq. (2008). Maine provides for limited domestic partnerships without clearly granting marital privileges to partners. See Me.Rev.Stat. tit. 22 § 2710 (2009). In Maine, voters will vote on an initiative to approve same-sex marriage in November 2012. See Katharine Q. Seelye, Gay Marriage Again on Ballot in Maine, The New York Times (June 24, 2012), http://www.nytimes.com/2012/06/25/us/ politics/seeond-time-around-hope-forgaymarriage-in-maine.html. Thus, thirty-eight states have a statute and/or constitutional provision limiting marriage to relationships between a man and woman. See National Conference of State Legislatures, Defining Marriage: Defense of Marriage Acts and Same-Sex Marriage Laws (June 2012), http://www. ncsl.org/issuesresearch/human-services/ same-sex-marriage-overview.aspx. Of these states, twenty-nine have placed the limitation in their state constitutions (twenty-six of these have statutes adopting the limitation). See id. A further nine states have statutory language restricting marriage to opposite-sex couples. See id. III. Federal Defense of Marriage Act The Federal Government has also been involved in the social and political dispute over same-sex marriage. In 1996, Congress passed, and President Clinton signed into law, the Defense of Marriage Act (“DOMA”). DOMA has two basic provisions. One provision is that no state is required to give effect to a relationship between same-sex individuals that is treated as marriage under the laws of another state (“Section 2”). 28 U.S.C. § 1738C. The other is that in determining the meaning of any federal law or federal administrative decision, “the word ‘marriage’ means only a legal union between one man and one woman as husband and wife” (“Section 3”). 1 U.S.C. § 7. The General Accounting Office estimated in 2004 that DOMA affects the implementation of 1,138 federal laws. See Letter from Dayna K. Shah, Assoc. Gen. Counsel, GAO, to Bill Frist, Majority Leader, U.S. Senate (Jan. 23, 2004), http://www.gao.gOv/new.items/d 04353r.pdf. Challenges to the. constitutionality of DOMA have been filed in several courts. In the midst of this DOMA litigation, in February 2011, Attorney General Eric Holder announced that the government would no longer defend Section 3 of DOMA. See Letter from Eric H. Holder, Jr., Att’y Gen., to Rep. John A. Boehner, Speaker of the House, Letter to Congress on Litigation Involving the Defense of Marriage Act (Feb. 23, 2011), http://www. justice.gov/opa/pr/2011/February/ll-ag223.html. Attorney General Holder stated that the Executive Branch would, however, continue to enforce Section 3. Id. Only one Court of Appeals, the First Circuit, has ruled on the constitutionality of DOMA. In Massachusetts v. U.S. Dep’t of Health & Human Servs., 682 F.3d 1 (1st Cir.2012) (“Mass. v. HHS ”), the First Circuit held Section 3 of DOMA violated the Equal Protection Clause. Three DOMA cases are currently on appeal, two in the Ninth Circuit and one in the Second Circuit, from decisions holding Section 3 is unconstitutional. See Golinski v. U.S. Office of Pers. Mgmt., Nos. 12-15388 & 12-15409 (9th Cir.); Dragovich v. U.S. Dep’t of the Treasury, No. 12-16461 (9th Cir.); Windsor v. United States, Nos. 12-2335 & 12-2435 (2d Cir.). Four district courts have held that Section 3 is constitutional. See Lui v. Holder, Civ. No. 11-01267, Doc. No. 38 (C.D.Cal. Sept. 28, 2011); Torres-Barragan v. Holder, Civ. No. 09-08564, Doc. No. 24 (C.D.Cal. Apr. 30, 2010); Wilson v. Ake, 354 F.Supp.2d 1298 (M.D.Fla.2005); Hunt v. Ake, No. 04-1852, Doc. No. 35 (M.D.Fla. Jan. 20, 2005). One bankruptcy court in the Ninth Circuit has held Section 3 is constitutional, see In re Kandu, 315 B.R. 123 (Bankr.W.D.Wash.2004), and one has held DOMA is unconstitutional. See In re Balas, 449 B.R. 567 (Bankr.C.D.Cal.2011). There are several other DOMA cases pending in district courts around the country. IV. The Parties in This Case Plaintiffs Natasha N. Jackson and Janin Kleid are two women in a relationship together who sought and were denied a marriage license from the Department of Health, State of Hawaii. Am. Compl. ¶¶ 3-4. Plaintiff Gary Bradley is a man who entered into a civil union with his male partner under the civil unions law. Id. ¶ 9. Bradley asserts that he entered into a civil union and did not seek a marriage license because it was futile for him to do so under § 572-1. Id. ¶ 10. Plaintiffs challenge § 572-1 and the marriage amendment as unconstitutional under the federal Constitution, asserting inter alia, that “Hawaii’s ‘solution’ of the problem of giving legal recognition to the relationships of same-sex couples without permitting them to marry, has not created equality but a system as pernicious and damaging in its effects as any system of segregation.” Id. ¶ 78. Plaintiffs seek summary judgment on them federal equal protection violation claim. Defendant Fuddy and HFF seek summary judgment in their favor on Plaintiffs’ federal equal protection and due process claims. HFF also seeks to dismiss Defendant Abercrombie from this action. Defendant Abercrombie seeks a summary judgment that heightened scrutiny should apply to Plaintiffs’ claims and argues that § 572-1 violates the Constitution. STANDARD In general, the purpose of summary judgment is to identify and dispose of factually unsupported claims and defenses. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary judgment is therefore appropriate if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(a). “By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “A fact is ‘material’ when, under the governing substantive law, it could affect the outcome of the case. A ‘genuine issue’ of material fact arises if ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’ ” Thrifty Oil Co. v. Bank of Am. Nat’l Trust & Sav. Ass’n, 322 F.3d 1039, 1046 (9th Cir.2003) (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505). Conversely, where the evidence could not lead a rational trier of fact to find for the nonmoving party, no genuine issue exists for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citing First Nat’l Bank v. Cities Serv. Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)). When evaluating a motion for summary judgment, the court must construe all evidence and reasonable inferences drawn therefrom in the light most favorable to the nonmoving party. See T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630-31 (9th Cir.1987). The moving party has the burden of persuading the court as to the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. 2548; Miller v. Glenn Miller Prods., 454 F.3d 975, 987 (9th Cir.2006). This is true even when a court is presented with cross-motions for summary judgment; each party must meet this burden. High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 574 (9th Cir.1990). The moving party may do so with affirmative evidence or by “‘showing’ — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party’s case.” Celotex, 477 U.S. at 325, 106 S.Ct. 2548. Once the moving party satisfies its burden, the nonmoving party cannot simply rest on the pleadings or argue that any disagreement or “metaphysical doubt” about a material issue of fact precludes summary judgment. See id. at 324, 106 S.Ct. 2548; Matsushita Elec., 475 U.S. at 586, 106 S.Ct. 1348; Cal. Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir.1987). Rather, the nonmoving party “must set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 250, 106 S.Ct. 2505. Summary judgment will thus be granted against a party who fails to demonstrate facts sufficient to establish an element essential to his case when that party will ultimately bear the burden of proof at trial. See Celotex, 477 U.S. at 322, 106 S.Ct. 2548. DISCUSSION The issue in this case is whether Hawaii’s marriage laws, which define marriage as a union between a man and woman, violate the Due Process and Equal Protection Clauses of the United States Constitution. As an initial matter, the Court will discuss HFF’s argument that Defendant Abercrombie is not a proper party to this case and must be dismissed. The Court will then discuss the Supreme Court’s summary dismissal in Baker v. Nelson, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972) (mem.), which remains binding authority and dictates that Hawaii’s marriage laws are constitutional. The Court then conducts an alternative analysis on the merits, concluding that Hawaii’s marriage laws do not violate the Equal Protection or Due Process Clauses. I. Defendant Abercrombie’s Status as a Party HFF asserts that Defendant Abercrombie is not a proper party to this case and must be dismissed on Eleventh Amendment Sovereign Immunity and Article III standing grounds. HFF’s Mot. Mem. 37. Specifically, HFF contends that the Governor does not administer Hawaii’s marriage laws or maintain any control over the county clerks who issue marriage licenses, and accordingly the Governor is not a proper party in this case. Id. HFF also asserts that courts have routinely dismissed governors and other high level officials from lawsuits due to the lack of a sufficient connection to the alleged injury. Id. at 38. A. Sovereign Immunity Defendant Abercrombie is sued in his official capacity as Governor of Hawaii. Suits against a state officer in his official capacity, “generally represent only another way of pleading an action against an entity of which an officer is an agent.” Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) (internal quotations omitted). Thus, “an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity.” Id. at 166, 105 S.Ct. 3099 (internal quotations omitted). Eleventh Amendment Sovereign Immunity applies to bar claims brought against a state in federal court unless the state consent's or Congress unequivocally abrogates the immunity under its Fourteenth Amendment authority. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99, 104, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). Eleventh Amendment immunity is treated as an affirmative defense and can be expressly waived or forfeited if the State fails to assert it. See ITSI T.V. Prods., Inc. v. Agric. Ass’ns, 3 F.3d 1289, 1291 (9th Cir.1993). Defendant Abercrombie has explicitly waived Eleventh Amendment immunity with respect to prospective injunctive relief barring enforcement of § 572-1’s ban on same-sex marriage. Abercrombie’s Mot. Mem. 86. HFF argues that Defendant Abercrombie has not shown that he has the authority to waive the state’s sovereign immunity. HFF’s Reply 39-40. The Supreme Court has noted that regardless of an official’s authority with respect to waiving sovereign immunity under state law, it “has consistently found waiver when a state [official] ... has voluntarily invoked th[e] court’s jurisdiction.” Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613, 614, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002). Here, Defendant Abercrombie has expressly waived sovereign immunity and sought summary judgment in Plaintiffs’ favor. Thus, he has “voluntarily invoked” the Court’s jurisdiction. Moreover, HFF has given the Court no reason to question the power of the sitting governor, sued in his official capacity as head of the state executive, to waive Hawaii’s sovereign immunity. In any event, the decision to invoke sovereign immunity belongs to the state. State Police for Automatic Ret. Ass’n v. Difava, 138 F.Supp.2d 142, 147 (D.Mass. 2001) (citing Clark v. Barnard, 108 U.S. 436, 447, 2 S.Ct. 878, 27 L.Ed. 780 (1883)). Thus, HFF, a Defendant-Intervenor, cannot force the state, through the governor sued in his official capacity, to invoke its sovereign immunity. See Howard v. Food Lion, Inc., 232 F.Supp.2d 585, 593 (M.D.N.C.2002) (determining that the plaintiff could not assert an Eleventh Amendment immunity defense on behalf of a state official because “[t]he decision to invoke sovereign immunity belongs to the state ... and cannot be made by the opposing party”); Difava, 138 F.Supp.2d at 147 (holding that a retirement association could not force the State to invoke its Eleventh Amendment immunity). B. Article III Article III provides that federal courts have the power to resolve “Cases” or “Controversies.” Arizona Christian Sch. Tuition Org. v. Winn, - U.S.-, 131 S.Ct. 1436, 1441, 179 L.Ed.2d 523 (U.S. 2011). “To obtain a determination on the merits in federal court, parties seeking relief must show that they have standing under Article III of the Constitution.” Id. at 1440. To satisfy Article III standing, at a minimum, (1) the party seeking relief must have suffered an injury in fact, (2) there must be “a causal connection between the injury and the conduct complained,” and (3) it must be likely the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). In Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir.2006), the Eighth Circuit held that advocates for gay marriage had standing to challenge a state constitutional amendment stating that only marriage between a man and a woman was valid against the Attorney General and Governor of Nebraska. Id. at 863-64. It determined that “when the government erects a barrier making it more difficult for members of a group to obtain a benefit, ‘[t]he “injury in fact” ... is the denial of equal treatment resulting from the imposition of the barrier.’ ” Id. at 863 (8th Cir. 2006) (alteration in original) (quoting N.E. Fla. Chapter of the Assoc. Gen. Contractors of Am. v. Jacksonville, 508 U.S. 656, 666, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993)). The Eighth Circuit then addressed the connection of the injury to the Attorney General and Governor and explained that they both had broad powers to enforce the State’s Constitution and statutes, which includes policing compliance with the constitutional amendment at issue. Id. The Eighth Circuit thus concluded that the Governor and the Attorney General had “some connection with the enforcement” of the amendment, which satisfied Article III standing requirements. Id. Here, Plaintiffs assert that Hawaii’s marriage laws are unconstitutional. Plaintiffs Kleid and Jackson applied for and were denied a marriage license. Plaintiff Bradley entered into a civil union with his same-sex partner and did not apply for a marriage license because it was futile in light of § 572-1. This injury — the inability to obtain marriage licenses available to opposite-sex couples — is causally related to Hawaii’s restriction of marriage to unions between a man and a woman. Defendant Abercrombie, as chief executive of Hawaii, is “responsible for the faithful execution of [Hawaii’s] laws.” Haw. Const, art. 5, §§ 1, 5. Plaintiffs’ injuries thus “have some connection” to Defendant Abercrombie. In the event of a favorable decision, Defendant Abercrombie can redress Plaintiffs’ injuries by ordering Defendant Fuddy to issue licenses to same-sex couples or replacing her with a director who will do so. Accordingly, Plaintiffs have standing to seek relief from Defendant Abercrombie. The Court further notes that to dismiss Defendant Abercrombie as an improper party on Article III grounds would call into question the jurisdiction of numerous cases challenging state laws and constitutional amendments that have been brought against a governor in his or her official capacity. See, e.g., Romer v. Evans, 517 U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996) (determining merits of suit against governor, state attorney general, and state, challenging the validity of an amendment to Colorado Constitution); Diaz v. Brewer, 656 F.3d 1008 (9th Cir.2011) (determining merits of suit against, inter alia, Arizona Governor, brought by lesbian and gay state employees challenging the constitutionality of an Arizona statute limiting eligibility for family health care coverage to married heterosexual employees). Furthermore, in a decision involving whether the intervenors in Perry had standing to appeal, Judge Reinhardt, concurring, noted that “the problem of standing would have been eliminated had the Governor or the Attorney General defended the initiative, as is ordinarily their obligation.” Perry v. Schwarzenegger, 628 F.3d 1191, 1201 (9th Cir.2011) (Reinhardt, J., concurring). In the decision striking Proposition 8, the Ninth Circuit again discussed Article III standing and noted that “[w]hether the defendant is the state or a state officer, the decision to assert the state’s own interest in the constitutionality of its laws is most commonly made by the state’s executive branch — the part of state government that is usually charged with enforcing and defending state law.” Perry, 671 F.3d at 1071. Accordingly, the Court concludes that Defendant Abercrombie is a proper party and thus denies HFF’s motion to dismiss him from this action. HFF further asserts in its reply that Defendant Abercrombie does not have standing to seek summary judgment and instead should have filed a “response” to Plaintiffs’ Motion. HFF’s Reply 46-48 & n. 21. Defendant Abercrombie replies that he does not seek affirmative relief against Defendant Fuddy but rather asks that strict or heightened scrutiny be applied to Plaintiffs’ due process and equal protection claims. Abercrombie’s Reply 38. He further argues that in any event, there is nothing in Article III prohibiting him from seeking affirmative relief. Id. Specifically, he asserts that he has a direct stake in the outcome of the case which provides concrete adverseness. Id. The Court need not consider whether it has jurisdiction over Defendant Abercrombie’s Countermotion because it is rendered moot by the Court granting summary judgment in favor of Defendant Fuddy and HFF. The Court thus denies it as moot. Because the Court would like the broadest view of the issues possible, it will consider Defendant Abercrombie’s Countermotion as a brief in support of Plaintiffs Motion and in opposition to Fuddy’s Motion and HFF’s Motion just as it permitted HFF to intervene and Hawaii Equality to file an amici brief. II. Baker v. Nelson HFF and Defendant Fuddy assert that the questions presented by this case were decided by the Supreme Court in Baker, which they argue is binding precedent. HFF’s Mot. Mem. 4. In Baker, the Minnesota Supreme Court held that a Minnesota statute that defined marriage as a union between persons of the opposite-sex did not violate the First, Eighth, Ninth, and Fourteenth Amendments of the federal Constitution. See Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185 (1971), appeal dismissed, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972). The Minnesota Supreme Court rejected the plaintiffs’ claims determining, inter alia, that a right to marry without regard to the sex of the parties is not a fundamental right. Id. at 186-87. The court further determined that the Equal Protection Clause was “not offended by the state’s classification of persons authorized to marry” and that there was “no irrational or invidious discrimination.” Id. at 187. The United States Supreme Court summarily dismissed the plaintiffs’ appeal “for want of a substantial federal question.” Baker, 409 U.S. 810, 93 S.Ct. 37. Per procedural rules in effect at the time, the summary dismissal of a state supreme court decision constituted a decision on the merits. See Hicks v. Miranda, 422 U.S. 332, 344, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975). Such dismissals “prevent lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions.” Mandel v. Bradley, 432 U.S. 173, 176, 97 S.Ct. 2238, 53 L.Ed.2d 199 (1977). “[U]n-less and until the Supreme Court should instruct otherwise, inferior federal courts had best adhere to the view that if the Court has branded a question as unsubstantial, it remains so except when doctrinal developments indicate otherwise.... ” Hicks, 422 U.S. at 344, 95 S.Ct. 2281 (internal quotations omitted). “Summary actions ... should not be understood as breaking new ground but as applying principles established by prior decisions to the particular facts involved.” Mandel, 432 U.S. at 176, 97 S.Ct. 2238. “Questions which merely lurk in the record are not resolved, and no resolution of them may be inferred.” Ill. State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 182-83, 99 S.Ct. 983, 59 L.Ed.2d 230 (1979) (internal quotations and citation omitted). Thus, a summary dismissal is controlling precedent only if the issues in the two cases are sufficiently similar. See Hicks, 422 U.S. at 345 n. 14, 95 S.Ct. 2281. The “precedential value of a dismissal for want of a substantial federal question extends beyond the facts of the particular case to all similar cases.” Bates v. Jones, 131 F.3d 843, 848 (9th Cir.1997) (internal quotations omitted). The following two questions were presented to the Supreme Court in Baker are relevant here: 1. Whether [Minnesota’s] refusal to sanctify appellants’ marriage deprives appellants of their liberty to marry and of their property without due process of law under the Fourteenth Amendment. 2. Whether [Minnesota’s] refusal, pursuant to Minnesota marriage statutes, to sanctify appellants’ marriage because both are of the male sex violates their rights under the equal protection clause of the Fourteenth Amendment. HFF’s Mot. Ex. 10, Baker v. Nelson, Jurisdictional Stmt., No. 71-1027, at 3 (Feb. 11, 1971)[hereinafter Baker Jurisdictional Stmt.]. Plaintiffs assert that because of doctrinal changes in the Supreme Court’s Due Process Clause analysis and factual differences between this case and Baker, this Court is not bound by the Supreme Court’s summary dismissal. Pis.’ Opp’n 7-8. Particularly, Plaintiffs rely on the Supreme Court’s decision in Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003). The Supreme Court has not explicitly or implicitly overturned its holding in Baker or provided the lower courts with any reason to believe that the holding is invalid. See Perry, 671 F.3d at 1099 n. 1 (N.R. Smith, J., concurring in part and dissenting part) (concluding the Supreme Court cases following Baker do not suggest any doctrinal developments indicating Baker is no longer good law); Wilson v. Ake, 354 F.Supp.2d 1298, 1305-06 (M.D.Fla.2005) (same); but see In re Kandu, 315 B.R. at 138 (concluding Baker was not binding on a challenge to DOMA because of different facts and “doctrinal developments” indicated it was no longer binding). Lawrence had no such effect. In Lawrence, the Supreme Court expressly stated that “[t]he present case does not involve ... whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Lawrence, 539 U.S. at 578, 123 S.Ct. 2472. “In so limiting the scope of its decision, the court in Lawrence implicitly recognized that it is one thing to conclude that criminalizing private, consensual homosexual conduct between adults violates due process; it is entirely another matter to conclude that the constitution requires the redefinition of the institution of marriage to include same sex couples.” Kerrigan, 957 A.2d at 513. Additionally, in concurrence, Justice O’Connor stated that the sodomy law “as applied to private, consensual conduct is unconstitutional under the Equal Protection Clause does not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review.” Lawrence, 539 U.S. at 585, 123 S.Ct. 2472 (O’Connor, J., concurring). She continued that Texas could not assert a legitimate interest for the law, “such as ... preserving the traditional institution of marriage.” Id. Romer v. Evans, 517 U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996), also does not indicate that Baker is no longer valid because in Romer, the Supreme Court applied rational basis scrutiny to laws that discriminated on the basis of sexual orientation. Id. at 631-35, 116 S.Ct. 1620. Consequently, there are no doctrinal changes in Supreme Court jurisprudence implying that Baker is no longer binding authority. Thus, the binding effect of Baker hinges on whether the issues in this case were presented to and necessarily decided by the Supreme Court. A. The Due Process Claim In Baker, two male plaintiffs were not allowed to marry each other pursuant to Minnesota law solely because both were of the same sex. See Baker 191 N.W.2d at 185. The Supreme Court determined that the two plaintiffs’ claim that they had a fundamental right to marry each other did not raise a substantial federal question. Here, Plaintiffs also are not allowed to marry their partners solely because they are of the same sex and Plaintiffs claim that they have a fundamental right to do so. Am. Compl. ¶ 61. Plaintiffs’ due process claim was thus presented to and necessarily decided by the Supreme Court in Baker. See Perry, 671 F.3d at 1099 n. 1 (N.R. Smith, J., concurring in part and dissenting part) (“Whether prohibiting marriage by same-sex couples violates due process was an issue presented and decided in Baker.’’). Consequently, the Court is bound by Baker and Plaintiffs’ due process claim fails. B. The Equal Protection Claim Defendant Abercrombie asserts that the Baker plaintiffs presented a claim of gender discrimination and thus denying marriage on account of sexual orientation was not the precise issue presented in Baker Abercrombie’s Mot. Mem. 9. Plaintiffs and Defendant Abercrombie assert because Hawaii has a civil unions law in contrast to Minnesota at the time of Baker, the facts are sufficiently different such that their Equal Protection claim is not controlled by Baker. Pis.’ Opp’n 16-17; Abercrombie’s Reply 3. Defendant Abercrombie’s contention that Baker asserted solely a gender discrimination is belied by the jurisdictional statement. Although in the jurisdictional statement the plaintiffs assert that “[t]he discrimination in this case is one of gender,” their claim is not limited to gender discrimination. Baker Jurisdictional Stmt. 16. The plaintiffs also relied on the state’s differing treatment based on their sexual orientation. For example, the plaintiffs argued that “there is no justification in law for the discrimination against homosexuals ”; that “prejudice against homosexuals ... is unlikely to be cured until the public acknowledges that homosexuals, like all people, are entitled to the full protection and recognition of the law”; and that “[cjhildless same sex couples ... are ‘similarly circumstanced’ to childless heterosexual couples.” Id. at 7,10,16-17 (emphasis added). The First Circuit recognized that the plaintiffs in Baker raised an equal protection claim based on sexual orientation discrimination, noting that holding that sexual orientation classifications are subject to heightened scrutiny would “imply[ ] an overruling of Baker.” Mass. v. HHS, 682 F.3d at 9. Although the facts in this case are not identical to those in Baker, the “precedential value of a dismissal for want of a substantial federal question extends beyond the facts of the particular case to all similar cases.” Wright v. Lane Cnty. Dist. Court, 647 F.2d 940, 941 (9th Cir.1981) (emphasis added) (citing McCarthy v. Philadelphia Civil Serv. Comm’n, 424 U.S. 645, 646, 96 S.Ct. 1154, 47 L.Ed.2d 366 (1976)). Both this case and Baker involve a challenge to a state law that defines marriage as a union between a man and a woman. Hawaii’s civil unions law, enacted subsequent to Hawaii’s marriage laws, is not challenged in this case. Hawaii’s civil unions law did not take away any rights from same-sex couples. Rather, it extended rights that they had never previously possessed. The plaintiffs in Baker argued that the Equal Protection Clause was violated because Minnesota’s laws were based on invidious discrimination, arbitrary, capricious, unreasonable, and not rationally related to any governmental interest. See Baker Jurisdictional Stmt. 14-15. Plaintiffs make the same arguments in this case. The Baker plaintiffs argued that the fact same-sex couples could raise children and that single persons could be adoptive parents supported their claims. Id. Plaintiffs in this case make similar arguments. Minnesota did not have an equivalent to Hawaii’s marriage amendment. Hawaii’s marriage amendment, however, commits the matter to the legislature and does not forbid same-sex marriage. Moreover, the marriage amendment did not “take away” a preexisting right as the Hawaii Supreme Court has never held that same-sex couples have the right to marry. Thus, this fact does not render Hawaii’s marriage laws so different from Minnesota’s at the time of Baker that it can be said the issues in this case were not before the Supreme Court. Consequently, the relevant facts of this case are substantially similar to that raised in Baker, which necessarily decided that a state law defining marriage as a union between a man and woman does not violate the Equal Protection Clause. This issue did not merely “lurk in the record,” but was directly before the Supreme Court. Baker is the last word from the Supreme Court regarding the constitutionality of a state law limiting marriage to opposite