Full opinion text
OPINION AND ORDER TERENCE C. KERN, District Judge. This Order addresses challenges to state and federal laws relating to same-sex marriage. The Court holds that Oklahoma’s constitutional amendment limiting marriage to opposite-sex couples violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. The Court lacks jurisdiction over the other three challenges. I. Factual Background This case involves challenges to: (1) both sections of the federal Defense of Marriage Act (“DOMA”), codified at 28 U.S.C. § 1738C and 1 U.S.C. § 7; and (2) two subsections of an amendment to the Oklahoma Constitution, which are set forth in article 2, section 35(A)-(B) (the “Oklahoma Constitutional Amendment”). All challenges arise exclusively under the U.S. Constitution. A. DOMA DOMA, which became law in 1996, contains two substantive sections. Section 2 of DOMA, entitled “Powers Reserved to the States,” provides: No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship. Defense of Marriage Act § 2, 28 U.S.C. § 1738C. Section 3 of DOMA, entitled “Definition of Marriage,” provides: In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife. Id. § 3, 1 U.S.C. § 7. This federal definition, which was declared unconstitutional during the pendency of this lawsuit, informed the meaning of numerous federal statutes using the word “marriage” or “spouse” and functioned to deprive same-sex married couples of federal benefits. See United States v. Windsor, — U.S. -, 133 S.Ct. 2675, 2683, 186 L.Ed.2d 808 (2013) (striking down DOMA’s definition of marriage, which controlled “over 1,000 federal laws in which marital or spousal status is addressed as a matter of federal law,” as a violation of the Fifth Amendment to the U.S. Constitution). B. Oklahoma Constitutional Amendment On November 2, 2004, Oklahoma voters approved State Question No. 711 (“SQ 711”), which was implemented as article 2, section 35 of the Oklahoma Constitution. The Oklahoma Constitutional Amendment provides: “Marriage” Defined — Construction of Law and Constitution — Recognition of Out-of-State Marriages — Penalty A. Marriage in this state shall consist only of the union of one man and one woman. Neither this Constitution nor any other provision of law shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups. B. A marriage between persons of the same gender performed in another state shall not be recognized as valid and binding in this state as of the date of the marriage. C. Any person knowingly issuing a marriage license in violation of this section shall be guilty of a misdemeanor. Okla. Const, art. 2, § 35 (footnotes added). Part A of the Oklahoma Constitutional Amendment (“Part A”) is the definitional provision, which provides that marriage in Oklahoma “shall consist only of the union of one man and one woman.” Part B of the Oklahoma Constitutional Amendment (“Part B”) is the “non-recognition” provision, which provides that same-sex marriages performed in other states “shall not be recognized as valid and binding” in Oklahoma. Only Parts A and B are challenged in this lawsuit. C.Procedural History In late 2004, Plaintiffs Mary Bishop and Sharon Baldwin (“Bishop couple”) and Susan Barton and Gay Phillips (“Barton couple”), two lesbian couples residing in Oklahoma, filed a Complaint seeking a declaration that Sections 2 and 3 of DOMA and Parts A and B of the Oklahoma Constitutional Amendment violate the U.S. Constitution. In August 2006, the Court denied a motion to dismiss filed by the Oklahoma Attorney General and Oklahoma Governor, rejecting their sovereign immunity argument. See Bishop I, 447 F.Supp.2d at 1255 (holding that suit was proper against these officials under the Ex parte Young doctrine). The state officials appealed this Court’s denial of sovereign immunity, and the Court stayed the proceedings pending appeal. On June 5, 2009, the Tenth Circuit issued an unpublished decision reversing this Court’s “failure to dismiss the claims against the Oklahoma officials” and remanding the “case for entry of an order dismissing these claims for lack of subject matter jurisdiction.” See Bishop II, 333 Fed.Appx. at 365. The Tenth Circuit’s reversal was based on Plaintiffs’ lack of standing to pursue their claims against the named state officials: The Couples claim they desire to be married but are prevented from doing so, or they are married but the marriage is not recognized in Oklahoma. These claims are simply not connected to the duties of the Attorney General or the Governor. Marriage licenses are issued, fees collected, and the licenses recorded by the district court clerks. See Okla. Stat. Ann. tit. 28, § 31; Okla. Stat. Ann. tit. 43, § 5. “[A] district court clerk is ‘judicial personnel’ and is an arm of the court whose duties are ministerial, except for those discretionary duties provided by statute. In the performance of [a] clerk’s ministerial functions, the court clerk is subject to the control of the Supreme Court and the supervisory control that it has passed down to the Administrative District Judge in the clerk’s administrative district.” Speight v. Presley, 203 P.3d 173, 177 (Okla.2008). Because recognition of marriages is within the administration of the judiciary, the executive branch of Oklahoma’s government has no authority to issue a marriage license or record a marriage. Moreover, even if the Attorney General planned to enforce the misdemeanor penalty (a claim not made here), that enforcement would not be aimed toward the Couples as the penalty only applies to the issuer of a marriage license to a same-sex couple. Thus, the alleged injury to the Couples could not be caused by any action of the Oklahoma officials, nor would an injunction (tellingly, not requested here) against them give the Couples the legal status they seek. Id. at 365 (footnote omitted). Following remand, Plaintiffs retained new counsel and were granted leave to file an Amended Complaint. As implicitly directed by Bishop II, Plaintiffs sued the Tulsa County Court Clerk in place of the previously named officials. Specifically, Plaintiffs sued “State of Oklahoma, ex rel. Sally Howe Smith, in her official capacity as Court Clerk for Tulsa County,” alleging: [Sally Howe Smith] is sued in her official capacity as Clerk of Tulsa County District Court. Pursuant to state law, she is the designated agent of the State of Oklahoma given statutory responsibility for issuing and recording marriage licenses. (Am. Compl. ¶ 7.) The State of Oklahoma filed a second motion to dismiss, again asserting its immunity and arguing that it should be dismissed as a nominal party to the case. The Court granted this motion and dismissed the “State of Oklahoma” as a nominal party. See Bishop III, 2009 WL 4505951, at *3. Thus, the current Defendants to the lawsuit are: (1) United States of America, ex rel. Eric H. Holder, Jr., in his official capacity as Attorney General of the United States of America (“United States”); and (2) Sally Howe Smith (“Smith”), in her official capacity as Court Clerk for Tulsa County, State of Oklahoma. Smith is represented by the Tulsa County District Attorney’s Office and attorneys with an organization known as the “Alliance Defending Freedom.” Smith and the United States filed motions to dismiss the Amended Complaint. The United States based its motion, in part, on the Barton couple’s lack of standing to challenge Section 3 of DOMA. The Court ordered the Barton couple to provide more particularized facts regarding the federal benefits that were allegedly desired and/or sought but that were unavailable and/or denied as a result of Section 3. After the Barton couple submitted supplemental affidavits, the United States conceded that the Barton couple had standing to challenge Section 3 and abandoned this section of its motion to dismiss. On February 25, 2011, prior to the Court’s issuing a decision on the pending motions to dismiss, the United States notified the Court that it would “cease defending the constitutionality of Section 3 of [DOMA],” thereby abandoning other portions of its previously filed motion to dismiss. (See Not. to Court by United States of Am. 1.) The United States informed the Court of the possibility that members of Congress would elect to defend Section 3. On July 21, 2011, the Bipartisan Legal Advisory Group of the U.S. House of Representatives (“BLAG”) filed a motion to intervene “as a defendant for the limited purpose of defending Section 3.” (See Mot. of BLAG to Intervene 1.) The Court permitted BLAG to intervene pursuant tó Federal Rule of Civil Procedure 24(b)(1)(A) and referred the matter to Magistrate Judge T. Lane Wilson for a scheduling conference. Magistrate Judge Wilson conducted the conference and entered an agreed schedule. Smith and the United States withdrew their previously filed motions to dismiss, and the briefing process began anew. Although the Court did not issue a formal stay of the proceedings, the Court was aware that the United States Supreme Court had granted certiorari in two cases presenting nearly identical issues to those presented here — namely, the constitutionality of Section 3 of DOMA and the constitutionality of Proposition 8, a California ballot initiative amending the California Constitution to define marriage as between a man and a woman. The Court delayed ruling in this case pending the Supreme Court’s decisions. On June 26, 2013, the Supreme Court issued its heavily anticipated decisions in United States v. Windsor, — U.S.-, 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013) (addressing Section 3 of DOMA), and Hollingsworth v. Perry, — U.S. -, 133 S.Ct. 2652, 186 L.Ed.2d 768 (2013) (addressing Proposition 8). In Windsor, the Supreme Court held that Section 3 of DOMA “violates basic due process and equal protection principles applicable to the Federal Government.” Windsor, 133 S.Ct. at 2693-94. This holding renders moot the Barton couple’s challenge to Section 3. See infra Part III. In Hollingsworth, the Supreme Court held that the official proponents of Proposition 8 lacked standing. See Hollingsworth, 133 S.Ct. at 2662-68 (reasoning that the proponents of Proposition 8 had not been ordered “to do or refrain from doing anything” by the trial court and that “[t]heir only interest in having the district court’s holding reversed was to vindicate the constitutional validity of a generally applicable California law”). Therefore, the Court did not reach the constitutionality of Proposition 8. D. Barton Couple Plaintiffs Susan Barton and Gay Phillips have resided in Oklahoma for over fifty years and currently own a home in Tulsa, Oklahoma. They also own Barton, Phillips, and Associates, Inc., a company that provides training to agencies serving homeless teens. Ms. Phillips has a doctorate degree in sociology, and Ms. Barton is an adjunct professor at Tulsa Community College, where she teaches courses on “Building Relationships” and “Teaching Discipline.” The Barton couple has been in a continuous, committed relationship since November 1, 1984. They were united in a Vermont civil union in 2001 and were married in Canada on May 16, 2005. On November 1, 2008, prior to filing their Amended Complaint, they were issued a marriage license by the State of California and married under California law. As a same-sex couple that has been legally married in the United States, the Barton couple challenges Sections 2 and 3 of DOMA as violative of equal protection and substantive due process rights guaranteed by the Fifth Amendment to the U.S. Constitution. The Barton couple seeks a declaratory judgment that DOMA is unconstitutional and a permanent injunction restraining enforcement of DOMA. As a same-sex couple that is denied the right to marry in Oklahoma, the Barton couple challenges Part A of the Oklahoma Constitutional Amendment as violative of equal protection and substantive due process rights guaranteed by the Fourteenth Amendment to the U.S. Constitution. The Barton couple also challenges Part B, which prohibits recognition of their California marriage in Oklahoma, as violative of equal protection and substantive due process rights guaranteed by the Fourteenth Amendment. As remedies, the Barton couple seeks a declaratory judgment that Parts A and B of the Oklahoma Constitutional Amendment violate the U.S. Constitution and a permanent injunction enjoining enforcement of Parts A and B. E. Bishop Couple Plaintiffs Mary Bishop and Sharon Baldwin have resided in Oklahoma throughout their lives and own a home in Broken Arrow, Oklahoma. They also jointly own a 1.3-acre lot in Osage County, Oklahoma. Ms. Bishop is an assistant editor at the Tulsa World newspaper, and Ms. Baldwin is a city slot editor at the Tulsa World. The Bishop couple has been in a continuous, committed relationship for over fifteen years and exchanged vows in a commitment ceremony in Florida in 2000. On February 13, 2009, the Bishop couple sought the issuance of a marriage license from Smith. Smith refused them a marriage license based upon their status as a same-sex couple. As a same-sex couple that is denied the right to marry in Oklahoma, the Bishop couple challenges Part A of the Oklahoma Constitutional Amendment as violative of equal protection and substantive due process rights guaranteed by the Fourteenth Amendment to the U.S. Constitution. The Bishop couple seeks a declaratory judgment that Part A is unconstitutional and a permanent injunction enjoining enforcement of Part A. F. Pending Motions This Order substantively addresses the following pending motions: (1) the United States’ motion to dismiss, in which the United States argues that the Barton couple lacks standing to challenge Section 2; (2) the Barton couple’s motion for entry of final judgment as to Section 3, which they filed following the Windsor decision; (3) Plaintiffs’ Motion for Summary Judgment, in which Plaintiffs argue that Sections 2 and 3 of DOMA and Parts A and B of the Oklahoma Constitutional Amendment violate the U.S. Constitution; and (4) Smith’s Cross Motion for Summary Judgment, in which Smith argues that the Barton couple lacks standing to challenge Part B, and that Parts A and B do not violate the U.S. Constitution. The Court holds: (1) the Barton couple lacks standing to challenge Section 2 of DOMA; (2) the Barton couple’s challenge to Section 3 of DOMA is moot; (3) the Barton couple lacks standing to challenge Part B of the Oklahoma Constitutional Amendment; (4) the Bishop couple has standing to challenge Part A of the Oklahoma Constitutional Amendment; and (5) Part A of the Oklahoma Constitutional Amendment violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. II. Barton Couple Lacks Standing to Challenge Section 2 of DOMA In its motion to dismiss, the United States argues that the Barton couple lacks standing to challenge Section 2 because “any inability to secure recognition of their [California] marriage in Oklahoma would be attributable, not to the United States, but to the appropriate Oklahoma state official.” (United States’ Mot. to Dismiss 2.) A. Purpose of Section 2 Preliminary discussion of the purpose and legislative history of Section 2 is warranted. Relevant to this case, Section 2 provides that no state “shall be required to give effect to” a marriage license of any other state if the marriage is between persons of the same sex. 28 U.S.C. § 1738(C). According to the House Report preceding DOMA’s passage, the primary purpose of Section 2 was to “protect the right of the States to formulate their own public policy regarding legal recognition of same-sex unions, free from any federal constitutional implications that might attend the recognition by one State of the right for homosexual couples to acquire marriage licenses.” See H.R.Rep. No. 104-664 (1996), reprinted in 1996 U.S.C.C.A.N. 2905, 2906. More specifically, Congress was concerned that if Hawaii (or some other State) recognizes same-sex marriages, other States that do not permit homosexuals to marry would be confronted with the complicated issue of whether they are nonetheless obligated under the Full Faith and Credit Clause of the United States Constitution to give binding legal effect to such unions. Id. at 2913. The House Judiciary Committee (“Committee”) determined that states already possessed the ability to deny recognition of a same-sex marriage license from another state, so long as the marriage violated a strong public policy of the state having the most significant relationship to the spouses at the time of the marriage. Id. However, the Committee also expressed its view that such conclusion “was far from certain.” Id. at 2914; see also id. at 2929 (“While the Committee does not believe that the Full Faith and Credit Clause, properly interpreted and applied, would require sister states to give legal effect to same-sex marriages celebrated in other States, there is sufficient uncertainty that we believe congressional action is appropriate.”). In order to address this uncertainty, Congress invoked its power under the second sentence of the U.S. Constitution’s Full Faith and Credit Clause (the “Effects Clause”), which permits Congress to “prescribe the effect that public acts, records, and proceedings from one State shall have in sister States.” Id. at 2929. The Committee described Section 2 as a “narrow, targeted relaxation of the Full Faith and Credit Clause.” Id. at 2932. Consistent with this legislative history, Section 2 has been described by courts and commentators as permitting states to refuse to give full faith and credit to same-sex marriages performed in another state. See Windsor, 133 S.Ct. at 2682-83 (“Section 2, which has not been challenged here, allows States to refuse to recognize same-sex marriages performed under the laws of other States.”); Smelt v. Cnty. of Orange, 447 F.3d 673, 683 (9th Cir.2006) (explaining that “Section 2, in effect, indicates that no state is required to give full faith and credit to another states’ determination that ‘a relationship between persons of the same sex ... is treated as a marriage’ ”); Gill v. Office of Personnel Mgmt., 699 F.Supp.2d 374, 378 (D.Mass.2010) (“In enacting Section 2 of DOMA, Congress permitted the states to decline to give effect to the laws of other states respecting same-sex marriage.”) (footnote omitted); Gillian E. Metzger, Congress, Article IV, and Interstate Relations, 120 Harv. L.Rev. 1468, 1532 (2007) (“Section 2’s purpose, evident from its terms, is to ensure that states will not be required to recognize same-sex marriage by virtue of the Full Faith and Credit Clause.”). B. Standing Analysis The Barton couple bears the burden of proving that there is an actual “case or controversy” regarding Part B. See Chamber of Commerce of United States v. Edmondson, 594 F.3d 742, 756 (10th Cir.2010) (“Article III of the Constitution limits the jurisdiction of federal courts to actual cases or controversies.”). This jurisdictional requirement is known as standing. “To establish standing, plaintiffs bear the burden of demonstrating that they have suffered an injury-in-fact which is concrete and particularized as well as actual or imminent; that the injury was caused by the challenged [laws]; and that the requested relief would likely redress their alleged injuries.” Id. This three-pronged inquiry seeks to resolve three questions: Is the injury too abstract, or otherwise not appropriate, to be considered judicially cognizable? Is the line of causar tion between the illegal conduct and injury too attenuated? Is the prospect of obtaining relief from the injury as a result of a favorable ruling too speculative? Allen v. Wright, 468 U.S. 737, 752, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). For purposes of standing, the Court examines the allegations in the Amended Complaint. See Mink v. Suthers, 482 F.3d 1244, 1254 (10th Cir.2007) (explaining that, where an original pleading has been amended, a court looks to the “amended complaint in assessing a plaintiffs claims, including the allegations in support of standing”). Because the United States’ standing attack was made at the Rule 12(b)(6) stage, the Court “aecept[s] the allegations in the [Amended Complaint] as true for purposes of [its] standing analysis.” United States v. Rodriguez-Aguirre, 264 F.3d 1195, 1203 (10th Cir.2001). Further, the Court must “presume ’ that general allegations embrace those specific facts that are necessary to support the claim.” Lewis v. Casey, 518 U.S. 343, 358, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) (internal citation omitted). The Court construes the Amended Complaint as alleging three injuries flowing from Section 2. First, the Barton couple alleges the injury of being unable to obtain recognition of their California marriage in Oklahoma (“non-recognition”). (See Am. Compl. ¶ 20.) Second, they allege the injury of unequal treatment, flowing from the United States’ erection of Section 2 as a barrier to obtaining the benefit of recognition of their California marriage in Oklahoma (“unequal treatment”). (See id. ¶ 12; see also Pis.’ Resp. to Mot. to Dismiss 12 (arguing that “[Section 2] operates as such a barrier in that it officially sanctions the denial of equal treatment of Plaintiffs’ marriage and the attendant recognition/status that springs from such recognition”).) Finally, they allege the injury of stigma and humiliation. (See Am. Compl. ¶ 22; see also Pis.’ Resp. to Mot. to Dismiss 11-12 (“[Plaintiffs] have a second-class marriage in the eyes of friends, neighbors, colleagues, and the United States of America.”).) 1. Non-Recognition The Court concludes that neither Section 2, nor the U.S. Attorney General’s enforcement thereof, plays a sufficient “causation” role leading to the Barton couple’s alleged injury of nonrecognition of their California marriage in Oklahoma. Section 2 is an entirely permissive federal law. 28 U.S.C. § 1738C (“No State ... shall be required to give effect to any public act, record, or judicial proceeding of any other State ... that is treated as a marriage under the laws of such other State.... ”). It does not mandate that states take any particular action, does not remove any discretion from states, does not confer benefits upon non-recognizing states, and does not punish recognizing states. The injury of non-recognition stems exclusively from state law — namely, Part B and title 43, section 3.1 of the Oklahoma Statutes — and not from the challenged federal law. Cf. Gillespie v. City of Indianapolis, 13 F.Supp.2d 811, 818 (S.D.Ind.1998) (city police officer was convicted of domestic violence crime, prohibited by federal law from carrying firearm, and then threatened with termination by the city) (court held that injury of threatened termination was “fairly traceable” to federal firearm law because “a firearms disability operates as virtually a total bar to employment as a police officer” and because any decision by local officials to fire the plaintiff “stems from the federal statute and not the exercise of independent discretion”). In contrast to the federal firearms prohibition, essentially mandating an officer’s termination in' Gillespie, Section 2 does not remove any local, independent discretion and is not a fairly traceable cause of the Barton couple’s nonrecognition injury. See generally Bonauto, supra note 12, at 13 (explaining that “[Ilegal challenges to section 2 of DOMA have been few, and none have succeeded, at least in part because it is the state’s nonrecognition law that presents the impediment to recognition, not section 2 itself’). The Barton couple’s reliance on Bennett v. Spear, 520 U.S. 154, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997), is misplaced. In Bennett, the Supreme Court addressed whether the injury of reduced water for irrigation was fairly traceable to a “Biological Opinion” authored by the Fish and Wildlife Service, where another agency actually issued the final decision regarding the volume of water allocated. Id. at 168-71, 117 S.Ct. 1154. The Biological Opinion, although not the “very last step in the chain of causation,” had a “powerful coercive effect” and a “virtually determinative effect” on the action ultimately taken by the other agency. See id. at 169, 117 S.Ct. 1154. While the other agency was “technically free” to disregard the Biological Opinion, it would do so at its own peril, including civil and criminal penalties. Id. at 170, 117 S.Ct. 1154. In contrast to the Biological Opinion, Section 2 does not have any coercive or determinative effect on Oklahoma’s non-recognition of the Barton couple’s California marriage. At a maximum, it removes a potential impediment to Oklahoma’s ability to refuse recognition— namely, the Full Faith and Credit Clause. See supra Part 111(A) (explaining Section 2’s purpose); note 12 (explaining that Full Faith and Credit Clause may not actually be an impediment). A federal law that removes one potential impediment to state action has a much weaker “causation” link than a federal agency opinion that has a coercive effect on another federal agency’s action. The Court must address dicta in Bishop I that is inconsistent with the above reasoning regarding Section 2. In 2006, this Court addressed standing issues sua sponte and implied that, if the Barton couple obtained legal status that was “treated as a marriage” in another state, they would have standing to challenge Section 2. See Bishop I, 447 F.Supp.2d at 1246 (describing Section 2 as “preventing, or at least arguably preventing” the Barton couple from obtaining legal recognition in Oklahoma). The Court’s use of the phrase “prevents, or at least arguably prevents” was in error. Section 2 does not “prevent” or even “arguably prevent” Oklahoma from recognizing the Barton couple’s California marriage. At most, Section 2 removes one potential impediment to a state’s ability to refuse recognition of the marriage. Therefore, the Court’s dicta in Bishop I has been reconsidered and is superseded by this Opinion and Order. 2. Unequal Treatment The Barton couple also alleges the injury of unequal treatment resulting from the imposition of Section 2 as a “barrier” to the benefit of recognition of their California marriage. In certain equal protection cases, the right being asserted is not the right to any specific amount of denied governmental benefits; it is “ ‘the right to receive benefits distributed according to classifications which do not without sufficient justification differentiate among covered applicants solely on the basis of [impermissible criteria].’” See Day v. Bond, 500 F.3d 1127, 1133 (10th Cir.2007) (quoting Heckler v. Mathews, 465 U.S. 728, 737, 104 S.Ct. 1387, 79 L.Ed.2d 646 (1984)). In such cases, the “injury in fact ... is the denial of equal treatment resulting from the imposition of the [allegedly discriminatory] barrier, not the ultimate inability to obtain the benefit.” Ne. Fla. Ch. of the Associated Gen. Contractors of Am. v. City of Jacksonville, Fla., 508 U.S. 656, 666, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993); Day, 500 F.3d at 1133 (explaining that the injury in such cases “is the imposition of the barrier itself’). Although these standing principles are most commonly applied to competitive benefit programs, i.e., those for which there are a limited number of beneficiaries, the Tenth Circuit has also applied such principles to non-competitive benefit programs. See Day, 500 F.3d at 1131-35 (applying “equal opportunity” standing analysis to equal protection challenge to Kansas statute setting rules for receipt of in-state tuition at state universities). The Court concludes that these “discriminatory barrier” cases are not applicable due to the permissive nature of Section 2. As explained above, Section 2 is not an allegedly discriminatory policy that Oklahoma must follow in deciding what marriáges to recognize, and it does not stand as any significant obstacle between the Barton couple and recognition of their California marriage in Oklahoma. Cf. Ne. Fla. Ch. of the Associated Gen. Contractors of Am., 508 U.S. at 666, 113 S.Ct. 2297 (minority set-aside program was “barrier” to non-minority gaining government contracts, the removal of which would have allowed non-minorities to compete equally); Turner v. Fouche, 396 U.S. 346, 361-64, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970) (law limiting school board membership to property owners was “barrier” to non-property owners gaining election to school board, the removal of which would have allowed non-property owners to compete equally); Buchwald v. Univ. of N.M. Sch. of Med., 159 F.3d 487, 493 (10th Cir.1998) (policy favoring long-term residents was “barrier” to short-term resident gaining access to medical school, the removal of which would have allowed short-term residents to compete equally). These cases are particularly unhelpful -to the Barton couple because they have not challenged Part B of the Oklahoma Constitutional Amendment (which prohibits recognition and is the more direct cause of their injury) as violating the Full Faith and Credit Clause (which is the impediment to Part B’s legality that Section 2 potentially alleviates). Instead, they only challenged Part B as violative of their equal protection and substantive due process rights. 3. Stigma The Barton couple also alleges that the mere existence of Section — separate from any impact it has on their legal status as married or unmarried — causes ongoing stigmatic harm by indicating that their same-sex marriage is “second-class.” Stigmatic injuries are judicially cognizable in certain circumstances, particularly those involving racial discrimination. See Allen, 468 U.S. at 755, 104 S.Ct. 3315 (explaining that “stigmatizing injury often caused by racial discrimination” is a “sort of noneconomic injury” that is “sufficient in some circumstances to support standing”); Wilson v. Glenwood Intermountain Props., Inc., 98 F.3d 590, 596 (10th Cir.1996) (explaining that “stigmatizing injury often caused by racial discrimination can be sufficient in some circumstances to support standing” and applying concept to advertising scheme that allegedly discriminated based upon gender). Assuming these cases extend to stigmatic injuries to non-suspect classes, see infra Part VI(D)(2)(a) (concluding that same-sex couples desiring a marriage license are not a suspect class), the stigma still must be causally linked to some concrete interest discriminatorily impaired by Part B of the Oklahoma Constitutional Amendment. See Allen, 468 U.S. at 757 n. 22, 104 S.Ct. 3315 (explaining that a plaintiff premising standing on a stigmatic injury must (1) identify “some concrete interest with respect to which [she is] personally subject to discriminatory treatment!;]” and (2) show that this concrete interest “independently satisfies] the causation requirement of standing doctrine”). For the same reasons explained above, Section 2 lacks a sufficient causal link to any stigmatic injury the Barton couple is suffering due to non-recognition of their California marriage. The stigmatic harm flows most directly from Oklahoma law and is only possibly strengthened in some manner by Section 2. Therefore, the Barton couple’s allegations do not establish standing to challenge Section 2, and this claim is dismissed for lack of jurisdiction. III. Barton Couple’s Challenge to Section 3 of DOMA Is Moot The Barton couple moves for entry of a final judgment on their challenge to Section 3 in light of the Supreme Court’s decision in Windsor. The United States argues that Windsor moots the Barton couple’s Section 3 challenge and that the Court lacks jurisdiction over this challenge. A. Mootness Standard “Mootness, like standing, is a jurisdictional doctrine originating in Article Ill’s ‘case’ or ‘controversy’ language.” WildEarth Guardians v. Pub. Serv. Co. of Colo., 690 F.3d 1174, 1182 (10th Cir.2012). Thus, a court “must decline to exercise jurisdiction where the award of any requested relief would be moot, i.e. where the controversy is no longer live and ongoing.” Wirsching v. Colo., 360 F.3d 1191, 1196 (10th Cir.2004). The defendant bears the burden of proving mootness, WildEarth Guardians, 690 F.3d at 1183, and this burden is a heavy one, Rezaq v. Nalley, 677 F.3d 1001, 1008 (10th Cir.2012). If a defendant carries its burden of showing mootness, a court lacks subject matter jurisdiction. Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1109 (10th Cir.2010). B. Prayer for Relief In their prayer for relief, the Barton couple seeks “a declaration that [Section 3 of DOMA] violate[s] the U.S. Constitution’s Equal Protection and substantive Due Process Rights of Plaintiffs Barton and Phillips.” (Am. Compl. 10.) They also seek an “award of their attorney fees and costs in prosecuting this action” and “[s]uch other relief deemed proper.” (Id.) The Court will analyze each request to determine if any “live and ongoing” controversy remains following the Windsor decision. 1. Declaratory Relief “[W]hat makes a declaratory judgment action a proper judicial resolution of a case or controversy rather than an advisory opinion is the settling of some dispute which affects the behavior of the defendant toward the plaintiff.” Rio Grande Silvery Minnow, 601 F.3d at 1109-10. The “crucial question is whether granting a present determination of the issues offered will have some effect in the real world.” Id. at 1110 (internal citation omitted); see also Rezaq, 677 F.3d at 1008 (“[I]n the context of an action for declaratory relief, a plaintiff must be seeking more than a retrospective opinion that he was wrongly harmed by the defendant.”); Wirsching, 360 F.3d at 1196 (same). The Court concludes that there is no longer any live or ongoing controversy as to the Barton couple’s request for declaratory relief regarding Section 3. In Windsor, the Supreme Court held that Section 3 “violates basic due process and equal protection principles applicable to the Federal Government.” Windsor, 133 S.Ct. at 2693-94 (reasoning that “DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal”). As a general rule, where a law has been declared unconstitutional by a controlling court, pending requests for identical declaratory relief become moot. Thayer v. Chiczewski, 705 F.3d 237, 256-57 (7th Cir.2012) (claim for declaratory and injunctive relief moot in light of Seventh Circuit’s invalidation of challenged law in another case); Longley v. Holahan, 34 F.3d 1366, 1367 (8th Cir.1994) (claim moot where challenged statute was declared unconstitutional in companion case); Eagle Books, Inc. v. Difanis, 873 F.2d 1040, 1042 (7th Cir.1989) (claim moot where state supreme court had declared challenged statute unconstitutional); see also Utah Animal Rights Coal. v. Salt Lake City Corp., 371 F.3d 1248, 1257 (10th Cir.2004) (claim moot where challenged statute was repealed). Because Section 3 has already been declared unconstitutional by the Supreme Court, an identical declaration by this Court will have no further impact on the United States’ actions. Second, the United States has presented compelling evidence that, following Windsor, it has ceased to enforce Section 3 and that the Barton couple will suffer no further injury as a result of Section 3. In Revenue Ruling 2013-17, the U.S. Department of the Treasury and the Internal Revenue Service (“IRS”) provided “guidance on the effect of the Windsor decision on the [IRS’] interpretations of the [federal tax code] that refer to taxpayers’ marital status,” stating that individuals of the same sex will be considered to be lawfully married under the Code as long as they were married in a state whose laws authorize the marriage of two individuals of the same sex, even if they are domiciled in a state that does not recognize the validity of same-sex marriages. (Rev. Ruling 2013-17, 2013-38 I.R.B. 201 (emphasis added), Ex. B to United States’ Not. of Admin. Action.) In a news release, the IRS stated that “same sex couples will be treated as married for all federal tax purposes,” including “filing status, claiming personal and dependency exemptions, taking the standard deduction, employee benefits, contributing to an IRA and claiming the earned income tax credit or child tax credit.” (I.R.S. News Release, IR-2013-72 (Aug. 29, 2013), Ex. A to United States’ Not. of Admin. Action.) Thus, Section 3 of DOMA will no longer be used to deprive the Barton couple of married status for any federal tax purpose because (1) they have a legal California marriage, and (2) Oklahoma’s non-recognition of such marriage is irrelevant for federal tax purposes. Any ongoing threat of injury based upon deprivation of married status for tax purposes has been rendered moot by Windsor and the IRS’ response thereto. In their evidentiary proffers regarding standing to challenge Section 3, the Barton couple asserts harms other than adverse tax consequences, such as an inability to plan for Social Security survivor benefits. The Barton couple argues that Windsor may affect the interpretation of the word “married” by other federal agencies and that this Court must ensure that the Barton couple reaps the full benefit of the Windsor decision. However, all evidence before the Court indicates that Section 3 will no longer be used to deprive married same-sex couples of federal benefits that are bestowed upon married opposite-sex couples, even when those couples live in non-recognizing states such as Oklahoma. The Windsor decision changed the legal landscape in such a drastic manner that the Barton couple no longer faces any reasonable threat of being denied equal protection of federal laws related to marriage. Were the Court to issue a declaratory judgment, it would be issuing an opinion based on a hypothetical application of Section 3 that is no longer likely to occur. See Rio Grande Silvery Minnow, 601 F.3d at 1117 (“A case ceases to be a live controversy if the possibility of recurrence of the challenged conduct is only a speculative contingency.”) (alterations and citation omitted). 2. Attorney Fees and Costs The Barton couple also requests attorney fees and costs. However, the possibility of recovering attorney fees or costs is not a sufficient reason to enter judgment in an otherwise moot case. See R.M. Inv. Co. v. U.S. Forest Serv., 511 F.3d 1103, 1108 (10th Cir.2007) (explaining that a claim of entitlement to attorney fees does not preserve a moot cause of action); In re West. Pac. Airlines, Inc., 181 F.3d 1191, 1196 (10th Cir.1999) (“Precedent clearly indicates that an interest in attorney’s fees is insufficient to create an Article III case or controversy where a case or controversy does not exist on the merits of the underlying claim.”); 13C Charles Alan Wright, et al., Federal Practice and Procedure § 3533.3 (3d ed. 2008) (“If the action is mooted before any decision on the merits by the trial court, a statute that awards fees to the prevailing party does not justify decision on the merits in order to determine if that party would have prevailed absent mootness.”) (“Claims for costs traditionally have not been thought sufficient to avoid mootness, presumably on the theory that such incidental matters should not compel continuation of an otherwise moribund action.”). 3. “Other Relief Deemed Proper” The Barton couple does not expressly request money damages as relief. However, they urge the Court to construe their request for “other relief deemed proper” as a request for money damages. They are now urging this construction because, unlike claims for declaratory or injunctive relief, claims for damages are not mooted by subsequent events. See In re West. Pac. Airlines, Inc., 181 F.3d at 1196 (explaining that, although declaratory and injunctive relief was rendered moot by a defendant’s release from prison, a damages claim was still viable because it would alter the defendant’s behavior by forcing them to pay money); Charles Alan Wright, et al., supra, § 3533.3 (“Untold number of cases illustrate the rule that a claim for money damages is not moot, no matter how clear it is that the claim arises from events that have completely concluded without any prospect of recurrence.”). In the Tenth Circuit, this same rule applies to claims for nominal damages. Utah Animal Rights Coal, 371 F.3d at 1257-58 (“It may seem odd that a complaint for nominal damages could satisfy Article Ill’s case or controversy requirements, when a functionally identical claim for declaratory relief will not. But this Court has squarely so held.”) (internal footnotes omitted). The Court does not construe the “other relief deemed proper” language as a request for compensatory or nominal damages against the United States for three reasons. First, the Barton couple has repeatedly argued, in response to certain ripeness and standing deficiencies raised by BLAG, that their Section 3 injury was not any specific denial of monetary benefits but was instead the ongoing injury of unequal access and/or unequal treatment caused by Section 3. (See, e.g., Pis.’ Resp. to BLAG’s Cross Mot. for Summ. J. (containing heading entitled “BLAG’s Argument Regarding Standing is Without Merit, as Plaintiffs Do Not Request Monetary Damages and DOMA Was the Cause of their Injury”).) This case has focused entirely on prospective declaratory relief, rather than injunctive relief related to a specific tax refund, and the Court finds no legitimate basis to now construe the Amended Complaint as seeking money damages. Second, the United States is generally immune from suits for money damages, and the Barton couple has not identified any waiver or statutory exception that would apply here. See Wyodak Res. Dev. Corp. v. United States, 637 F.3d 1127, 1130 (10th Cir.2011) (explaining that suits for damages against the United States must proceed under the Tucker Act in the Court of Federal Claims or under some other statutory immunity waiver). Finally, the Barton couple has not urged the Court to construe the Amended Complaint as requesting nominal damages. (See Pis.’ Reply in Support of Mot. for Entry of J. 7-10.) Even if they had, these decisions generally require an express request, which was not made in the Amended Complaint. See R.M. Inv. Co., 511 F.3d at 1107 (rejecting argument that suit should be construed as one seeking nominal damages and stating that “[bjecause [the plaintiff] has no claim for nominal damages, it cannot rely on nominal-damages cases to overcome mootness”); Charles Alan Wright, et al, supra, § 3533.3 (“But failure to demand nominal damages may lose the opportunity to avoid mootness.”). Accordingly, the Barton couple’s Section 3 challenge is not saved by the “other relief’ language in the Amended Complaint. C. Conclusion The Barton couple has only requested prospective declaratory relief regarding Section 3, and such request has been rendered moot in light of Windsor and the United States’ response thereto. The United States has satisfied its burden of showing mootness, and the Court lacks jurisdiction to enter any judgment in favor of the Barton couple. Based on this ruling, the Court agrees with BLAG’s assertion that it has no further role to play in this litigation. BLAG’s motion to withdraw as an intervening party is therefore granted, and its motion for summary judgment is denied as moot. Although the Barton couple will not receive a judgment in their favor as to this claim, they have played an important role in the overall legal process leading to invalidation of Section 3 of DOMA. The Barton couple filed this lawsuit many years before it seemed likely that Section 3 would be overturned. Although other plaintiffs received the penultimate judgment finding DOMA’s definition of marriage unconstitutional, the Barton couple and their counsel are commended for their foresight, courage, and perseverance. IV. Barton Couple Lacks Standing to Challenge Part B of the Oklahoma Constitutional Amendment Bishop II held that, in order to have standing in this case, Plaintiffs must establish a connection between the state official sued and the alleged injury. See Bishop II, 333 Fed.Appx. at 365 (holding that Plaintiffs lacked standing to sue Oklahoma Governor or Oklahoma Attorney General in their challenge to Parts A and B because these officials did not have a sufficient enforcement connection to the challenged Oklahoma laws). The Tenth Circuit indicated that district court clerks were the Oklahoma officials with a connection to Plaintiffs’ injuries because “Marriage licenses are issued, fees collected, and the licenses recorded by the district court clerks.” Id. Notably, the statutes cited in Bishop II do not reference court clerks’ authority to “recognize” an out-of-state marriage. In support of her motion for summary judgment, Smith submitted an affidavit stating that she has “no authority to recognize or record a marriage license issued by another state in any setting, regardless of whether the license was issued to an opposite-sex or same-sex couple” and that “[t]here are no circumstances in which the Clerk of Court of Tulsa County would be authorized to recognize a marriage license issued by another state.” (See Smith Aff. ¶ 5, Ex. A to Smith’s Cross Mot. for Summ. J.) The Barton couple has not controverted this evidence in any manner. Instead, the Barton couple argues that, in Bishop II, the Tenth Circuit “has deemed [Smith] to be the appropriate party.” (Pis.’ Reply to Smith’s Cross Mot. for Summ. J. 27.) Based upon the evidence before the Court, Smith is entitled to summary judgment. Although Bishop II explained that clerks of court were generally the Oklahoma officials connected with the types of injuries alleged in the Amended Complaint, that decision was at the Rule 12(b)(6) stage. In her affidavit, Smith denies that she, or any other district court clerk in Oklahoma, has authority to recognize any out-of-state marriage and therefore denies her ability to redress the Barton couple’s non-recognition injury. The Barton couple has failed to controvert Smith’s testimony in any manner or demonstrate that she would indeed be the proper official to “recognize” their California marriage. Citation to Bishop II, and inconclusive Oklahoma statutes cited therein, is not sufficient to create a question of fact in light of Smith’s uncontroverted denial of authority. A recent case addressed the constitutionality of Ohio’s non-recognition provision, which was identical to Part B. See Obergefell v. Wymyslo, 962 F.Supp.2d 968, No. 1:13-cv-501, 2013 WL 6726688 (S.D.Ohio Dec. 23, 2013). In that case, the same-sex couples had been legally married in states other than Ohio. Upon the death of their same-sex spouse, the surviving spouses sought recognition of those marriages on Ohio death certificates. See id. at 972-74, 2013 WL 6726688 at *1. The Obergefell plaintiffs sued the “local and state officers responsible for death certificates.” Id. While Obergefell does not stand for the proposition that local and state officials “responsible for death certificates” are the only types of officials who may be sued in a challenge to non-recognition laws, it does highlight the Barton couple’s evidentiary deficiencies in this case. Unlike the plaintiffs in Obergefell, who attempted to obtain recognition on death certificates, the Barton couple has not taken any steps to obtain recognition and has not shown that Smith is the proper official. While the Court does not believe that a futile “trip to the courthouse” is required in every instance, the only evidence before the Court is an uncontroverted denial of any connection to the injury by the sued state official. Therefore, the Barton couple’s challenge to Part B is dismissed for lack of standing. V. Bishop Couple Has Standing to Challenge Part A Smith has not attacked the Bishop couple’s standing to challenge Part A or raised any other jurisdictional deficiencies. Nonetheless, the Court has independently satisfied itself that standing and other jurisdictional requirements are satisfied. The Bishop couple has proven standing because they sought an Oklahoma marriage license from Smith, Smith denied them such license, and Smith did so based upon their status as a same-sex couple. Unlike with Part B, the Bishop couple has clearly demonstrated Smith’s connection to their injury. Further, in contrast to Section 2 of DOMA, Part A of the Oklahoma Constitutional Amendment represents a significant cause of the Bishop couple’s injury and, at a minimum, stands as a barrier between them and “married” legal status in Oklahoma. A favorable ruling would enjoin enforcement of an enshrined definition of marriage in the Oklahoma Constitution and bring the Bishop couple substantially closer to their desired governmental benefit. See supra Part 11(B) (explaining that, in equal protection cases, a plaintiff need not show that a favorable ruling would relieve his every injury but must show that a favorable ruling would remove a barrier imposing unequal treatment). The Court has also satisfied itself that Smith is properly sued. The Bishop couple may seek relief from Smith under Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), which permits suits where a plaintiff is “(1) suing state officials rather than the state itself, (2) alleging an ongoing violation of federal law, and (3) seeking prospective relief.” Cressman v. Thompson, 719 F.3d 1139, 1146 (10th Cir.2013); see also Ky. Press Ass’n, Inc. v. Ky., 355 F.Supp.2d 853, 861-62 (E.D.Ky.2005) (applying Ex Parte Young doctrine to permit suit against court clerk in her official capacity). The Court had additional immunity concerns based on Bishop IPs holding that Smith acts as an arm of Oklahoma’s judiciary when she issues (or denies) marriage licenses. See Bishop II, 333 Fed.Appx. at 365. However, because the suit is one for declaratory and injunctive relief, Smith is not entitled to judicial or quasi-judicial immunity. See Guiden v. Morrow, 92 Fed.Appx. 663, 665 (10th Cir.2004) (explaining that court clerk of Butler County, Kansas sued in her official capacity had quasi-judicial immunity from suits for money damages but “would not be entitled to immunity in a suit seeking injunctive relief’). VI. Part A of the Oklahoma Constitutional Amendment Violates the U.S. Constitution The Bishop couple argues that Part A is an unconstitutional deprivation of their fundamental due process liberties and equal protection rights under the Fourteenth Amendment to the U.S. Constitution. The Bishop couple and Smith filed cross motions for summary judgment, and both parties urge the Court to decide the constitutionality of Part A as a matter of law. The Court concludes: (1) Baker v. Nelson is not binding precedent; (2) Windsor’s reasoning does not mandate a particular outcome for the Bishop couple or Smith; and (3) Part A intentionally discriminates against same-sex couples desiring an Oklahoma marriage license without a legally sufficient justification. A. Baker v. Nelson Smith argues that Baker represents binding Supreme Court precedent and should end this Court’s analysis of Part A. In Baker, the Supreme Court dismissed, “for want of a substantial federal question,” an appeal of the Minnesota Supreme Court’s holding that its state marriage laws did not violate a same-sex couple’s equal protection or substantive due process rights under the U.S. Constitution. Baker v. Nelson, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972). This type of summary dismissal “for want of a substantial federal question,” although without any reasoning, is considered a binding decision on the merits as to the “precise issues presented and necessarily decided.” Mandel v. Bradley, 432 U.S. 173, 176-77, 97 S.Ct. 2238, 53 L.Ed.2d 199 (1977); Okla. Telecasters Ass’n v. Crisp, 699 F.2d 490, 496 (10th Cir.1983), rev’d on other grounds, Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 104 S.Ct. 2694, 81 L.Ed.2d 580 (1984). Baker presented the precise legal issues presented in this case — namely, whether a state law limiting marriage to opposite-sex couples violates due process or equal protection rights guaranteed by the U.S. Constitution. This is evidenced by the jurisdictional statements submitted to the Supreme Court. In relevant part, the appellants phrased the issues as whether Minnesota’s “refusal to sanctify appellants’ marriage deprives appellants of liberty and property in violation of the due process and equal protection clauses.” (Appellants’ Jurisdictional Statement, Ex. 4 to Smith’s Cross Mot. for Summ. J.) Appellees similarly phrased the relevant issues as “[wjhether appellee’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;” and “[wjhether appellee’s refusal ... to sanctify appellants’ marriage because both are of the male sex violates their rights under the equal protection clause of the Fourteenth Amendment.” (Appellees’ Jurisdictional Statement, Ex. 4 to Smith’s Cross Mot. for Summ. J.) Therefore, barring application of an exception, Baker is binding precedent in this case. See Jackson v. Abercrombie, 884 F.Supp.2d 1065, 1087 (D.Haw.2012) (holding that Fourteenth Amendment challenge to Hawaii law limiting marriage to opposite-sex couples presented precise issues that had been presented in Baker); see also Windsor v. United States (‘Windsor I”), 699 F.3d 169, 178 (2d Cir.2012) (addressing DOMA challenge) (defining issue in Baker as “whether same-sex marriage may be constitutionally restricted by the states”); In re Kandu, 315 B.R. 123, 137 (Bankr.W.D.Wash.2004) (addressing DOMA challenge) (“The issue in Baker was whether a state licensing statute limiting marriage to opposite-sex couples, and thereby excluding same-sex marriage, violated the due process and equal protection provisions of the Constitution.”). There is an exception to the binding nature of summary dismissals, however, if “doctrinal developments indicate” that the Supreme Court would no longer brand a question as unsubstantial. Hicks, 422 U.S. at 344-45, 95 S.Ct. 2281 (stating that “unless 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”). The Court concludes that this exception applies for three reasons. First, interpreting Hicks, the Tenth Circuit has pronounced that a “summary disposition is binding on the lower federal courts ... until doctrinal developments or direct decisions by the Supreme Court indicate otherwise.” Okla. Telecasters Ass’n, 699 F.2d at 495 (emphasis added). If an express overruling by the Supreme Court is the only type of “doctrinal development” that qualifies for the exception, the disjunctive “or” would cease to have meaning. Second, there have been significant doctrinal developments in Supreme Court jurisprudence since 1972 indicating that these issues would now present a substantial question. The Supreme Court has: (1) recognized a new form of heightened scrutiny and applied it to sex-based classifications, see Craig v. Boren, 429 U.S. 190, 197-98, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976); (2) held that a Colorado constitutional amendment targeting homosexuals based upon animosity lacked a rational relation to any legitimate governmental purpose, see Romer v. Evans, 517 U.S. 620, 635, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996); (3) held that homosexuals had a protected liberty interest in engaging in private, homosexual sex, that homosexuals’ “moral and sexual choices” were entitled to constitutional protection, and that moral disapproval did not provide a legitimate justification for a Texas law criminalizing sodomy, Lawrence v. Texas, 539 U.S. 558, 564, 571, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003); and (4) most recently, held that the U.S. Constitution prevented the federal government from treating state-sanctioned opposite-sex marriages differently than state-sanctioned same-sex marriages, and that such differentiation “demean[ed] the couple, whose moral and sexual choices the Constitution protects,” Windsor, 133 S.Ct. at 2694. While none is directly on point as to the questions presented in Baker (or here), this is the type of erosion over time that renders a summary dismissal of no precedential value. It seems clear that what was once deemed an “unsubstantial” question in 1972 would now be deemed “substantial” based on intervening developments in Supreme Court law. See Windsor I, 699 F.3d at 178 (holding that Baker was not controlling as to constitutionality of DOMA, reasoning in part that “[i]n the forty years after Baker, there have been manifold changes to the Supreme Court’s equal protection jurisprudence” that would warrant an exception to the general rule). But see Mass. v. U.S. Dept. of Health and Human Servs., 682 F.3d 1, 8 (1st Cir.2012) (rejecting similar reasoning in DOMA challenge and indicating that Baker limited the arguments in that case). Finally, although the Supreme Court’s decision in Windsor was silent as to Baker’s impact, statements made by the Justices indicate that lower courts should be applying Windsor (and not Baker) to the logical “next issue” of state prohibitions of same-sex marriage. See Windsor, 133 S.Ct. at 2696 (Roberts, C.J., dissenting) (urging that the Windsor majority’s reasoning must not be extended to state-law bans because the majority’s “judgment is based on federalism”); id. at 2709-10 (Scalia, J., dissenting) (stating his opinion that the majority decision “arms well every challenger to a state law restricting marriage to its traditional definition”) (explaining that “state and lower federal courts” will be able to distinguish Windsor due to its “scatter-shot rationales” and inviting lower courts to “distinguish away”). If Baker is binding, lower courts would have no reason to apply or distinguish Windsor, and all this judicial hand-wringing over how lower courts should apply Wmcisor would be superfluous. Accordingly, the Court concludes that Baker is no longer a binding summary dismissal as to those issues. See Kitchen v. Herbert, 961 F.Supp.2d 1181, 1194-95, No. 2:13-cv-217, 2013 WL 6697874, at *8 (D.Utah Dec. 20, 2013) (reaching same conclusion in challenge to Utah’s marriage definition in case issued after Windsor ). B. Windsor’s Impact In Windsor, the plaintiff, a New York resident, inherited the estate of her same-sex spouse. 133 S.Ct. at 2682. The couple had entered into a Canadian marriage, which was recognized in New York at the time of her spouse’s death. See id. (citing Windsor I’s reasoning regarding New York’s recognition of the Canadian marriage) Upon inheriting her spouse’s estate, the plaintiff sought to claim the federal estate tax exemption but was prevented from doing so by Section 3 of DOMA, which defined marriage as between one and one woman for purposes of federal law. Id. The plaintiff paid the taxes and then filed suit to challenge the constitutionality of Section 3. Id. The Windsor majority opinion, authored by Justice Kennedy, held that: (1) when a