Full opinion text
OPINION and ORDER BARBARA B. CRABB, District Judge. Plaintiffs Virginia Wolf, Carol Schumacher, Kami Young, Karina Willes, Roy Badger, Garth Wangemann, Charvonne Kemp, Marie Carlson, Judith Trampf, Katharina Heyning, Salud Garcia, Pamela Kleiss, William Hurtubise, Leslie Palmer, Johannes Wallmann and Keith Borden are eight same-sex couples residing in the state of Wisconsin who either want to get married in this state or want the state to recognize a marriage they entered into lawfully outside Wisconsin. Standing in their way is Article XIII, § 13 of the Wisconsin Constitution, which states that “[o]nly a marriage between one man and one woman shall be valid or recognized as a marriage in this state. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state.” In addition, various provisions in the Wisconsin Statutes, primarily in chapter 765, limit marriage to a “husband” and a “wife.” The parties agree that both the marriage amendment and the statutory provisions prohibit plaintiffs from marrying in Wisconsin or obtaining legal recognition in Wisconsin for a marriage they entered in another state or country. The question raised by plaintiffs’ complaint is whether the marriage amendment and the relevant statutes violate what plaintiffs contend is their fundamental right to marry and their right to equal protection of the laws under the Fourteenth Amendment to the United States Constitution. Two motions are before the court: (1) a motion to dismiss for failure to state a claim upon which relief may be granted filed by defendants Scott Walker, J.B. Van Hollen and Oskar Anderson, dkt. # 66; and (2) a motion for summary judgment filed by plaintiffs. Dkt. # 70. (Defendants Joseph Czarnezki, Scott McDonell and Wendy Christensen, the clerks for Milwaukee County, Dane County and Racine County, have not taken a position on either motion, so I will refer to defendants Walker, Van Hollen and Anderson simply as “defendants” for the remainder of the opinion.) In addition, Julaine K. Appling, Jo Egelhoff, Jaren E. Hiller, Richard Kessenich and Edmund L. Webster (all directors or officers of Wisconsin Family Action) have filed an amicus brief on behalf of defendants. Dkt. # 109. Having reviewed the parties’ and amici’s filings, I am granting plaintiffs’ motion for summary judgment and denying defendants’ motion to dismiss because I conclude that the Wisconsin laws prohibiting marriage between same-sex couples interfere with plaintiffs’ right to marry, in violation of the due process clause, and discriminate against plaintiffs on the basis of sexual orientation, in violation of the equal protection clause. In reaching this decision, I do not mean to disparage the legislators and citizens who voted in good conscience for the marriage amendment. To decide this case in favor of plaintiffs, it is not necessary, as some have suggested, to “cast all those who cling to traditional beliefs about the nature of marriage in the role of bigots or superstitious fools,” United States v. Windsor, — U.S. ——, 133 S.Ct. 2675, 2717-18, 186 L.Ed.2d 808 (2013) (Alito, J., dissenting), or “adjudg[e] those who oppose [same-sex marriage] ... enemies of the human race.” Id. at 2709 (Scalia, J., dissenting). Rather, it is necessary to conclude only that the state may not intrude without adequate justification on certain fundamental decisions made by individuals and that, when the state does impose restrictions on these important matters, it must do so in an even-handed manner. This case is not about whether marriages between same-sex couples are consistent or inconsistent with the teachings of a particular religion, whether such marriages are moral or immoral or whether they are something that should be encouraged or discouraged. It is not even about whether the plaintiffs in this case are as capable as opposite-sex couples of maintaining a committed and loving relationship or raising a family together. Quite simply, this case is about liberty and equality, the two cornerstones of the rights protected by the United States Constitution. Although the parties in this case disagree about many issues, they do agree about at least one thing, which is the central role that marriage plays in American society. It is a defining rite of passage and one of-the most important events in the lives of millions of people, if not the most important for some. Of course, countless government benefits are tied to marriage, as are many responsibilities, but these practical concerns are only one part of the reason that marriage is exalted as a privileged civic status. Marriage is tied to our sense of self, personal autonomy and public dignity. And perhaps more than any other endeavor, we view marriage as essential to the pursuit of happiness, one of the inalienable rights in our Declaration of Independence. Linda Waite and Maggie Gallagher, Case for Marriage 2 (Broadway Books 2000) (stating that 93% of Americans rate “having a happy marriage” as one of their most important goals, an ever higher percentage than “being in good health”). For these reasons and many others, “marriage is not merely an accumulation of benefits. It is a fundamental mark of citizenship.” Andrew Sullivan, “State of the Union,” New Republic (May 8, 2000). Thus, by refusing to extend marriage to the plaintiffs in this case, defendants are not only withholding benefits such as tax credits and marital property rights, but also denying equal citizenship to plaintiffs. It is in part because of this strong connection between marriage and equal citizenship that the marriage amendment must be scrutinized carefully to determine whether it is consistent with guarantees of the Constitution. Defendants and amici defend the marriage ban on various grounds, such as preserving tradition and wanting to proceed with caution, but if the state is going to deprive an entire class of citizens of a right as fundamental as marriage, then it must do more than say “this is the way it has always been” or “we’re not ready yet.” At the very least it must make a showing that the deprivation furthers a legitimate interest separate from a wish to maintain the status quo. Defendants attempt to do this by arguing that allowing same-sex couples to marry may harm children or the institution of marriage itself. Those concerns may be genuine, but they are not substantiated by defendants or by amici. Under these circumstances, personal beliefs, anxiety about change and discomfort about an unfamiliar way of life must give way to a respect for the constitutional rights of individuals, just as those concerns had to give way for the right of Amish people to educate their children according to their own values, Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972), for Jehovah’s Witnesses to exercise their religion freely, West Virginia Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943), and for interracial couples to marry the person they believed was irreplaceable. Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967). In doing this, courts do not “endorse” marriage between same-sex couples, but merely affirm that those couples have rights to liberty and equality under the Constitution, just as heterosexual couples do. BACKGROUND All plaintiffs in this case are same-sex couples. Virginia Wolf and Carol Schumacher reside in Eau Claire, Wisconsin; Kami Young and Karina Willes reside in Milwaukee, Wisconsin. Both couples left Wisconsin to enter into a legal marriage in Minnesota and they wish to have their marriages recognized in Wisconsin. At the time that plaintiffs filed their summary judgment motion, plaintiffs Young and Willes were expecting a baby imminently. Johannes Wallmann and Keith Borden reside in Madison, Wisconsin. They were married in Canada in 2007 and wish to have their marriage recognized in Wisconsin. Roy Badger and Garth Wangemann reside in Milwaukee, Wisconsin, as do Charvonne Kemp and Marie Carlson. Judi Trampf and Katy Heyning reside in Madison, Wisconsin, as do plaintiffs Salud Garcia and Pam Kleiss. William Hurtubise and Leslie “Dean” Palmer reside in Racine, Wisconsin. Each of these five couples wishes to marry in Wisconsin. Hurtubise and Palmer want to adopt a child jointly, which they cannot do in Wisconsin while they are unmarried. All plaintiffs meet the requirements for getting married in Wisconsin, with the exception that each wishes to marry someone of the same sex. OPINION I. PRELIMINARY ISSUES Defendants raise three preliminary arguments supporting their belief that Wisconsin’s marriage ban on same-sex couples is immune from constitutional review, at least in this court: (1) Baker v. Nelson, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972), is controlling precedent that precludes lower courts from considering challenges to bans on same-sex marriage under the due process clause or the equal protection clause; (2) marriage between same-sex couples is a “positive right,” so the state has no duty to grant it; (3) under principles of federalism, states are entitled to choose whether to extend marriage rights to same-sex couples. None of these arguments is persuasive. A. Baker v. Nelson In Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185, 187 (1971), the Minnesota Supreme Court held that same-sex couples do not have a right to marry under the due process clause or the equal protection clause of the United States Constitution. When the plaintiffs appealed, the United States Supreme Court had “no discretion to refuse adjudication of the case on its merits” because the version of 28 U.S.C. § 1257 in effect at the time required the Court to accept any case from a state supreme court that raised a constitutional challenge to a state statute. Hicks v. Miranda, 422 U.S. 332, 344, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975). (In 1988, Congress amended § 1257 to eliminate mandatory jurisdiction in this context). However, the Court “was not obligated to grant the case plenary consideration,” id., and it chose not to do so, instead issuing a one sentence order stating that “[t]he appeal is dismissed for want of a substantial federal question.” Baker v. Nelson, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972). At the time, this type of summary dismissal was a common way for the Court to manage the relatively large number of cases that fell within its mandatory jurisdiction. Randy Beck, Transtemporal Separation of Powers in the Law of Precedent, 87 Notre Dame L.Rev. 1405, 1439-40 (2012) (“Because the volume of ... mandatory appeals did not permit full briefing and argument in every case, the Court adopted the practice of summarily affirming many lower court decisions and summarily dismissing others for want of a substantial federal question. These summary affirmances and dismissals were routinely issued without any opinion from the Court explaining its disposition.”). In fact, a few years later, the Court similarly handled another case involving gay persons when it summarily affirmed a decision upholding the constitutionality of a statute criminalizing sodomy. Doe v. Commonwealth’s Attorney for City of Richmond, 403 F.Supp. 1199 (ED.Va.1976), aff'd, 425 U.S. 901, 96 S.Ct. 1489, 47 L.Ed.2d 751 (1976). Despite the absence of an opinion, full briefing or oral argument, a summary dismissal such as Baker is binding precedent “on the precise issues presented and necessarily decided by” the lower court. Mandel v. Bradley, 432 U.S. 173, 176, 97 S.Ct. 2238, 53 L.Ed.2d 199 (1977). See also Chicago Sheraton Corp. v. Zaban, 593 F.2d 808, 809 (7th Cir.1979) (“[A] summary disposition for want of a substantial federal question is controlling precedent.”). As a result, defendants argue that this court has no authority to consider the question whether a ban on marriage between same-sex couples violates the Constitution. They cite Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989), in which the Court stated that lower courts should adhere to the holdings of the Supreme Court, even if they “appea[r] to rest on reasons rejected in some other line of decisions, ... leaving to this Court the prerogative of overruling its own decisions.” The rule for summary affirmances and dismissals is not so clear cut. Those orders “are not of the same precedential value as would be an opinion of [the Supreme] Court treating the question on the merits.” Edelman v. Jordan, 415 U.S. 651, 671, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). For example, a summary dismissal is no longer controlling “when doctrinal developments indicate” that the Court would take a different view now. Hicks, 422 U.S. at 344, 95 S.Ct. 2281 (internal quotations omitted). See also C. Steven Bradford, Following Dead Precedent: The Supreme Court’s Ill-Advised Rejection of Anticipatory Overruling, 59 Fordham L.Rev. 39, 51 (1990) (citing Hicks for the proposition that “a precedent that has not been overruled may be disregarded when later doctrinal developments render it suspect.”). It would be an understatement to say that the Supreme Court’s jurisprudence on issues similar to those raised in Baker has developed substantially since 1972. At the time, few courts had addressed any issues relating to the constitutional rights of gay persons; favorable decisions were even less frequent. E.g., Boutilier v. Immigration & Naturalization Service, 387 U.S. 118, 87 S.Ct. 1563, 18 L.Ed.2d 661 (1967) (homosexual individual could be denied admission to United States on ground that homosexuality is a “psychopathic personality”). Perhaps because there were so few people who identified publicly as gay, it was difficult for courts to empathize with their plight. In more recent years, the Supreme Court has issued a series of cases in which it has denounced the view implicit in cases such as Baker that gay persons are “strangers to the law.” Romer v. Evans, 517 U.S. 620, 635-36, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996). In Romer, the Court invalidated under the equal protection clause a state constitutional amendment that discriminated on the basis of sexual orientation. In Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), the Court concluded that a Texas law criminalizing homosexual sodomy violated the due process clause, overruling Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), and implicitly the summary affirmance in Doe, 425 U.S. 901, 96 S.Ct. 1489 (which the Court did not even mention). To the extent Romer and Lawrence left any room for doubt whether the claims in this case raise a substantial federal question, that doubt was resolved in United States v. Windsor, — U.S.-, 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013), in which the Court invalidated the Defense of Marriage Act, a law prohibiting federal recognition of same-sex marriages authorized under state law. Before the case reached the Supreme Court, the Court of Appeals for the Second Circuit had discussed at length the continuing vitality of Baker and the majority had concluded over a vigorous dissent that Baker was no longer controlling. Compare Windsor v. United States, 699 F.3d 169, 178-79 (2d Cir.2012) (“Even if Baker might have had resonance for Windsor’s case in 1971, it does not today.”), with id. at 210 (Straub, J., dissenting) (“Subjecting the federal definition of marriage to heightened scrutiny would defy or, at least, call into question the continued validity of Baker, which we are not empowered to do.”). On appeal before the Supreme Court, those defending the law continued to press the issue, arguing that the lower court’s rejection of Baker as precedent made “the case for this Court’s review ... overwhelming.” Windsor v. United States of America, Nos. 12-63 and 12-307, Supplemental Brief for Respondent Bipartisan Legal Advisory Group of the U.S. House of Representatives, available at 2012 WL 5388782, at *5-6. Despite the lower court’s and the parties’ debate over Baker, the Supreme Court ignored the case in both its decision and during the oral argument for Windsor. (In a companion case regarding same-sex marriage that was dismissed on prudential grounds, counsel for petitioners began discussing Baker during oral argument, but Justice Ginsburg cut him off, stating, “Mr. Cooper, Baker v. Nelson was 1971. The Supreme Court hadn’t even decided that gender-based classifications get any kind of heightened scrutiny.” Oral argument in Hollingsworth v. Perry, No. 12-144, available at 2013 WL 1212745, at *12.) The Court’s silence is telling. Although the Court did not overrule Baker, the Court’s failure to even acknowledge Baker as relevant in a case involving a restriction on marriage between same-sex persons supports a view that the Court sees Baker as a dead letter. Cf. Romer, 517 U.S. at 642, 116 S.Ct. 1620 (Scalia, J, dissenting) (noting Court’s failure to discuss Bowers in case decided before Court overruled Bowers in Lawrence). Not even the dissenters in Windsor suggested that Baker was an obstacle to lower court consideration challenges to bans on same-sex marriage. Before Windsor, the courts were split on the question whether Baker was still controlling. Compare Pedersen v. Office of Personnel Management, 881 F.Supp.2d 294, 307 (D.Conn.2012) (Baker not controlling); Smelt v. County of Orange, 374 F.Supp.2d 861, 873 (C.D.Cal.2005) (same); In re Kandu, 315 B.R. 123, 138 (Bankr. W.D.Wash.2004) (same), with Massachusetts v. United States Dept. of Health and Human Services, 682 F.3d 1, 8 (1st Cir. 2012) (Baker controlling); Sevcik v. Sandoval, 911 F.Supp.2d 996, 1003 (D.Nev. 2012) (same); Jackson v. Abercrombie, 884 F.Supp.2d 1065, 1086(D.Haw.2012) (same); Morrison v. Sadler, 821 N.E.2d 15, 19 (Ind.Ct.App.2005) (same). (Oddly, the first federal court to rule in favor of the right of same-sex couples to marry did not discuss Baker. Perry v. Schwarzenegger, 704 F.Supp.2d 921 (N.D.Cal.2010).) Since Windsor, nearly every court to consider the question has concluded that Baker does not preclude review of challenges to bans on same-sex marriage. E.g., Latta v. Otter, 1:13-CV-00482-CWD, — F.Supp.2d-, -, 2014 WL 1909999, *9 (D.Idaho May 13, 2014); Bostic v. Rainey, 970 F.Supp.2d 456, 470 (E.D.Va.2014); Bishop v. U.S. ex rel. Holder, 962 F.Supp.2d 1252, 1277 (N.D.Okla.2014); Kitchen v. Herbert, 961 F.Supp.2d 1181, 1195 (D.Utah 2013). The only outlier seems to be Merritt v. Attorney General, CIV.A. 13-00215-BAJ, 2013 WL 6044329 (M.D.La. Nov. 14, 2013), in which the court cited Baker for the proposition that “the Constitution does not require States to permit same-sex marriages.” However, Merritt is not persuasive because the court did not discuss Romer, Lawrence or Windsor in its decision. Even defendants seem to acknowledge that the writing is on the wall. Although this is a threshold issue, they bury then-short discussion of it at the end of then-summary judgment brief. Accordingly, I conclude that, despite Baker, I may consider the merits of plaintiffs’ claim. B. Positive Rights vs. Negative Rights What is perhaps defendants’ oddest argument relies on a distinction between what defendants call “positive rights” and “negative rights.” In other words, the Constitution protects the rights of individuals to be free from government interference (“negative rights”), but it does not give them a right to receive government benefits (“positive rights”). Defendants cite cases such as DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189, 195, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989), for the proposition that the Constitution “confer[s] no affirmative right to governmental aid,” Thus, defendants say, although the due process clause may protect the right of individuals to engage in certain intimate conduct (a “negative right”), it “does not preclude a state from choosing not to give same-sex couples the positive right to enter the legal status of civil marriage under state law.” Dfts.’ Br., dkt. # 102, at 8. Defendants’ argument has two problems. First, the Supreme Court has held on numerous occasions that marriage is a fundamental right protected by the Constitution. E.g., Turner v. Safley, 482 U.S. 78, 95, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987); Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639-640, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974); Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967). Thus, even if marriage is a “positive right” as defendants understand that term, marriage stands as an exception to the general rule. Second, even if I assume that the state would be free to abolish the institution of marriage if it wished, the fact is that Wisconsin obviously has not abolished marriage; rather, it has limited the class of people who are entitled to marry. The question in this case is not whether the state is required to issue marriage licenses as a general matter, but whether it may discriminate against same-sex couples in doing so. Even in cases in which an individual does not have a substantive right to a particular benefit or privilege, once the state extends that benefit to some of its citizens, it is not free to deny the benefit to other citizens for any or no reason on the ground that a “positive right” is at issue. In fact, under the equal protection clause, “the right to equal treatment ... is not coextensive with any substantive rights to the benefits denied the party discriminated against.” Heckler v. Mathews, 465 U.S. 728, 739, 104 S.Ct. 1387, 79 L.Ed.2d 646 (1984). Therefore, “[t]he State may not ... selectively deny its protective services to certain disfavored minorities without violating the Equal Protection Clause.” DeShaney, 489 U.S. at 197 n. 3, 109 S.Ct. 998. Defendants fail to distinguish this case from the others in which the Supreme Court considered the constitutionality of laws that denied the right to marry to some class of citizens. Loving, 388 U.S. 1, 87 S.Ct. 1817 (interracial marriage); Zablocki v. Redhail, 434 U.S. 374, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978) (marriage of parents who fail to make child support payments); Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987) (marriage of prisoners). Although defendants say that their argument is “consistent” with Loving, Zablocki and Turner because those cases did nothing more than “recognize a negative right,” Dfts.’ Br., dkt. # 102, at 10, defendants do not explain why marriage is a “positive right” when the state discriminates on the basis of sexual orientation, but a “negative right” when it discriminates on the basis of race, custody or financial status. Defendants make a related argument that the government should not be required to “officially endorse the intimate and domestic relationships that gay and lesbian persons may choose to enter.” Dfts.’ Br., dkt. # 102, at 9. They cite cases in which the Court held that there is no constitutional right to subsidies for having an abortion and that the government is entitled to have a preference for childbirth. Rust v. Sullivan, 500 U.S. 173, 201, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991); Webster v. Reproductive Health Services, 492 U.S. 490, 509, 109 S.Ct. 3040, 106 L.Ed.2d 410 (1989). Along the same lines, defendants argue that they are entitled to have a preference for marriage between opposite-sex couples. Even setting aside the many obvious factual differences between marriage and abortion, the analogy defendants attempt to draw is inapt for three reasons. First, as noted above, the state is already issuing marriage licenses to some citizens. The comparison to abortion would be on point only if, in the cases cited, the state had decided to fund abortions for heterosexual women but not for lesbians. Second, abortion cannot be compared to marriage because the government does not have a monopoly on providing abortions. In other words, if the government refuses to use its resources to provide or fund abortions, a woman may seek an abortion somewhere else. In contrast, it is the state and only the state that can issue a marriage license. Thus, defendants’ “preference” for marriage between opposite-sex couples is not simply a denial of a subsidy, it is a denial of the right itself. Defendants’ concern about “endorsing” marriage between same-sex couples seems to be one that has been shared by both judges and legislators in the past. E.g., Goodridge v. Dept. of Public Health, 440 Mass. 309, 798 N.E.2d 941, 986-87 (2003) (Cordy, J., dissenting) (“The plaintiffs’ right to privacy ... does not require that the State officially endorse their choices in order for the right to be constitutionally vindicated.”); Dean v. District of Columbia, CIV.A. 90-13892, 1992 WL 685364, *4 (D.C.Super. June 2, 1992) (“[Ljegislative authorization of homosexual, same-sex marriages would constitute tacit state approval or endorsement of the sexual conduct, to wit, sodomy, commonly associated with homosexual status.”); Transcript of the Mark-Up Record of the Defense of Marriage Act, House Judiciary Committee, June 12, 1996 (statement of Rep. Sonny Bono that he is voting for DOMA because “I can’t tell my son [same-sex marriage is] ok, or I don’t think I can yet.”). These concerns may be common, but they rest on a false assumption about constitutional rights. Providing marriage licenses to same-sex couples on an equal basis with opposite-sex couples is not “endorsing” same-sex marriage; rather, it simply represents “a commitment to the law’s neutrality where the rights of persons are at stake.” Romer, 517 U.S. at 623, 116 S.Ct. 1620. See also Bowers, 478 U.S. at 205-06, 106 S.Ct. 2841 (Blackmun, J., dissenting) (“[A] necessary corollary of giving individuals freedom to choose how to conduct their lives is acceptance of the fact that different individuals will make different choices.”). There are many situations in which the Constitution requires the government to provide benefits using neutral criteria, even with respect to groups that are unpopular or that the government finds abhorrent, without any connotation that the government is endorsing the group. E.g., Rosenberger v. Rector & Visitors of University of Virginia, 515 U.S. 819, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995) (public university could not rely on concerns of improper endorsement to justify refusal to fund student newspaper when funds were available to similarly situated groups); Capitol Square Review & Advisory Board v. Pinette, 515 U.S. 753, 115 S.Ct. 2440, 132 L.Ed.2d 650 (1995) (state could not rely on concerns about endorsement to deny request of Ku Klux Klan to erect monument on public land when other similarly situated groups were allowed to do so). Thus, extending marriage to same-sex couples does not require “approval” of homosexuality any more than the Supreme Court “approved” of convicted criminals or deadbeat dads when it held in Turner, 482 U.S. 78, 107 S.Ct. 2254, and Zablocki, 434 U.S. 374, 98 S.Ct. 673, that the right to marry extends to prisoners and fathers who have failed to make child support payments. In re Opinions of the Justices to the Senate, 440 Mass. 1201, 802 N.E.2d 565, 569 (2004) (“This is not a matter of social policy but of constitutional interpretation.”); Baker v. State, 170 Vt. 194, 744 A.2d 864, 867 (1999) (“The issue before the Court ... does not turn on the religious or moral debate over intimate same-sex relationships, but rather on the statutory and constitutional basis for the exclusion of same-sex couples from the secular benefits and protections offered married couples.”). C. Judicial Restraint, Federalism and Respect for the Democratic Process Defendants and amici argue that federal courts should not question a state’s democratic determination regarding whether and when to extend marriage to same-sex couples. Rather, courts should allow states to serve as “laboratories of democracy” so that each state can learn from the experience of others and decide what works best for its own citizens. Oregon v. Ice, 555 U.S. 160, 171, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009); New State Ice Co. v. Liebmann, 285 U.S. 262, 311, 52 S.Ct. 371, 76 L.Ed. 747 (1932) (Brandéis, J., dissenting). Defendants rely generally on principles of federalism and more specifically on the fact that regulation of marriage is a matter traditionally left to the states. A number of courts and dissenting judges in other cases have asserted a similar argument. Windsor, 133 S.Ct. at 2718-19 (Alito, J., dissenting) (“Because our constitutional order assigns the resolution of questions of this nature to the people, I would not presume to enshrine either vision of marriage in our constitutional jurisprudence.”); In re Marriage Cases, 43 Cal.4th 757, 76 Cal.Rptr.3d 683, 183 P.3d 384, 463-64 (2008) (Baxter, J., dissenting) (“By ... moving the policy debate from the legislative process to the court, the majority engages in faulty constitutional analysis and violates the separation of powers.”); Hernandez v. Robles, 7 N.Y.3d 338, 821 N.Y.S.2d 770, 855 N.E.2d 1, 12 (2006) (“[W]e believe the present generation should have a chance to decide the issue through its elected representatives. We therefore express our hope that the participants in the controversy over same-sex marriage will address their arguments to the Legislature; that the Legislature will listen and decide as wisely as it can; and that those unhappy with the result — as many undoubtedly will be — will respect it as people in a democratic state should respect choices democratically made.”); Goodridge, 798 N.E.2d at 974 (Spina, J., dissenting) (“What is at stake in this ease is not the unequal treatment of individuals or whether individual rights have been impermissibly burdened, but the power of the Legislature to effectuate social change without interference from the courts, pursuant to art. 30 of the Massachusetts Declaration of Rights.”). Although I take no issue with defendants’ observations about the important role that federalism plays in this country, that does not mean that a general interest in federalism trumps the due process and equal protection clauses. States may not “experiment” with different social policies by violating constitutional rights. The fundamental problem with defendants’ argument is that it cannot be reconciled with the well-established authority of federal courts to determine the constitutionality of state statutes or with the Fourteenth Amendment, the very purpose of which was to protect individuals from overreaching by the states. Jackson v. City of Joliet, 715 F.2d 1200, 1203 (7th Cir.1983) (“The Fourteenth Amendment ... sought to protect Americans from oppression by state government.”); De Leon v. Perry, 975 F.Supp.2d 632, 665 (W.D.Tex.2014) (“One of the court’s main responsibilities is to ensure that individuals are treated equally under the law.”). To further that purpose, federal courts have invalidated state laws that violate constitutional rights, even when the law enjoys popular support and even when the subject matter is controversial. City of Cleburne, Texas v. Cleburne Living Center, 473 U.S. 432, 448, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (“It is plain that the electorate as a whole, whether by referendum or otherwise, could not order city action violative of the Equal Protection Clause.”); West Virginia Board of Education v. Barnette, 319 U.S. 624, 638, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943) (“The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”); Chambers v. State of Florida, 309 U.S. 227, 241, 60 S.Ct. 472, 84 L.Ed. 716 (1940) (“Under our constitutional system, courts stand against any winds that blow as havens of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered, or because they are non-conforming victims of prejudice and public excitement.”); Laurence Tribe, American Constitutional Law § 15-10, at 1351 (2d ed. 1988) (“As in the ease of racial segregation, it is often when public sentiment is most sharply divided that the independent judiciary plays its most vital national role in expounding and protecting constitutional rights.”). Federalism was a common defense to the segregationist laws of the Jim Crow era. E.g., Naim v. Naim, 197 Va. 80, 87 S.E.2d 749, 756 (1955) (in case upholding anti-miscegenation law, stating that “[r]egulation of the marriage relation is, we think, distinctly one of the rights guaranteed to the States and safeguarded by that bastion of States’ rights”). See also Brotherhood of Railroad Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 397, 89 S.Ct. 1109, 22 L.Ed2d 344 (1969) (Douglas, J., dissenting) (“States’ rights are often used as a cloak to cover unconstitutional encroachments such as the maintenance of second-class citizenship for Negroes or Americans of Mexican ancestry.”). However, that defense has long since been discredited. Defendants’ federalism argument arises in a different context, but they identify no way to distinguish their argument from those the Supreme Court rejected long ago. Andersen v. King County, 158 Wash.2d 1, 138 P.3d 963, 1028-29 (2006) (Bridges, J., dissenting) (in case involving claim for same-sex marriage, stating that, “had the United States Supreme Court adopted the plurality’s [view of federalism], there would have been no Brown v. Board of Education of Topeka, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954).”). Although Wisconsin’s same-sex marriage ban was approved by a majority of voters, is part of the state constitution and deals with a matter that is a traditional concern of the states, none of these factors can immunize a law from scrutiny under the United States Constitution. The Supreme Court has not hesitated to invalidate any of those types of laws if it concludes that the law is unconstitutional. Romer, 517 U.S. 620, 116 S.Ct. 1620 (invalidating state constitutional amendment); Lucas v. Forty-Fourth General Assembly of State of Colorado, 377 U.S. 713, 736-37, 84 S.Ct. 1459, 12 L.Ed.2d 632 (1964) (“[T]hat [a law] is adopted in a popular referendum is insufficient to sustain its constitutionality----A citizen’s constitutional rights can hardly be infringed simply because a majority of the people choose that it be.”); Brown v. Board of Education of Topeka, 347 U.S. 483, 493, 74 S.Ct. 686, 98 L.Ed. 873 (1954) (striking down school segregation while noting that “education is perhaps the most important function of state and local governments”). See also Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44, 68 (1993) (“The result we reach today is in complete harmony with the Loving Court’s observation that any state’s powers to regulate marriage are subject to the constraints imposed by the constitutional right to the equal protection of the laws.”). Even in Baker, 191 N.W.2d at 187, in which the Minnesota Supreme Court brushed off a marriage claim brought by a same-sex couple, the court acknowledged that “Loving does indicate that not all state restrictions upon the right to marry are beyond- reach of the Fourteenth Amendment.” To the extent that defendants mean to argue that a special rule should apply to the issue of same-sex marriage, they cite no authority for that view. There is no asterisk next to the Fourteen Amendment that excludes gay persons from its protections. Romer, 517 U.S. at 635, 116 S.Ct. 1620. In a footnote, amici argue that cases such as Loving, Turner and Zablocki are distinguishable because they “all involved laws that prevented individuals otherwise qualified for marriage from marrying, and have not gone to the essentials of what marriage means as the claim in this case does.” Amici Br., dkt. # 109, at 17 n. 3. However, this argument has nothing to do with federalism or the democratic process; rather, it goes to the scope of the right to marry, which is discussed below. Even if I assume for the purpose of this discussion that amici are correct about the distinction between this dnd previous cases about marriage, it would not mean that a general interest in what amici call “state sovereignty” would preclude review of Wisconsin laws banning same-sex marriage. Defendants and amici cite Windsor, 133 S.Ct. 2675, and Schuette v. Coalition to Defend Affirmative Action, — U.S. --, 134 S.Ct. 1623, 188 L.Ed.2d 613 (2014), to support their argument, but neither case is on point. First, defendants quote the statement in Schuette that there is “a fundamental right held not just by one person but by all in common. It is the right to speak and debate and learn and then, as a matter of political will, to act through a lawful electoral process.” Schuette, 134 S.Ct. at 1637. However, the holding in Schuette was that Michigan did not violate the equal protection clause by enacting a state constitutional amendment that prohibits discrimination in various contexts. The Court said nothing about state laws such as Wisconsin’s marriage amendment that require discrimination and the Court did not suggest that such laws are immune from constitutional review. Windsor is closer to the mark, but not by much. It is true that the Supreme Court noted multiple times in its decision that the regulation of marriage is a traditional concern of the states. Windsor, 133 S.Ct. at 2689-90 (“By history and tradition the definition and regulation of marriage, as will be discussed in more detail, has been treated as being within the authority and realm of the separate States.”); id. at 2691 (“[R]egulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States.”) (internal quotations omitted). In addition, the Court noted that the Defense of Marriage Act departed from that tradition by refusing to defer to the states’ determination of what qualified as a valid marriage. Id. at 2692 (“DOMA, because of its reach and extent, departs from this history and tradition of reliance on state law to define marriage.”). However, defendants’ and amici’s reliance on Windsor is misplaced for three reasons, First, the Supreme Court’s observations were not new; the Court has recognized for many years that the regulation of marriage is primarily a concern for the states. In his dissent, Justice' Scalia noted this point and questioned the purpose of the Court’s federalism discussion. Id. at 2705 (Scalia, J., dissenting) (“But no one questions the power of the States to define marriage (with the concomitant conferral of dignity and status), so what is the point of devoting seven pages to describing how long and well established that power is?”). Thus, it would be inappropriate to infer that the Court was articulating a new, heightened level of deference to marriage regulation by the states. Second, the Court declined expressly to rely on federalism as a basis for its conclusion that DOMA is unconstitutional. Windsor, 133 S.Ct. at 2692 (“[I]t is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance.”). See also id. at 2705 (Scalia, J., dissenting) (“[T]he opinion has formally disclaimed reliance upon principles of federalism.”). But see id. at 2697 (Roberts, C.J., dissenting) (“[I]t is undeniable that its judgment is based on federalism.”). Third, and most important, the Court discussed DOMA’s encroachment on state authority as evidence that the law was unconstitutional, not as a reason to preserve a law that otherwise would be invalid. In fact, the Court was careful to point out multiple times the well-established principle that an interest in federalism cannot trump constitutional rights. Id. at 2691 (“State laws defining and regulating marriage, of course, must respect the constitutional rights of persons.”); id. at 2692 (“[T]he incidents, benefits, and obligations of marriage are uniform for all married couples within each State, though they may vary, subject to constitutional guarantees, from one State to the next.”); id. (“The States’ interest in defining and regulating the marital relation [is] subject to constitutional guarantees.”). All this is not to say that concerns about federalism and the democratic process should be ignored when considering constitutional challenges to state laws. It is obvious that courts must be sensitive to judgments made by the legislature and the voters on issues of social policy and should exercise the power of judicial review in rare instances. However, these concerns are addressed primarily in the context of determining the appropriate standard of review. We are long past the days when an invocation of “states’ rights” is enough to insulate a law from a constitutional challenge. II. STANDARD OF REVIEW Plaintiffs’ claim arises under two provisions in the Fourteenth Amendment to the United States Constitution. First, plaintiffs contend that Wisconsin’s ban on same-sex marriage violates their fundamental right to marry under the due process clause. Second, they contend that the ban discriminates against them on the basis of sex and sexual orientation, in violation of the equal protection clause. As other courts have noted, the rights guaranteed by these constitutional provisions “frequently overlap.” Goodridge, 798 N.E.2d at 953. See also Lawrence, 539 U.S. at 575, 123 S.Ct. 2472 (“Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects.”). In this case, the ultimate question under both provisions is whether the state may discriminate against same-sex couples in the context of issuing marriage licenses and recognizing marriages performed in other states. However, each clause presents its own questions about the appropriate standard of review. I will address the standard first under the due process clause and then under the equal protection clause. A. Fundamental Right to Marry The “liberty” protected by the due process clause in the Fourteenth Amendment includes the “fundamental right” to marry, a conclusion that the Supreme Court has reaffirmed many times. Turner, 482 U.S. at 95, 107 S.Ct. 2254 (“[T]he decision to marry is a fundamental right.”); Zablocki, 434 U.S. at 384, 98 S.Ct. 673 (“[The] right to marry is of fundamental importance for all individuals.”); Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639-640, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974) (“This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.”); Loving, 388 U.S. at 12, 87 S.Ct. 1817 (referring to marriage as “fundamental freedom”); Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923) (right to marry is “central part of the liberty protected by the Due Process Clause”). In Loving, 388 U.S. at 12, 87 S.Ct. 1817, the Court went so far as to say that marriage is “one of the basic civil rights of man.” The Supreme Court has articulated a standard of review “[w]hen a statutory classification significantly interferes with the exercise of a fundamental right” such as the right to marry, which is that the law “cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests.” Zablocki, 434 U.S. at 388, 98 S.Ct. 673. See also Better v. Middendorf, 632 F.2d 788, 807 (9th Cir.1980) (Kennedy, J.) (“[SJubstantive due process scrutiny of a government regulation involves a case-by-case balancing of the nature of the individual interest allegedly infringed, the importance of the government interests furthered, the degree of infringement, and the sensitivity of the government entity responsible for the regulation to more carefully tailored alternative means of achieving its goals.”). 1. Scope of the right to marry The threshold question under the Zablocki standard is whether the right to marry encompasses a right to marry someone of the same sex. Defendants say that it does not, noting that “[t]he United States Supreme Court has never recognized” a “right to marry a person of the same sex” and that same-sex marriage is not “deeply rooted in this Nation’s history and tradition,” which defendants say is a requirement to qualify as a fundamental right under the Constitution, citing Washington v. Glucksberg, 521 U.S. 702, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997). Dfts.’ Br., dkt. # 102, at 26. Amici add that “our Nation’s law, along with the law of our antecedents from ancient to modern times, has consistently recognized the biological and social realities of marriage, including its nature as a male-female unit advancing purposes related to procreation and childrearing.” Amici Br., dkt. # 109, at 6. They cite cases in which they say the Supreme Court has “explicitly linked marriage and procreation.” Id. (quoting Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942) (“Marriage and procreation are fundamental to the very existence and survival of the race.”), and Maynard v. Hill, 125 U.S. 190, 211, 8 S.Ct. 723, 31 L.Ed. 654 (1888) (marriage is “the foundation of the family.”)). For many years, arguments similar to these were accepted consistently by the courts. E.g., Sevcik, 911 F.Supp.2d at 1013-14; Jackson, 884 F.Supp.2d at 1071; Hernandez, 821 N.Y.S.2d 770, 855 N.E.2d at 10; Andersen, 138 P.3d at 979; Lewis v. Harris, 188 N.J. 415, 908 A.2d 196, 210 (2006); Dean, 1992 WL 685364. Defendants’ observation that the Supreme Court has not yet recognized a “right to same-sex marriage” is both obvious and unhelpful. When the Court struck down Virginia’s anti-miscegenation law in Loving, it had never before discussed a “right to interracial marriage.” If the Court had decided previously that the Constitution protected marriage between same-sex couples, this case would not be here. The question is not whether plaintiffs’ claim is on all fours with a previous case, but whether plaintiffs’ wish to marry someone of the same sex falls within the right to marry already firmly established in Supreme Court precedent. For several reasons, I conclude that it does. a. Purposes of marriage I am not persuaded by amici’s argument that marriage’s link to procreation is the sole reason that the Supreme Court has concluded that marriage is protected by the Constitution. Although several courts have adopted that view, e.g., Dean v. District of Columbia, 653 A.2d 307, 332 (D.C. 1995); Baehr, 852 P.2d at 56, I believe that it is misguided. First, gay persons have the same ability to procreate as anyone else and same-sex couples often raise children together, so there is no reason why a link between marriage and procreation should disqualify same-sex couples. Second, although the Supreme Court has identified procreation as a reason for marriage, it has never described procreation as a requirement. This point has been clear at least since Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). If it were true that the Court viewed procreation as a necessary component of marriage, it could not have found that married couples have a constitutional right not to procreate by using contraception. Instead, the Court described marriage as “a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.” Id. at 486, 85 S.Ct. 1678. To the extent that Griswold leaves any ambiguity, it is resolved by Turner, 482 U.S. 78, 107 S.Ct. 2254, which raised the question whether prisoners retain the right to marry while incarcerated. The Supreme Court concluded that they did, despite the fact that the vast majority of prisoners cannot procreate with their spouses. The Court stated: Many important attributes of marriage remain ... after taking into account the limitations imposed by prison life. First, inmate marriages, like others, are expressions of emotional support and public commitment. These elements are an important and significant aspect of the marital relationship. In addition, many religions recognize marriage as having spiritual significance; for some inmates and their spouses, therefore, the commitment of marriage may be an exercise of religious faith as well as an expression of personal dedication. Third, most inmates eventually will be released by parole or commutation, and therefore most inmate marriages are formed in the expectation that they ultimately will be fully consummated. Finally, marital status often is a precondition to the receipt of government benefits (e.g., Social Security benefits), property rights (e.g., tenancy by the entirety, inheritance rights), and other, less tangible benefits (e.g., legitimation of children born out of wedlock). These incidents of marriage, like the religious and personal aspects of the marriage commitment, are unaffected by the fact of confinement or the pursuit of legitimate corrections goals. Id. at 95-96, 107 S.Ct. 2254. Turner makes it clear that the Court views marriage as serving a variety of important purposes for the couple involved, which may or may not include procreation, and that it is ultimately for the couple to decide what marriage means to them. (Although the Court stated that most inmate marriages “will be fully consummated” when the prisoner is released, there is obviously a difference between consummating a marriage and procreation. In any event, the Court did not suggest that an intent to consummate is a prerequisite to marriage.) Because defendants identify no reason why same-sex couples cannot fulfill the Court’s articulated purposes of marriage just as well as opposite-sex couples, this counsels in favor of interpreting the right to marry as encompassing the choice of a same-sex partner. b. Nature of the decision In describing the type of conduct protected by the due process clause, including marriage, family relationships, contraception, education and procreation, the Supreme Court has stated that the common thread is that they all relate to decisions that are central to the individual’s sense of identity and ability to control his or her own destiny. This point may have been made most clearly in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 851, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992): These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State. See also Lawrence, 539 U.S. at 578, 123 S.Ct. 2472 (state may not “control th[e] destiny” of its citizens by criminalizing certain intimate conduct); Eisenstadt v. Baird, 405 U.S. 438, 453, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972) (Constitution protects right “to be free from unwarranted governmental intrusion into matters ... fundamentally affecting a person.”). In addition, the Supreme Court has stated that the liberty protected in the due process clause includes the right to choose your own family. Moore v. City of East Cleveland, Ohio, 431 U.S. 494, 499, 506, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) (“A host of cases ... have consistently acknowledged a private realm of family life which the state cannot enter____ [W]hen the government intrudes on choices concerning family living arrangements, this Court must examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation.”). With respect to marriage in particular, the Supreme Court has stated repeatedly that it is a matter of individual choice. Hodgson v. Minnesota, 497 U.S. 417, 435, 110 S.Ct. 2926, 111 L.Ed.2d 344 (1990) (“[T]he regulation of constitutionally protected decisions, such as where a person shall reside or whom he or she shall marry, must be predicated on legitimate state concerns other than disagreement with the choice the individual has made.”); Roberts v. U.S. Jaycees, 468 U.S. 609, 620, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984) (“[T]he Constitution undoubtedly imposes constraints on the State’s power to control the selection of one’s spouse.”); Loving, 388 U.S. at 12, 87 S.Ct. 1817 (“Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State ... The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness.”). See also Zablocki, 434 U.S. at 403-04, 98 S.Ct. 673 (Stevens, J., concurring in the judgment) (“The individual’s interest in making the marriage decision independently is sufficiently important to merit special constitutional protection.”). In Bowers, when the Supreme Court refused to acknowledge that homosexual relationships are entitled to constitutional protection, Justice Blackmun noted in his dissent that the Court was being inconsistent with previous cases in which it had protected decisions that “form so central a part of an individual’s life.” Bowers, 478 U.S. at 204-05, 106 S.Ct. 2841 (Blackmun, J., dissenting). See also id. at 218-19, 106 S.Ct. 2841 (Stevens, J., dissenting) (“[E]very free citizen has the same interest in ‘liberty’ that the members of the majority share. From the standpoint of the individual, the homosexual and the heterosexual have the same interest in deciding how he will live his own life.”). In Lawrence, 539 U.S. at 567, 123 S.Ct. 2472, the Court acknowledged that, in Bowers, it had “fail[ed] to appreciate the extent of the liberty at stake,” when it framed the question as whether there is a “right to homosexual sodomy.” Instead, the Court should have recognized that “our laws and tradition afford constitutional protection” to certain “personal decisions” and that “[pjersons in a homosexual relationship may seek autonomy” to make those decisions “just as heterosexual persons do.” Id. at 574, 123 S.Ct. 2472. Of course, Lawrence is not directly on point because that case was about sexual conduct rather than marriage, but even in Lawrence, the Supreme Court acknowledged that sexual conduct is but “one element in a personal bond that is more enduring.” Lawrence, 539 U.S. at 567,123 S.Ct. 2472. The Court went on to state that its holding “should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects.” Id. (emphasis added). More generally, the Court reaffirmed the principle that, in determining the scope of a right under the due process clause, the focus should be on the nature of the decision at issue and not on who is making that decision. Turner, 482 U.S. at 82, 107 S.Ct. 2254 (right to marry extends to prisoners); Zablocki, 434 U.S. 374, 98 S.Ct. 673 (right to marry extends to father who failed to make court-ordered child support payments); Eisenstadt, 405 U.S. at 453, 92 S.Ct. 1029 (right of married couples to use contraception recognized in Gñswold must be extended to single persons as well). See also Latta, — F.Supp.2d at-, 2014 WL 1909999, at *12 (“[The argument that the right to same-sex marriage is a] ‘new right’ ... attempts to narrowly parse a right that the Supreme Court has framed in remarkably broad terms. Loving was no more about the ‘right to interracial marriage’ than Turner was about the ‘prisoner’s right to marry’ or Zablocki was about the ‘deadbeat dad’s right to marry.’ ”). If the scope of the right to marry is broad enough to include even those whose past conduct suggests an inclination toward violating the law and abdicating responsibility, then it is difficult to see why it should not be broad enough to encompass same-sex couples as well. Defendants do not suggest that the decision about whom to marry is any less important or personal for gay persons than it is for heterosexuals. Accordingly, I conclude defendants are making the same mistake as the Court in Bowers when they frame the question in this case as whether there is a “right to same-sex marriage” instead of whether there is a right to marriage from which same-sex couples can be excluded. Latta, — F.Supp.2d at-, 2014 WL 1909999, at *13; Kitchen, 961 F.Supp.2d at 1199-1200; Andersen, 138 P.3d at 1022 (Fairhurst, J., dissenting). c. History of exclusion Defendants argue that including the choice of a same-sex partner within the right to marry would contradict Washington v. Glucksberg, 521 U.S. 702, 722, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997), in which the Supreme Court stated that its “substantive-due-process jurisprudence ... has been a process whereby the outlines of the ‘liberty’ specially protected by the Fourteenth Amendment ... have ... been carefully refined by concrete examples involving fundamental rights found to be deeply rooted in our legal tradition.” Although the Court previously had recognized “the right of a competent individual to refuse medical treatment,” it declined to expand the scope of that right to include a more general “right to commit suicide,” in part because of “a consistent and almost universal tradition that has long rejected the asserted right” to suicide. Id. at 723-24, 117 S.Ct. 2258. Defendants say that a similar conclusion is required with respect to the right of same-sex couples to marry because that right had not been recognized in any state until recently. As an initial matter, it is hard to square aspects of Glucksberg with the holdings in Griswold and Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), in which the Court recognized the rights to contraception and abortion, neither of which were “deeply rooted” in the country’s legal tradition at the time. Lawrence, 539 U.S. at 588, 123 S.Ct. 2472 (Scalia, J., dissenting) {“Roe [has] been ... eroded by [Glucksberg] ... [because] ... Roe ... subjected the restriction of abortion to heightened scrutiny without even attempting to establish that the freedom to abort was rooted in this Nation’s tradition.”). Despite the tension between these cases, the Court has reaffirmed the rights recognized in both Roe and Griswold since Glucksberg. Lawrence, 539 U.S. at 564, 123 S.Ct. 2472 (citing holding of Griswold and Roe with approval); Stenberg v. Car-hart, 530 U.S. 914, 921, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000) (reaffirming Roe). In any event, I conclude that Glucksberg is not instructive because that case involved the question whether a right to engage in certain conduct (refuse medical treatment) should be expanded to include a right to engage in different conduct (commit suicide), “two acts [that] are widely and reasonably regarded as quite distinct.” Id. at 725, 117 S.Ct. 2258. In this case, the conduct at issue is exactly the same as that already protected: getting married. The question is whether the scope of that right may be restricted depending on who is exercising the right. Both Lawrence and Loving support a view that the state cannot rely on a history of exclusion to narrow the scope of the right. When the Supreme Court decided those eases, there had been a long history of s