Full opinion text
MEMORANDUM DECISION AND ORDER CANDY WAGAHOFF DALE, United States Chief Magistrate Judge. I. INTRODUCTION It is precisely because the issue raised by this case touches the heart of what makes individuals what they are that we should be especially sensitive to the rights of those whose choices upset the majority. —The Honorable Harry Blackmun This case asks a basic and enduring question about the essence of American government: Whether the will of the majority, based as it often is on sincere beliefs and democratic consensus, may trump the rights of a minority. Plaintiffs are two same-sex couples who desire to marry in Idaho and two same-sex couples who legally married in other states and wish to have their marriages recognized in Idaho. Under the Constitution and laws of the State of Idaho (Idaho’s Marriage Laws), marriage between a man and a woman is the only legally recognized domestic union. Idaho effectively prohibits same-sex marriage and nullifies same-sex marriages legally celebrated in other states. Plaintiffs request the Court declare these laws unconstitutional and enjoin Idaho from enforcing them, which would allow the Unmarried Plaintiffs to marry and the Married Plaintiffs to be legally recognized as married in the state they consider home. Although 17 states legally recognize same-sex marriages, Idaho is one of many states that has chosen the opposite course. Like courts presiding over similar cases across the country, the Court must examine whether Idaho’s chosen course is constitutional. Significantly, the Supreme Court of the United States recently held that the federal government cannot constitutionally define marriage as a legal union between one man and one woman. United States v. Windsor, — U.S. -, 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013). Writing for the majority in Windsor, Justice Kennedy reasoned the “purpose and effect” of the federal man-woman marriage definition was “to disparage and injure” legally married same-sex couples in derogation of the liberty, due process, and equal protection guaranteed by the Fifth Amendment to the United States Constitution. Id. at 2696. Here, the Court considers a related but distinct question: Do Idaho’s Marriage Laws deny Plaintiffs the due process or equal protection guaranteed by the Fourteenth Amendment to the United States Constitution? After careful consideration, the Court finds Idaho’s Marriage Laws unconstitutional. This conclusion reaffirms a longstanding maxim underlying our system of government — a state’s broad authority to regulate matters of state concern does not include the power to violate an individual’s protected constitutional rights. See, e.g., id. at 2691 (“State laws defining and regulating marriage, of course, must respect the constitutional rights of persons.... ”). Idaho’s Marriage Laws deny its gay and lesbian citizens the fundamental right to marry and relegate their families to a stigmatized, second-class status without sufficient reason for doing so. These laws do not withstand any applicable level of constitutional scrutiny. II. BACKGROUND Marriage works a fundamental change on the lives of all who experience it. The decision to marry is both a deeply personal expression of love and a public declaration of commitment. For many, marriage is also a profoundly important religious institution, cementing and celebrating a lifelong union enriched by enduring traditions. These traditions vary from faith to faith, but when most people think of marriage they think of the ceremony — the wedding — with all of the hope and joy those pivotal moments entail. Compared to the immense personal and spiritual significance of marriage as a ceremonial rite, the civil institution of marriage is much more prosaic. A. Idaho’s Marriage Laws A series of licensing statutes govern civil marriage in Idaho. As far as the State is concerned, marriage is a contract evidenced by a State-issued license and a solemnization. Idaho Code § 32-201(1). The solemnization itself can be secular or religious, and the officiant need not be an ordained minister. Id. §§ 32-303 to -304. Regardless of their preferred method of solemnization, opposite-sex couples are eligible for a marriage license so long as they meet certain minimal requirements. See id. §§ 32-202 (age limitations); -205, -206 (consanguinity limitations); -207 (prohibition of polygamous marriages). A multitude of legal benefits and responsibilities flow from a valid civil marriage contract. These marital benefits include the right to be recognized as a spouse when petitioning to adopt a child born to a spouse, see id. §§ 16-1503, -1506; have access to an ill spouse at the hospital and to make medical decisions for an ill or incapacitated spouse without a written power of attorney, see id. § 39-4504; file a joint state income tax return as a married couple, see id. § 63-3031; inherit a share of the estate of a spouse who dies without a will, see id. § 15-2-102; preclude a spouse from testifying in a court proceeding about confidential communications made during the marriage, see id. § 9-203; and jointly own community property with right of survivorship, see id. § 15-6-401. These incidents of marriage touch every aspect of a person’s life. From the deathbed to the tax form, property rights to parental rights, the witness stand to the probate court, the legal status of “spouse” provides unique and undeniably important protections. Opposite-sex married couples enjoy many of these benefits by automatic operation of law. A couple need not marry in Idaho to enjoy these benefits, as Idaho generally follows the so-called “place of celebration rule.” See Morrison v. Sunshine Mining Co., 64 Idaho 6, 127 P.2d 766, 769 (1942) (“Having assumed and entered into the marital relation with appellant in Montana, the status thus established followed Morrison to Idaho and could not be shed like a garment on entering this state.”). Under this longstanding rule, a marriage contracted outside Idaho will be valid in Idaho if the marriage is valid where contracted. See Idaho Code § 32-209. That is, unless the marriage is between two persons of the same sex. Id. Same-sex couples are categorically prohibited from obtaining a marriage license in Idaho or from having their otherwise valid out-of-state marriages recognized in Idaho. But for the fact they are same-sex couples, Plaintiffs would either be recognized as married or be eligible to marry. Plaintiffs challenge three specific provisions of Idaho law. First, Idaho Code § 32-201 defines marriage as “a personal relation arising out of a civil contract between a man and a woman, to which the consent of the parties capable of making it is necessary.” Id. § 32-201(1). This statute prohibits same-sex marriage regardless of whether a couple otherwise qualifies for a marriage license. Second, Idaho Code § 32-209 provides the mechanism by which Idaho recognizes the legal validity of marriages contracted in other states or countries. The statute provides: All marriages contracted without this state, which would be valid by the laws of the state or country in which the same were contracted, are valid in this state, unless they violate the public policy of this state. Marriages that violate the public policy of this state include, but are not limited to, same-sex marriages, and marriages entered into under the laws of another state or country with the intent to evade the prohibitions of the marriage laws of this state. Id. § 32-209. This statute creates a two-tiered system for out-of-state marriages. While opposite-sex couples benefit from the place of celebration rule, married same-sex couples shed their marital status upon entering Idaho. Although the State’s non-recognition policy is not limited to same-sex marriages and marriages contracted with the intent to evade Idaho law, the statute lists no other form of marriage specifically. Third, the Idaho Constitution effectively bans legal recognition of same-sex unions. In November of 2006, a majority of Idaho’s electorate voted to add the following language to the Idaho Constitution: “A marriage between a man and a woman is the only domestic legal union that shall be valid or recognized in this state.” Idaho Const. Art. Ill, § 28. This provision has the combined legal effect of the two statutes referenced above. But, by virtue of its place in the Idaho Constitution, the amendment imposes powerful restraints on Idaho’s Legislature and Judiciary. The provision effectively precludes a state court from finding that Idaho law requires the State to recognize any type of same-sex union. And it precludes every legislative body in Idaho from recognizing civil unions or any other same-sex relationship approximating marriage. Absent a superseding constitutional amendment, no branch of state government may authorize or recognize the marriage of two persons of the same sex. Thus, Idaho’s Marriage Laws prevent same-sex couples, whether married or unmarried, from obtaining the marital status and benefits afforded to opposite-sex couples. B, The Plaintiffs Plaintiffs are four same-sex couples. The Married Plaintiffs, Susan Latta and Traci Ehlers, and Lori Watsen and Shar-ene Watsen, legally married in other states and wish to have their marriages recognized in Idaho. The Unmarried Plaintiffs, Shelia Robertson and Andrea Altmayer, and Amber Beierle and Rachael Robertson, desire to be married in Idaho, but the County Recorder of Ada County, Defendant Rich, denied their marriage license applications. The following undisputed facts are contained in the pleadings and in Plaintiffs’ declarations. 1. Susan Latta and Traci Ehlers Susan Latta has lived in Boise for 22 years. Traci Ehlers has resided in Idaho’s Treasure Valley for 38 years. Latta is a professional artist and adjunct professor at Boise State University, and Ehlers owns a small business in Boise. They met at a book club and began dating in 2003. Ehl-ers proposed to Latta in 2004, and, in 2006, the couple celebrated “a meaningful but not legally binding wedding ceremony in Boise.” (Latta Dec. ¶ 11, Dkt. 48.) In 2008, the couple legally married in California soon after that state began allowing same-sex marriages. Neither Latta nor Ehlers had been married before, but they decided to marry because they wanted to spend the rest of their lives together. Although Ehlers never thought she would have children, she is now step-mother to Latta’s children and step-grandmother to Latta’s grandchildren. Both Latta and Ehlers attest that Idaho’s refusal to recognize their marriage complicates and demeans their lives. They worry about the ramifications of aging without a legally recognized marriage, a reality that implicates taxes, inheritance, Social Security benefits, hospital visitation rights, and medical decision-making. Although they can file a “married” tax return for federal purposes, Idaho law requires them to file “single” state tax returns. Latta and Ehlers plan to seek professional assistance to prepare their state tax returns. The couple also is unsure about the status of property they acquired during their marriage because a quitclaim deed purporting to grant each of them title to community property with right of survivor-ship may not be enforceable absent a legally recognized marriage. Ehlers explains, “it is painful that the state we love, the place that we have made our home, where we vote and pay taxes, where we have our businesses, where we participate, and volunteer, and donate, treats us as second-class citizens.” (Ehlers Dec. ¶ 18, Dkt. 49.) 2. Lori Watsen and Sharene Watsen Lori and Sharene Watsen reside in Boise, where Sharene works as a physician assistant and Lori works as a social worker. Friends introduced the Watsens in 2009, and the two have been together as a couple since their first date. In 2011, the couple married in a small legal ceremony-in New York. They held a larger celebration of their marriage at their church in Boise during the summer of 2012. The Watsens both describe their marriage as an important symbol of their love for and commitment to each other, not least because they both grew up in deeply religious families that value the institution greatly. Also in 2012, the Watsens decided to start a family. Their son was conceived by artificial insemination in September 2012, and Sharene gave birth in May 2013. Although they requested that Lori be listed as their son’s parent, his birth certificate lists only Sharene. In the summer of 2013, the Watsens hired an attorney to assist Lori’s adoption of their son. An Ada County magistrate judge dismissed the adoption petition and, despite their valid New York marriage, deemed Lori to be Sharene’s unmarried “cohabitating, committed partner” without legal standing to adopt Sharene’s son. (S. Watsen Dec. Ex. C., Dkt. 51-3 at 5.) The couple felt demeaned by the magistrate judge’s decision, and Lori plans to again petition for adoption. Like Latta and Ehlers, the Watsens are concerned about the many complications Idaho’s Marriage Laws add to their family life. Lori Watsen must create a new medical power of attorney every six months, for, without one, she cannot consent to medical treatment for her son. In addition, the Watsens have the same tax and community property problems as Latta and Ehlers. Above all, Lori Watsen wants their “son to have the same pride in us, as his parents, that I feel for my parents, who have been married for 50 years.” (L. Wat-sen Dec. ¶ 36, Dkt. 50.) 3. Shelia Robertson and Andrea Alt-mayer Shelia Robertson and Andrea Altmayer live together in Boise. Altmayer works as a massage therapist. Robertson, who has advanced .training in communicative disorders, teaches deaf students at a local school district and works part-time as a video relay interpreter. The two have been in a committed, exclusive relationship since friends introduced them 16 years ago. If Idaho allowed same-sex marriages, they would have married years ago. Although the couple considered marrying outside Idaho, they did not wish to incur the expense of traveling away from their family and friends only to return home with a marriage not recognized in Idaho. Even so, Robertson and Altmayer decided to start a family. Altmayer became pregnant through artificial insemination and gave birth to their son in 2009. Similar to the Watsens’ experience, Robertson and Altmayer completed birth certificate forms identifying Altmayer as the mother and Robertson as a parent. But the birth certificate lists only Altmayer as their son’s parent. The lack of a legally recognized parental relationship between Robertson and her son means she cannot consent to medical treatment for him and otherwise prevents the couple from equally sharing numerous parental responsibilities. Robertson and Altmayer worry their son will not have the security and stability afforded by two legal parents. Both are deeply concerned their son will grow up believing there is something wrong with his family because his parents cannot marry. On November 6, 2013, Robertson and Altmayer submitted a marriage license application to the Ada County Recorder. The application was denied only because Robertson and Altmayer are both women. Demeaned but undeterred by this experience, the couple wishes to be married “so that other people understand that we are a family, in a permanent life-long relationship.” (S. Robertson Dec. ¶ 15, Dkt. 53.) 4. Amber Beierle and Rachael Robertson Amber Beierle and Rachael Robertson both grew up, reside, and wish to marry in Idaho. Beierle holds a M.S. in Applied Historical Research and works for the Idaho State Historical Society. Roberston is an Army veteran, having served a tour of duty in Iraq from June 2004 to November 2005. During her military service, Robertson earned the Army Combat Medal and the Soldier Good Conduct Medal. She was honorably discharged from the Army in 2008 and now manages a warehouse in Boise. Beierle and Robertson met in 2006 and began dating in 2010. The two have been in a committed, exclusive relationship since Valentine’s Day, 2011. They bought a house together in December of 2012. The couple plans to raise children, but they worry their children will grow up thinking something is wrong with their family because Beierle and Robertson cannot marry. Although they considered marrying in another state, they wish to be married in their home state of Idaho. And, even if they were married in another state, Idaho law would prevent them from being buried together at the Idaho Veterans Cemetery because they are a same-sex couple. Beierle and Robertson also applied for a marriage license on November 6, 2013. Although they otherwise qualify for a marriage license, the Ada County Recorder’s Office denied the application because they are both women. This experience demeaned Beierle and Robertson. They “want to have the same freedom as opposite-sex couples to marry the person [they] love and to share the benefits and responsibilities of marriage and in the recognition and protections of marriage.” (Beierle Dec. ¶ 19, Dkt. 54.) C. The Defendants Defendant C.L. “Butch” Otter is the Governor of the State of Idaho. He is sued in his official capacity. As Governor, Defendant Otter is responsible for upholding and ensuring compliance with the Idaho Constitution and statutes enacted by the Legislature, including the marriage laws at issue in this case. See Idaho Const. Art. IV, § 5 (“The supreme executive power of the state is vested in the governor, who shall see that the laws are faithfully executed.”). Defendant Christopher Rich is Recorder of Ada County, Idaho. He is sued in his official capacity. As the Ada County Recorder, Defendant Rich has “the authority to issue marriage licenses to any party applying for the same who may be entitled under the laws of this state to contract matrimony.” Idaho Code § 32-401. On November 6, 2013, an authorized deputy of Defendant Rich denied the Unmarried Plaintiffs’ applications for marriage licenses because, as same-sex couples, they were not entitled to contract matrimony in Idaho. Early in this case, the State of Idaho moved and was permitted to intervene as a defendant. (Dkt. 38.) The State, by and through the Idaho Attorney General, asserts a strong, independent interest in defending Idaho’s laws against constitutional attack. Throughout this litigation, the State has joined in Recorder Rich’s motions and briefing. D. Requested Relief Plaintiffs bring suit under 42 U.S.C. § 1983, alleging that Governor Otter and Recorder Rich acted in their official capacities and under color of law to deprive them of rights protected by the Fourteenth Amendment to the United States Constitution. They request a declaration that all Idaho laws prohibiting same-sex marriage or barring recognition of valid out-of-state same-sex marriages violate the due process and equal protection guarantees in the Fourteenth Amendment. They also request a permanent injunction against enforcement of any Idaho law that would prohibit or withhold recognition of same-sex marriages. These claims constitute a facial constitutional attack on the validity of any Idaho law that prohibits same-sex marriage in Idaho or withholds recognition of same-sex marriages validly contracted in another state. III. STANDARD OF REVIEW The parties seek judicial resolution of this case via three motions: Defendant Recorder Rich and Defendant-In-tervenor Idaho’s motion to dismiss for failure to state a claim (Dkt. 43), Plaintiffs’ motion for summary judgment (Dkt. 45), and Defendant Governor Otter’s motion for summary judgment (Dkt. 57). Typically, motions to dismiss are evaluated under different standards than motions for summary judgment. But here, the motion to dismiss must be treated as a motion for summary judgment. Recorder Rich and Defendant-Interve-nor Idaho’s motion to dismiss attaches and references numerous documents outside the pleadings. These documents include five articles on marriage and parenting. (Dkt. 30-6 to -10.) The parties vigorously dispute the meaning and import of the sociological literature on these points. Because the Court considered the literature submitted with the motion to dismiss, the motion must be treated as a motion for summary judgment. Fed.R.Civ.P. 12(d); see also Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 921-22 (9th Cir.2004) (finding a represented party’s submission of extra-pleading materials justified treating motion to dismiss as motion for summary judgment). The Court will evaluate all pending motions under the summary judgment standard. A party is entitled to summary judgment when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). When parties submit cross-motions for summary judgment, “the court must review the evidence submitted in support of each cross-motion” and decide each on its own merits. Fair Housing Council of Riverside County, Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir.2001). IV. ANALYSIS The Court has considered the parties’ briefs and supporting materials, as well as oral arguments presented during a May 5, 2014 hearing on all dispositive motions. As a preliminary matter, the Court finds the Supreme Court’s summary decision in Baker v. Nelson, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972), does not prevent lower federal courts from deciding the constitutional issues in this case. With respect to Plaintiffs’ due process claim, Idaho’s Marriage Laws are subject to strict scrutiny because they infringe upon Plaintiffs’ fundamental right to marry. Under the Equal Protection Clause, Idaho’s Marriage Laws are subject to heightened scrutiny because they intentionally discriminate on the basis of sexual orientation. The Court finds that Idaho’s Marriage Laws do not survive any applicable level of constitutional scrutiny and therefore violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the United States Constitution. The reasons for these findings are discussed below. A. Baker v. Nelson Defendants initially argue that Baker v. Nelson is binding precedent that shields Idaho’s Marriage Laws from constitutional attack. Baker was an appeal to the United States Supreme Court from a decision of the Supreme Court of Minnesota. The Minnesota court held that neither Minnesota law nor the United States Constitution required the issuance of marriage licenses to a same-sex couple. Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185 (1971), appeal dismissed, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972). Based on a brief review of then-existing due process and equal protection jurisprudence, the Minnesota court rejected the plaintiffs’ due process and equal protection claims. On appeal, the Supreme Court summarily dismissed the case “for want of a substantial federal question.” Baker, 409 U.S. at 810, 93 S.Ct. 37. Summary dismissals have real but narrow precedential value. “A summary disposition affirms only the judgment of the court below, and no more may be read into [the] action than was essential to sustain the judgment.” Ill. Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 182-83, 99 S.Ct. 983, 59 L.Ed.2d 230 (1979) (citations omitted). The dismissal “prevent[s] lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided” in the action. Mandel v. Bradley, 432 U.S. 173, 176, 97 S.Ct. 2238, 53 L.Ed.2d 199 (1977). When a case raises the precise issue addressed by a summary dismissal, “the lower courts are bound ... until such time as the [Supreme] Court informs them that they are not.” Hicks v. Miranda, 422 U.S. 332, 344-45, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975) (quotation omitted). Defendants correctly note that Baker necessarily decided the precise issues presented in this case and that the Supreme Court has not expressly overruled Baker in the four decades after it was summarily decided. Although Baker speaks to the precise issues presented in this case, there is good reason to find its guidance no longer binding. The Supreme Court has instructed that “inferior federal courts had best adhere to the view that if the Court has branded a question as insubstantial, it remains so except when doctrinal developments indicate otherwise.” Hicks, 422 U.S. at 344, 95 S.Ct. 2281 (emphasis added). Defendants make forceful arguments about the binding nature of summary dismissals, but they overlook the doctrinal developments exception stated in Hicks. In fact, Defendants cite only one case that analyzes the doctrinal developments since Baker, and that case was decided before Windsor. See Jackson v. Abercrombie, 884 F.Supp.2d 1065, 1085-86 (D.Haw.2012) (concluding pre-Windsor doctrinal developments did not overcome Baker). The Supreme Court’s due process and equal protection jurisprudence has developed significantly in the four decades after Baker, and, in last year’s Windsor decision, the Court dramatically changed tone with regard to laws that withhold marriage benefits from same-sex couples. In 1972, the Supreme Court had not recognized gender as a quasi-suspect classification. See Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973). Nor had the Court applied heightened equal protection scrutiny to gender-based classifications. See Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976). It was not until 1996 that the Supreme Court recognized laws based on a “ ‘bare ... desire to harm’ ” homosexuals were not rationally related to any legitimate government interest. Romer v. Evans, 517 U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996) (quoting U.S. Dept. of Agric. v. Moreno, 413 U.S. 528, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973)). Since Baker, the Supreme Court’s equal protection jurisprudence has expanded, scrutinizing both gender and sexual orientation discrimination in more exacting ways. In 1972, states could constitutionally criminalize private, consensual sex between adults of the same sex based on nothing more than moral disapproval of the homosexual lifestyle. See Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), overruled by Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003). But, just 11 years ago, the Court reversed course and held the government could not lawfully “demean [homosexuals’] existence or control their destiny by making their private sexual conduct a crime.” Lawrence, 539 U.S. at 574, 123 S.Ct. 2472. Lawrence reaffirmed that the Due Process Clause protects fundamental rights of personhood, definitively establishing that individuals do not forfeit their rights because of their sexual orientation. Id. At the very least, Romer and Lawrence strongly suggest that state-approved discrimination based on sexual orientation is now a substantial federal question. Although courts formerly were reluctant to find these developments sufficient to overcome Baker, e.g., Jackson, 884 F.Supp.2d at 1085-86, much has changed in just the last year. In June of 2013, the Supreme Court struck down the federal man-woman definition of marriage because, when applied to legally married same-sex couples, it “demean[ed] the couple, whose moral and sexual choices the Constitution protects.” Windsor, 133 S.Ct. at 2694. In doing so, the Supreme Court affirmed the decision of the United States Court of Appeals for the Second Circuit, which expressly held that Baker did not foreclose review of the federal marriage definition. Windsor v. United States, 699 F.3d 169, 178-80 (2d Cir.2012) (“Even if Baker might have had resonance ... in 1971, it does not today.”). Also last summer, the Supreme Court declined to review a decision invalidating California’s voter-approved man-woman marriage definition. Hollingsworth v. Perry, — U.S. -, 133 S.Ct. 2652, 186 L.Ed.2d 768 (2013). The Supreme Court dismissed the appeal not because Baker rendered the question insubstantial, but because the law’s supporters lacked standing to defend it after the State of California decided not to. These are doctrinal developments sufficient to overcome the narrow prece-dential effect of a summary dismissal. Since Windsor, no federal court has ruled to the contrary. In fact, every court to consider Baker in the context of a post-Windsor challenge to laws against same-sex marriage has found that doctrinal developments since 1972 provide ample reason to reach the merits. Kitchen v. Herbert, 961 F.Supp.2d 1181, 1194-95 (D.Utah 2013); Bishop v. U.S., 962 F.Supp.2d 1252 (N.D.Okla.2014); Bostic v. Rainey, 970 F.Supp.2d 456, 468-70 (E.D.Va.2014); McGee v. Cole, 993 F.Supp.2d 639, 649-52, 2014 WL 321122 at *8-10 (S.D.W.Va. Jan. 29, 2014); Bourke v. Beshear, 996 F.Supp.2d 542, 2014 WL 556729 (W.D.Ky. Feb. 12, 2014); De Leon v. Perry, 975 F.Supp.2d 632, 646-49 (W.D.Tex.2014); DeBoer v. Snyder, 973 F.Supp.2d 757, 773 n. 6 (E.D.Mich.2014). Consistent with the findings of its sister courts, the Court concludes that Baker is not controlling and does not bar review of Plaintiffs’ claims. B. Due Process The Due Process Clause of the Fourteenth Amendment to the United States Constitution guarantees fair process and places substantive limits on the States’ authority to constrain individual liberty. Many of our most cherished liberties originate in the Bill of Rights — among them the freedoms of speech, press, and religion; the right to be free from unreasonable searches and seizures; and the right to just compensation when the government takes private property. Initially, the Bill of Rights guarded against only actions by the federal government. But, upon the adoption of the Fourteenth Amendment, a more comprehensive protection came into force: “No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any State deprive a person of life, liberty, or property, without due process of law; nor deny to any person the equal protection of the laws.” U.S. Const. amend. XIV, § 1. Now, most of the Bill of Rights applies to the states by virtue of the Fourteenth Amendment. See McDonald v. City of Chicago, 561 U.S. 742, 130 S.Ct. 3020, 3034-36, 3050, 177 L.Ed.2d 894 (2010) (chronicling “selective incorporation” of the Bill of Rights and incorporating the Second Amendment). The Supreme Court also has recognized that the liberty guaranteed by the Fourteenth Amendment extends beyond the Bill of Rights to “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 the compulsion of the State.” Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). An individual’s protected liberties include certain fundamental rights of personhood. These rights center on the most significant decisions of a lifetime— whom to marry, whether to have children, and how to raise and educate children. Lawrence, 539 U.S. at 574, 123 S.Ct. 2472. These choices are protected because they implicate “associational rights ... ‘of basic importance in our society,’ rights sheltered by the Fourteenth Amendment against the State’s unwarranted usurpation, disregard, or disrespect.” M.L.B. v. S.L.J., 519 U.S. 102, 116, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996) (quoting Boddie v. Connecticut, 401 U.S. 371, 376, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971)). Ordinarily, laws do not offend the Due Process Clause when they are rationally related to a legitimate government interest. Washington v. Glucksberg, 521 U.S. 702, 722, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997). But laws that implicate fundamental rights are subject to strict scrutiny, surviving only if narrowly tailored to a compelling government interest. Reno v. Flores, 507 U.S. 292, 301-02, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993). The essential issue for due process purposes is whether Idaho’s Marriage Laws infringe on Plaintiffs’ fundamental rights. The decisions of the United States Supreme Court “confirm that the right to marry is of fundamental importance for all individuals.” Zablocki v. Redhail, 434 U.S. 374, 384, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978). “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men” and women. Loving v. Virginia, 388 U.S. 1, 11, 87 S.Ct. 1817, 18 L.Ed.2d .1010 (1967). “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.” Griswold v. Connecticut, 381 U.S. 479, 486, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). Against this background, Plaintiffs wish to exercise their fundamental right to marry. Defendants acknowledge that the fundamental right to marry exists, but they argue it does not extend to same-sex couples. Rather, Defendants contend Plaintiffs seek recognition of a new fundamental right, the right to same-sex marriage. Defendants appropriately note that the Supreme Court has explicitly cautioned against finding new fundamental rights. “[T]he Due Process Clause specially protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.” Glucksberg, 521 U.S. at 720-21, 117 S.Ct. 2258 (quotations and citations omitted). A “careful description” of the newly asserted liberty interest also is necessary. Id. at 721, 117 S.Ct. 2258. Moreover, the “Nation’s history, legal traditions, and practices ... provide the crucial guideposts for responsible decisionmaking, that direct and restrain [the Court’s] exposition of the Due Process Clause.” Id. (quotation and citation omitted). The Glucksberg decision is instructive on how the Supreme Court evaluates new fundamental rights. There, the plaintiffs asserted the State of Washington’s ban on causing or aiding another person’s suicide violated a constitutionally protected right to choose the manner of one’s own death. The Supreme Court surveyed the history of the law regarding suicide, concluding “[t]he history of the law’s treatment of assisted suicide in this country has been and continues to be one of the rejection of nearly all efforts to permit it.” Id. at 728, 117 S.Ct. 2258. Given this largely unbroken tradition, the Court declined to recognize a new constitutionally protected right to suicide or assisted suicide. The Supreme Court then upheld Washington’s assisted suicide ban because the ban rationally related to Washington’s legitimate interest in preserving human life. The restraint exercised in Glucksberg is not warranted here. Although marriage is not mentioned in the Bill of Rights, the Supreme Court has uniformly treated marriage as an established fundamental right. A long line of cases recognize marriage as a fundamental right, variously describing it as a right of liberty, Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), of privacy, Griswold, 381 U.S. at 486, 85 S.Ct. 1678, and of association, 519 U.S. at 116, 117 S.Ct. 555. This exalted status among personal rights is based on the recognition that marriage “involv[es] the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy. ...” Casey, 505 U.S. at 851, 112 S.Ct. 2791. In fact, Glucksberg cites the right to marry as one of the well-established fundamental rights. 521 U.S. at 720, 117 S.Ct. 2258. Because the right to marry is fundamental, the Supreme Court has repeatedly invalidated laws that infringe upon it. In the pathmarking case of Loving v. Virginia, our Nation’s highest court found unconstitutional a Virginia statute banning interracial marriages. 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967). Similar to the Idaho Marriage Laws challenged here, Virginia’s anti-miscegenation laws prohibited the issuance of marriage licenses to interracial couples and further forbade attempts to evade the ban by marrying out-of-state. Loving, 388 U.S. at 4-6, 87 S.Ct. 1817. Violation of these Virginia’s law was a criminal offense punishable by imprisonment for up to five years. Id. at 5, 87 S.Ct. 1817. Regardless of the historical precedent for such laws, the Supreme Court made clear that “the freedom to marry or not marry[ ] a person of another race resides with the individual and cannot be infringed by the State.” Id. at 12, 87 S.Ct. 1817. The Supreme Court reaffirmed the fundamental and individual character of the right to marry in Zablocki v. Redhail. There, the Court reviewed a Wisconsin law that required residents to seek court permission to marry if a Wisconsin resident had children not in the resident’s custody. Zablocki, 434 U.S. at 375, 98 S.Ct. 673. Under that law, permission to marry would be granted only if the resident could show full compliance with any child-support obligations and further demonstrate children covered by a support order were “not then and [were] not likely thereafter to become public charges.” Id. (quoting Wis. Stat. § 245.10 (1973)). Despite the State’s interest in child welfare, the Supreme Court invalidated the statute because it “unnecessarily impinge[d] on the right to marry” in a context where Wisconsin had “numerous other means” for advancing its interest. Id. at 388-89, 98 S.Ct. 673. Next, in 1987, the Supreme Court struck down a Missouri prison regulation that restricted inmates’ right to marry. Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). Under the regulation, an inmate could marry only with approval from the superintendent of prisons, permission that would be granted under “compelling” circumstances such as pregnancy or the birth of an illegitimate child. Id. at 82, 107 S.Ct. 2254. While prisoners are subject to a variety of restrictions on their constitutional liberties, the Court found that “[m]any important attributes of marriage remain, however, after taking into account the limitations imposed by prison life.” Id. at 95, 107 S.Ct. 2254. Recognizing the emotional, public, and spiritual significance of marriage, as well as the many government benefits that flow from marital status, the Court struck down the prison regulation. According to the Supreme Court, “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 penological objectives.” Id. at 95-96, 107 S.Ct. 2254. More recently, the Supreme Court confirmed that gay and lesbian individuals do not forfeit their constitutional liberties simply because of their sexual orientation. Lawrence, 539 U.S. 558, 123 S.Ct. 2472. The Court observed that “our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.” Id. at 574, 123 S.Ct. 2472. Emphasizing that these are personal rights, the Court concluded “[pjersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.” Id. (emphasis added). And, less than one year ago, the Supreme Court struck down the federal Defense of Marriage Act’s man-woman definition of marriage because it amounted to unconstitutional “interference with the equal dignity of same-sex marriages” recognized by some states. Windsor, 133 S.Ct. at 2693. The message of these cases is unmistakable — all individuals have a fundamental right to marry. Defendants argue these cases do not apply here because the Supreme Court has recognized a fundamental right to only heterosexual marriage. Relying on Glucksberg, the Defendants characterize this case as one involving the “right to same-sex marriage,” a right lacking both historical precedent and constitutional protection. Defendants’ argument suffers from three critical flaws. This “new right” argument 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 “dead-beat dad’s right to marry.” Even in cases with such vastly different facts, the Supreme Court has consistently upheld the right to marry, as opposed to a sub-right tied to the facts of the case. While Glucksberg demands that new rights be carefully described and deeply rooted, the cases above demonstrate that the Supreme Court has long recognized an unembellished right to marry. On the other hand, the holding in Glucksberg followed directly from the unbroken pattern of state laws and legal traditions disapproving suicide and assisted suicide. 521 U.S. at 710-11, 117 S.Ct. 2258 (“Indeed, opposition to and condemnation of suicide — and, therefore, assisting suicide — are consistent and enduring themes of our philosophical, legal, and cultural heritages.”). Given that context, it was a truly novel proposition to say that the concept of “liberty” substantively protects a person’s freedom to end his or her life. Finding the policy of condemning and discouraging suicide both deeply rooted and nearly universal in contemporary society, the Court declined to recognize a new fundamental right. Id. at 728, 117 S.Ct. 2258. The context here is dramatically different. Far from a uniform pattern of laws rejecting the practice, a fast-growing number of states now recognize that same-sex and opposite-sex marriages are equal. And, while Glucksberg makes much of the consistent legal, medical, and social policies against suicide, the Court is not aware of a similarly pervasive policy against marriage. To the contrary, the Defendants make abundantly clear that marriage is a life-affirming institution — something to be encouraged because it provides stability not only for couples, but also for children. Finally, and most critically, the Supreme Court’s marriage cases demonstrate that the right to marry is an individual right, belonging to all. See Lawrence, 539 U.S. at 574, 123 S.Ct. 2472. If every individual enjoys a constitutional right to marry, what is the substance of that right for gay or lesbian individuals who cannot marry their partners of choice? Traditional man-woman marriage is no answer, as this would suggest that gays and lesbians can switch off their sexual orientation and choose to be content with the universe of opposite-sex partners approved by the State. Defendants offer no other answer. In their effort to avoid the question, Defendants commit the same analytical mistake as the majority in Bowers v. Hardwick, the decision that declined to “announce a fundamental right to engage in homosexual sodomy.” 478 U.S. 186, 191, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), overruled by Lawrence, 539 U.S. at 577, 123 S.Ct. 2472. The crucial mistake in Bowers was that the majority narrowed and thus “fail[ed] to appreciate the extent of the liberty at stake.” Lawrence, 539 U.S. at 567, 123 S.Ct. 2472. For that reason, the Supreme Court in Lawrence concluded “Bowers was not correct when it was decided, and it is not correct today.” Id. at 577, 123 S.Ct. 2472. Lawrence instructs not only that gay and lesbian individuals enjoy the same fundamental rights to make intimate personal choices as heterosexual individuals enjoy, but that judicial attempts to parse those rights out of existence will be met with a harsh rebuke. The Supreme Court’s marriage cases recognize an individual’s fundamental right to marry. The right transcends one’s race, confinement to prison, or ability to support children. Lawrence unequivocally cements marriage as among the constitutionally protected liberties shared by homosexual and heterosexual persons alike. The teaching of these cases is that the fundamental right to marry cannot be narrowed in the manner Defendants urge. Idaho’s Marriage Laws render the Plaintiff couples legal strangers, stripping them of the choice to marry or remain married in the state they call home. Therefore, Idaho’s Marriage Laws impermissibly infringe on Plaintiffs’ fundamental right to marry. C. Equal Protection Plaintiffs also claim Idaho’s Marriage Laws violate the Equal Protection Clause of the Fourteenth Amendment. That clause “commands that no State shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (quoting U.S. Const., amend. XIV., § 1). The equal protection guarantee is in tension with the reality that laws almost inevitably draw lines between groups of people, advantaging some and disadvantaging others. Romer v. Evans, 517 U.S. 620, 631, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996). The Supreme Court has developed tiers of judicial scrutiny in an effort to reconcile this practical reality with the constitutional principle. The level of scrutiny depends on the characteristics of the disadvantaged group or the rights implicated by the classification. A law that neither targets a suspect class nor burdens a fundamental right is subject to rational basis scrutiny. Heller v. Doe, 509 U.S. 312, 319-21, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993). The Court in such cases presumes the law is valid unless the challenger can show the difference in treatment bears no rational relation to a conceivable government interest. Id. “A classification does not fail rational-basis review because it ‘is not made with mathematical nicety or because in practice it results in some inequality.’ ” Id. at 321, 113 S.Ct. 2637 (quoting Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970)). But, even under this most deferential standard, the “State may not rely on a classification whose relationship to the asserted goal is so attenuated as to render the decision arbitrary or irrational.” Cleburne, 473 U.S. at 446, 105 S.Ct. 3249. For this reason, courts “insist on knowing the relation between the classification adopted and the object to be attained.” Romer, 517 U.S. at 632, 116 S.Ct. 1620; see also Heller, 509 U.S. at 321, 113 S.Ct. 2637 (explaining the classification must “find some footing in the realities of the subject addressed by the legislation”). Strict scrutiny lies at the other end of the spectrum. This level of scrutiny applies when a legislative classification “impermissibly interferes with the exercise of a fundamental right or operates to the peculiar disadvantage of a suspect class.” Mass. Bd. of Retirement v. Murgia, 427 U.S. 307, 312, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976). Such classifications are presumed unconstitutional and will survive strict scrutiny only when the government can show the law is narrowly tailored to a compelling governmental interest. See Zablocki, 434 U.S. at 388, 98 S.Ct. 673. “Between the extremes of rational basis review and strict scrutiny lies a level of intermediate scrutiny, which generally has been applied to discriminatory classifications based on sex or illegitimacy.” Clark v. Jeter, 486 U.S. 456, 461, 108 S.Ct. 1910, 100 L.Ed.2d 465 (1988). These classifications are considered “quasi-suspect,” and survive heightened constitutional scrutiny only if the State shows the classification is “substantially related to an important governmental objective.” Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724, 102 S.Ct. 3331, 73 L.Ed.2d 1090 (1982). Discrimination against a quasi-suspect class, such as women, must be supported by an “exceedingly persuasive justification” and “not hypothesized or invented post hoc in response to litigation.” United States v. Virginia, 518 U.S. 515, 533, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996). The purpose of this heightened level of scrutiny is to ensure quasi-suspect classifications do not perpetuate unfounded stereotypes or second-class treatment. Id. at 534, 116 S.Ct. 2264. The Court’s principal tasks here are to determine the form of discrimination at issue and next identify and apply the appropriate level of scrutiny. 1. Form of Discrimination Plaintiffs argue that Idaho’s Marriage Laws discriminate against individuals on the basis of sex and sexual orientation. The Defendants counter that Idaho’s Marriage Laws do not prefer one sex over the other, nor do they target gay and lesbian persons. A person’s gender and sexual orientation are two sides of the same coin. As one court aptly observed, “sex and sexual orientation are necessarily interrelated, as an individual’s choice of romantic or intimate partner based on sex is a large part of what defines an individual’s sexual orientation.” Perry v. Schwarzenegger, 704 F.Supp.2d 921, 996 (N.D.Cal.2010). However, the Supreme Court has not equated sexual orientation discrimination and sex discrimination despite several opportunities to do so. See Romer, 517 U.S. at 635, 116 S.Ct. 1620 (“We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else.”); Lawrence, 539 U.S. at 583, 123 S.Ct. 2472 (O’Connor, J., concurring) (“[T]he conduct targeted by this law is conduct that is closely correlated with being homosexual.”); Windsor, 133 S.Ct. at 2695 (“The class to which DOMA directs its restrictions and restraints are those persons who are joined in same-sex marriages made lawful by the State.”). Considering the Supreme Court’s treatment of this issue, this Court finds that sex discrimination and sexual orientation discrimination are “distinct phenomena.” In re Marriage Cases, 43 Cal.4th 757, 76 Cal.Rptr.3d 683, 183 P.3d 384, 439 (2008); see also Bishop v. U.S., 962 F.Supp.2d 1252 (N.D.Okla.2014) (“Common sense dictates that the intentional discrimination occurring in this case has nothing to do with gender-based prejudice or stereotypes, and the law cannot be subject to heightened scrutiny on that basis.”). Idaho’s Marriage Laws allow heterosexuals, but not homosexuals, to marry and thus clearly discriminate on the basis of sexual orientation. This distinction does not prefer one gender over the other — two men have no more right to marry under Idaho law than two women. In other words, Idaho’s Marriage Laws are facially gender neutral and there is no evidence that they were motivated by a gender discriminatory purpose. See In re Kandu, 315 B.R. 123, 143 (Bankr.W.D.Wash.2004) (“The test to evaluate whether a facially gender-neutral statute discriminates on the basis of sex is whether the law can be traced to a discriminatory purpose.”) (internal quotations omitted). 2. Level of Scrutiny Plaintiffs advance two reasons for applying heightened scrutiny to Idaho’s Marriage Laws. First, they argue sexual orientation is subject to heightened scrutiny under recent precedent of the United States Court of Appeals for the Ninth Circuit. Second, they claim that classifications based on sexual orientation are constitutionally suspect. a. Ninth Circuit Precedent Plaintiffs first argue that heightened scrutiny applies to sexual orientation discrimination by virtue of the Ninth Circuit’s recent decision in SmithKline Beecham Corp. v. Abbott Laboratories, 740 F.3d 471, 484 (9th Cir.2014). The Defendants claim SmithKline is distinguishable on its facts. The State and Recorder Rich argue SmithKline is a case about discriminatory jury selection and, as such, its holding is limited to cases involving intentional sexual orientation discrimination based on stereotypes. In a similar vein, Governor Otter claims SmithKline is inapplicable because Idaho’s Marriage Laws are not motivated by animus toward homosexuals. Defendants misread the case. SmithKline involved a constitutional challenge to a preemptory strike of a prospective juror during jury selection for a trial between two pharmaceutical companies, SmithKline Beecham and Abbott Laboratories. The parties’ dispute centered on the pricing of HIV medications, which is “a subject of considerable controversy in the gay community.” Id. at 474. During the jury selection process, Juror B was the only self-identified gay member of the jury pool. Immediately after Abbott exercised its first peremptory strike against Juror B, SmithKline’s counsel raised a Batson challenge that the trial judge denied. The Ninth Circuit concluded that Abbott’s challenge amounted to purposeful sexual orientation discrimination before answering the dispositive question: Whether classifications based on sexual orientation are subject to heightened scrutiny. To answer this question, the Ninth Circuit looked to the Supreme Court’s equal protection analysis in Windsor. Although Windsor does not announce the level of scrutiny, the SmithKline court considered what the Supreme Court “actually did” and determined the Supreme Court’s analysis was inconsistent with pure rational basis review. Id. at 481. SmithKline’s, examination of Windsor is authoritative and binding upon this Court. According to SmithKline, Windsor’s constitutional analysis exhibits none of the hallmarks of rational basis review. First, the Supreme Court ignored the hypothetical justifications for the Defense of Marriage Act and instead carefully considered the law’s actual purpose. Id. at 481-82 (citing Windsor, 133 S.Ct. at 2693-94). Second, “the critical part of Windsor begins by demanding that Congress’s purpose ‘justify disparate treatment of the group.’ ” Id. at 482 (quoting Windsor, 133 S.Ct. at 2693). Wholly inconsistent with rational basis review, this demand neither defers to legislative choices nor presumes a law is constitutional. Compare Williamson v. Lee Optical, 348 U.S. 483, 487, 75 S.Ct. 461, 99 L.Ed. 563 (1955) (“[I]t is for the legislature, not the courts, to balance the advantages and disadvantages of the new requirement.”) with Windsor, 133 S.Ct. at 2696 (“The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.”). Concluding its analysis, the Ninth Circuit held that “Windsor requires that when state action discriminates on the basis of sexual orientation, we must examine its actual purposes and carefully consider the resulting inequality to ensure that our most fundamental institutions neither send nor reinforce messages of stigma or second-class status.” SmithKline, 740 F.3d at 483. This holding is unqualified and logically preceded the court’s analysis of the Batson challenge. Indeed, the Batson analysis otherwise would have been foreclosed because the Ninth Circuit’s pre-Windsor equal protection precedent held that sexual orientation discrimination is subject to rational basis review. See High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563 (9th Cir.1990), abrogation recognized by SmithKline, 740 F.3d at 483. Reexamining its precedent in light of Windsor, the SmithKline court found that “earlier cases applying rational basis review to classifications based on sexual orientation cannot be reconciled with Windsor.” 740 F.3d at 483. Only after the Ninth Circuit found Juror B belonged to a group subject to heightened scrutiny did it then proceed with its Batson analysis. In this Court’s view, SmithKline establishes a broadly applicable equal protection principle that is not limited to the jury selection context. Also, contrary to Defendants’ contentions, SmithKline does not limit the application of heightened scrutiny to instances of proven animus or irrational stereotyping. SmithKline addresses purposeful discrimination and the perpetuation of impermissible stereotypes, but it does so in the context of the Batson analysis — not in the discussion about Windsor. Id. at 484-86. With respect to Windsor, the court’s holding is undeniably broad: “Windsor’s heightened scrutiny applies to classifications based on sexual orientation.” Id. at 483. Had the Ninth Circuit intended to limit its holding to cases involving animus or irrational stereotyping, it easily could have done so. Instead, it found Windsor to be “dispositive of the question of the appropriate level of scrutiny in this case,” a case that fits into the broader category of “classifications based on sexual orientation.” Id. at 480. Just as the Ninth Circuit was “bound by [Windsor’s] controlling, higher authority” when deciding SmithKline, this Court is bound to apply Windsor’s heightened scrutiny to Idaho’s Marriage Laws. b. Suspect class Apart from SmithKline, Plaintiffs also contend Idaho’s Marriage Laws are subject to heightened scrutiny because classifications based on sexual orientation are constitutionally suspect. The Court need not dissect this argument because the Supreme Court has accepted it by implication. If homosexuals are not a suspect or quasi-suspect class, the Supreme Court would have applied rational basis scrutiny in Windsor. But, as recognized in Smith-Kline, the Supreme Court applied heightened scrutiny. Indeed, the Supreme Court affirmed the Second Circuit without questioning (or even discussing) the lower court’s express holding: A) homosexuals as a group have historically endured persecution and discrimination; B) homosexuality has no relation to aptitude or ability to contribute to society; C) homosexuals are a discernible group .with non-obvious distinguishing characteristics, especially in the subset of those who enter same-sex marriages; and D) the class remains a politically weakened minority. Windsor v. United States, 699 F.3d 169, 181-82 (2d Cir.2012), aff'd United States v. Windsor, — U.S. -, 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013). The Second Circuit’s holding was both approved and essential to the scrutiny the Supreme Court applied in Windsor. Had the Supreme Court disagreed with the Second Circuit, it would not have applied heightened scrutiny. It is not necessary to repeat the Second Circuit’s analysis, for that analysis is implicit in both Windsor and Smith-Kline. D. Idaho’s Marriage Laws Fail Constitutional Scrutiny Because Idaho’s Marriage Laws imper-missibly infringe on Plaintiffs’ fundamental right to marry, the Laws are subject to strict due process and equal protection scrutiny. But SmithKline directs the Court to apply heightened equal protection scrutiny to laws that discriminate on the basis of sexual orientation. Idaho’s Marriage Laws do not withstand this heightened scrutiny. At a minimum, the Court must examine Idaho’s Marriage Laws “and carefully consider the resulting inequality to ensure that our most fundamental institutions neither send nor reinforce messages of stigma or second-class status.” SmithKline, 740 F.3d at 483. Based on Windsor, and as explained in SmithMine, four principles guide the Court’s equal protection analysis. The Court (1) looks to the Defendants to justify Idaho’s Marriage Laws, (2) must consider the Laws’ actual purposes, (3) need not accept hypothetical, post hoc justifications for the Laws, and (4) must decide whether the Defendants’ proffered justifications overcome the injury and indignity inflicted on Plaintiffs and others like them. See id. at 481-83. These principles most closely correspond to the intermediate scrutiny test applied to quasi-suspect classifications based on gender and illegitimacy. See Windsor v. United States, 699 F.3d 169, 185-88 (2d Cir.2012) (applying intermediate scrutiny). In those cases “the burden of justification is demanding and it rests entirely on the State.” United States v. Virginia, 518 U.S. 515, 533, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996). While intermediate scrutiny permits classifications designed to remedy economic injuries or promote equality, the test focuses on “differential treatment” and “denial of opportunity” to ensure that discriminatory laws do not “create or perpetua