Full opinion text
LUCERO, Circuit Judge. Our commitment as Americans to the principles of liberty, due process of law, and equal protection of the laws is made live by our adherence to the Constitution of the United States of America. Historical challenges to these principles ultimately culminated in the adoption of the Fourteenth Amendment nearly one-and-a-half centuries ago. This Amendment extends the guarantees of due process and equal protection to every person in every State of the Union. Those very principles are at issue yet again in this marriage equality appeal brought to us by the Governor and Attorney General of the State of Utah from an adverse ruling of the district court. We are told that because they felt threatened by state-court opinions allowing same-sex marriage, Utah legislators and — by legislature — initiated action — -the citizens of the State of Utah amended their statutes and state constitution in 2004 to ensure that the State “will not recognize, enforce, or give legal effect to any law” that provides “substantially equivalent” benefits to a marriage between two persons of the same sex as are allowed for two persons of the opposite sex. Utah Code § 30-1-4.1. These laws were also intended to assure non-recognition irrespective of how such a domestic union might be denominated, or where it may have been performed. Id. Plaintiffs challenged the constitutionality of these laws and the district court agreed with their position. Under 28 U.S.C. § 1291, we entertain the appeal of that ruling. Our Circuit has not previously considered the validity of same-sex marriage bans. When the seed of that question was initially presented to the United States Supreme Court in 1972, the Court did not consider the matter of such substantial moment as to present a justiciable federal question. Baker v. Nelson, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972) (per curiam). Since that date, the seed has grown, however. Last year the Court entertained the federal aspect of the issue in striking down § 3 of the Defense of Marriage Act (“DOMA”), United States v. Windsor, — U.S. -, 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013), yet left open the question presented to us now in full bloom: May a State of the Union constitutionally deny a citizen the benefit or protection of the laws of the State based solely upon the sex of the person that citizen chooses to marry? Having heard and carefully considered the argument of the litigants, we conclude that, consistent with the United States Constitution, the State of Utah may not do so. We hold that the Fourteenth Amendment protects the fundamental right to marry, establish a family, raise children, and enjoy the full protection of a state’s marital laws. A state may not deny the issuance of a marriage license to two persons, or refuse to recognize their marriage, based solely upon the sex of the persons in the marriage union. For the reasons stated in this opinion, we affirm. I Utah residents Derek Kitchen and Mou-di Sbeity have been in a loving, committed relationship for several years. The couple lives together in Salt Lake City, where they jointly own and operate a business. Kitchen declares that Sbeity “is the man with whom I have fallen in love, the man I want to marry, and the man with whom I want to spend the rest of my life.” In March 2013, Kitchen and Sbeity applied for a marriage license from the Salt Lake County Clerk’s office, but were denied because they are both men. Being excluded from the institution of marriage has caused Kitchen and Sbeity to undertake a burdensome process of drawing up wills and other legal documents to enable them to make important decisions for each other. Even with these protections, however, the couple cannot access various benefits of marriage, including the ability to file joint state tax returns and hold marital property. Sbeity also states that the legal documents the couple have obtained “do not and cannot provide the dignity, respect, and esteem” of marriage. The inability to “dignify [his] relationship” though marriage, Kitchen explains, communicates to him that his relationship with Sbeity is unworthy of “respect, equal treatment, and social recognition.” Laurie Wood and Kody Partridge are also Utah residents who wish to “confirm [their] life commitment and love” through marriage. They applied for a marriage license from the Salt Lake County Clerk’s office in March 2013, but were denied because they are both women. This denial made Wood “feel like a second class citizen.” The couple’s inability to marry carries financial consequences. Because Partridge will be unable to obtain benefits under Wood’s pension, the couple has procured additional life insurance policies. Partridge states that she and Wood face “risks and stigmas that none of [her] heterosexual married friends and family ever have to face.” She points to the example of her parents, who were married for fifty-five years, observing that her father never had to worry about his ability to be present or make medical decisions when his wife became terminally ill. Wood hopes that marriage to Partridge will allow “both society and our families [to] recognize the life commitment and love we feel for each other.” Karen Archer and Kate Call are also Utah residents in a loving, committed relationship. Archer, who suffers from chronic health problems, fears that the legal documents the couple has prepared will be subject to challenge if she passes away. Her past experience surviving other partners informs this fear. Although the documents she prepared in a prior relationship served their purpose when her former partner passed, Archer was ineligible to receive her partner’s military pension benefits. Seeking the security enjoyed by other married couples, Archer and Call travelled to Iowa in July 2011, where they were wed. Because they could not be married in their home'state, financial constraints dictated a modest wedding unattended by family and friends. “Despite the inconvenience and sad pragmatism of our Iowa marriage,” Call explains, “we needed whatever protections and security we could get for our relationship” because of Archer’s failing health. However, Utah does not recognize Archer and Call’s marriage. In March 2013, Kitchen, Sbeity, Wood, Partridge, Archer, and Call filed suit against the Governor and Attorney General of Utah and the Clerk of Salt Lake County (all in their official capacities). Plaintiffs challenged three provisions of Utah law relating to same-sex marriage. Utah Code § 30-1-2(5) includes among the marriages that are “prohibited and declared void” those “between persons of the same sex.” Id. In 2004, the Utah Legislature passed § 30-1-4.1, which provides: (1)(a) It is the policy of this state to recognize as marriage only the legal union of a man and a woman as provided in this chapter. (b) Except for the relationship of marriage between a man and a woman recognized pursuant to this chapter, this state will not recognize, enforce, or give legal effect to any law creating any legal status, rights, benefits, or duties that are substantially equivalent to those provided under Utah law to a man and a woman because they are married. (2) Nothing in Subsection (1) impairs any contract or other rights, benefits, or duties that are enforceable independently of this section. Id. The Legislature also referred a proposed constitutional amendment, known as Amendment 3, to Utah’s voters. It states: (1) Marriage consists only of the legal union between a man and a woman. (2) No other domestic union, however denominated, may be recognized as a marriage or given the same or substantially equivalent legal effect. Utah Const, art. I, § 29; see Laws 2004, H.J.R. 25 § 1. The State’s official voter pamphlet described rulings by courts in other states striking down statutory prohibitions on same-sex marriage as inconsistent with state constitutional provisions. In the “arguments for” section, written by a state representative and a state senator, the proponents argued that the Amendment was necessary to protect against a similar state-court ruling. They posited that the proposed amendment would not “promote intolerance, hatred, or bigotry” but would instead “preserve[ an] historic understanding of marriage” rooted in “government’s strong interest in maintaining public morality, the justified preference for heterosexual marriage with its capacity to perpetuate the human race and the importance of raising children in that preferred relationship.” Opponents of the amendment argued that it “singles out one specific group — people who are our relatives, neighbors, and co-workers— to deny them hundreds of rights and protections that other Utahns enjoy.” Amendment 3 passed with approximately 66% of the vote and became § 29 of Article I of the Utah Constitution. This opinion will refer to both of the foregoing statutes, along with the constitutional amendment, collectively as “Amendment 3.” Plaintiffs allege that Amendment 3 violates their right to due process under the Fourteenth Amendment by depriving them of the fundamental liberty to marry the person of their choice and to have such a marriage recognized. They also claim that Amendment 3 violates the Equal Protection Clause of the Fourteenth Amendment. Plaintiffs asserted their claims under 42 U.S.C. § 1983, seeking both a declaratory judgment that Amendment 3 is unconstitutional and an injunction prohibiting its enforcement. On cross motions for summary judgment, the district court ruled in favor of the plaintiffs. It concluded that “[a]ll citizens, regardless of their sexual identity, have a fundamental right to liberty, and this right protects an individual’s ability to marry and the intimate choices a person makes about marriage and family.” Kitchen v. Herbert, 961 F.Supp.2d 1181, 1204 (D.Utah 2013). The court further held that Amendment 3 denied plaintiffs equal protection because it classified based on sex and sexual orientation without a rational basis. Id. at 1206-07, 1210-15. It declared Amendment 3 unconstitutional and permanently enjoined enforcement of the challenged provisions. Id. at 1216. Utah’s Governor and Attorney General filed a timely notice of appeal and moved to stay the district court’s decision. Both the district court and this court denied a stay. The Supreme Court, however, granted a stay of the district court’s injunction pending final disposition of the appeal by this court. II We first consider the issue of standing, although it was not raised by the parties. See Dias v. City & Cnty. of Denver, 567 F.3d 1169, 1176 (10th Cir.2009) (“[Standing is a component of this court’s jurisdiction, and we are obliged to consider it sua sponte to ensure the existence of an Article III case or controversy.”). To possess Article III standing, a plaintiff must “establish (1) that he or she has suffered an injury in fact; (2) that the injury is fairly traceable to the challenged action of the defendant; and[](3) that it is likely that the injury will be redressed by a favorable decision.” Awad v. Ziriax, 670 F.3d 1111, 1120 (10th Cir.2012) (quotations omitted). Plaintiffs suing public officials can satisfy the causation and redressability requirements of standing by demonstrating “a meaningful nexus” between the defendant and the asserted injury. Bronson v. Swensen, 500 F.3d 1099, 1111-12 (10th Cir.2007). “[T]he causation element of standing requires the named defendants to possess authority to enforce the complained-of provision,” id. at 1110, and “[t]he redressability prong is not met when a plaintiff seeks relief against a defendant with no power to enforce a challenged statute,” id. at 1111. “Whether the Defendants have enforcement authority is related to whether, under Ex parte Young, they are proper state officials for suit.” Cressman v. Thompson, 719 F.3d 1139, 1146 n. 8 (10th Cir.2013) (citation omitted). Under Ex parte Young, a state defendant sued in his official capacity must “have some connection with the enforcement” of a challenged provision. 209 U.S. 123, 157, 28 S.Ct. 441, 52 L.Ed. 714 (1908). “An officer need not have a special connection to the allegedly unconstitutional statute; rather, he need only have a particular duty to enforce the statute in question and a demonstrated willingness to exercise that duty.” Chamber of Commerce of the U.S. v. Edmondson, 594 F.3d 742, 760 (10th Cir.2010) (quotation omitted); see also Finstuen v. Crutcher, 496 F.3d 1139, 1151 (10th Cir.2007) (“So long as there is [some] connection [with enforcement of the act], it is not necessary that the officer’s enforcement duties be noted in the act.” (quotation omitted)). We have no doubt that at least four of the plaintiffs possessed standing to sue the Salt Lake County Clerk based on their inability to obtain marriage licenses from the Clerk’s office. Plaintiffs have identified several harms that flow from this denial, including financial injury. See Nova Health Sys. v. Gandy, 416 F.3d 1149, 1155 (10th Cir.2005) (economic loss may constitute injury-in-fact). Because county clerks are responsible under Utah law for issuing marriage licenses and recording marriage certificates, Utah Code §§ 30-1-7(1) & 30-1-12(1), these plaintiffs’ injuries were caused by the Clerk’s office and would be cured by an injunction prohibiting the enforcement of Amendment 3. Accordingly, the Salt Lake County Clerk possessed the requisite nexus to plaintiffs’ injuries. The Salt Lake County Clerk, however, has not appealed from the district court’s order. We must therefore consider whether the Governor and Attorney General are proper appellants absent the County Clerk. See Hollingsworth v. Perry, — U.S. -, 133 S.Ct. 2652, 2661, 186 L.Ed.2d 768 (2013) (“[Standing must be met by persons seeking appellate review, just as it must be met by persons appearing in courts of first instance.” (quotation omitted)). In Bishop v. Oklahoma ex rel. Edmondson, 333 Fed.Appx. 361 (10th Cir.2009) (unpublished), we held that Oklahoma’s Governor and Attorney General were not proper defendants in a challenge to that state’s prohibition on same-sex marriage. Id. at 365. Because of the legal and factual differences between that case and this one, we reach the opposite conclusion as to Utah’s Governor and Attorney General. Our holding in Bishop turned on the conclusion that marriage licensing and recognition in Oklahoma were “within the administration of the judiciary.” Id. The district court clerk charged with various duties related to marriage “ ‘is judicial personnel and is an arm of the court ... subject to the control of the Supreme Court and the supervisory control that it has passed down to the Administrative District Judge in the clerk’s administrative district.’ ” Id. (quoting Speight v. Presley, 203 P.3d 173, 177 (Okla.2008) (additional internal quotation omitted)). Accordingly, we concluded that “the executive branch of Oklahoma’s government has no authority to issue a marriage license or record a marriage.” Id. In Utah, marriage licenses are issued not by court clerks but by county clerks. See Utah Code §§ 17-20-4 (listing duties of county clerks) & 17-53-101 (providing for election of county clerks). The Governor and Attorney General have explicitly taken the position in this litigation that they “have ample authority to ensure that” the Salt Lake County Clerk “return[s] to her former practice of limiting marriage licenses to man-woman couples in compliance with Utah law.” This assertion is supported by the Utah Code. The Governor is statutorily charged with “supervising] the official conduct of all executive and ministerial officers” and “see[ing] that all offices are filled and the duties thereof performed.” § 67-1-1(1) & (2). In addition, he “may require the attorney general to aid any county attorney or district attorney in the discharge of his duties.” § 67-1-1(7). Utah law allows an action for the removal of a county officer for “malfeasance in office” to be brought by a “county attorney, or district attorney for the county in which the officer was elected or appointed, or by the attorney general.” §§ 77-6-1 & -2. The Attorney General is required to “exercise supervisory powers over the district and county attorneys of the state in all matters pertaining to the duties of their offices” and “when required by the public service or directed by the governor, assist any county, district, or city attorney in the discharge of his duties.” § 67-5-1(6) & (8). A clerk who “knowingly issues a license for any prohibited marriage is guilty of a class A misdemeanor.” § 30-1-16. Such charges would be filed by a county or district attorney under the supervision of the Attorney General. See § 17-18a-201 (district and county attorneys act as public prosecutors). And the Governor could order the Attorney General to assist in such prosecution. § 67-1-1(7). The Governor and Attorney General have also demonstrated a “willingness to exercise” their duty to ensure clerks and other state officials enforce Amendment 3. Chamber of Commerce, 594 F.3d at 760 (quotation omitted). The record shows that the Governor coordinated state agencies’ response to the district court’s order, informing his cabinet: For those agencies that now face conflicting laws either in statute or administrative rule, you should consult with the Assistant Attorney Generals assigned to your agency on the best course to resolve those conflicts. You should also advise your analyst in [the Governor’s Office of Management and Budget] of the plans for addressing the conflicting laws. Where no conflicting laws exist you should conduct business in compliance with the federal judge’s ruling until such time that the current district court decision is addressed by the 10th Circuit Court. Thus, state agencies with responsibility for the recognition of out-of-state marriages are being directed by the Governor in consultation with the Attorney General. These officials’ authority over such agencies is confirmed by Utah law. For example, Plaintiffs Archer and Call, who were married in Iowa, specifically seek to file joint Utah tax returns. Although the Utah State Tax Commission is charged in the first instance with the duty “to administer and supervise the tax laws of the state,” Utah Code § 59-1-210(5), the Attorney General in his constitutional role as “the legal adviser of the State officers,” Utah Const, art. VII, § 16, is required by statute to offer his “opinion in writing ... to any state officer, board, or commission,” Utah Code § 67-5-1(7). The Attorney General considers his opinions to the Utah State Tax Commission, even informal ones, to be “authoritative for the purposes” of the Commission “with respect to the specific questions presented.” Applicability of Sales & Use Tax to Transfer of Motor Vehicle from a Partner to a P’ship, Op. Utah Att’y Gen. 86-13 (1987), 1987 Utah AG LEXIS 15, at *22. The Attorney General is empowered to direct the Tax Commission to recognize Archer and Call’s Iowa wedding, and the Commission would be legally obligated to follow that instruction and accept a joint tax return. Accordingly, Archer and Call had standing to sue the Attorney General for the injuries caused by Amendment 3’s nonrecognition provisions. See generally Coll v. First Am. Title Ins. Co., 642 F.3d 876, 892 (10th Cir.2011) (“Plaintiffs must have standing to seek each form of relief in each claim.” (quotation omitted)). The same is true with respect to the Governor. Utah’s “executive power” is “vested in the Governor.” Utah Const, art. VII, § 5. In the exercise of that power, the Governor appoints the state’s tax commissioners and has the power to initiate proceedings to remove them from office. Utah Code § 59-1-201. Shortly after the Governor sent the above-quoted message to state agencies, the Tax Commission issued a Tax Notice stating that “[s]ame-sex couples who are eligible to file a joint federal income tax return and who elect to file jointly, may also file a joint 2013 Utah Individual Income Tax return.” Utah State Tax Commission, Individual Income Tax Returns for Same-Sex Couples for Tax Year 2013 (Jan. 15, 2014) (available at http://tax.utah.gov/notice/2014-01-15.pdf). The Tax Notice refers to the district court’s injunction, noting that a stay of that order had not been granted as of December 31, 2013. Id. Thus, one of the injuries explicitly cited by plaintiffs Archer and Call has been at least temporarily redressed by the district court’s decision and actions taken in response to it by the Governor after consultation with the Attorney General. We conclude that the Governor’s and the Attorney General’s actual exercise of supervisory power and their authority to compel compliance from county clerks and other officials provide the requisite nexus between them and Amendment 3. Although “it does not suffice if the injury complained of is the result of the independent action of some third party not before the court, that does not exclude injury produced by determinative or coercive effect upon the action of someone else.” Bennett v. Spear, 520 U.S. 154, 169, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (quotation, alteration, and emphasis omitted). And a state official is a proper defendant if he is “responsible for general supervision of the administration by the local ... officials” of a challenged provision. Papasan v. Allain, 478 U.S. 265, 282 n. 14, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) (quotation omitted). This is so even if the state officials are “not specifically empowered to ensure compliance with the statute at issue,” if they “clearly have assisted or currently assist in giving effect to the law.” Prairie Band Potawatomi Nation v. Wagnon, 476 F.3d 818, 828 (10th Cir.2007) (footnote omitted). Having concluded that the Governor and Attorney General were properly made defendants below, we hold that they have standing to appeal the district court’s decision without participation of the Salt Lake County Clerk. See Finstuen, 496 F.3d at 1151 (“Nothing in Ex Parte Young requires that any appeal of a lower court’s judgment involve all named state defendants.”). As unsuccessful parties below, both appellants were “injured by the judgment sought to be reviewed.” Parr v. United States, 351 U.S. 513, 516, 76 S.Ct. 912, 100 L.Ed. 1377 (1956); see also Concorde Res., Inc. v. Woosley (In re Woosley), 855 F.2d 687, 688 (10th Cir.1988) (“Ordinarily, only a litigant who is a party below and who is aggrieved by the judgment or order may appeal.” (quotation and emphasis omitted)). Both the Governor and the Attorney General are subject to the district court’s injunction prohibiting them from enforcing Amendment 3. See Kitchen, 961 F.Supp.2d at 1216; cf. Hollingsworth, 133 S.Ct. at 2662 (concluding appellants lacked standing to appeal because “the District Court had not ordered [the intervenors] to do or refrain from doing anything”). We thus conclude that standing issues do not prevent us from considering this appeal. Ill In 1972, the Supreme Court summarily “dismissed for want of substantial federal question” an appeal from the Minnesota Supreme Court upholding a ban on same-sex marriage. Baker, 409 U.S. 810, 93 S.Ct. 37. The state court considered “whether a marriage of two persons of the same sex is authorized by state statutes and, if not, whether state authorization is constitutionally compelled.” Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185, 185 (1971). It concluded that the statute used the term “marriage” as “one of common usage, meaning the state of union between persons of the opposite sex.” Id. at 185-86. The state court further reasoned that “[t]he institution of marriage as a union of man and woman, uniquely involving the procreation and rearing of children within a family, is as old as the book of Genesis” and that “[t]he due process clause of the Fourteenth Amendment is not a charter for restructuring [the institution of marriage] by judicial legislation.” Id. at 186. As to the Equal Protection Clause, the court ruled that “[t]here is no irrational or invidious discrimination” because “in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex.” Id. at 187. The Supreme Court has held that “summary dismissals are, of course, to be taken as rulings on the merits, in the sense that they rejected the specific challenges presented in the statement of jurisdiction and left undisturbed the judgment appealed from.” Washington v. Confederated Bands & Tribes of Yakima Indian Nation, 439 U.S. 463, 477 n. 20, 99 S.Ct. 740, 58 L.Ed.2d 740 (1979) (quotation and citation omitted). Summary dismissals do not, however, have the same prece-dential value here as does an opinion of this Court after briefing and oral argument on the merits. A summary dismissal of an appeal represents no more than a view that the judgment appealed from was correct as to those federal questions raised and necessary to the decision. It does not, as we have continued to stress, necessarily reflect our agreement with the opinion of the court whose judgment is appealed. Id. (citations omitted); see Neely v. Newton, 149 F.3d 1074, 1079 (10th Cir.1998) (“The Supreme Court has cautioned that for purposes of determining the binding effect of a summary action, the action should not be interpreted as adopting the rationale of the lower court, but rather as affirming only the judgment of that court.”). “Summary affirmances and dismissals for want of a substantial federal question without doubt reject the specific challenges presented in the statement of jurisdiction.” Mandel v. Bradley, 432 U.S. 173, 176, 97 S.Ct. 2238, 53 L.Ed.2d 199 (1977). And “[t]hey do prevent lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions.” Id. “[I]f the Court has branded a question as unsubstantial, it remains so except when doctrinal developments indicate otherwise.” Hicks v. Miranda, 422 U.S. 332, 344, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975) (quotation omitted). The district court concluded that “doctrinal developments” had superseded Baker. Kitchen, 961 F.Supp.2d at 1194-95. We agree. Two landmark decisions by the Supreme Court have undermined the notion that the question presented in Baker is insubstantial. Baker was decided before the Supreme Court held that “intimate conduct with another person ... can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.” Lawrence v. Texas, 539 U.S. 558, 567, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003). The decision in Baker also pre-dates the Court’s opinion in Windsor. Several courts held prior to Windsor that Baker controlled the same-sex marriage question. See, e.g., Massachusetts v. U.S. Dep’t of Health & Human Servs., 682 F.3d 1, 8 (1st Cir.2012) (“Baker does not resolve our own case but it does limit the arguments to ones that do not presume or rest on a constitutional right to same-sex marriage.”); Donaldson v. State, 367 Mont. 228, 292 P.3d 364, 371 n. 5 (2012) (“The U.S. Supreme Court’s action in Baker has been described as binding precedent.” (citations omitted)). However, since Windsor was decided, nearly every federal court to have considered the issue — -including the district court below— has ruled that Baker does not control. See Wolf v. Walker, No. 14-cv-64-bbc, 986 F.Supp.2d 982, 988-92, 2014 WL 2558444, at *3-6 (W.D.Wis. June 6, 2014); Whitewood v. Wolf, No. 1:13-cv-1861, 992 F.Supp.2d 410, 418-21, 2014 WL 2058105, at *4-6 (M.D.Pa. May 20, 2014); Geiger v. Kitzhaber, Nos. 6:13-cv-01834-MC & 6:13-cv-02256-MC, 994 F.Supp.2d 1128, 1133, 2014 WL 2054264, at *1 n. 1 (D.Or. May 19, 2014); Latta v. Otter, No. 1:13—cv-00482-CWD, - F.Supp.3d -, -, 2014 WL 1909999, at *9 (D.Idaho May 13, 2014); DeBoer v. Snyder, 973 F.Supp.2d 757, 774 n. 6 (E.D.Mich.2014); De Leon v. Perry, 975 F.Supp.2d 632, 648-49 (W.D.Tex.2014); Bostic v. Rainey, 970 F.Supp.2d 456, 470 (E.D.Va.2014); McGee v. Cole, No. 3:13-24068, 993 F.Supp.2d 639, 651-52, 2014 WL 321122, at *10 (S.D.W.Va. Jan. 29, 2014); Bishop v. United States ex rel. Holder, 962 F.Supp.2d 1252, 1277 (N.D.Okla.2014); Kitchen, 961 F.Supp.2d at 1195. But see Merritt v. Att’y Gen., No. 13-215-BAJ-SCR, 2013 U.S. Dist. LEXIS 163235, at *2 (M.D.La. Oct. 2, 2013), magistrate judge report adopted by 2013 U.S. Dist. LEXIS 162583 (M.D.La. Nov. 13, 2013) (citing Baker as controlling in dismissing pro se complaint, but not considering whether doctrinal developments had undermined Baker). We acknowledge that the question presented in Windsor is not identical to the question before us. DOMA interfered with New York’s decision “that same-sex couples should have the right to marry and so live with pride in themselves and their union and in a status of equality with all other married persons,” a decision designed to “correct what its citizens and elected representatives perceived to be an injustice that they had not earlier known or understood.” Windsor, 133 S.Ct. at 2689. The “State used its historic and essential authority to define the marital relation in this way,” and “its role and its power in making the decision enhanced the recognition, dignity, and protection of the class in their own community.” Id. at 2692. Because DOMA used this “state-defined class for the opposite purpose — to impose restrictions and disabilities,” the Court framed the dispositive question as “whether the resulting injury and indignity is a deprivation of an essential part of the liberty protected by the Fifth Amendment.” Id. Although it is true that Windsor resolved tension between a state law permitting same-sex marriage and a federal non-recognition provision, the Court’s description of the issue indicates that its holding was not solely based on the scope of federal versus state powers. Appellants stress the presence of these federalism concerns in Windsor, which, as the Chief Justice noted in dissent, “come into play on the other side of the board in ... cases about the constitutionality of state” bans on same-sex marriage. Id. at 2697 (Roberts, C.J., dissenting). The Windsor majority stated repeatedly that the regulation of marriage has traditionally been a state function. See id. at 2691 (“State laws defining and regulating marriage, of course, must respect the constitutional rights of persons, but, subject to those guarantees, regulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States.” (quotation and citation omitted)); id. (“The states, at the time of the adoption of the Constitution, possessed full power over the subject of marriage and divorce.... ” (quotation and alterations omitted)); id. (“Consistent with this allocation of authority, the Federal Government, through our history, has deferred to state-law policy decisions with respect to domestic relations.”). Appellants urge us to conclude that the “principles of federalism that Windsor would later reaffirm” require us to adhere to the Court’s summary affirmance in Baker. However, the Windsor Court also explained that the federal government “in enacting discrete statutes, can make determinations that bear on marital rights and privileges.” Id. at 2690. For example, Congress can preempt state marriage laws dealing with insurance proceeds in a federal program, reject sham marriages for immigration purposes even if the marriage is valid under state law, and recognize common-law marriage for the purpose of establishing income-based Social Security benefit eligibility regardless of state law. Id. The Windsor Court concluded it was “unnecessary to decide whether” DOMA “is a violation of the Constitution because it disrupts the federal balance.” Id. at 2692. Rather than relying on federalism principles, the Court framed the question presented as whether the “injury and indignity” caused by DOMA “is a deprivation of an essential part of the liberty protected by the Fifth Amendment.” Id. And the Court answered that question in the affirmative: The liberty protected by the Fifth Amendment’s Due Process Clause contains within it the prohibition against denying to any person the equal protection of the laws. While the Fifth Amendment itself withdraws from Government the power to degrade or demean in the way this law does, the equal protection guarantee of the Fourteenth Amendment makes that Fifth Amendment right all the more specific and all the better understood and preserved. Id. at 2695 (citations omitted). “The history of DOMA’s enactment and its own text,” the Court concluded, “demonstrate that interference with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its essence.” Id. at 2693. DOMA “impose[d] a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages....” Id. The statute “undermine[d] both the public and private significance of state-sanctioned same-sex marriages” by telling “those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition.” Id. at 2694. And it “humiliate[d] tens of thousands of children now being raised by same-sex couples” by making “it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.” Id. Because DOMA’s “differentiation demeans [same-sex] couplets], whose moral and sexual choices the Constitution protects, see Lawrence, 539 U.S. 558, 123 S.Ct. 2472, and whose relationship[s] the State has sought to dignify,” the Court held that the statute violated the Fifth Amendment. Windsor, 133 S.Ct. at 2694-95. The Windsor majority expressly cabined its holding to state-recognized marriages, id. at 2696, and is thus not directly controlling. But the similarity between the claims at issue in Windsor and those asserted by the plaintiffs in this case cannot be ignored. This is particularly true with respect to plaintiffs Archer and Call, who seek recognition by Utah of a marriage that is valid in the state where it was performed. More generally, all six plaintiffs seek equal dignity for their marital aspirations. All claim that the state’s differential treatment of them as compared to opposite-sex couples demeans and undermines their relationships and their personal autonomy. Although reasonable judges may disagree on the merits of the same-sex marriage question, we think it is clear that doctrinal developments foreclose the conclusion that the issue is, as Baker determined, wholly insubstantial. IV We turn now to the merits of the issue before us. We must first decide whether the liberty interest protected in this case includes the right to marry, and whether that right is limited, as appellants contend, to those who would wed a person of the opposite sex. The district court granted summary judgment in favor of the plaintiffs. We review a grant of summary judgment de novo. Hobbs ex rel. Hobbs v. Zenderman, 579 F.3d 1171, 1179 (10th Cir.2009). A party is entitled to summary judgment only if, viewing the evidence in the light most favorable to the non-moving party, the movant is entitled to judgment as a matter of law. Id.; see Fed.R.Civ.P. 56(a). “We review the decision to grant a permanent injunction for abuse of discretion.” FTC v. Accusearch Inc., 570 F.3d 1187, 1201 (10th Cir.2009). To obtain a permanent injunction, a plaintiff must show: “(1) actual success on the merits; (2) irreparable harm unless the injunction is issued; (3) the threatened injury outweighs the harm that the injunction may cause the opposing party; and (4) the injunction, if issued, will not adversely affect the public interest.” Sw. Stainless, LP v. Sappington, 582 F.3d 1176, 1191 (10th Cir.2009). Because appellants have challenged only the merits aspect of the district court’s decision, we do not consider the remaining factors. See Bronson, 500 F.3d at 1104 (“[T]he omission of an issue in an opening brief generally forfeits appellate consideration of that issue.”). A “[A]ll fundamental rights comprised within the term liberty are protected by the Federal Constitution from invasion by the States.” Planned Parenthood v. Casey, 505 U.S. 833, 846-47, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (quotation omitted). The doctrine of substantive due process extends protections to fundamental rights “in addition to the specific freedoms protected by the Bill of Rights.” Washington v. Glucksberg, 521 U.S. 702, 720, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997); see also Casey, 505 U.S. at 848, 112 S.Ct. 2791 (“Neither the Bill of Rights nor the specific practices of States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects.”). To qualify as “fundamental,” a right must be “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 [it] were sacrificed.” Glucksberg, 521 U.S. at 720-21, 117 S.Ct. 2258 (quotations omitted). 1 There can be little doubt that the right to marry is a fundamental liberty. The marital relationship is older than the Bill of Rights — older than our political parties, older than our school system. Marriage is 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. Griswold v. Connecticut, 381 U.S. 479, 486, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). The Court has long recognized that marriage is “the most important relation in life.” Maynard v. Hill, 125 U.S. 190, 205, 8 S.Ct. 723, 31 L.Ed. 654 (1888). “Without doubt,” the liberty protected by the Fourteenth Amendment includes the freedom “to marry, establish a home[,] and bring up children.” Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923); see also Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) (“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.”). Appellants contend that these precedents and others establish only that opposite-sex marriage is a fundamental right. They highlight the Court’s admonition to undertake a “careful description of the asserted fundamental liberty interest.” Glucksberg, 521 U.S. at 721, 117 S.Ct. 2258 (quotation omitted). “This approach tends to rein in the subjective elements that are necessarily present in due-process judicial review.” Id.; see also Collins v. City of Harker Heights, 503 U.S. 115, 125, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992) (courts must exercise “utmost care” and be “reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchart-ered area are scarce and open-ended”). A right to same-sex marriage cannot be deeply rooted in our tradition, appellants argue, because “until recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage.” Windsor, 133 S.Ct. at 2689; see also id. at 2715 (Alito, J., dissenting) (“In this country, no State permitted same-sex marriage until the Massachusetts Supreme Judicial Court held in 2003 that limiting marriage to opposite-sex couples violated the State Constitution.”). But “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). In numerous cases, the Court has discussed the right to marry at a broader level of generality than would be consistent with appellants’ argument. The Loving Court concluded that a state statute voiding marriages between white and non-white participants violated the Due Process Clause. 388 U.S. at 4 n. 3, 12, 87 S.Ct. 1817. Marriage is one of the basic civil rights of man, fundamental to our very existence and survival. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. 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. Id. at 12, 87 S.Ct. 1817 (quotation and citation omitted). As the Court later explained, “Marriage is mentioned nowhere in the Bill of Rights and interracial marriage was illegal in most States in the 19th century, but the Court was no doubt correct in finding it to be an aspect of liberty protected against state interference by the substantive component of the Due Process Clause in Loving v. Virginia.” Casey, 505 U.S. at 847-48, 112 S.Ct. 2791 (citation omitted); see also Lawrence, 539 U.S. at 577-78, 123 S.Ct. 2472 (“[NJeither history nor tradition could save a law prohibiting miscegenation from constitutional attack.” (quotation omitted)). Thus the question as stated in Loving, and as characterized in subsequent opinions, was not whether there is a deeply rooted tradition of interracial marriage, or whether interracial marriage is implicit in the concept of ordered liberty; the right at issue was “the freedom of choice to marry.” Loving, 388 U.S. at 12, 87 S.Ct. 1817. Similarly, Zablocki considered an equal protection challenge to a state law barring individuals in arrearage of child support obligations from marrying. Because “the right to marry is of fundamental importance” and “the classification at issue ... significantly interfered] with the exercise of that right,” the Court determined that “critical examination of the state interests advanced in support of the classification [wa]s required.” Zablocki, 434 U.S. at 383, 98 S.Ct. 673 (quotation omitted). It cautioned that not “every state regulation which relates in any way to the incidents of or prerequisites for marriage must be subjected to rigorous scrutiny. To the contrary, reasonable regulations that do not significantly interfere with decisions to enter into the marital relationship may legitimately be imposed.” Id. at 386, 98 S.Ct. 673. But the statute at issue was impermissible because it constituted a “serious intrusion into [the] freedom of choice in an area in which we have held such freedom to be fundamental” and could not “be upheld unless it [wa]s supported by sufficiently important state interests and [wa]s closely tailored to effectuate only those interests.” Id. at 387, 388, 98 S.Ct. 673. The right at issue was characterized as the right to marry, not as the right of child-support debtors to marry. 2 It is true that both Loving and Zablocki involved opposite-sex couples. Such pairings, appellants remind us, may be naturally procreative — a potentially meaningful consideration given that the Court has previously discussed marriage and procreation together. See Skinner v. Oklahoma ex rel. Williamson, 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.”); Carey v. Population Servs. Int’l, 431 U.S. 678, 684-85, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977) (“[I]t it is clear that among the decisions that an individual may make without unjustified government interference are personal decisions relating to marriage, procreation, contraception, family relationships, and child rearing and education. The decision whether or not to beget or bear a child is at the very heart of this cluster of constitutionally protected choices.” (quotation omitted)). But the Court has also described the fundamental right to marry as separate from the right to procreate, including in Glucksberg itself, the case upon which appellants’ fundamental-right argument turns. See Glucksberg, 521 U.S. at 720, 117 S.Ct. 2258 (describing Loving as a right-to-marry case and Skinner as a right-to-procreate case); accord M.L.B. v. S.L.J., 519 U.S. 102, 116, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996) (same). Appellants’ contention that the right to marriage is fundamental because of its procreative potential is also undercut by Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). In Turner, the Court invalidated a prison rule barring inmates from marrying unless a prison superintendent found compelling reasons for the marriage. Id. at 81-82, 107 S.Ct. 2254. “[Generally only a pregnancy or the birth of an illegitimate child would be considered a compelling reason.” Id. at 82, 107 S.Ct. 2254. Thus, the challenged rule operated to bar inmates who had not procreated from marrying. The Court began its analysis of the marriage restriction by dismissing the argument that “the rule does not deprive prisoners of a constitutionally protected right” even though “the decision to marry is a fundamental right” because “a different rule should obtain in a prison forum.” Id. at 94-95, 107 S.Ct. 2254 (quotation and ellipses omitted). Despite the “substantial restrictions [imposed] as a result of incarceration,” the Court concluded, inmates could not be denied the fundamental right of marriage simply because of their imprisonment. Id. at 95, 107 S.Ct. 2254. The right at issue was never framed as “inmate marriage”; the Court simply asked whether the fact of incarceration made it impossible for inmates to benefit from the “important attributes of marriage.” Id.; see Latta, — F.Supp.3d at -, 2014 WL 1909999, at *12-13 (“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.”); Obergefell v. Wymyslo, 962 F.Supp.2d 968, 982 n. 10 (S.D.Ohio 2013) (“In individual cases regarding parties to potential marriages with a wide variety of characteristics, the Supreme Court consistently describes a general ‘fundamental right to marry’ rather than ‘the right to interracial marriage,’ ‘the right to inmate marriage,’ or ‘the right of people owing child support to marry.’ ”). The Turner Court’s description of the “important attributes of marriage [that] remain ... after taking into account the limitations imposed by prison life,” 482 U.S. at 95, 107 S.Ct. 2254, is relevant to the case at bar: 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. The Court ruled that “these remaining elements are sufficient to form a constitutionally protected marital relationship in the prison context” even under the “reasonable relationship test” applicable to prison regulations. Id. at 96-97, 107 S.Ct. 2254. As the Turner opinion highlights, the importance of marriage is based in great measure on “personal aspects” including the “expression[ ] of emotional support and public commitment.” Id. at 95-96, 107 S.Ct. 2254. This conclusion is consistent with the Court’s other pronouncements on the freedom to marry, which focus on the freedom to choose one’s spouse. See Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639-40, 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.”); see also Hodgson v. Minnesota, 497 U.S. 417, 435, 110 S.Ct. 2926, 111 L.Ed.2d 344 (1990) (plurality opinion) (“[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....”); Carey, 431 U.S. at 684-85, 97 S.Ct. 2010 (“[Ajmong the decisions that an individual may make without unjustified government interference are personal decisions relating to marriage .... ” (quotation omitted)). The Turner Court also highlighted the role of marriage in allowing its participants to gain access to legal and financial benefits they would otherwise be denied. 482 U.S. at 96, 107 S.Ct. 2254. We must reject appellants’ efforts to downplay the importance of the personal elements inherent in the institution of marriage, which they contend are “not the principal interests the State pursues by regulating marriage.” Rather than being “[mjutually exclusive” of the procreative potential of marriage, these freedoms — to choose one’s spouse, to decide whether to conceive or adopt a child, to publicly proclaim an enduring commitment to remain together through thick and thin — reinforce the childrearing family structure. Further, such freedoms support the dignity of each person, a factor emphasized by the Windsor Court. See 133 S.Ct. at 2692 (“The State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import.”); id. (New York’s “decision enhanced the recognition, dignity, and protection of the class”); id. (“By its recognition of the validity of same-sex marriages performed in other jurisdictions and then by authorizing same-sex unions and same-sex marriages, New York sought to give further protection and dignity to that bond.”); id. (plaintiffs relationship was “deemed by the State worthy of dignity in the community equal with all other marriages”). Of course, the Windsor decision dealt with federal recognition of marriages performed under state law. But with respect to plaintiffs Archer and Call, who were married in Iowa and whose marriage Utah will not recognize under Amendment 3, the analogy to Windsor is particularly apt. Amendment 3’s non-recognition provision, like DOMA, contrives to deprive some couples married under the laws of [another] State, but not other couples, of both rights and responsibilities.... By this dynamic [Amendment 3] undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of [Utah’s] recognition.... The differentiation demeans the couple, whose moral and sexual choices the Constitution protects. Id. at 2694. In light of Windsor, we agree with the multiple district courts that have held that the fundamental right to marry necessarily includes the right to remain married. See Latta, — F.Supp.3d at -, 2014 WL 1909999, at *13 (“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.”); Henry v. Himes, No. 1:14-cv-129, — F.Supp.3d -, -, 2014 WL 1418395, at *7 (S.D.Ohio Apr. 14, 2014) (“There are a number of fundamental rights and/or liberty interests protected by the Due Process clause that are implicated by the marriage recognition ban, including the right to marry, the right to remain married, and the right to parental autonomy.” (footnote omitted)); De Leon, 975 F.Supp.2d at 661-62 (“[B]y declaring existing, lawful same-sex marriages void and denying married couples the rights, responsibilities, and benefits of marriage, Texas denies same-sex couples who have been married in other states their due process.”); Oberge-fell, 962 F.Supp.2d at 978 (“The right to remain married is ... properly recognized as one that is a fundamental liberty interest appropriately protected by the Due Process Clause of the United States Constitution.”). And although we acknowledge that state recognition serves to “enhance[]” the interests at stake, Windsor, 133 S.Ct. at 2692, surely a great deal of the dignity of same-sex relationships inheres in the loving bonds between those who seek to marry and the personal autonomy of making such choices. As the Court held in Lawrence, several years before discussing the state recognition issues present in Windsor, adults may choose to enter upon' [an intimate] relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice. 539 U.S. at 567, 123 S.Ct. 2472. Appellants’ assertion that the right to marry is fundamental because it is linked to procreation is further undermined by the fact that individuals have a fundamental right to choose against reproduction. “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” Eisenstadt v. Baird, 405 U.S. 438, 453, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972) (emphasis omitted); see also Griswold, 381 U.S. at 485-86, 85 S.Ct. 1678 (recognizing right of married individuals to use contraception). The Court has repeatedly referenced the raising of children — rather than just them creation — as a key factor in the inviolability of marital and familial choices. See, e.g., Carey, 431 U.S. at 685, 97 S.Ct. 2010 (“child rearing and education” decisions protected from “unjustified government interference” (quotation omitted)); Moore v. City of East Cleveland, 431 U.S. 494, 505, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) (plurality opinion) (“[decisions concerning child rearing” have been “recognized as entitled to constitutional protection”); Pierce v. Soc’y of Sisters, 268 U.S. 510, 534-35, 45 S.Ct. 571, 69 L.Ed. 1070 (1925) (discussing “the liberty of parents and guardians to direct the upbringing and education of children under their control”); Meyer, 262 U.S. at 399, 43 S.Ct. 625 (liberty protected by the Due Process Clause includes right “to marry, establish a home[,] and bring up children”). Although cohabitating same-sex couples are prohibited from jointly adopting children under Utah law as a result of the same-sex marriage ban, Utah Code § 78B-6-117(3), the record shows that nearly 3,000 Utah children are being raised by same-sex couples. Thus childrearing, a liberty closely related to the right to marry, is one exercised by same-sex and opposite-sex couples alike, as well as by single individuals. Children of same-sex couples may lack a biological connection to at least one parent, but “biological relationships are not [the] exclusive determinant] of the existence of a family.” Smith v. Org. of Foster Families for Equal. & Reform, 431 U.S. 816, 843, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977). “[T]he importance of the familial relationship, to the individuals involved and to the society, stems from the emotional attachments that derive from the intimacy of daily association, and from the role it plays in promoting a way of life through the instruction of children.” Id. at 844, 97 S.Ct. 2094 (quotation omitted); see also Utah Code § 78B-6-139 (granting adoptive parents all rights and duties of biological parents). As the Court in Windsor held, restrictions on same-sex marriage “humiliate[ ] tens of thousands of children now being raised by same-sex couples” and “make[ ] it even more difficult for the children to understand the integrity and closeness of them own family and its concord with other families in them community and in their daily lives.” 133 S.Ct. at 2694. Such statutes “bring[] financial harm to children of same-sex couples ... raise[ ] the cost of health care for families by taxing health benefits provided by employers to their workers’ same-sex spouses” and “den[y] or reduce[ ] benefits allowed to families upon the loss of a spouse and parent, benefits that are an integral part of family security.” Id. at 2695. These laws deny to the children of same-sex couples the recognition essential to stability, predictability, and dignity. Read literally, they prohibit the grant or recognition of any rights to such a family and discourage those children from being recognized as members of a family by their peers. Appellants urge us to conclude that a court cannot determine whether there is a right to marriage without first defining the institution. They also say that the term “marriage” by its nature excludes same-sex couples. Glucksberg requires us to develop a “careful description of the asserted fundamental liberty interest,” relying on “[o]ur Nation’s history, legal traditions, and practices [to] provide the crucial guideposts for responsible decisionmak-ing.” 521 U.S. at 721, 117 S.Ct. 2258 (quotation omitted). But we cannot conclude that the fundamental liberty interest in this case is limited to the right to marry a person of the opposite sex. As we have discussed, the Supreme Court has traditionally described the right to marry in broad terms independent of the persons exercising it. The Court’s other substantive due process cases similarly eschew a discussion of the right-holder in defining the scope of the right. In Glucksberg, for example, the Court framed the question presented as “whether the ‘liberty’ specially protected in the Due Process Clause includes a right to commit suicide which itself includes a right to assistance in doing so.” 521 U.S. at 723, 117 S.Ct. 2258 (footnote omitted). The Court’s formulation implicitly rejected respondents’ framing of the claimed liberty as exercised by a specific class of persons: “Whether the Fourteenth Amendment’s guarantee of liberty protects the decision of a mentally competent, terminally ill adult to bring about impending death in a certain, humane, and dignified manner.” Br. of Resp’t at i, Glucksberg, 521 U.S. 702, 117 S.Ct. 2258 (No. 96-110) (emphasis added). Prior to the Windsor decision, several courts concluded that the well-established right to marry eo ipso cannot be exercised by those who would choose a spouse of the same sex. See, e.g., Jackson v. Abercrombie, 884 F.Supp.2d 1065, 1094-98 (D.Haw