Amicus Curiae Brief — Obergefell v. Hodges

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Nos. 14-556, 14-562, 14-571 & and "an _ Rn «#s

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IN THE eal

Supreme Court of the Anited GeV C1 one |

JAMES OBERGEFELL, ET AL., AND BRITTANI HENRY, ET AL.,

PETITIONERS,

RICHARD HODGES, DIRECTOR, OHIO DEPARTMENT OF

HEALTH, ET AL., RESPONDENTS.

VALERIA TANCO, ET AL., PETITIONERS,

WILLIAM EDWARD “BILL” HASLAM, GOVERNOR OF

TENNESSEE, ET AL., RESPONDENTS.

APRIL DEBOER, ET AL., PETITIONERS,

RICK SNYDER, GOVERNOR OF MICHIGAN, ET AL., RESPONDENTS.

GREGORY BOURKE, ET AL., AND TIMOTHY LOVE, ET AL.,

PETITIONERS,

STEVE BESHEAR, GOVERNOR OF KENTUCKY, ET AL.,

RESPONDENTS.

On Writs of Certiorari to the United States Court of

Appeals for the Sixth Circuit

BRIEF OF AMICI CURIAE ANTI-DEFAMATION

LEAGUE IN SUPPORT OF PETITIONERS

[Additional Amici Listed On Inside Cover]

STEVEN M. FREEMAN GREGORY E. OSTFELD

SETH M. MARNIN Counsel of Record

MIRIAM L. ZEIDMAN JAMES P. MADIGAN

DAVID L. BARKEY GREENBERG TRAURIG, LLP

ANTI-DEFAMATION LEAGUE 77 West Wacker Dr.

605 Third Avenue Suite 3100

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ARES BAGS ostfeldg@gtlaw.com

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GREENBERG TRAURIG, P.A.

333 S.E. 2nd Avenue

Suite 4400

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Additional Amici Curiae

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CALL FOR HUMAN RIGHTS * WOMEN OF

REFORM JUDAISM * AND WOMEN’S LEAGUE

FOR CONSERVATIVE JUDAISM

(1)

(2)

QUESTIONS PRESENTED

Does the Fourteenth Amendment require a State

to license a marriage between two people of the

same sex?

Does the Fourteenth Amendment require a State

to recognize a marriage between two people of the

same sex when their marriage was lawfully

licensed and performed out-of-state?

(i)

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................::0000

TABLE OF AUTHORITIES. ................00.. ee

I I IIT cicntctnsensseceosesnsesiossuconeniavsccs

SUMMARY OF ARGUMENT ......0000....... ee

I. RELIGIOUS AND MORAL DISAP-

PROVAL HAS HISTORICALLY BEEN

AN UNSUSTAINABLE BASIS FOR

JUSTIFYING LAWS DISADVANTAG-

ING MINORITY GROUPS.....................24.

A. Respondents’ Amici Advance

Religious And Moral Justifications

For Marriage Equality Bans...............

B. Laws’ Disadvantaging Minority

Groups Have Historically Been

Justified By Religious And Moral

ee iiitiicietinniannvessntisnimnimmeiesisines

C. Religious and Moral Justifications

For Unequal Treatment Have Been

Abandoned And Opinions Upholding

Them Are Viewed As Anachronistic

(iii)

Page

TABLE OF CONTENTS—Continued

Page

II. MARRIAGE BANS VIOLATE THE

ESTABLISHMENT AND EQUAL

PROTECTION CLAUSES BECAUSE

THEY WERE ENACTED WITH THE

PURPOSE OF IMPOSING A PARTICU-

LAR RELIGIOUS UNDERSTANDING

OF MARRIAGE AS LAW AND

EXPRESSING MORAL DISAPPROVAL 14

A. The Establishment Clause Prohibits

Laws That Lack A Secular Purpose

And Have The Primary Purpose Or

Effect Of Advancing One Religious

View Over CERGGG .ccccccccccccescesscosccnsecsees 14

B. “Moral Disapproval” Does _ Not

Constitute A Legitimate State

Interest, And Therefore The Marriage

Bans Also Violate The Equal

PPCRIORIE CIID cccecesececcccncscecccctensences 20

Iii. A DECISION INVALIDATING THE

MARRIAGE BANS WOULD NOT

THREATEN RELIGIOUS LIBERTY ...... 23

A. Civil Marriage Is Distinct From,

And Does Not Affect, Religious

IED a ccnscrcncrecosecsniuiatentedaiaiinanades 24

B. Marriage Equality Is A Separate

And Distinct Issue From _ Anti-

Discrimination Laws ...................0.00000 28

C. Commercial Businesses Have No

Constitutional Right To Discriminate 29

CEU PRIEAEEIIDS ceviscocsercnctessttionsnessdianiinueemnianals 31

TABLE OF CONTENTS—Continued

APPENDIX Page

APPENDIX: Amici Curiae Statements Of

REESE EES EE Ca cn ee la

TABLE OF AUTHORITIES

CASES Page(s)

Bandari v. INS, 227 F.3d 1160 (9th Cir.

SED sncducnieiisaiieadmaciaabiadtamemaadanesmamnions debediaad 26

Bell v. Maryland, 378 U.S. 226 (1964)......... 29

Berea College v. Commonwealth, 29 Ky. L.

Ss SE ES eee inccennncnsnsssccsstecctniennee 8

Bob Jones Univ. v. United States, 461 U.S.

IE IIIT iscscoiesicinehicndieiashiesaeedienaahbaedabadentiniteaiiaatnids 11, 26

Boddie v. Connecticut, 401 U.S. 371

TESS LE SE preereo nemo tenner Poon 27

Bowers v. Hardwick, 478 U.S. 186

a taal cence ale 1, 21

Bowie v. Birmingham Ry. & Elec. Co., 125

nS I rar certian arieerienteeenennenenaen 8

Bradwell vv. Illinois, 83 US. 130

ERE Ae Ae ESE AS REDO ne onward nn eane es 11, 13

Brown v. Board of Education, 347 U.S. 483

Fipuai ll innsecucnemnenedseonibasansenenteenmmametttesasemenndl passim

Cathy’s Tap, Inc. v. Village of Mapleton, 65

F Supp.2d 874 (C.D. Ill. 1999)................. 17

Dred Scott v. Sandford, 60 U.S. 393

Rinne enceneestaieindensagentnonsnnpamguesisaseseinguumes 7, 12, 30

Edwards v. Aguillard, 482 U.S. 578 (1987). 16

Elane Photography, LLC v. Willock, 309

P.3d 53 (N.M. 2013), cert. denied, 134 S.

Eiri; (IIE el cccensecancaneitiednninnmenatiananiniguieaninstiuainias 28

Epperson v. Arkansas, 393 U.S. 97

Eiri incciinceniniecndnepaatennnnendeeniuenianiniiensds 15, 16, 26

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Everson v. Bd. of Educ. of Ewing Twp., 330

eae i ccinchicisnies inininsbdshsinniidiiccansinininiiidaninaadiiniin 15

Frontiero v. Richardson, 411 U.S. 677

iii hci alia citi 12,13

Green v. State, 58 Ala. 190 (1877)................ g

Heart of Atlanta Motel, Inc. v. United

States, 379 U.S. 241 (1964)....................... 29

Kinney v. Commonwealth, 71 Va. 858

SREY ERS EEE aR ened ee a 9

Larson v. Valente, 456 U.S. 228 (1982)........ 15

Lawrence v. Texas, 539 U.S. 558

ETA ESE Lee ane nL! Sen 20, 21, 22

Lee v. Weisman, 505 U.S. 577 (1992)........... 15

Lemon v. Kurtzman, 403 U.S. 602 (1971).... 16

Loving v. Virginia, 388 U.S. 1 (1967)

siitiheiideniaaneenateleialaolaitd iasiiailsia iain 10, 12, 22, 27, 30

Marsh v. Alabama, 326 U.S. 501 (1946)...... 29

Maynard v. Hill, 125 U.S. 190 (1888).......... 8-9

McCreary County, Kentucky v. Am. Civil

Liberties Union of Kentucky, 545 U.S. 844

Sree hiciidindennsessisaiiisiaistashaatihtlauniinidiiicimnldipbialiiaties 14-15, 16

Messenger v. State, 41 N.W. 638 (Neb.

Snel itiicninisesintssedntincesinbenanbiinenmmininmsdiaiiniiie 29

Mississippi University for Women v. Hogan,

Ce ee iciinctninidlcinnntinnideiemmeiiiin 12

TABLE OF AUTHORITIES—Continued

Page(s)

Newman v. Piggie Park Enterprises, Inc.,

256 F. Supp. 941 (D.S.C. 1966), affd in

relevant part and rev'd in part on other

grounds, 377 F.2d 433 (4th Cir. 1967),

affd and modified on other grounds, 390

| RES SCS Tear oEoraeN 11

Otter v. Latta, 771 F.3d 456 (9th Cir.

ARSE ad SE ER DR et RES STOR 5

Plessy v. Ferguson, 163 U.S. 537 (1896)...... 30

Roberts v. U.S. Jaycees, 468 U.S. 609

eee 29

Romer v. Evans, 517 U.S. 620 (1996) .......... 21, 22

Scott v. Emerson, 15 Mo. 576 (Mo. 1852)..... 7

Scott v. State, 39 Ga. 321 (1869).................. i)

South Carolina v. Regan, 465 U.S. 367

ERTS PERSE SPSS 07D RSM DRE a ne 12

State v. Gibson, 36 Ind. 389 (1871).............. 8

State ex rel. Hawkins v. Board of Control,

83 So.2d 20 (Fla. 1968) .......................0.000- 10

United States v. Windsor, 570 U.S.__, 133

Bs Cares NE ciccsttintncniincstinainnesinnapédtis 20, 21, 22

U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528

REE SEDONA nea rece Em 22

West Chester & Philadelphia Railroad Co.

v. Miles, 55 Pa. 209 (Pa. 1867) ................. 8

TABLE OF AUTHORITIES—Continued

CONSTITUTIONS Page(s)

of ae passim

| eS ae 21, 22

TT a 5, 7

OE , passim

a alain 1,3

Mich. Comat. art. 1, § B6.....ccccccccccccccsccccccccsces 1,3

eee 1,3

OU Ee esaeeer ree 1.3

STATUTES

nt CI aiitiitstainnsttisiineicernenisincinennindceunnandienbiaiin 17

eS 8 8 rere 17

Ky. Rev. Stat. § 402.005 (1998).............0...... 19

Mich. Comp. Laws § 551.1 (1996)................ 19

Ohio Rev. Code § 3101.01 (2004) ................. 19

Tenn. Code Ann. § 36-3-113(a) (1996) ......... 19

COURT FILINGS

Br. for Petitioners, Bourke v. Beshear, No.

14-574 (U.S. Feb. 27, 2015) ..............c000000 20, 23

Br. for Petitioners, DeBoer v. Snyder, No.

14-571 (U.S. Feb. 27, 2015) ...................... 20, 23

Br. for Petitioners, Obergefell v. Hodges,

No. 14-556 (U.S. Feb. 27, 2015).......... 20, 23, 30

Br. for Petitioners, Tanco v. Haslam, No.

14-662 (U.S. Feb. 27, 2015) ...................... 20, 23

TABLE OF AUTHORITIES—Continued

Page(s)

Br. of Idaho Governor C.L. “Butch” Otter,

DeBoer v. Snyder, No. 14-556, 2014 WL

7405781 (U.S. Dec. 15, 2014).................... 4-5

Br. of Michigan Catholic Conference in

Support of Appellants and Urging

Reversal, DeBoer v. Snyder, No. 14-1341,

2014 WL 2154789 (6th Cir. May 14,

SUITE iniincclecistaeicanenepeiasnindialoniinmabiianiiemieennaisaiuas 4

Br. of Public Advocate of the United States,

et al. in Support of Appellants and

Reversal, DeBoer v. Snyder, No. 14-1341,

2014 WL 2154791 (6th Cir. May 14,

SETTERS Aree ssa nen nnn een eee rem ane ne Seen 3-4

Br. of The Becket Fund for Religious

Liberty, Tanco v. Haslam, No. 14-5297,

2014 WL 2154836 (6th Cir. May 13,

Br. of United States Conference of Catholic

Bishops, et al. in Support of Petitioners,

Herbert v. Kitchen, No. 14-124, 2014 WL

4404770 (U.S. Sept. 4, 2014) ..............0..... 4

LEGISLATIVE MATERIALS

Hearing on H.J.R. 24, 104th Gen. Assemb..,

Reg. Sess. (Tenn. Feb. 16, 2005)............... 19

S. Debate, 108th Cong., 2nd Sess. (Ky.

Na a a a 17, 18

TABLE OF AUTHORITIES—Continued

Page(s)

Tax Exempt Status of Private Schools:

Hearing Before the Subcomm. on

Taxation & Debt Mgmt. Generally of

the S. Comm. on Fin., 96th Cong., 1st

BIN: CITED siictctesenicasneneutenicteteninhataiinamcenines

OTHER AUTHORITIES

American Family Association, Who Is AFA,

available at http://www.afa.net/who-is-

afa/our-mission/ (last visited March 2,

Ti ibtndarnnntdinieencmnaniiteinsdiiibimatdebinneenien

David S. Ariel, What Do Jews Believe?:

The Spiritual Foundations of Judaism

Church of Jesus Christ of Latter-day

Saints, Interracial Marriage

Discouraged, Church News (June 17,

TT hcidiiiheieutiniganepinunienaimansimbedaddambeideginiidiibes

Citizens for Cmty. Values, Marriage

Declaration, available at www.ccv.org/iss

ues/homosexuality/marriage-declaration

(last visited March 2, 2015).......................

W. Eskridge Jr., Noah’s Curse: How

Religion Often Conflates Status, Belief &

Conduct to Resist Antidiscrimination

Norms, 45 Ga. L. Rev. 657 (2010) ........... passim

D. Fehrenbacher, The Dred Scott Case: Its

Significance in American Law & Politics

Xii

TABLE OF AUTHORITIES—Continued

Page(s)

C. Hughes, The Supreme Court of the

Sf | TEES ee 12

Michael G. Lawler, Marriage and the

Catholic Church: Disputed Questions

STTTTchchcciehsgeeineiescuacianipiiaiaiinieleiiaaaiiaieeinin 25

C. Lund, Jn Defense of the Ministerial

Exception, 90 N.C. L. Rev. 1 (2011).......... 13

Rick Lyman, Gay Couples File Suit After

Michigan Denies Benefits, N.Y. Times

5 SE —_——— Eee nee ED eae eT 18

L. McClain, The Domain of Civic Virtue in

a Good Society: Families, Schools & Sex

Equality, 69 Fordham L. Rev. 1617

— ERETTEETRENERRE SRR e rer omeetsnee vee abe neae ta 11

2 G. Myrdal, et al., An American Dilemma:

The Negro Problem and Modern

NT Gi icteniniisnicsscnetasnisniningsaienians 6

A. Padilla & J. Winrich, Christianity,

Feminism & the Law, 1 Colum. J. Gender

I lis 11

Rep. Bill Dunn, Support the Marriage

Amendment, Chattanoogan (Sept. 28,

RECT E at sO Sy Ras Cee AL A eA ee 19

Roman Catholic Church, Catechism of the

Catholic Church (1995 ed.)...............c0c0000: 26, 27

Roman Catholic Church Code of Canon

Law, 1917 Code C.1060 ..................2....0000 25

EE Se eee 25-26

BE GRIGIO Ch. BEI O ccvscccececcccccseccccenccesscssesses 26

xiii

TABLE OF AUTHORITIES—Continued

Page(s)

6 J. Smith, The Biblical & “Scientific”

Defense of Slavery (1993) ................ceeeeeeee 6

The Bible:

a liaise aeaasnaetilienas 9

I hhc sat ai ciainisienainieanimnmrtatennindentiieoiadiee 9

py 5 17

ETT ee a ET ES So 4

EERIE ee eee 4

ES a a ee ee ee a 9

ET eee ae ee 4

The First Presidency, Statement on the

Status of Blacks (Dec. 15, 1969),

reproduced in Appendix, Neither White

Nor Black: Mormon Scholars Confront

the Race Issue in a Universal Church

(Lester E. Bush, Jr. & Armand L. Mauss

SS AES Rae Se ee 27

U.S. Comm’n on Civil Rights, Discrimina-

tory Religious Schools & Tax Exempt

EET I aS RE ae om 10

E. Wendorff, Employment Discrimination

& Clergywoment: Where the Law Has

Feared to Tread, 3 Cal. Rev. L. &

Women’s Stud. 135 (1993)......................4. 13

INTEREST OF AMICI’

Amici curiae are a diverse group of religious, civil

rights, and cultural organizations that advocate for

religious freedom, tolerance, and equality. Amici have

a strong interest in this case due to their commitment

to religious liberty, civil rights, and equal protection of

law. Identity and Interest Statements of particular

amici can be found in the Appendix to this brief.

SUMMARY OF ARGUMENT

History shows us that some of this nation’s most

abhorrent laws and practices—laws and practices that

are now considered anachronistic blemishes on our

history—were grounded in and defended by religious

and moral justifications. For three-quarters of a

century, this Court has refused to uphold laws dis-

advantaging minority groups based on religious

or moral disapproval alone—with the one, now-

discredited exception of Bowers v. Hardwick, 478 U.S.

186 (1986). While Respondents largely shy away from

explicitly embracing religious and moral justifications

in support of Kentucky Const. § 233A, Michigan Const.

art. I, § 25, Ohio Const. art. XV, § 11, and Tennessee

Const. art. XI, § 18, their amici do not. And the

legislative history and ballot initiative campaigns

behind these marriage bans demonstrate that the

bans had the specific—and improper—purpose of

codifying a particular religious understanding of

marriage into civil law and expressing moral disap-

proval of same-sex couples.

' No counsel for a party authored this brief in whole or in part,

and no party or counsel for a party made a monetary contribution

intended to fund its preparation or submission. No person other

than amici and their counsel made a monetary contribution to

the preparation or submission of this brief.

This improper purpose renders the marriage bans

unconstitutional under both the Establishment

Clause and the Equal Protection Clause. Because the

bans enshrine a particular religious viewpoint into law

and lack a secular purpose, they necessarily run afoul

of Establishment Clause principles. These Establish-

ment Clause shortcomings buttress the unavoidable

conclusion that the bans also violate the Equal

Protection Clause. As this Court has held, moral- and

religion-based disapproval does not qualify as a legiti-

mate governmental interests sufficient to survive even

the lowest levels of constitutional scrutiny.

Finally, contrary to the arguments of some who

defend the marriage bans, invalidating the bans will

not jeopardize religious liberty. As an initial matter,

the cases before this Court concern whether same-sex

couples are entitled to the benefits of civil marriage.

Religious groups will remain free, as they always have

been, to choose how to define religious marriage and

which marriages to solemnize. To the extent that the

“religious liberty” arguments take the form of concern

regarding private entities’ and individuals’ potential

future liability under a variety of different types of

anti-discrimination laws, they are a red herring. Not

only do such arguments erroneously conflate marriage

equality laws with application of anti-discrimination

laws, but they also reflect a profound misunderstand-

ing of religious liberty. Religious liberty should serve

as a shield, not as a sword to discriminate against

members of a disadvantaged minority group.

ARGUMENT

I. RELIGIOUS AND MORAL DISAPPROVAL

HAS HISTORICALLY BEEN AN UNSUS-

TAINABLE BASIS FOR JUSTIFYING

LAWS DISADVANTAGING MINORITY

GROUPS.

Proponents of laws that marginalize disadvantaged

groups have long relied on arguments grounded in

morality and religion to justify the discrimination.

Time and again, however, society has come to see

these laws as a stain on the nation’s history and to

view the religious and moral justifications offered for

them as wrong, both spiritually and philosophically.

A. Respondents’ Amici Advance Religious

And Moral Justifications For Marriage

Equality Bans.

Amici join in Petitioners’ arguments exposing as

fatuous—and necessarily irrational—the purportedly

secular grounds consistently advanced by Respond-

ents to justify Kentucky Const. § 233A, Michigan

Const. art. I, § 25, Ohio Const. art. XV, § 11, and

Tennessee Const. art. XI, § 18 (collectively, “marriage

equality bans” or “marriage bans”). With those

grounds set to the side, there is but one interest left to

support marriage bans: religious and moral disap-

proval of marriage equality and, in some cases, of gay

and lesbian people themselves.

Perhaps recognizing that this Court’s precedent

holds religious disapproval to be a constitutionally

insufficient interest, Respondents shy away from

explicitly endorsing it. Their amici, however, have had

no such reservations. See, e.g., Br. of Public Advocate

of the United States, et al. in Support of Appellants

and Reversal, p. 31, DeBoer v. Snyder, No. 14-1341,

2014 WL 2154791, at *31 (6th Cir. May 14, 2014)

(“That Creator made man in His own image, both male

and female, and designed marriage for all mankind’s

benefit and protection as an institution between one

man and one woman. See, e.g., Genesis 1:27 and 2:22-

24; Matthew 19:4-6.”); Br. of Michigan Catholic

Conference in Support of Appellants and Urging

Reversal, p. 3, DeBoer v. Snyder, No. 14-1341, 2014

WL 2154789, at *3 (6th Cir. May 14, 2014) (“Have you

not read that He who created them from the beginning

made them male and female, and said, for this reason

a man shall leave his father and mother and be joined

to his wife and the two shall become one flesh?’

Matthew 19:4. The question Jesus posed informs the

constitutional inquiry in this case.”); Jd. at *7 (“Only

one male and one female can participate in the

generative act of marriage consummation. Our

Creator designed in nature the complimentary male

and female reproductive organs for the ultimate unity

essentia! to our survival — the creation of life.”); Br. of

United States Conference of Catholic Bishops, et al. in

Support of Petitioners, p. 5, Herbert v. Kitchen, No. 14-

124, 2014 WL 4404770, at *5 (U.S. Sept. 4, 2014)

(“Marriage between a man and a woman is for us an

article of faith and a profound social good. Our

understanding of God’s law, fortified by experience,

confirms the centrality of marriage between a man

and a woman as a foundational institution for

protecting children and sustaining the American

scheme of ordered liberty.”).

Some among Respondents’ amici have offered a

twist on the religious-moral rationale for marriage

bans: They express concern for the religious liberty of

those who disapprove of marriage equality on religious

grounds. See, e.g., Br. of Idaho Governor C.L. “Butch”

Otter, p. 21, DeBoer v. Snyder, No. 14-556, 2014 WL

7405781, at *21 (U.S. Dec. 15, 2014) (urging this Court

to consider using Otter v. Latta, 771 F.3d 456 (9th Cir.

2014), as a vehicle to resolve “the constitutionality of

man-woman marriage laws,” citing it as the “only

pending cases [sic] in which public officials defended

such laws based in part on the need to limit the risk of

incursions into religious liberty”); Br. of The Becket

Fund for Religious Liberty, p. 4, Tanco v. Haslam, No.

14-5297, 2014 WL 2154836, at *4 (6th Cir. May 13,

2014) (“Recognizing a constitutional right to same-sex

marriage without simultaneously protecting conscience

rights will trigger threats to the religious liberty of

people and organizations who cannot, as a matter of

conscience, treat same-sex unions as the moral

equivalent of opposite-sex marriage.”).

As history teaches, this kind of religious and moral

disapproval cannot legitimize unequal treatment of

disadvantaged groups.

B. Laws Disadvantaging Minority Groups

Have Historically Been Justified By

Religious And Moral Disapproval.

Throughout American history, the pattern is clear:

Laws that now seem preposterous were defended—

and, in many cases, extolled—in their day on grounds

of religious and moral disapproval. These examples

should sound a cautionary note when religious and

moral disapproval are proffered as rationales for

unequal treatment under the law.

1. Slavery provides a striking example. From the

colonial period until the ratification of the Thirteenth

Amendment, supporters of slavery frequently relied

on scripture not only to deflect abolitionist concerns

but also to insist that slavery was a moral good—a

central part of God’s plan. See W. Eskridge Jr., Noah’s

Curse: How Religion Often Conflates Status, Belief &

Conduct to Resist Antidiscrimination Norms, 45 Ga. L.

Rev. 657, 666-67 (2010). Slavery supporters promi-

nently argued, for example, that “the Negro was a

heathen and a barbarian, an outcast among the

peoples of the earth, a descendant of Noah’s son

Ham, cursed by God himself and doomed to be a

servant forever on account of an ancient sin.” D.

Fehrenbacher, The Dred Scott Case: Its Significance in

American Law & Politics 12 (1978) (quoting 2 G.

Myrdal, et al., An American Dilemma: The Negro

Problem and Modern Democracy 85 (1944)). A related

theory held that “negroes were human but that unlike

whites they were not created in the image of God and

[were] one of several inferior races created by God

after Adam.” 6 J. Smith, The Biblical & “Scientific”

Defense of Slavery xxv-xxvi (1993). Defenders of

slavery also emphasized “that God’s Chosen (Abraham,

Isaac, and Jacob) owned slaves and that Leviticus

required the Israelites to secure ‘bondsmen’ from

among the ‘heathen’ surrounding Israel” that were to

be “inherit{ed} * * * for a possession.” Eskridge, supra,

at 667.

This scriptural justification was not embraced by

extremist sects alone. To the contrary, it represented

the dominant viewpoint of nearly every major

religious group in the United States during this

period. In fact, when abolitionists began to mount

challenges to slavery, clergymen of all denominational

stripes were among the institution’s most ardent

defenders. Jd. at 669. And following Lincoln’s Eman-

cipation Proclamation, ninety-six religious leaders

from eleven different denominations issued a proc-

lamation of their own, entitled “An Address to

Christians Throughout the World,” demanding the

preservation of slavery. Id.

The biblical defense of slavery gained currency

within the judicial sphere as well. For example, in

Scott v. Emerson, 15 Mo. 576 (Mo. 1852), the Missouri

Supreme Court counseled:

When the condition of our slaves is contrasted

with the state of their miserable race in Africa;

when their civilization, intelligence, and instruc-

tion in religious truths are considered * * * we are

almost persuaded, that the introduction of slavery

amongst us was, in the providence of God * * * a

means of placing that unhappy race within the

pale of civilized nations.

Id. at 587. Indeed, even this Court accepted a

religiously-rooted notion of African-Americans as

inferior, noting that that inferiority “was regarded as

an axiom in morals as well as in politics, which no one

thought of disputing[.])” Dred Scott v. Sandford, 60

U.S. 393, 407 (1857).

2. The Thirteenth Amendment did not put an end

to religious and moral justifications for African-

American subjugation. Instead, those opposed to equal

rights for former slaves simply modified their reading

of scripture: If the Bible no longer could be read to

condone slavery, it could at least be read to mandate

segregation. Eskridge, supra, at 694. The theories of

Reverend Benjamin Morgan Palmer, leader of the

Southern Presbyterian Church, provide a telling

example. Proponents of segregation argued that the

Bible should be interpreted as teaching that Africans

descended from Ham. Palmer theorized that since

Ham’s grandson Nimrod built the Tower of Babel, and

God reacted by scattering the tower’s builders “abroad

from thence upon the face of all the earth,” God would

do the same thing again if Ham’s current descendants

challenged segregation: “[{I|f arrogant descendants of

Ham * * * sought to disrupt the divine plan for

segregation of the races, the Lord would thwart those

plans through divine dispersion that reaffirmed the

original design.” Id. at 669-70. Southern whites relied

on this and other “modernized” distortions of scripture

to advocate a “right not to associate’ with black

people.” Jd. at 669.

Just as with slavery, these arguments gained wide-

spread acceptance, including within the judiciary. In

West Chester & Philadelphia Railroad Co. v. Miles, 55

Pa. 209 (Pa. 1867), the Pennsylvania Supreme Court

opined that “following the order of Divine Providence,

human authority ought not to compel these widely

separated races to intermix.” Jd. at 213. The legal

basis for segregation followed: “When, therefore, we

declare a right to maintain separate relations as far as

is reasonably practicable, but in a spirit of kindness

and charity, and with due regard to equality of rights,

it is not prejudice, nor caste, nor injustice of any kind,

but simply to suffer men to follow the law of races

established by the Creator himself].]” Jd. at 214. This

passage was cited repeatedly by other courts as a basis

for upholding Jim Crow laws. See, e.g., Berea College

v. Commonwealth, 29 Ky. L. Rptr. 284 (Ky. 1906);

Bowie v. Birmingham Ry. & Elec. Co., 125 Ala. 397,

408-09 (1900); State v. Gibson, 36 Ind. 389 (1871).

3. Segregationist arguments grounded in religion

and morality were perhaps most ubiquitous in the

struggle against interracial marriage. Seizing on this

Court’s pronouncement that marriage “hal[s] more to

do with the morals and civilization of a people than

any other institution,” Maynard v. Hill, 125 U.S. 190,

205 (1888), opponents of interracial marriage relied on

scripture to argue that marriage between the races

was immoral and a contravention of God’s word. They

cited to numerous biblical passages to justify their

position, including Deuteronomy 7:3 (instructing the

Israelites not to marry members of other tribes); Ezra

9:1-3 (discussing the “abominations” of marrying

members of other nations); and Genesis 28:1

(describing Isaac’s instruction to Jacob not to “take a

wife of the daughters of Canaan,” i.e., purportedly of

African descent). See Eskridge, supra, at 673 n. 79,

675.

Again, these beliefs found their way into scores of

judicial opinions upholding bans on _ interracial

marriage. In Kinney v. Commonwealth, 71 Va. 858

(1878), for example, the Virginia Supreme Court held

that “(t]he purity of public morals, the moral and

physical development of both races, and the highest

advancement of our cherished southern civilization”

all required that the races “be kept distinct and

separate, and that connections and alliances so

unnatural that God and nature seem to forbid them,

should be prohibited by positive law, and be subject to

no evasion.” Jd. at 869. Likewise, in Green v. State, 58

Ala. 190 (1877), the Alabama Supreme Court wrote:

“(Slurely there can not be any tyranny or injustice in

requiring both [blacks and whites] alike, to form this

union with those of their own race only, whom God

hath joined together by indelible peculiarities, which

declare He has made the two races distinct.” Jd. at 195.

See, e.g., Scott v. State, 39 Ga. 321, 326 (1869); Miles,

55 Pa. at 213.

Perhaps most notoriously, a Virginia trial court held

in the mid-1960s—in a decision later overturned by

this Court—that Virginia’s prohibition on interracial

marriage fulfilled God’s Word. “Almighty God created

the races white, black, yellow, malay and red, and he

placed them on separate continents.” Loving uv.

Virginia, 388 U.S. 1, 3 (1967) (citing trial court

opinion). “And but for the interference with his

arrangement there would be no cause for such

marriages. The fact that he separated the races shows

that he did not intend for the races to mix.” Jd.

Such beliefs maintained a robust following well into

the second half of the twentieth century. See id.; see

also State ex rel. Hawkins v. Board of Control, 83 So.2d

20, 27-28 (Fla. 1955) (Terrell, J., concurring) (assert-

ing that “segregation is not a new philosophy

generated by the states” but rather part of “God’s

plan”).

As laws supporting segregation began to fall, the

arguments for segregation shifted; they began to focus

more on religious liberty and associational freedom for

white Christians who did not wish to associate with

non-whites. See Eskridge, supra, at 672-74. After this

Court struck down the “separate but equal” doctrine

in Brown v. Board of Education, 347 U.S. 483 (1954),

Southern churches created religious academies so

white Christians would not have to attend desegregated

schools. See U.S. Comm’n on Civil Rights, Discrimina-

tory Religious Schools & Tax Exempt Status 1 (1982).

When the Treasury Department removed those

schools’ tax-exempt designations, Southern funda-

mentalists protested that the government was

infringing on their religious liberty to run segregated

schools as the Bible demanded. See Tax Exempt Status

of Private Schools: Hearing Before the Subcomm. on

Taxation & Debt Mgmt. Generally of the S. Comm.

on Fin., 96th Cong., Ist Sess. 18 (1979). Bob Jones

University made the same argument before this Court

in defending its racially discriminatory admissions

policy as late as 1983. See Bob Jones Univ. v. United

States, 461 U.S. 574, 602-603 (1983). And private

parties continued to assert their religious beliefs as a

legal justification for private discrimination long after

this Court’s ruling in Brown. See, e.g., Newman uv.

Piggie Park Enterprises, Inc., 256 F. Supp. 941, 945

(D.S.C. 1966) (owner of restaurant chain asserted his

religious beliefs opposing racial integration as a

rationale for his refusal to serve black patrons), affd

in relevant part and rev'd in part on other grounds, 377

F.2d 433 (4th Cir. 1967), affd and modified on other

grounds, 390 U.S. 400 (1968).

4. Similar arguments grounded in religion and

morality were advanced to support laws discriminat-

ing against women. See A. Padilla & J. Winrich,

Christianity, Feminism & the Law, 1 Colum. J. Gender

& L. 67, 75-86 (1991). As one scholar has noted: “There

is assumed to be a literal scriptural foundation for a

patriarchal family governance structure of husband as

‘head’ of the household,” with his “wife as caregiver/

homemaker and submissive or deferential to the

husband’s authority.” L. McClain, The Domain of Civic

Virtue in a Good Society: Families, Schools & Sex

Equality, 69 Fordham L. Rev. 1617, 1643 (2001).

As with race, this belief structure influenced judicial

decision-making. In Bradwell v. Illinois, 83 U.S. 130

(1873), for example, a member of this Court opined

that Illinois could deny women admission to the state

bar because “[t]he natural and proper timidity and

delicacy which belongs to the female sex evidently

unfits it for many of the occupations of civil life.” Jd. at

141 (Bradley, J., concurring). An argument that it was

preordained by God for women to be homemakers (not

lawyers) provided the foundation for this view: “The

constitution of the family organization, which is

founded in the divine ordinance, as well as in the

nature of things, indicates the domestic sphere as that

which properly belongs to the domain and functions of

womanhood. * * * The paramount destiny and mission

of woman are to fulfill the noble and benign offices of

wife and mother. This is the law of the Creator.” Jd.

C. Religious and Moral Justifications

For Unequal Treatment Have Been

Abandoned And Opinions Upholding

Them Are Viewed As Anachronistic

Blemishes.

The discriminatory laws catalogued above have

been universally repudiated. This Court rejected anti-

miscegenation laws in Loving. It rejected segregation

in Brown. It has repudiated opinions upholding

racially discriminatory laws that rested on moral and

religious disapproval. See, e.g., South Carolina uv.

Regan, 465 U.S. 367, 412 n. 10 (1984) (quoting C.

Hughes, The Supreme Court of the United States 50

(1928)) (referring to Dred Scott as one of “three notable

instances [in which) the Court has suffered severely

from self-inflicted wounds”). And the Court over the

past four decades has rejected earlier, religion-driven

views regarding the place of women in society. In

Mississippi University for Women v. Hogan, 458 U.S.

718 (1982), for example, the Court held that any test

for determining the validity of gender-based classifica-

tions “must be applied free of fixed notions concerning

the roles and abilities of males and females.” Jd. at

724-25. Similarly, in Frontiero v. Richardson, 411 U.S.

677 (1973), the Court, repudiating Justice Bradley’s

concurrence in Bradwell, noted the “long and unfortu-

nate history of sex discrimination” in America. /d. at

684.

Tellingly, as societal support for discrimination has

ebbed, the religious and moral disapproval that under-

girded that discrimination has itself receded. After the

Civil War, clergymen modified their interpretation of

scripture so that the Bible endorsed segregation

instead of slavery. See § I.B.2, supra. Likewise, the

1960s witnessed all of the major Protestant denomina-

tions “abandon|[ ] the racist renderings of the biblical

stories about Noah, Ham, Canaan, Nimrod, Isaac, and

Jacob” altogether. Eskridge, supra, at 681. And many

religious groups have embraced the precise opposite of

their old approach to women’s rights. Many Protestant

churches, for example, now ordain women and em-

brace gender-neutral policies, see C. Lund, Jn Defense

of the Ministerial Exception, 90 N.C. L. Rev. 1, 44

(2011), and have introduced programs to address

discrimination against women within the church,

see E. Wendorff, Employment Discrimination &

Clergywomen: Where the Law Has Feared to Tread, 3

Cal. Rev. L. & Women’s Stud. 135, 140 (1993).

This shift is just the latest incarnation of a recurring

national dynamic: Religious justifications for discrim-

inatory laws vanish as popular support for those forms

of discrimination fades.

Il. MARRIAGE BANS VIOLATE THE ESTAB-

LISHMENT AND EQUAL PROTECTION

CLAUSES BECAUSE THEY WERE

ENACTED WITH THE PURPOSE OF

IMPOSING A PARTICULAR RELIGIOUS

UNDERSTANDING OF MARRIAGE AS

LAW AND EXPRESSING MORA?

DISAPPROVAL.

The same type of religious and moral disapproval

that has historically been an unsustainable basis

for justifying laws disadvantaging minority groups

renders the marriage equality bans that are before the

Court unconstitutional under the Establishment

Clause and Equal Protection Clause. The bans run

afoul of Establishment Clause principles because they

impermissibly have a primarily religious purpose—to

write one particular religious understanding of

marriage into the law—and lack any secular purpose.

Similarly, because moral and religious disapproval of

marriage for same-sex couples does not constitute a

legitimate governmental interest, the marriage bans

cannot survive Equal Protection Clause analysis.

A. The Establishment Clause Prohibits

Laws That Lack A Secular Purpose And

Have The Primary Purpose Or Effect Of

Advancing One Religious View Over

Others.

States cannot, consistent with the Establishment

Clause, enact laws for the exclusive or primary

purpose of promoting a religious viewpoint. The

“touchstone” of the Establishment Clause “is the

principle that the ‘First Amendment mandates gov-

ernmental neutrality between religion and religion,

and between religion and nonreligion.” McCreary

County, Kentucky v. Am. Civii Liberties Union of

Kentucky, 545 U.S. 844, 860 (2005) (quoting Epperson

v. Arkansas, 393 U.S. 97, 104 (1968)). “The design of

the Constitution is that preservation and transmission

of religious beliefs and worship is a responsibility and

a choice committed to the private sphere.” Lee v.

Weisman, 505 U.S. 577, 589 (1992). To that end, “all

creeds must be tolerated and none favored.” Jd. at 590;

see also Larson v. Valente, 456 U.S. 228, 244 (1982)

(“The clearest command of the Establishment Clause

is that one religious denomination cannot be officially

preferred over another.”).

This requirement of governmental neutrality with

respect to religion arose from the country’s founda-

tional principle of affording maximum liberty to all

religions to exercise their faiths in freedom. See

Larson, 456 U.S. at 244 (“Madison’s vision—freedom

for all religion being guaranteed by free competition

between religions—naturally assumed that every

denomination would be equally at liberty to exercise

and propagate its beliefs.”).

“{I)n light of its history and the evils it was

designed forever to suppress,” this Court has con-

sistently given the Establishment Clause “broad

meaning.” Everson v. Bd. of Educ. of Ewing Twp. , 330

U.S. 1, 14-15 (1947). The Court has invalidated laws

that aid one particular religion. Jd. at 15-16 (“Neither

a state nor the Federal Government can ... pass laws

which aid one religion, aid all religions, or prefer one

religion over another.”). It has also rejected any law

that has the purpose or primary effect of advancing

certain religious denominations over others or

advancing religious over non-religious beliefs. See,

e.g., Larson, 456 U.S. at 244, 247 (invalidating a law

that distinguished between religious organizations

based on how they collected funds because it “clearly

granti[ed] denominational preferences”); Edwards v.

Aguillard, 482 U.S. 578 (1987) (holding law requiring

teaching of creationism when evolution is taught

unconstitutional because it lacked a secular purpose).

The Establishment Clause “forbids alike preference of

a religious doctrine or the prohibition of theory which

is deemed antagonistic to a particular dogma.”

Epperson v. Arkansas, 393 U.S. 97, 103, 106 (1968)

(striking down state ban on teaching evolution in

public schools where the “sole reason” for the law

was that evolution was “deemed to conflict with a

particular religious doctrine”).

Thus, even when a civil law lacks an overtly

religious message or provision, it still violates the

Establishment Clause if it advances a specific reli-

gious preference or belief disconnected from a secular

purpose. In Lemon v. Kurtzman, 403 U.S. 602 (1971),

this Court distilled these principles into a test that

remains instructive: A law must have a secular

purpose; its primary effect cannot be to advance or

inhibit religion; and it must not result in excessive

governmental entanglement with religion. Jd. at 622.

Relevant here is the secular purpose requirement.

This Court has discussed this rule at length, noting

that “the secular purpose required has to be genuine,

not a sham, and not merely secondary to a religious

objective.” McCreary, 545 U.S. at 864. The Court has

emphasized that this test has “bite,” such that a law

will not survive scrutiny under the Establishment

Clause simply because “some secular purpose” is

constructed after the fact. Jd. at 865 & n.13.

To be clear, religious values can play an important

role in the formation of some individuals’ public policy

preferences. For example, numerous laws restricting

or prohibiting the sale and consumption of alcohol

exist throughout the United States. See, e.g., Ky. Rev.

Stat. § 242.185 (permitting dry counties); 23 U.S.C.

§ 158 (National Minimum Drinking Age Act of 1984).

Yet even though religious and moral understandings

likely played a part in the decisions of some law-

makers to pass such laws, alcohol restrictions and

prohibitions also have legitimate, secular purposes—

for example, preventing driving deaths or protecting

children from addiction—and their primary effect is to

advance these governmental interests, not religion.

See, e.g., Cathy’s Tap, Inc. v. Village of Mapleton, 65 F.

Supp.2d 874, 892 (C.D. Ill. 1999) (holding that city

ordinances prohibiting live nude dancing and sale of

liquor in conjunction with nude dancing did not violate

Establishment Clause in light of “plausible secular

purpose of combating the combustible mixture of

alcohol and nudity”).

Conversely the marriage bans have no legitimate

secular purpose. The records of the legislative and

ballot-campaign proceedings that resulted in the bans

make clear that religious condemnation of marriage

equality was the primary reason for their enactment.

This religious purpose is confirmed by the histories of

the marriage bans, which were presented on explicitly

religious grounds. For example, the lead legislative

sponsor of the senate bill placing Kentucky’s

constitutional marriage ban on the ballot referred to

marriage as a “diving institution designed to form

a permanent union between man and woman.”

S. Debate, 108th Cong., 2nd Sess. (Ky. 2004). He

quoted scripture at length and asserted that First

Corinthians 7:2 describes what he terms “the most

sacred relationship of life” as between a man and “his

own wife” and a woman and “her own husband.” Jd. He

argued that the Amendment ought to be adopted to

protect “the sacred institution of marriage join[ing]

together a man and a woman for the stability of society

and for the greater glory of God.” Id.

Similarly, the lead organization spearheading the

public petition drive to put the Ohio marriage ban on

the ballot explained the purpose of the law in religious

terms, stating, “When same-sex ‘marriage’ is legal

within a state ... [t]he traditional God-designed defini-

tion of marriage is trivialized. ... It cannot coexist with

religious freedoms.” Citizens for Cmty. Values,

Marriage Declaration, available at www.ccv.org/

issues/homosexuality/marriage-declaration (last visited

March 2, 2015).

In Michigan, the president of the American Family

Association of Michigan (*AFA-Michigan”), one of the

Michigan marriage ban’s co-authors and a leading

advocate in favor of its passage, expressed a similar

religious purpose. See Rick Lyman, Gay Couples File

Suit After Michigan Denies Benefits, N.Y. Times Al6

(Apr. 4, 2005) (noting that AFA-Michigan president

Gary Glenn was a “spearhead” of the Amendment who

advocated that “marriage between one man and one

woman be given special recognition, special incentives

and special protection under the law”). AFA-Michigan

is a state affiliate of the national nonprofit American

Family Association (“AFA”), whose Philosophical

Statement declares that AFA “believes that God has

communicated absolute truth to mankind, and that all

people are subject to the authority of God’s Word at all

times.” American Family Association, Who Is AFA,

available at http://(www.afa.net/who-is-afa/our-miss

ion/ (last visited March 2, 2015). AFA’s organizational

activism is directed to, inter alia, the “[p]reservation

of (m]arriage and the [flamily.” Jd.

And the lead legislative proponent of the Tennessee

marriage ban, quoting the Bible, wrote in support of

his constitutional amendment: “For this reason, a

man leaves his mother and father and clings to his

wife, and the two become one.’ When Jesus spoke these

words, He observed what people had known for

thousands of years before and for 2,000 years since—

marriage is between a man and a woman... . Anything

else is a lie.” Rep. Bill Dunn, Support the Marriage

Amendment, Chattanoogan (Sept. 28, 2006). See also

Hearing on H.J.R. 24, 104th Gen. Assemb., Reg. Sess.

(Tenn. Feb. 16, 2005) (Rep. Johnny Shaw) (“God said

that marriage is between a man and a woman and

that’s good enough for me.”).

Indeed, as measured at the time of enactment, these

bans had no purpose or effect at all except to express

a particular religious viewpoint. The four states that

enacted the state constitutional marriage bans at

issue here all already had in place statutes precluding

same-sex couples from civil marriage. See Ky. Rev.

Stat. § 402.005 (1998); Mich. Comp. Laws § 551.1

(1996); Ohio Rev. Code § 3101.01 (2004); Tenn. Code

Ann. § 36-3-113(a) (1996). The only cognizable impetus

for the states’ invidious bans, therefore, was the desire

of certain individuals and religious organizations to

enshrine in the state constitution a particular

religious understanding of marriage and to insulate it

from challenge.

In the religious sphere, even among adherents of

Christianity, there was (and continues to be)

considerable debate about how religion should treat

marriages of same-sex couples. The primary purpose

of the marriage bans was to take sides in this religious

debate by putting the full force of the state behind

an express moral and religious condemnation of a

vulnerable minority—gay men and lesbians. The

restriction of marriage to different-sex couples was

thus a quintessential misuse of governmental power to

promote a particular religious view, with no legitimate

secular purpose. The bans are therefore unconstitu-

tional under the Establishment Clause.

B. “Moral Disapproval” Does Not

Constitute A Legitimate State Interest,

And Therefore The Marriage Bans Also

Violate The Equal Protection Clause.

The marriage bans’ Establishment Clause deficien-

cies support the conclusion that the bans also violate

the Equal Protection Clause. Morality and religion

play an importart role in the lives of many Americans,

and many are undoubtedly guided in their voting by

personal religious and moral beliefs. But to be

constitutional under the Supreme Court’s decisions in

Lawrence v. Texas, 539 U.S. 558 (2003), United States

v. Windsor, 570 U.S. __, 133 S. Ct. 2675 (2013), and

earlier cases, a law must be, at minimum, rationally

related to a legitimate governmental interest.? Moral

disapproval does not qualify as a legitimate interest.

The marriage bans therefore lack any legitimate

purpose.

* Amici support the Petitioners’ position that marriage bans

should be scrutinized under a heightened level of review. See Br.

for Petitioners, Sec. III, Tanco v. Haslam, No. 14-562 (U.S. Feb.

27, 2015); Br. for Petitioners, Sec. 1.B.2, Bourke v. Beshear, No.

14-574 (U.S. Feb. 27, 2015); Br. for Petitioners, Sec. 11.B, DeBoer

v. Snyder, No. 14-571 (U.S. Feb. 27, 2015); Br. for Petitioners, Sec.

Il and III, Obergefell v. Hodges, No. 14-556 (U.S. Feb. 27, 2015).

However, this brief analyzes the issue under rational basis

review to show that the marriage bans cannot withstand even the

lowest level of constitutional review, much less heightened

scrutiny.

The Court held in Lawrence that “the fact that the

governing majority in a State has traditionally viewed

a particular practice as immoral is not a sufficient

reason for upholding a law prohibiting the practice.”

539 U.S. at 577 (quoting Bowers v. Hardwick, 478 U.S.

186, 216 (1986) (Stevens, J., dissenting)) (internal

quotation marks omitted). Justice O’Connor observed

in her Lawrence concurrence that “[m]oral disapproval!

of [a particular group], like a bare desire to harm the

group, is an interest that is insufficient to satisfy

rational basis review under the Equal Protection

Clause.” 539 U.S. at 582. Justice O’Connor further

observed that the Court had “never held that moral

disapproval, without any other asserted state interest,

is a sufficient rationale under the Equal Protection

Clause to justify a law that discriminates among

groups of persons.” Jd.

In Windsor, this Court found that Section 3 of the

federal Defense of Marriage Act—by which Congress

excluded married same-sex couples from over 1,100

federal rights, benefits, and obligations—had the

impermissible purpose of expressing moral condemna-

tion against gay men and lesbians by demeaning the

integrity of their relationships, as well as by express-

ing “animus” and a “bare ... desire to harm a politically

unpopular group.” 133 S. Ct. at 2693-95. The Court

held that this purpose was unconstitutional based on

the equal protection guarantees of the Fifth Amend-

ment. Jd. The marriage bans at issue in this case are

no different.

Lawrence and Windsor are just the latest cases

where this Court invalidated laws reflecting a “bare ...

desire to harm a politically unpopular group.” See

Romer v. Evans, 517 U.S. 620, 634-35 (1996) (altera-

tion in original) (citation omitted) (finding constitu-

tional amendment banning gays and lesbians from

receiving nondiscrimination protections in any local

jurisdiction was motivated by animus and moral

disapproval, and therefore unconstitutional under the

equal protection clause); U.S. Dep’t of Agric. v. Moreno,

413 U.S. 528, 534 (1973) (finding law targeting hippies

unconstitutional under equal protection clause). In

these cases, this Court properly stripped away the

post-hoc rationales proffered and concluded that

“animus,” “negative attitudes,” “unease,” “fear,” bias,”

or “unpopularf[ity]” had actually motivated the legisla-

tive actions at issue. Windsor, 133 S. Ct. at 2693-95;

Lawrence, 539 U.S. at 582; Romer, 517 U.S. at 634-35;

Moreno, 413 U.S. at 534.

Underlying these decisions is an awareness by this

Court that allowing condemnation of a politically

unpopular group to constitute a legitimate govern-

mental interest would effectively eviscerate the Equal

Protection guarantees of the Fifth and Fourteenth

Amendments. Accordingly, this Court has consistently

rejected moral’ condemnation as a governmental

interest. See also Loving, 388 U.S. at 3 (striking down

anti-miscegenation law after trial judge invoked God’s

separation of the races).

As described above, statements of purpose made

throughout the legislative and public-ballot efforts to

pass the marriage bans—and the absence of any

cognizable secular purpose—demonstrate their pur-

pose of preserving and codifying into civil law a

particular religious “ideal” of marriage and condemn-

ing a type of marriage that does not fit that ideal. The

bans’ proponents were motivated by a desire to impose

religious and moral condemnation on a minority, as in

Moreno (hippies) and Romer (gay men and lesbians).

This purpose is improper under both the Establish-

ment Clause and the Equal Protection Clause.

There is no legitimate governmental interest that

would justify a state’s defining marriage to exclude

same-sex couples. Respondents and their amici have

proposed numerous interests to justify the bans, but

as Petitioners’ briefs explain, these professed interests

are shams. See Br. for Petitioners, pp. 47-57, Tanco v.

Haslam, No. 14-562 (U.S. Feb. 27, 2015); Br. for

Petitioners, pp. 39-51, Bourke v. Beshear, No. 14-574

(U.S. Feb. 27, 2015); Br. for Petitioners, pp. 34-45,

DeBoer v. Snyder, No. 14-571 (U.S. Feb. 27, 2015); Br.

for Petitioners, pp. 50-59, Obergefell v. Hodges, No. 14-

556 (U.S. Feb. 27, 2015). What remains once these

claimed interests are rejected is clear from the record:

a bare desire by the interest groups sponsoring the

bans to codify a particular religious view into civil law,

and to express their moral- and religion-based

condemnation of gay and lesbian people. Under both

the Establishment Clause and the Equal Protection

Clause, the bans are therefore unconstitutional.

Ill. A DECISION INVALIDATING THE MAR-

RIAGE BANS WOULD NOT THREATEN

RELIGIOUS LIBERTY.

No one’s religious liberty would be threatened by

overturning the marriage bans before the Court. As an

initial matter, the questions before this Court pertain

to state licensing and recognition of marriage as a

civil institution, not solemnization of marriage as a

religious sacrament. No one seriously contends that

the recognition of same-sex couples’ equal right to

marry civilly will force a change in religious doctrine

or require churches and clergy to solemnize particular

marriages against their beliefs. Indeed, the First

Amendment protects the right of religious groups and

their adherents to make their own rules regarding the

religious solemnization of marriages.

Proponents of marriage bans have argued that

if same-sex couples could marry, churches, private

businesses, schools, teachers, and counselors (among

others) would see their religious freedoms curtailed,

face discrimination lawsuits, and risk losing

governmental benefits. This parade of horribles is a

red herring. Marriage equality—the issue presently

before the Court—is separate and distinct from

application of anti-discrimination laws. Moreover,

such “religious liberty” arguments reflect a profound

misunderstanding of the purpose and meaning of

religious liberty. Religious liberty should operate as a

shield, not as a sword to discriminate against mem-

bers of a disadvantaged minority group. Arguments to

the contrary only serve to highlight that proponents of

marriage bans have impermissibly selected one

particular religious understanding of marriage as

deserving of “religious liberty” protection—a religious

preference that violates both the Establishment and

Equal Protection Clauses.

A. Civil Marriage Is Distinct From, And

Does Not Affect, Religious Marriage.

In the United States, civil marriage is a separate

institution from, and does not mirror the requirements

of, religious marriage. Civil marriage equality will not

affect religious marriage, nor will it infringe on

religious institutions’ abilities to determine which

marriages to solemnize. Under our constitutional

scheme, religious groups have a fundamental right to

adopt and modify requirements for marriage within

their own religious communities. But they do not have

the right to impose their particular religious views

onto the institution of civil marriage. Many religious

groups have, in fact, historically recognized the benefit

inherent in ensuring that their own rules on marriage

are distinct from those embodied in civil law, leaving

them the autonomy to determine which marriages to

solemnize and under what circumstances. For exam-

ple, though atheists have the same right to civil

marriage as people who adhere to religious beliefs,

their possession of that right poses absolutely no

threat to religious marriage traditions, nor does it

cheapen or abrogate the institution of marriage. And,

as discussed below, civil marriage has long included

interracial couples, couples of different faiths, and

couples with prior divorces, and at no point has this

“open tent” approach impinged on religious liberty.

Houses of worship have continued to practice their

marriage rituals without facing legal liability for

refusing to consecrate certain kinds of marriages and

without losing their tax-exempt status. A review of

practices surrounding interfaith, interracial, and post-

divorce marriage illustrates the diversity of religious

views of marriage and the tradition of separating such

views from civil law.

Interfaith Marriage: Some churches historically

prohibited (and some continue to prohibit) interfaith

marriage, while others accept it. For example, the

Roman Catholic Church’s Code of Canon Law

proscribed interfaith, marriage for most of the

twentieth century. Michael G. Lawler, Marriage and

the Catholic Church: Disputed Questions 118-19

(2002) (quoting 1917 Code C.1060). Although this

restriction was relaxed in 1983, modern Catholic

doctrine still requires the Church’s “express permis-

sion” to marry a non-Catholic Christian and “express

dispensation” to marry a non-Christian. 1983 Code

C.1086, 1124; Roman Catholic Church, Catechism

of the Catholic Church 1635 (1995 ed.). Similarly,

Orthodox and Conservative Jewish traditions both

tend to proscribe interfaith marriage, see David S.

Ariel, What Do Jews Believe?: The Spiritual Founda-

tions of Judaism 129 (1996), as do many interpreta-

tions of Islamic law, see Bandari v. INS, 227 F.3d

1160, 1163-64 (9th Cir. 2000) (Iran’s official inter-

pretation of Islamic law forbids interfaith marriage

and dating).

Despite these religious marriage prohibitions,

American civil law has not restricted or limited

marriage to couples of the same faith, and doing so

would be patently unconstitutional. See Epperson v.

Arkansas, 393 U.S. 97, 104 (1968) (“Ihe First Amend-

ment mandates governmental neutrality between

religion and religion, and between religion and

nonreligion.”); cf. Bandari, 227 F.3d at 1168

(“[Plersecution aimed at stamping out an interfaith

marriage is without question persecution on account

of religion.”) (citation and internal quotation marks

omitted).

Interracial Marriage: As with interfaith mar-

riage, religious institutions in the past have differed

markedly in their treatment of interracial relation-

ships. For example, some churches previously con-

demned interracial marriage. See Bob Jones Univ.

v. United States, 461 U.S. 574, 580-81 (1983)

(fundamentalist Christian university believed that

“the Bible forbids interracial dating and marriage”).

In the past, the Church of Jesus Christ of Latter-day

Saints discouraged interracial marriage. See Interra-

cial Marriage Discouraged, Church News 2 (June 17,

1978) (“Now, the brethren feel that it is not the wisest

thing to cross racial lines in dating and marrying.”)

(quoting President Spencer W. Kimball in a 1965

address to students at Brigham Young University).

Yet, in the context of its policy on excluding African-

Americans from the priesthood, the Church expressly

recognized that its position on treatment of African-

Americans was “wholly within the category of reli-

gion,” applying only to those who joined the church,

with “no bearing upon matters of civil rights.” The

First Presidency, Statement on the Status of Blacks

(Dec. 15, 1969), reproduced in Appendix, Neither White

Nor Black: Mormon Scholars Confront the Race Issue

in a Universal Church (Lester E. Bush, Jr. & Armand

L. Mauss eds., 1984).

Similarly, religious views regarding interracial

marriage do not dictate the terms of civil marriage. As

this Court held in Loving, such religious proscriptions

cannot, consistent with the Constitution, be codified in

state law. 388 U.S. at 11.

Marriage Following Divorce: Finally, the Catho-

lic Church does not recognize marriages of those who

divorce and remarry, viewing those marriages as

“objectively contraven[ing] God’s law.” Catechism of

the Catholic Church 1650, 2384. However, civil law

has not reflected this position, and passing a law that

did so would interfere with the fundamental right to

marry. See Boddie v. Connecticut, 401 U.S. 371 (1971).

** *

In all three instances discussed above, individual

religious groups have adopted particular rules relating

to marriage, yet those rules do not dictate the contours

of civil marriage law. At the same time, the religious

groups that have followed those rules have been able

to keep and maintain them internally, due to our

country’s long tradition of separation between church

and state. For some of these religious groups to now

advocate for a _ religion-based understanding of

marriage to be imposed on all people throughout their

states smacks of a hypocritical double standard.

B. Marriage Equality Is A Separate

And Distinct Issue From Anti-

Discrimination Laws.

In past marriage-equality cases, parties and amici

defending marriage bans have erroneously conflated

marriage equality with application of anti-

discrimination laws. Such arguments regarding

potential liability under a variety of different types of

anti-discrimination laws are a red herring. Those who

make such arguments actually take issue with the

anti-discrimination laws themselves, not with the

legal definition of marriage.

Additionally, the vendors supposedly at risk of

facing discrimination lawsuits would not be newly

exposed to litigation by invalidation of marriage bans,

because same-sex couples have long had unofficial

religious and non-religious marriage ceremonies

throughout the country. For example, one such

lawsuit that gained national attention arose from a

“commitment ceremony” in 2006 in a state that did not

at the time afford any legal recognition to same-sex

couples’ unions. See Elane Photography, LLC uv.

Willock, 309 P.3d 53, 59 (N.M. 2013), cert. denied, 134

S. Ct. (2014).

Regardless of whether the ceremonies are official,

vendors have been—and will continue to be—subject

to any applicabie anti-discrimination laws just as they

would be if they refused to provide service for an

interfaith couple or an interracial couple. Allowing the

ceremonies to be official civil marriage ceremonies—

though important for the couple—will make no

difference whatsoever to any vendor’s pre-existing

obligation to comply with anti-discrimination laws.

C. Commercial Businesses Have No Con-

stitutional Right To Discriminate.

A business that avails itself of the benefits of doing

business with the public must be subject to the public’s

rules for conducting that business. “The Constitution

does not guarantee a right to choose employees,

customers, suppliers, or those with whom one engages

in simple commercial transactions, without restraint

from the State.” Roberts v. U.S. Jaycees, 468 U.S. 609,

634 (1984) (O’Connor, J., concurring). Indeed, it is a

fundamental principle of public accommodations law

that when a business chooses to solicit customers from

the general public, it relinquishes autonomy over

whom to serve. Bell v. Maryland, 378 U.S. 226, 314-15

(1964) (Goldberg, J., concurring) (quoting Marsh v.

Alabama, 326 U.S. 501, 506 (1946)). As the Supreme

Court of Nebraska explained in one of the earliest

public accommodation decisions, “a barber, by opening

a shop, and putting out his sign, thereby invites every

orderly and well-behaved person who may desire his

services to enter his shop during business hours. The

statute will not permit him to say to one: ‘You are a

slave, or a son of a slave; therefore I will not shave

you.” Messenger v. State, 41 N.W. 638, 639 (Neb.

1889).

In short, to the extent the law requires it, “one who

employ(s] his private property for purposes of

commercial gain by offering goods or services to the

public must stick to his bargain.” Heart of Atlanta

Motel, Inc. v. United States, 379 U.S. 241, 284 (1964)

(Douglas, J., concurring) (quoting S. Rep. No. 872,

88th Cong., 2d Sess. 22 (1964)). Religion offers no

trump card over anti-discrimination laws. Excluding

same-sex couples from marriage simply to foreclose

potentially meritorious discrimination claims against

a commercial business (where such anti-discrimina-

tion laws exist) is not a legitimate governmental

interest.

No matter how they are framed, the “religious

freedom” arguments can gain no traction in cases like

these, involving a challenge to a discriminatory

marriage law. This Court is not in the habit of

upholding discriminatory laws to protect religious

prerogatives. The proponents of these arguments

would do better to recognize that religious liberty is

best safeguarded when religious groups retain the

freedom to define religious marriage for themselves,

and to remember that civil marriage is an institution

of government, which is prohibited from enacting laws

based on particular religious viewpoints. See § II.A,

supra.

Finally, Respondents’ and amici’s argument that

the Court should leave the issue of marriage equality

to state legislatures and the democratic process (see,

e.g., Br. for Petitioners, pp. 51-54, Obergefell uv.

Hodges, No. 14-556 (U.S. Feb. 27, 2015)) are rooted in

a fundamental misunderstanding of the operation of

the Equal Protection Clause. Under such a theory,

grounded in the reasoning of Dred Scott, this Court

should have abstained from deciding cases like Brown

and Loving; the Court instead should have waited for

the state legislatures to vindicate equal rights. That is

not how the Fourteenth Amendment works.

It took 60 years for Plessy’s mandate of “separate but

equal” to be reversed, and it was not the legislatures

or the people who reversed it; it was this Court. See

Brown, 347 U.S. at 493-95. Rightly so. When a law

violates the constitutional guarantee of equality, it

cannot be saved by an appeal to a hypothetical more

enlightened future.

CONCLUSION

For the foregoing reasons, the judgment of the court

of appeals should be reversed.

Respectfully submitted,

STEVEN M. FREEMAN GREGORY E. OSTFELD

SETH M. MARNIN Counsel of Record

MIRIAM L. ZEIDMAN JAMES P. MADIGAN

DAVID L. BARKEY GREENBERG TRAURIG, LLP

ANTI-DEFAMATION LEAGUE 77 West Wacker Dr.

605 Third Avenue Suite 3100

New York, New York 10158 Chicago, Illinois 60601

ILARIE (312) 456-8400

ee OT _ ostfeldg@gtlaw.com

BRIGID F. CECH SAMOLE

GREENBERG TRAURIG, P.A.

333 S.E. 2nd Avenue

Suite 4400

Miami, Florida 33131

March 2015

APPENDIX

AMICI CURIAE STATEMENTS OF INTEREST

Amicus curiae Anti-Defamation League (“ADL”) was

founded in 1913 to combat anti-Semitism and other

forms of prejudice, and to secure justice and fair

treatment to all. Today, ADL is one of the world’s

leading civil rights organizations. As part of its

commitment to protecting the civil rights of all

persons, ADL has filed amicus briefs in numerous

cases urging the unconstitutionality or illegality of

discriminatory practices or laws, including United

States v. Windsor, 570 U.S. __, 183 S. Ct. 2675 (2013);

Hosanna-Tabor Evangelical Lutheran Church and

School v. E.E.O.C., 132 S. Ct. 694 (2012); Christian

Legal Society v. Martinez, 130 S. Ct. 2971 (2010);

Lawrence v. Texas, 539 U.S. 558 (2003); Zelman uv.

Simmons-Harris, 536 U.S. 639 (2002); Alexander v.

Sandoval, 532 U.S. 275 (2001); Boy Scouts of America

v. Dale, 530 US 640 (2000); Mitchell v. Helms, 530 U.S.

793 (2000); and Romer v. Evans, 517 U.S. 620 (1996).

ADL has a substantial interest in this case. At issue

are core questions about equality, constitutional

rights, and religious freedom. And the justifications

offered by Respondents and their amici—if embraced

by this Court—would invite state-sanctioned prejudice

of the strain that ADL has long fought.

Amicus curiae the American Jewish Committee

(“AJC”), a national organization of more than 125,000

members and supporters with 22 regional offices, was

founded in 1906 to protect the rights of American

Jews. AJC has long believed that one of the most

effective ways to achieve that goal is to ensure that all

citizens enjoy the equal protection of the laws and

equal rights of citizenship. These equal rights include

the right to marry.

AJC’s position on official recognition of same-sex

relationships has evolved. In a Resolution adopted in

2013, AJC insisted that the basic American principles

of equality and human dignity require that the federal

and state governments extend the legal and economic

benefits of marriage to those Americans who love

people of the same gender. That right cannot be denied

merely because other citizens find such relationships

offensive or religiously objectionable.

As its brief in Hollingsworth v Perry, Nos. 12-144

and 12-307 (Feb. 28, 2013), made plain, AJC is also a

strong supporter of religious liberty. Accordingly, it

does not at this time join Section III.C of this brief. On

some of the matters discussed there, AJC is not in

agreement, and on others it has not yet taken a

position.

Amicus curiae Bend the Arc: A Jewish Partnership

for Justice, is a national organization inspired by

Jewish values and the steadfast belief that Jewish

Americans, regardless of religious or institutional

affiliations, are compelled to create justice and

opportunity for Americans.

Amicus curiae the Central Conference of American

Rabbis (“CCAR”), whose membership includes more

than 2,000 Reform rabbis, and the Women of Reform

Judaism, which represents more than 65,000 women

in nearly 500 women’s groups in North America and

around the world, oppose discrimination against all

individuals, including gays and lesbians, for the stamp

of the Divine is present in each and every human

being. As Jews, we are taught in the very beginning of

the Torah that God created humans B’tselem Elohim,

in the Divine Image, and therefore the diversity of

creation represents the vastness of the Eternal

(Genesis 1:27). Thus, we unequivocally support equal

rights for all people, including the right to a civil

marriage license. Furthermore, we whole-heartedly

reject the notion that the state should discriminate

against gays and lesbians with regard to civil

marriage equality out of deference to religious

tradition, as Reform Judaism celebrates the unions

of loving same-sex couples and considers such

partnerships worthy of blessing through Jewish ritual.

Amicus curiae the Global Justice Institute is the

social justice arm of Metropolitan Community

Churches (“MCC”). We are separately incorporated,

though we originally began as a “ministry” of MCC.

We are working in Asia, Pakistan, Eastern Europe,

Latin America, the Caribbean, Canada, the United

States, East Africa and South Africa on matters of

social justice and public policy primarily in the LGBTI

communities, but also along lines of intersection with

other marginalized communities.

Amicus curiae Hadassah, The Women’s Zionist

Organization of America, founded in 1912, has over

330,000 Members, Associates, and supporters nation-

wide. In addition to Hadassah’s mission of initiating

and supporting pace-setting health care, education,

and youth institutions in Israel, Hadassah has a proud

history of protecting the rights of women and the

Jewish community in-the United States. Hadassah

vigorously condemns discrimination of any kind and,

as a pillar of the Jewish community, understands the

dangers of bigotry. Hadassah strongly supports the

constitutional guarantees of religious liberty and

equal protection, and rejects discrimination on the

basis of sexual orientation. Hadassah supports gov-

ernment action that provides civil status to committed

same-sex couples and their families equal to the civil

status provided to the committed relationships of men

and women and their families, with all associated

legal rights and obligations, both federal and state.

Amicus curiae Hindu American Foundation (“HAF”)

is an advocacy organization for the Hindu American

community. The Foundation educates the public about

Hinduism, speaks out about issues affecting Hindus

worldwide, and builds bridges with institutions and

individuals whose work aligns with HAF’s objectives.

HAF focuses on human and civil rights, public policy,

media, academia, and interfaith relations. Through its

advocacy efforts, HAF seeks to cultivate leaders and

empower future generations of Hindu Americans.

Since its inception, the Hindu American Foundation

has made legal advocacy one of its main areas of focus.

From issues of religious accommodation, religious

discrimination, and hate crimes to defending funda-

mental constitutional rights of free exercise and the

separation of church and state, HAF has educated

Americans at large and the courts about various

aspects of Hinduism and issues impacting the Hindu

American community, either as a party to the case or

an amicus curiae.

Amicus curiae Interfaith Alliance Foundation cele-

brates religious freedom by championing individual

rights, promoting policies that protect both religion

and democracy, and uniting diverse voices to challenge

extremism. Founded in 1994, Interfaith Alliance’s

members across the country belong to 75 different

faith traditions as well as no faith tradition. Interfaith

Alliance supports people who believe their religious

freedoms have been violated as a vital part of its work

promoting and protecting a pluralistic democracy and

advocating for the proper boundaries between religion

and government. Interfaith Alliance also seeks to shift

the perspective on LGBT equality from that of problem

to solution, from a scriptural argument to a religious

freedom agreement, and to address the issue of equal-

ity as informed by our Constitution. Same-Gender

Marriage and Religious Freedom: A Call to Quiet

Conversations and Public Debates, a paper by

Interfaith Alliance President, Rev. Dr. C. Welton

Gaddy, offers a diversity of ideas based on Interfaith

Alliance’s unique advocacy for religious freedom and

interfaith exchange.

Amicus curiae Japanese American Citizens League

(“JACL”), founded in 1929, is the nation’s largest and

oldest Asian-American non-profit, non-partisan organ-

ization committed to upholding the civil rights of

Americans of Japanese ancestry and others. It

vigilantly strives to uphold the human and civil rights

of all persons. Since its inception, JACL has opposed

the denial of equal protection of the laws to minority

groups. In 1967, JACL filed an amicus brief in Loving

v. Virginia, urging the Supreme Court to strike down

Virginia’s anti-miscegenation laws, and contending

that marriage is a basic civil right of all persons. In

1994, JACL became the first API non-gay national

civil rights organization, after the American Civil

Liberties Union, to support marriage equality for

same-sex couples, affigming marriage as a fundamen-

tal human right that should not be barred to same-sex

couples. JACL continues to work actively to safeguard

the civil rights of all Americans.

Amicus curiae Jewish Social Policy Action Network

(“JSPAN”) is a membership organization of American

Jews dedicated to protecting the Constitutional

liberties and civil rights of Jews, other minorities, and

the vulnerable in our society. For most of the last two

thousand years, whether they lived in Christian or

Muslim societies, Jews were a small religious minority

victimized by prejudice and lacking sufficient political

power to protect their rights. During the Holocaust,

not only Jews, but gays and lesbians, Gypsies and

others were targeted for persecution and death at the

hands of the Nazis. Perhaps because of their shared

history as victimized outsiders, Jews have been espe-

cially sensitive to the plight of the lesbian and gay

community as a discrete and insular minority within

American society and throughout much of the world.

As one of many voices within the progressive Jewish

community, JSPAN is committed to making marriage

under civil law available to consenting couples without

regard to their sexual orientation.

Amicus curiae Keshet is a national organization

that works for the full equality and inclusion of

lesbian, gay, bisexual, and transgender (“LGBT”) Jews

in Jewish life. Led and supported by LGBT Jews and

straight allies, Keshet cultivates the spirit and

practice of inclusion in all parts of the Jewish

community. Keshet is the only organization in the U.S.

that works for LGBT inclusion in all facets of Jewish

life — synagogues, Hebrew schools, day schools, youth

groups, summer camps, social service organizations,

and other communal! agencies. Through training, com-

munity organizing, and resource development, we

partner with clergy, educators, and volunteers to

equip them with the tools and knowledge they need to

be effective agents of change.

Amicus curiae Metropolitan Community Churches

(“MCC”) was founded in 1968 to combat the rejection

of and discrimination against persons within religious

life based upon their sexual orientation or gender

identity. MCC has been at the vanguard of civil and

human rights movements and addresses the im-

portant issues of racism, sexism, homophobia, ageism,

and other forms of oppression. MCC is a movement

that faithfully proclaims God’s inclusive love for all

people and proudly bears witness to the holy integra-

tion of spirituality and sexuality.

Amicus curiae More Light Presbyterians represents

lesbian, gay, bisexual, and transgender people in the

life, ministry, and witness of the Presbyterian Church

(U.S.A.) and in society.

Amicus curiae National Council of Jewish Women

(“NCJW”) is a grassroots organization of 90,000 volun-

teers and advocates who turn progressive ideals into

action. Inspired by Jewish values, NCJW strives for

social justice by improving the quality of life for

women, children, and families and by safeguarding

individual rights and freedoms. NCJW’s Resolutions

state that NCJW resolves to work for “Laws and

policies that provide equal rights for same-sex

couples.” Our principles state that “Religious liberty

and the separation of religion and state are constitu-

tional principles that must be protected and preserved

in order to maintain our democratic society” and

“discrimination on the basis of race, gender, national

origin, ethnicity, religion, age, disability, marital

status, sexual orientation, or gender identity must be

eliminated.” Consistent with our Principles and

Resolutions, NCJW joins this brief.

Amicus curiae Nehirim is a national community of

lesbian, gay, bisexual, and transgender Jews, part-

ners, and allies. Nehirim’s advocacy work centers on

building a more just and inclusive world based on the

teachings in the Jewish tradition.

Amicus curiae People For the American Way Foun-

dation (“PFAWF”) is a nonpartisan civic organization

established to promote and protect civil and constitu-

tional rights, including religious liberty and equal

protection of the laws. Founded in 1981 by a group of

civic, educational, and religious leaders, PFAWF now

has hundreds of thousands of members nationwide.

Over its history, PFAWF has conducted extensive

education, outreach, litigation, and other activities to

promote these values. PFAWF strongly supports the

principle of the Free Exercise Ciause of the Constitu-

tion as a shield for the exercise of religion, protecting

individuals of all faiths. PFAWF is concerned, how-

ever, about efforts, historically and in this case, to

transform this important shield into a sword to attack

the rights of third parties to be free from discrimina-

tion with respect to marriage and in other areas, which

ultimately have been rejected by this Court, and

accordingly joins this brief.

Amicus curiae Presbyterian Welcome works for the

full participation of individuals in contexts of faith,

regardless of sexual orientation, gender identity

or expression. As followers of Christ, convinced by

Scripture, we labor for a world where all persons

might live into the calling that God has placed in their

hearts. We are a resource, training current and future

leaders of church and society.

Amicus curiae ReconcilingWorks: Lutherans For

Full Participation organizes lesbian, gay, bisexual,

and transgender individuals and their allies within

the Lutheran communion and its ecumenical and

global partners.

Amicus curiae Reconstructionist Rabbinical College

and Jewish Reconstructionist Communities educates

leaders, advances scholarship, and develops resources

for contemporary Jewish life.

Amicus curiae Religious Institute, Inc. is a multi-

faith organization whose thousands of supporters

include clergy and other religious leaders from more

than fifty faith traditions. The Religious Institute, Inc.

partners with the leading mainstream and progressive

religious institutions in the United States.

Amicus curiae the Sikh American Legal Defense and

Education Fund (“SALDEF”) was founded in 1996 and

is the oldest Sikh American civil rights and educa-

tional organization. We empower Sikh Americans

through advocacy, education, and media relations.

SALDEF’s mission is to protect the civil rights of Sikh

Americans and ensure a fostering environment in the

United States for future generations.

Amicus curiae Society for Humanistic Judaism

(“SHJ”) mobilizes people to celebrate Jewish identity

and culture, consistent with Humanistic ethics and a

nontheistic philosophy of life. Humanistic Jews be-

lieve each person has a responsibility for their own

behavior, and for the state of the world, independent

of any supernatural authority. The SHJ is concerned

with protecting religious freedom for all, and espe-

cially for religious, ethnic, and cultural minorities

such as Jews, and most especially for Humanistic

Jews, who do not espouse a traditional religious belief.

Humanistic Jews support the right and responsibility

of adults to choose their marriage partners. The

Society for Humanistic Judaism supports the legal

recognition of marriage and divorce between adults of

the same sex, and affirms the value of marriage

between any two committed adults with the sense

of obligations, responsibilities, and consequences

thereof.

10a

Amicus curiae South Asian Americans Leading

Together (“SAALT”) is a national non-profit organiza-

tion whose mission is to elevate the voices and

perspectives of South Asian individuals and organiza-

tions to build a more just and inclusive society in the

United States. As an organization that is committed to

importance of equality and civil rights, SAALT joins

this brief in an effort to ensure that the Constitution

is not violated and all individuals are treated equally,

regardless of their sexual orientation.

Amicus curiae T’ruah: The Rabbinic Call for Human

Rights is an organization led by rabbis from all

denominations of Judaism that acts on the Jewish

imperative to respect and protect the human rights of

all people. Our commitment to human rights begins

with the Torah’s declaration that all people are

created in the image of God (Genesis 1:26). Within the

Jewish canon, this core belief leads to teachings that

equate harming a human being with diminishing the

image of God. (See, for example, B’reishit Rabbah

34:14 and Mishnah Sanhedrin 6:5.) People of faith are

not of one mind opposing civil marriage equality, and

many interpretations of religion, including ours, sup-

port equal marriage rights. Judaism insists on the

equality of every person before the law. The Torah

instructs judges, “You shall not judge unfairly; you

shall show no partiality” (Deuteronomy 16:19). Jewish

law has developed strict guidelines to ensure that

courts function according to this principle. The rights

and protections afforded by civil marriage are legal

and not religious in nature. The case at hand

addresses tax obligations that may be incumbent on

some couples married according to the laws of their

state, but not on others. Jewish law accepts that “the

law of the land is the law,” and upholds the right of the

government to impose taxes on its citizens. However,

lla

major Jewish legal authorities classify as “theft” a

tax levied on one subgroup and not on another

(Maimonides, Mishneh Torah, Laws of Theft 5:14;

Shulchan Aruch, Hoshen Mishpat 369:8). We thus

believe it is important to state that people of faith are

not of one mind opposing civil marriage equality, and

that many interpretations of religion actually support

such equality. The Universal Declaration of Human

Rights similarly guarantees to every person equal

rights, without “distinction of any kind,” and specifies

that “Men and women of full age * * * are entitled to

equal rights as to marriage, during marriage and at its

dissolution.” While each rabbi or religious community

must retain the right to determine acceptable

guidelines for religious marriage, the state has an

obligation to guarantee to same-sex couples the legal

rights and protections that accompany civil marriage.

Doing otherwise constitutes a violation of human

rights, as well as the Jewish and American legal

imperatives for equal protection under the law.

Amicus curiae Women’s League for Conservative

Judaism (“WLCJ”) is the largest synagogue based

women’s organization in the world. As an active arm

of the Conservative/Masorti movement, we provide

service to hundreds of affiliated women’s groups in

synagogues across North America and to thousands of

women worldwide. WLCJ strongly supports full

civil equality for gays and lesbians with all associated

legal rights and obligations, both federal and state

and rejects discrimination on the basis of sexual

orientation.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.