Amicus Curiae Brief — Obergefell v. Hodges

Supreme Court, U.S.

FILEO

MAR 17 2015

OFFICE OF THE CLERK

Nos. 14-556, 14-562. 14-571, 14-574

In the

Supreme Court of the United States

+

JAMES OBERGEFELL, et al.,

Petitioners,

vs.

RICHARD HopDGEs, et al.,

Respondents.

age

On Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

“je

BRIEF OF ROBERT J. BENTLEY,

GOVERNOR OF ALABAMA,

AS AMICUS CURIAE IN SUPPORT

OF RESPONDENTS

x

David B. Byrne, Jr. Algert S. Agricola, Jr.*

Legal Advisor to the Governor Ryals, Donaldson & Agricola, PC

Office of the Governor 60 Commerce Street, Ste 1400

Alabama Capitol, Ste NB-05 Montgomery, AL 36104

600 Dexter Avenue (334) 834-5290 P

Montgomery, AL 36130 (334) 834-5297 F

(334) 242-7120 P aagricola@rdafirm.com

(334) 242-2335 F *Counsel of Record

david. byrne@governor.alabama.gov

” (Additional captions and counsel listed on inside cover)

Counsel for Amicus Curiae Governor Robert J. Bentley

(Additional Case Captions)

~ oo

VALERIA TANCO, et al.,

Petitioners,

vs.

WILLIAM EDWARD “BILL” HASLAM, et al.,

Respondents.

ate.

>

APRIL DEBOER, et al.,

Petitioners,

v8.

RICK SNYDER, et al.,

Respondent.

<p

GREGORY BOURKE, et al.,

Petitioners,

v8.

STEVE BESHEAR,

Respondent.

alo

;

(Additional Counsel for Amicus Curiae Governor

Robert J. Bentley)

Adam J. MacLeod

5345 Atlanta Highway

Montgomery, AL 36109

(334) 386-7527

amacleod@faulkner.edu

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................-. iii

INTEREST OF THE AMICUS CURIAE ...... l

SUMMARY OF ARGUMENT ................. 4

SEE Cracadedduddcekessaeenetubawebes 6

I. Marriage and Non-Marriage ....... 6

II. Full, legal equality between married

couples and same-sex couples cannot be

achieved without eliminating the

fundamental rights and duties of

biological parents and kin and thereby

jeopardizing the rights of children. . 11

A. Full equality is not achieved by

extending legal recognition to

Same-sex couples, as the laws of

Massachusetts and similar States

ee 11

B. The only way to create full

equality between marriage and

same-sex relations would be to

eradicate the fundamental rights

of children to be connected legally

to their biological parents, which

governments have no power to do

sensandsdessoeekascakeneusen 14

III. The power to assign privileges and other

incidents of marriage to relations that are

like marriage is reserved to the States by

the Tenth Amendment. ........... 18

A. Different States exercise their

sovereignty to regulate the family

Ss sensesnssdenees 18

B. Alabama and States like it

exercise their sovereignty to

affirm marriage and the biological

family that arises from it; this is a

compelling state interest.... 26

C. No morally-neutral reason, no

constitutional doctrine, provides

any basis to prefer the laws of

Massachusetts to those of

Dt tshecseessavewess 31

PEE cckéKbekstdevedesecccuncesdas 34

ill

TABLE OF AUTHORITIES

Cases Page

Adoptive Couple v. Baby Girl,

133 S. Ct. 2552, 2574-75 (2013) ................. 16

Cooner v. Alabama State Bar,

59 So.3d 29 (Ala. 2010) ........... oe ae ee 8

Ex parte State of Alabama ex rel. Ala. Policy Inst.,

___$o0.3d___, 2015 Ala. Lexis 33 (Ala. Mar. 3, 2015) .3

Ex parte State of Alabama,

57 So.3d 704, 719 (Ala. 2010) .................... 2

Goodridge v. Dept. of Public Health,

798 N.E.2d 941, 995-97 (Mass. 2003) ......... 13, 24

Haddock v. Haddock,

ee ED . 6 coco ecesecenseeeseus 19

Holder v. Hall,

ee CED oo bd vovceeaueeseesecess 33

Hunter v. Rose,

975 N.E.2d 857, 861-62 (Mass. 2012) ............ 11

In Re Burrus,

ek RR ere 19, 21

J.M.V. v. J.K.H.,

149 So.3d 1100 (Ala.Civ.App. 2014) .............. 8

iV

Lawrence v. Texas,

EF cena rane Renee ohne da 13

Lewis v. Harris,

908 A.2d 196, 222 (N.J. 2006) ............... 26, 33

Lofton v. Secretary of the Dept. of Children and

Family Services,

358 F.3d 804, 809 (11th Cir. 2004) .............. 22

Loving v. Virginia,

Es cccccnaceccctevanseovns 15, 22

Meyer v. Nebraska,

262 U.S. 390, 399-400 (1923) ............-.eeees 16

Moore v. City of East Cleveland,

ee Se ED bc 6cscecccncccocsessese 17

Murphy v. Ramsey,

es <cvacceueeeseeuesenees 6, 16

National Federation of Independent Business v.

Sebelius,

tf Re & Gf eee 20

New York v. United States,

Se , ts EE noc cnc woeccceecenses 20

Nguyen v. Holder,

21 N.E.3d 1017, 1021-22 (N.Y. 2014) ............ 12

-

Opinion of the Justices No. 179,

275 Ala. 547, 549, 156 So.2d 639, 641 (1961) ....... 2

Opinion of the Justices to the Senate,

802 N.E.2d 565, 581 n.3 (Mass. 2004)......... 11, 24

Parham v. J.R.,

tk Be eee 24

Pierce v. Society of Sisters,

ee as SOs GED o vec sveséecseucuadevans 24

Plyler v. Doe,

Ge Ga Es PUNE 6 0 6 cc cccecsccesssnstass 26

Printz v. United States,

eee © § ]. | ee

Schuette v. Coal. to Defend Affirmative Action,

ote Be Bf Pee 30

Searcy v. Strange,

___ F.Supp.3d__, 2015 U.S. Dist Lexis 7776

te) eS 8 eee 2, 7, 8, 28

Skinner v. Oklahoma,

SOS USE. GE, BSE GRD oc vc ccvccccccsveves 15, 22

Smith v. Organization of Foster Families,

Ge Wa GE PGT GD vc cweneesecvésvunss 6, 17, 23

vi

Strawser v. Strange,

___ F.Supp.3d ___, U.S. Dist Lexis 8439

ew ccc cceccccecees 2

Troxel v. Granville,

ng. ccc cccccecceces 24

United States v. Windsor,

133 S. Ct. 2675, 2692 (2013) ............. 9, 19, 21, 32

Williams v. North Carolina,

ED oo ccc ccccceeeeoes 19, 21

Williams v. North Carolina,

re 19, 21

Statutes

ALA. CODE Title 26, Chapter 10A ............... 7

ee. ee eusesesece 7

Bap. COO S UB-TSBID ... nc cccccccccccccccccccs 7

EE 8

OE EE 7

nn cc ccccccccccceece 7

EE EE 8

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BEA CE Se Sebi csesetincciesctandes 7

es IE 0 de cdnkeseseweiicieiieeds 2

SR Ge Se 6b os ck edcdescvicndecsecsaden 2

ee Ses OE ht cb oeeddéeudeusiscdedcxees 8

Se PEE si ccddsccedenidcansecdua 8

BRR Mee EE ho cncdeccecccddsdntddedess 8

PRA Ge COGS bo cccececsieseeiccsssceies 8

ALA. CODE § 45-28-7O(f)(1) .. 2.2... ee eee ee eee 8

M.G.L. c. 207§1..... (éndeceuvedéedecucadiands 12

en 66 6 onde deeds bntedekdaaesawe 12

I NN PPO TT TT rere r er Tere 12

Sh ccnecdvnenseehnndeeawedees 11

CL ET o<ct-tedePedeuvswwewaksiawis 12

Constitutional Authority

Art. I, § 36.08, ALA. CONST. (1901) .............. 2

Art. V, § 118, ALA. CONST. (1901) ............... 1

vill

Art. V, § 120, ALA. ConsT. (1901) ............... 1

U.S. Const. amend. IX ...... pai eel cerae 4,16,18

U.S. Const. amend. X ...............+-.:- 5, 18, 19

Other Authorities

1 William Blackstone, Commentaries on the Laws of

England 434

(University of Chicago Press (1979) (1765) ....... 17

2 James Kent, Commentaries on American Law 225-

67

(Boston, Little, Brown & Co., O.W. Holmes, Jr. Ed.,

DG, PE <ccccoscccceceecseecéeeees 17

Adam J. MacLeod, The Search for Moral Neutrality

in Same-Sex Marriage Decisions,

23 BYU Journal of Public Law 1, 54-58 (2008) . 27, 34

Black’s Law Dictionary 970 (8th ed. 2004) ....... 1

James R. Stoner, Jr., Common Law and Liberal

Theory:

Coke, Hobbes, and the Origins of American

Constitutionalism 78-83 (1992) ................ 15

Jeffrey D. Jackson, Blackstone’s Ninth Amendment:

A Historical Common Law Baseline for the

Interpretation of Unenumerated Rights,

62 Oklahoma L.Rev. 167 (2010) ................ 16

ix

Larry Kramer, Same-Sex Marriage, Conflict of

Laws, and the Unconstitutional Public Policy

Exception,

106 Yale L.J. 1965, 1971 (1997) ................. 34

Matthew B. O’Brien, Why Liberal Neutrality

Prohibits Same-Sex Marriage: Rawls, Political

Liberalism, and the Family,

1 British Journal of American Legal Studies 411

DT ccce ceaGieeuEedee ks cdeeudateséeuseeece 31

Patrick Lee and Robert P. George,

Conjugal Union: What Marriage is and Why it

DT d<cetcenuédnesseneddeesseneée< 23

Sherif Girgis, Ryan T. Anderson, and Robert P.

George,

What is Marriage?: Man and Woman: A Defense

Di acicaankenundns ets deusneuekoaneans 12, 23

Sherif Girgis, Windsor: Lochnerizing on Marriage?,

64 Case Western Reserve Law Review, 971, 1001-04

SE iin Grin wdigkne tae eae anaes 27, 31

The Boston Globe, Accrediting Agency to Review

Gordon College (July 11, 2014), available at

http-//www.bostonglobe.com/metro/2014/07/1 l/agenc

y-review-whether-gordon-college-antigay-stance-

policies-violate-accrediting-

standards/Cti63s3A4cEHLGMPRQ5Ny,/story.htm!

(last visited January 30,2015) ................. 29

x

The Boston Globe, Catholic Charities Stuns State,

Ends Adoptions (March 11, 2006), available at

http-//www.boston.com/news/local/articles/2006/03/11/

catholic charities stuns state _ends_adoptions/ (last

visited J: anuary PN cn cudccccesescatuasane 29

The Boston Globe, Gay Married Man Says Catholic

School Rescinded Job Offer (January 30, 2014),

available at

http://www. bostonglobe.com/metro/2014/01/29/dorche

ster-man-files-discrimination-against-catholic-school-

says-lost-job-because-was-gay-

married/OKswVITMsOrruEbhsOsOeN/story.html

(last visited January 30, 2015) ................. 29

William Baude, Beyond DOMA: Choice of State Law

in Federal Statutes,

64 Stanford L. Rev. 1371, 1390 (2012) ........... 34

WSFA News, AL Health Dept. Updating Marriage

Forms ir Wake of Gay Marriage Ruling (February 5,

2015), available at

http://www. wsfa.com/story/28034821/al-health-dept-

updating-marriage-forms-in -wake-of-gay-marriage-

“What About the Children? Liberal Cautions on

Same-Sex Marriage,” in The Meaning of Marriage:

Family, State, Market, and Morals 36

(Robert P. George and Jean Bethke Elshtain, eds.,

]

INTEREST OF THE AMICUS CURIAE '

Amicus curiae, as Governor of Alabama, is

constitutionally vested with the supreme executive

power of the State of Alabama. Art. V, § 113, ALA.

ConsT. (1901). He is constitutionally designated chief

magistrate for the State of Alabama. Jd. Further, the

Governor is constitutionally required to “...take care

that the laws be faithfully executed.” Art. V, § 120,

ALA. CONST. (1901).

With regard to the Governor’s constitutional

authority, the Alabama Supreme Court has stated:

... these express constitutional provisions, all of

which are of course unique to the office of

governor, plainly vest the governor with an

authority to act on behalf of the State of Alabama

and to ensure “that the laws [are] faithfully

executed” that is “supreme” to the “duties” given

the other executive-branch officials created by

the same constitution. See generally Black’s Law

Dictionary 970 (8th ed. 2004) (defining a

' The Clerk of this Court has noted on the docket the blanket

consent of all Respondents to the filing of amicus curiae

briefs. Written consent from counsel for Petitioners to the

filing of this amicus curiae brief accompanies this amicus

curiae brief. This brief of Amicus Curiae Governor Robert

J. Bentley was not authored in whole or in part by counsel for

any party to these cases. No such counsel or party has made

a monetary contribution intended to fund the preparation or

submission of this brief.

2

“magistrate” as “[tJhe highest-ranking official in

a government, such as the king in a monarchy,

the president in a republic, or governor in a

state.-Also termed chief magistrate; first

magistrate.”). See also Opinion of the Justices

No. 179, 275 Ala. 547, 549, 156 So.2d 639, 641

(1961): “The laws of the state contemplate

domestic peace. To breach that peace is to

breach the law, and execution of the laws

demands that peace be preserved. The governor

is charged with the duty of taking care that the

laws be executed and, as a necessary

consequence, of taking care that the peace be

preserved.”

Ex parte State of Alabama, 57 So.3d 704, 719 (Ala.

2010).

Further, in Searcy v. Strange, __ F .Supp.3d __,

2015 U.S. Dist Lexis 7776 (S.D. Ala. Jan. 23, 2015) and

Strawserv. Strange, _ F .Supp.3d_, U.S. Dist Lexis

8439 (S.D.Ala. Jan. 26, 2015), the Court declared the

Alabama Sanctity of Marriage Amendment, Art. I, §

36.03, ALA. CONST. (1901)*, and the Alabama Marriage

Protection Act, ALA. CODE § 30-1-19, unconstitutional,

leading to a situation in which probate judges in some

counties have refused to issue marriage licenses to

same sex couples, or not at all, while probate judges in

other counties issue marriage licenses to same- and

opposite- sex couples. See, ALA. CoDE § 30-1-9

* The Sanctity of Marriage Amendment was approved by

81% of the voters in Alabama in 2006.

3

(“Marriage licenses may be issued by the judges of

probate of the several counties.”) Moreover, on

February 8, 2015, Alabama Supreme Court Chief

Justice Roy S. Moore, as administrative head of the

Alabama unified judicial system, issued an order to

Alabama probate judges that they shall not issue or

recognize a marriage license that is inconsistent with

Alabama law. Then on March 3, 2015, the Alabama

Supreme Court granted an original petition for the writ

of mandamus commanding probate judges to cease

issuing marriage licenses to same sex couples based

upon its finding that Alabama's Sanctity of Marriage

Amendment and Marriage Protection Act do not violate

the U.S. Constitution. Ex parte State of Alabama ex

rel. Ala. Policy Inst., _ So. 8d ___, 2015 Ala. Lexis 33

(Ala. Mar. 3, 2015). Thus, the Governor has a direct and

constitutionally-based interest in the outcome of these

cases.

4

SUMMARY OF ARGUMENT

Marriage equality does not exist in the United

States. It cannot be made to exist in law without

destroying the rights of children to be connected to

their biological parents. No State can afford to do that.

Even those States that have extended legal recognition

to same-sex couples continue to distinguish between

marriage and same-sex “marriage.” The reason is plain:

Marriage is a natural reality that States must

distinguish from all other forms of human sociability,

including same-sex relationships, for the purpose of

securing the rights and well-being of children.

By contrast to marriage, same-sex “marriage” is a

social experiment, a recent product of positive law. Its

purpose is to affirm the sexual desires and choices of

adults. This experiment threatens to obscure the

natural rights and duties of marriage and parentage by

communicating the message that only bigots think that

children should be connected to both their father and

their mother. And it imposes other costs on States and

their citizens, especially the loss of religious liberty and

other freedoms to distinguish between marriage and

non-marital relations.

As this Court has recognized on several occasions,

the fundamental right of marriage is the right of the

intact, biological family to maintain its integrity, so that

its members can honor their natural duties to each

other. That right is among those unenumerated rights

reserved to the people in the Ninth Amendment. Those

rights and duties are fundamental to, and shape, all

5

state laws concerning marriage and family, including

those incidents and privileges that are not part of the

fundamental law, such as privileges of adoption and

foster care. Over those laws States have reserved

sovereignty through the Tenth Amendment.

States have compelling interests in shaping the

privileges and incidents of marriage to secure the

fundamental rights and duties of marriage, as States

such as Alabama, Kentucky, Michigan, Ohio, and

Tennessee have done. Those compelling interests

include securing the rights of children to be connected

to their biological parents, preserving distinct offices

for mothers and fathers, and incentivizing and

harnessing the benefits of kinship altruism.

To rule for the Petitioners would necessarily require

United States courts to arrogate much of the States’

sovereign power over marital relations. Whether this

Court strikes down laws distinguishing marriage from

same-sex couplings or requires all States to recognize

same-sex “marriages” officiated in other States, the

federal judiciary would get itself into the business of

deciding which incidents of marriage and family law are

valid in the new legal order and which are not. There is

no basis in law, and therefore no neutral ground, on

which to make those determinations. To rule for the

Petitioners would convert the federal] judiciary into an

institution of moral disapprobation and will, and would

compromise its integrity as an institution of law.

6

ARGUMENT

I. Marriage and Non-Marriage

Alabama law distinguishes between marriage and

non-marriage. That distinction is fundamental in, and

foundational to, the law of all fifty States and the United

States as a Nation. That is why all fifty States, including

those that issue marriage licenses to same-sex couples,

continue to distinguish between marriage and same-sex

unions for many purposes (e.g., rights of biological

parents, presumptions of paternity, presumptions of

maternal custody, presumptions in favor of biological

kin relations in foster care). Those incidents of marriage

that distinguish between marriage and same-sex

couplings are those that secure the fundamental rights

of children to be connected to their biological parents,

and the rights and duties of parents to care for their

biological children.

The fundamental right of marriage is the right of the

intact, biological family to maintain its integrity free

from outside interference, as this Court has affirmed on

several occasions. Smith v. Organization of Foster

Families, 431 U.S. 816, 845 (1977) (Right to marry and

reproduce older than Bill of Rights; source of right of

family privacy not in law but in intrinsic human rights).

As this Court has also affirmed, the integrity of the

family is grounded on the monogamous union of a man

and woman for life, the source of healthy children and

the continuation of civilization. Murphy v. Ramsey, 114

U.S. 15, 45 (1885). The integrity of the biological family

enables its members to fulfill the mutual duties that

-

each member of the family owes to the others. No State

has created full marriage equality simply because the

only way to make marriages and same-sex unions

completely equal in law would be to eradicate from law

the securities for children to be connected to their

biological parents and biological parents to be

connected to each other. Those rights and duties are

fundamental to our laws and cannot lawfully be

eradicated from the incidents of marriage.

This connection between marriage and the rights of

children is what the United States District Court failed

to notice when striking down Alabama’s constitutional

and statutory codifications of its fundamental laws

governing the structure of marriage. The District Court

in Searcy v. Strange, supra, erroneously assumed that

marriage is a product of Alabama’s positive laws and

thereby supposed that by striking those positive

enactments, it had issued a discreet, coherent judgment

and order. But marriage is fundamental to nearly every

area of state law. The laws that either expressly codify

or presuppose the fundamental law of marriage as the

union of a man and a woman include all of the statutes

governing marital and domestic relations, ALA. CODE

Title 30, and all the judicial decisions interpreting them;

the presumption of paternity, ALA. CODE § 26-17-204,

and other rules for establishment of the parent-child

relationship, ALA. CODE § 26-17-201; laws governing

consent to adopt, ALA. CODE § 26-10A-7(3), and all other

laws governing adoption, ALA. CODE Title 26, Chapter

10A; termination of parental rights, ALA. CODE § 12-15-

319; all laws that presuppose people of different

genders occupying the positions of “father,” “mother,”

8

“husband,” and “wife,” e.g. ALA. CODE § 40-7-17; laws

governing intestate distribution, the spousal share,

ALA. CODE § 43-8-41, and the share of pretermitted

children, ALA. CODE § 43-8-91; legal protections for

non-marital children, ALA. CoDE § 26-17-202;

registration of births, ALA. CODE § 22-9A-7, J.M.V. v.

J.K.H., 149 S0.3d 1100 (Ala.Civ.App. 2014) (In disputes

between unmarried parents as to surname of their child,

parent seeking name change has burden to prove

change is in best interest of child.); conflict-of-interest

rules and other ethical standards prohibiting sexual

relations, ALA. CoDE § 45-28-70(f)(1), Cooner v.

Alabama State Bar, 59 So.3d 29 (Ala. 2010) (Rule of

Professional Conduct prohibiting lawyer from

preparing an instrument giving the lawyer or a close

relative of the lawyer any substantial benefit from a

client, except where the client is related to the donee,

includes relatives of the lawyer by marriage.); and laws

presupposing biological kin relations, ALA. CODE § 38-

12-2.

This compilation does not even include standards

governing school curricula and accreditation,

professional licensing and ethics, and many other state

laws that implicitly or expressly define marriage by its

natural contours as the union of a man and a woman.

The District Court in Searcy has not explained which of

these incidents of marriage it now deems

unconstitutional. The same problem afflicts Petitioners’

claims in these cases. This Court should resolve the

question how much, if any, of the fundamental law of

marriage it intends to eliminate from the law of the

States.

9

If Petitioners are asking for full marriage

equality—the exact same marriage institution with all

of the same rights and duties—then the only way to

achieve that is to remove from law the protections for

children and biological parents. If, on the other hand,

Petitioners are content to leave the fundamental rights

of children in place, then they are not asking for all of

the rights, duties, presumptions, and other incidents of

marriage.

As this Court affirmed in Windsor, the States do

have the power to define those privileges of marriage

that do not threaten the fundamental rights and duties

of marriage. Some States have exercised their “power

in defining the marital relation” to confer upon same-

sex couples “a dignity and status of immense import.”

United States v. Windsor, 133 S. Ct. 2675, 2692 (2013).

That is a value very different from protecting the rights

of children to have legal connections to their biological

parents. Because the States retain “sovereign power” to

define the privileges of marriage, id. at 2693, those

States are within their right that use marriage law to

confer approbation upon intimate same-sex

relationships. That those States still differentiate

between marriage and same-sex unions shows that

Alabama is also within its right to continue to set apart

the intact, biological family as marriage.

Indeed, there are compelling reasons for States to

call marriages and same-sex unions by different names.

Only those States that reserve the name “marriage” for

unions that are marital in fact are able to make clear the

unique importance and fundamental rights and duties

10

of the biological, parent-child relationship. To force

States to redefine marriage is to obscure the non-

fungible value of mother and father; it is to

communicate the message that it is not important for

fathers and mothers to remain committed to each other

because no rational person would believe that having

connections to both mother and father would make any

difference for children.

Whatever the merits of using marriage laws to

express official approval of the sexual relations of

adults, the Court would sacrifice its neutrality as an

institution of law and judgment were it to force the

same-sex conception of marriage on those States that

continue to set apart marriage—the union of man and

woman out of which arises the biological family. The

cost of redefining marriage is the sacrifice of important

and enduring truths about the fundamental rights and

duties of the father-mother-child relation, which the

fundamental right of marriage has always secured.

11

II. Full, legal equality between married

couples and same-sex couples cannot be

achieved without eliminating the

fundamental rights and duties of

biological parents and kin and thereby

jeopardizing the rights of children.

A. Full equality is not achieved by

extending legal recognition to

same-sex couples, as the laws of

Massachusetts and similar States

show.

States such as Massachusetts and New York

continue to distinguish between marriage and same-sex

relations for the same reason that Alabama does: to

secure the duties of parents to their children and to

each other for their children’s sake. For example,

Massachusetts retains in its statutes the presumption

of paternity, identifying when “a man is presumed to be

the father of a child,” Massachusetts General Laws c.

209C, § 6, though that presumption cannot apply to a

man-man “marriage” the same as it does to a real

marriage. Opinion of the Justices to the Senate, 802

N.E.2d 565, 581 n.3 (Mass. 2004) (Cordy, J., dissenting).

Massachusetts even applies the presumption to woman-

woman “marriage” so long as both the biological father

and the non-mother woman in the marriage consent.

Hunter v. Rose, 975 N.E.2d 857, 861-62 (Mass. 2012).

Yet, it would strain credulity to presume paternity by a

woman married to a mother. See Adam J. MacLeod,

Fundamental Rights and Concessions of Privilege,

12

available at http://works.bepress.

com/adam_macleod/21/ at 1-2.

The incest prohibition in Massachusetts law, M.G.L.

c. 272, § 17, is defined by its opposite-sex predicates.

“No man shall marry his mother, grandmother,

daughter, granddaughter, sister, stepmother,

grandfather’s wife, grandson’s wife, wife’s mother,

wife’s grandmother, wife’s daughter, wife’s

granddaughter, brother’s daughter, sister’s daughter,

father’s sister or mother’s sister.” M.G.L. c. 207 § 1.“No

woman shall marry her father, grandfather, son,

grandson, brother, stepfather, grandmother’s husband,

daughter’s husband, granddaughter’s husband,

husband’s grandfather, husband’s son, husband’s

grandson, brother’s son, sister’s son, father’s brother or

mother’s brother.” M.G.L. c. 207, § 2. Massachusetts

also retains its polygamy prohibition, M.G.L. c. 207 § 4.

These laws codify norms that presuppose that marriage

is what it is in biological fact—the union of a man and a

woman. See Sherif Girgis, Ryan T. Anderson, and

Robert P. George, What is Marriage?: Man and

Woman: A Defense (2012).

Recently, the high court of New York interpreted

New York’s incest prohibition in light of its rational

basis that incest carries a risk of genetic defects in

potential biological offspring. Nguyen v. Holder, 21

N.E.3d 1017, 1021-22 (N.Y. 2014). That rule also makes

no sense if applied to same-sex couples. (The New York

court also identified the State’s interest in expressing

its moral disapproval of incest, but it is difficult to see

13

how that rationale could survive this Court’s ruling in

Lawrence v. Texas, 539 U.S. 558 (2008)).

It is not difficult to perceive why Massachusetts,

New York, and other States continue to distinguish

between marriage and same-sex relations. Marriage is

the only institution capable of solving the problem of

establishing normative connections between fathers and

their children. This problem was explained well more

than a decade ago by a Justice of the Massachusetts

Supreme Judicial Court: “Whereas the relationship

between mother and child is demonstratively and

predictably created and recognizable through the

biological process of pregnancy and childbirth, there is

no corresponding process for creating a relationship

between father and child.” Marriage fills the gap “by

formally binding the husband-father to his wife and

child, and imposing on him the responsibilities of

fatherhood. The alternative, a society without the

institution of marriage, in which heterosexual

intercourse, procreation, and child care are largely

disconnected processes, would be chaotic.” Goodridge

v. Dept. of Public Health, 798 N.E.2d 941, 995-97

(Mass. 2003) (Cordy, dissenting).

14

B. The only way to create full

equality between marriage and

same-sex relations would be to

eradicate the fundamental rights

of children to be connected legally

to their biological parents, which

governments have no power to do.

These facts, which have notably escaped the

attention of the inferior tribunals that have decided the

marriage question, reveal that full marriage equality is

not something to be achieved by simply issuing

marriage licenses to same-sex couples. It requires

eliminating the distinct offices of man and woman,

husband and wife, father and mother from the

institution of marriage. The only alternative to

distinguishing between marriage and same-sex unions

in law—the only way to create full “marriage

equalitv”—is to eliminate from law all of the incidents

that secure children to both biological parents and that

secure biological parents to each other. If same-sex

couples must be treated exactly the same as married

couples, then the law must eliminate those rights,

duties, presumptions, and other incidents of marriage

that protect the fundamental rights of children and the

rights and duties of parents.

The law maintains distinct and non-fungible offices

for father and mother because mothers and fathers are

distinct and non-fungible in fact. Every child has a

biological mother and a biological father, and only one

of each. Marriage anneals the bonds between father

15

and mother, and ties that pair to the children to whom

they owe natural duties.

Altering the jura] relations within the biological

family is not within the police powers of the State, much

less the enumerated powers of the national government,

because the rights of natural marriage and biological

parenting are among “the basic civil rights of man.

Marriage and procreation are fundamental to the very

existence and survival of the race.” Skinner v.

Oklahoma, 316 U.S. 535, 541 (1942). This makes the

distinction between marriage and non-marriage very

much unlike distinctions based on race. While striking

down posited statutes that added to natural marriage

“distinctions drawn according to race,” the Loving

Court re-affirmed that marriage is oriented toward the

bearing and rearing of children, that it is “fundamental

to our very existence and survival.” Loving v. Virginia,

388 U.S. 1, 12 (1967).

The fundamental right to marry is grounded in the

fundamental duties of biological parents to each other

and to their children, and the duties and rights of the

child’s extended kin relations. See Adam J. MacLeod,

Fundamental Rights and Concessions of Privilege,

available at http://works.bepress.

com/adam_macleod/21/. To be clear, to affirm that the

rights and duties of the biological family are

fundamental does not entail that they are incorporated

against the States through the Due Process Clause of

the Fourteenth Amendment. It is simply to affirm that

they emanate from sources of authority other than the

State’s sovereignty to enact positive laws. MacLeod,

16

Fundamental Rights and Concessions of Privilege, at

*7. They are part of the fundamental law of the States

and the Nation. See James R. Stoner, Jr., Common

Law and Liberal Theory: Coke, Hobbes, and the

Origins of American Constitutionalism 78-83 (1992).

They are among the unenumerated rights denial of

which is prohibited by the Ninth Amendment.

The biological family precedes the state; the state

did not create it. Meyer’v. Nebraska, 262 U.S. 390, 399-

400 (1923). The rights and duties of the family arise out

of the nature of marriage, “consisting in and springing

from the union for life of one man and one woman in the

holy estate of matrimony; the sure foundation of all that

is stable and noble in our civilization.” Murphy v.

Ramsey, 114 U.S. 15, 45 (1885). Because the duties are

grounded in nature and not the will of the lawmaker,

the State has no power to reconstitute the fundamental

rights and duties of the biological family. The complex

of jural relations at the heart of marriage and family

must remain beyond the reach of government power. As

Justice Sotomayor has described one of these jural

relations, the “biological bond between parent and child

is meaningful,” and the right of a biological parent is

“an interest far more precious than any property right.”

Adoptive Couple v. Baby Girl, 133 S. Ct. 2552, 2574-75

(2013) (Sotomayor, dissenting).

Like other unenumerated rights secured by the

Ninth Amendment, the right of marriage should be

understood with reference to its common law contours,

especially as specified in Blackstone’s Commentaries.

Jeffrey D. Jackson, Blackstone’s Ninth Amendment:

17

A Historical Common Law Baseline for the

Interpretation of Unenumerated Rights, 62 Oklahoma

L.Rev. 167 (2010). For Blackstone, the most “universal

relation in nature” is that between biological parent and

child, and it proceeds from the first natural relation,

that between husband and wife. 1 William Blackstone,

Commentaries on the Laws of England 434

(University of Chicago Press (1979) (1765). The “main

end and design of marriage” is to “ascertain and fix

upon some certain person, to whom care, protection, the

maintenance, and the education of the children should

belong.” Jd. at 443. And those duties are duties of

natural law. Jd. at 435, 438-39. Positive law does not

create the rights and duties, it only adds security to

them (or not). The fundamental family laws of Alabama,

Massachusetts, and the United States are thus specified

by the common law understanding that marital and

parental rights and duties are grounded in the nature of

the man-woman marital relation, and therefore beyond

the power of governments to alter. See generally, 2

James Kent, Commentaries on American Law 225-67

(Boston, Little, Brown & Co., O.W. Holmes, Jr. Ed.,

12th ed. 1873) (1851); 1 Blackstone, Commentaries at

435-40.

That is why this Court has consistently linked the

rights of marriage and parenthood, and has identified

them as the fundamental right of mother and father to

fulfill their natural duties to their biological children.

The rights securing the biological family’s integrity are

“intrinsic human rights” that are deeply rooted in our

Nation’s “history and tradition.” Smith v. Organization

of Foster Families, 431 U.S. 816, 845 (1977), quoting

18

Moore v. City of East Cleveland, 431 U.S. 494, 504

(1977).

Failing to distinguish between marriage and non-

marriage (including same-sex relations) obscures the

fundamental rights and duties of the biological family.

This highlights an ambiguity in the Petitioners’

arguments. It is not clear whether they are asking for

full equality between marriage and same-sex couplings

or instead are content to leave the fundamental rights

and duties of natural marriage in place. If they are

content to leave those rights and duties in place, then

States must be free to distinguish between marriage,

which pertains to the father-mother-child triad, and

non-marital committed unions, to which various

privileges and incidents of marriage might be extended,

or not.

ITI. The power to assign privileges and other

incidents of marriage to relations that are

like marriage is reserved to the States by

the Tenth Amendment.

A. Different States exercise their

sovereignty to regulate the family

differently.

For the reasons just stated, to say that a new

definition of marriage is required by the Constitution is

too simplistic, just as it would be too simplistic to say

that the matter is left entirely to the democratic

processes. The fact is that the fundamental right of the

biological family—father-mother-children—is

19

presupposed by the Ninth Amendment, while the

privileges of marriage—presumption of paternity,

adoption, recognition of same-sex and other loving

groups, and other incidents of positive law—are left to

State court adjudication and democratic processes

within the States through the Tenth Amendment.

“Each state as a sovereign has a rightful and

legitimate concern in the marital status of persons

domiciled within its borders.” United States v.

Windsor, 133 S. Ct. 2675, 2691 (2013), quoting Williams

v. North Carolina, 317 U.S. 287, 298 (1942)

(hereinafter, “Williams I”). The States possess full

power over marriage because the “Constitution

delegated no authority to the Government of the United

States” over marriage. Windsor, 133 S. Ct. at 2691,

quoting Haddock v. Haddock, 201 U.S. 562, 575 (1906).

Nor does the federal judiciary share power with the

States to adjudicate the rights and duties of marriage

and parentage. Federal courts have no power of parens

patriae, no power of probate and divorce, and therefore

no jurisdiction over the natural rights and duties of

husband and wife and their biological children. Jn Re

Burrus, 136 U.S. 586, 594 (1890); Williams v. North

Carolina, 325 U.S. 226, 233 (1945) (hereinafter,

“Williams IT’). Relations between husband and wife,

father and child, mother and child, simply “are not

matters governed by the laws of the United States.” Jn

Re Burrus, 136 U.S. at 596.

To rule for the Petitioners would necessarily require

United States courts to arrogate much of the States’

sovereign power over marital relations. Whether this

20

Court strikes down laws distinguishing marriage from

same-sex couplings or requires all States to recognize

same-sex “marriages” officiated in other States, the

federal judiciary would get itself into the business of

deciding which incidents of marriage and family law are

valid in the new legal order and which are not. To vest

that power in the federal judiciary would be a

“usurpation” of an essential attribute of state

sovereignty. See National Federation of Independent

Business v. Sebelius, 1382 S. Ct. 2566, 2592 (2012).

To take just one example, laws governing gestational

agreements (and other procreative activities not

resulting from intercourse between a man and a

woman) vary from State to State. Because same-sex

couples cannot reproduce on their own, maternal

surrogacy is intrinsically and necessarily connected to

any new rights of same-sex couples to marry and have

children. If two married men will have a constitutional

privilege to enter into gestational agreements and egg

donation contracts with women for the production of

children, then the courts of the United States must

necessarily require state officials to implement and

enforce that privilege, often in contravention of state

laws, and sometimes in tension with state laws designed

to protect the rights of women and children. Article ITI

judges will supersede state officials in their roles as

officers of state family and probate laws.

One purpose of state sovereignty is to secure the

liberties of citizens. New York v. United States, 505

U.S. 144, 181-82 (1992). Those liberties include the

rights of children to be connected to their parents and

21

~

the rights of integrity of the biological family. “The

definition of marriage is the foundation of the State’s

broader authority to regulate the subject of domestic

relations with respect to the ‘[p]rotection of offspring,

property interests, and the enforcement of marital

responsibilities,”"” Windsor, 133 S. Ct. at 2691, quoting

Williams I, 317 U.S. at 298, which are rights and duties

of “husband and wife, parent and child.” Windsor, 133

S. Ct. at 2691, quoting In Re Burrus, 136 U.S. 586

(1890).

The States alone have power to regulate and

adjudicate the legal relations of families because each

State alone has jurisdiction over families domiciled

within it. Williams II, 325 U.S. at 231-32. Marriage is

not merely an individual right of an adult. Marriages

are “social institutions” with their own complexes of

jural relations—both rights and duties—which are

located within particular States, and those States have

particular interests in securing those rights and duties

with the force of law and judgment. Williams IT, 325

U.S. at 232. States cannot afford to ignore the reality of

natural marriage and the biological family, and States

have the strongest interest in privileging and

reinforcing the natural rights and duties of fathers and

mothers, to each other and to their children. After all,

it is the States that deal with the consequences of non-

marital childbirth, marital infidelity, divorce, deadbeat

dads, exploitation of women and children to satisfy the

desires of adults, and all of the other costs generated by

selfish individuals who fail to fulfill their marital duties.

When the right to marry is divorced from the duties of

the natural family, the States and their people suffer.

22

Usurpation of state sovereignty would also threaten

the autonomy of the States themselves. If this Court

were to usurp state sovereignty over the family, then

state officials would be commandeered into enforcement

of the uniform privileges and incidents of the new

national right of same-sex “marriage,” or the incidents

and privileges of other States’ same-sex unions. In

regulation of marriage and the family, the States would

become “instruments of federal governance.” Printz v.

United States, 521 U.S. 898, 919 (1997).

No such expanded federal jurisdiction is required to

secure the rights of natural marriage and the natural

family. Protecting those rights against encroachment

does not require federal governance of the family, it

merely requires forbidding States to place on the family

extraneous burdens, such as anti-miscegenation laws,

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

sterilization, Skinner v. Oklahoma, 316 U.S. 535 (1942).

By contrast, a new right to same-sex “marriage” would

be entirely a product of this Court’s decision—positive

law—and would require for its realization new

privileges or alteration of existing privileges embedded

throughout state law.

The fundamental marriage right is distinct from

jegal privileges of marriage, such as tax benefits, and

the legal privileges of parentage, such as adoption. As

the Eleventh Circuit has explained, “Unlike biological

parentage, which precedes and transcends formal

recognition by the state, adoption is wholly a creature

of the state.” Lofton v. Secretary of the Dept. of

Children and Family Services, 358 F.3d 804, 809 (11th

23

Cir. 2004). Therefore, the practice of adopting is not a

fundamental right, but rather a privilege created by

state law. Jd. at 811-15. Yet even that privilege is

shaped and specified with reference to the fundamental

rights and duties of the biological family. As this Court

has observed, by operation of state laws, adoption is the

“legal equivalent of biological parenthood.” Smith, 431

U.S. at 844 n. 51. States have a compelling reason to

shape the privileges of marriage consistently with the

fundamental rights and duties of marriage, just as they

have compelling reasons to leave those fundamental

rights and duties in place.

Alabama, like Kentucky, Michigan, Ohio, and

Tennessee, has chosen to affirm the millennia-old

institution of marriage by preserving the fundamental

rights and duties of natural marriage and shaping the

privileges of marriage around marriage. The choice of

those States to preserve marriage and codify it in law is

grounded in the States’ compelling interests to secure

the rights of children to be connected to their biological

parents, to preserve distinct offices for mothers and

fathers, and to incentivize and harness the benefits of

kinship altruism.

Preservation of marriage in law reflects an

understanding of marriage as a unique form of

sociability with its own intrinsic and instrumental

goods. See Sherif Girgis, Ryan T. Anderson, and Robert

P. George, What is Marriage?: Man and Woman: A

Defense (2012); Patrick Lee and Robert P. George,

Conjugal Union: What Marriage is and Why it

Matters (2014).

24

It also reflects the instrumental value of marriage

for harnessing kinship altruism, “the care that natural

parents are inclined to give to their children because

they have labored to give them birth and have come to

recognize them as a part of themselves that should be

preserved and extended.” Don Browning and Elizabeth

Marquardt, “What About the Children? Liberal

Cautions on Same-Sex Marriage,” in The Meaning of

Marriage: Family, State, Market, and Morals 36

(Robert P. George and Jean Bethke Elshtain, eds.,

2006). Parents have a “fundamental liberty interest” to

direct the upbringing of their children in part because

they have both the “high duty” and the inclination to

raise their children well. Troxel v. Granville, 530 U.S.

57, 65 (2000), quoting Pierce v. Society of Sisters, 268

U.S. 510, 535 (1925). The presumptions of parental

custody and authority rest on the recognition “that

natural bonds of affection lead parents to act in the best

interests of their children.” Parham v. J.R., 442 U.S.

584, 602 (1979). This is not to suggest that same-sex

couples cannot be good parents, only that children

should not be deprived of legal recognition of their

natural parents.

Massachusetts and States like it use marriage law to

promote a very different conception of marriage that

takes sides on the moral question of what marriage is.

A narrow majority of the justices of the Supreme

Judicial Court of Massachusetts chose to redefine

marriage in order to express moral approval of the

sexual conduct of some adults. Goodridge v. Dept. of

Public Health, 798 N.E.2d 941 (Mass. 2003); Opinions

of the Justices to the Senate, 802 N.E.2d 565 (Mass.

25

2004). The purpose of marriage, the court asserted, is to

promote “stable, exclusive relationships” between

sexually-intimate adults. Goodridge, 798 N.E.2d at 969.

For a majority of the Massachusetts high court, it was

not enough for the Commonwealth to remove moral

stigma from same-sex intimacy. Massachusetts

marriage law could not stop short of extending to

intimate same-sex couples the approbation that law

accords to the unique achievement of marital

monogamy. This prompted Justice Sosman to object to

the “dogmatic tenor” of the majority’s opinion.

Opinions of the Justices, 802 N.E.2d at 579 n.5 (Sosman

J., dissenting).

Strikingly, States that have eliminated the ancient,

conjugal definition of marriage from law have not

replaced it with any particular definition, or even a

limiting principle. If marriage is not the union of a man

and a woman, then what is it? If same-sex couples are

married in some meaningful sense, then what sense is

there in denying that same-sex trios, quartets, or larger

groups are married? For that matter, why must

marriage involve sex at all? Any person who loves and

provides care for another person or group of persons

has the same dignity as any other group of persons and

deserves the same benefits that are offered to married

couples. Without some new account of what marriage is,

there is no reason in justice to deny the status of

marriage to any group of people.

This leaves the incidents of marriage in a parlous

position. Without any guiding or limiting

principle—without any account of what marriage

26

is—States such as Massachusetts that have tried to

eliminate the distinction between marriage and non-

marriage, leave the incidents of marriage suspended

arbitrarily in mid-air.

B. Alabama and States like it

exercise their sovereignty to

affirm marriage and the biological

family that arises from it; this is a

compelling state interest.

States have the power to distinguish between

different forms of human sociability because States

must be able to identify them and to distinguish them

from each other. “A legislature must have substantial

latitude to establish classifications, and therefore

determining ‘what is different and what is the same’

ordinarily is a matter of legislative discretion.” Lewis v.

Harris, 908 A.2d 196, 222 (N.J. 2006), quoting Plyler v.

Doe, 457 U.S. 202, 216 (1982). If States cannot use

different terms to identify objectively-different

relations and institutions, then the very possibility of

lawmaking is in jeopardy. To eliminate from law the

distinction between marital and non-marital relations is

to leave the legal definition of marriage without any

determinate meaning. It is to deprive the States of

their ability to distinguish in law between relationships

that are different in biological fact, and which have

radically different consequences for state policy.

Words matter in law because they are the means by

which laws communicate normative propositions, such

as fundamental rights and duties. The word “marriage”

27

matters because it picks out a particular type of human

sociability that has its own complex of goods that no

other human relationship can fully replicate. Though

same-sex relationships, caregiving relationships, and

other groups of people contain some of the goods of

marital friendship, none contains all of the goods of

marriage. Marriage is sui generis.

Marital unions are inherently different from groups

comprised of only one sex, and the distinctives of

marriage are closely linked to the marital norms of

fidelity and permanence, Sherif Girgis, Windsor:

Lochnerizing on Marriage ?, 64 Case Western Reserve

Law Review, 971, 1001-04 (2014), to the legal and

cultural bonds between children and their biological

parents, id. at 992, 1007-13, and thereby, to the well-

being of children and the States in which children live.

This is the conception of marriage that Alabama and

similar States have endorsed in their laws.

In order to exercise their constitutionally-retained

powers, States must be able to distinguish between

marriage and other relations that are like marriage in

some ways but not in others. To leverage different

forms of human sociability to serve public ends, States

must have the authority to distinguish between

different types of relationships by name. Adam J.

MacLeod, The Search for Moral Neutrality in Same-

Sex Marriage Decisions, 23 BYU Journal of Public Law

1, 54-58 (2008). Different forms of human sociability

produce different goods. A marriage, a friendship, a

business partnership, a tennis match, and a same-sex

28

friendship all have different natures and different

implications for the common good of a society.

Only those States that reserve the name “marriage”

for unions that are marital in fact are able to make clear

the unique importance and fundamental rights and

duties of the father-mother-child relationship. To force

States to redefine marriage is to obscure the non-

fungible value of mother and father and thereby, to

deprive them and their people of their collective choices

about how to structure society. If, as several inferior

courts have concluded, it is not rational to believe that

mother and father are each uniquely important, then it

should not surprise us if people stop admitting that they

believe that mother and father are important, or stop

actually believing that mother and father are important,

or stop encouraging each other to act as though mother

and father are important. When marriage and birth

certificates no longer designate “husband” and “wife,”

“father” and “mother,” people might well internalize the

message that the State does not consider those

designations important.

The message that fathers and mothers are not

uniquely important is already being communicated in

Alabama, where some officials are obscuring the

distinctions between fathers and mothers in order to

satisfy the demands of a single United States District

Court judge who declared Alabama’s marriage laws

irrational and unconstitutional in Searcy v. Strange. In

response to that ruling, the Alabama Department of

Public Health announced that it would eliminate from

marriage and birth forms the designations of bride and

29

groom, father and mother.* The message is clear: If a

marriage happens to involve a man and woman, if a

child happens to have both a father and a mother, then

that is none of the State’s business. The State will not

recognize or keep records of the distinctions between

father and mother. By eliminating the categories of

husband and wife, father and mother, from the annals

of future state history, this agency is helping to ensure

that children will no longer have the right to have both

father and mother recognized by the State.

There are other costs of trying to eliminate gender-

based marital distinctions from law. In its so-far

unsuccessful attempt to make man-man and woman-

woman relations equal to marriage, Massachusetts has

forced Catholic Charities to stop placing children in

adoptions.* A _ private, religious college that

distinguishes between marriage and non-marriage has

been threatened with loss of accreditation. The Sisters

>» WSFA News, AL Health Dept. Updating Marriage Forms in

Wake of Gay Marriage Ruling (February 5, 2015), available at

http://www.wsfa.com/story/28034821/al-health-dept-updating-

marriage-forms-in-wake-of-gay-marriage-ruling

* The Boston Globe, Catholic Charities Stuns State, Ends

Adoptions (March 11, 2006), available at

http://www.boston.com/news/local/articles/2006/03/11/catho

lic_charities_stuns_state_ends_adoptions/ (Jast visited

January 30, 2015).

* The Boston Globe, Accrediting Agency to Review Gordon

College (July 11, 2014), available at

http://www .bostonglobe.com/metro/2014/07/1 1/agency-

review-whether-gordon-college-antigay-stance-policies-

violate-accrediting-

standards/Cti63s3A4cE HLGMPRQS5NyJ/story.html (last

30

of St. Joseph of Boston, an order of nuns which operates

a parochial school, has been forced to defend itself

against a complaint filed at the Massachusetts

Commission Against Discrimination for acting on its

religious conviction that marriage is a man-woman

union.® In these and other ways, witness to the reality

of marriage is being excluded from public life.

On a complicated and controversial issue such as

this, with no clear warrant in the Constitution for

imposing one State’s definition of marriage on another,

the federal judiciary has a duty not to do so. As this

Court stated last term, the people of the sovereign

States have a “fundamental right” that is “held in

common,” the right “to speak and debate and learn and

then, as a matter of political will, to act through a lawful

electoral process.” Schuette v. Coal. to Defend

Affirmative Action, 134 S.Ct. 1623, 1637 (2014). And

“(t]hat process is impeded, not advanced, by court

decrees based on the wroposition that the public cannot

have the requisite repose to discuss certain issues. It is

demeaning to the democratic process to presume that

the voters are not capable of deciding an issue of this

sensitivity on decent and rational grounds.” /d.

visited January 30, 2015).

* The Boston Globe, Gay Married Man Says Catholic

School Rescinded Job Offer (January 30, 2014), available at

http://www.bostonglobe.com/metro/2014/01/29/dorchester-

man-files-discrimination-against-catholic-school-says-lost-

job-because-was-gay-

married/OKswV1ITMsOrruEbhsOsOeN/story.html (last

visited January 30, 2015).

31

C. No morally-neutral reason, no

constitutional doctrine, provides

any basis to prefer the laws of

Massachusetts to those of

Alabama.

Because the dispute among the States concerns the

nature of marriage, there is no morally-neutral ground

upon which to decide which relationships should be

called marriages. The Court should defer to the States’

various resolutions of the question lest the Court

overstep its role as a credible institution of law and

judgment. The only way for this Court to remain

neutral on this important and contentious public

question is to affirm. See Matthew B. O’Brien, Why

Liberal Neutrality Prohibits Same-Sex Marriage:

Rawls, Political Liberalism, and the Family, 1 British

Journal of American Legal Studies 411 (2012). To

reverse the Sixth Circuit, this Court would act as an

institution of moral preference and legislative will.

The disagreement among the States concerns the

question what marriage is. That is a moral, not a legal

question. There is no neutral ground of equal

protection on which to decide in Petitioners’ favor

because this is not a dispute about who is permitted to

marry. It is the structure and nature of the relationship,

not the characteristics of any individual member of the

couple, that makes a group marital (or not). Laws that

distinguish between marriage and non-marriage, such

as Alabama’s, make “nothing hinge on orientation—real

or imagined, assumed or avowed.” Girgis, Windsor:

32

Lochnerizing on Marriage ?, 64 Case Western Reserve

Law Review, at 984-85.

Alabama’s definition of marriage does not turn on

motivations or sexual desires. It is structured to

distinguish between marital and non-marital

relationships. A man and a woman who are bisexual or

same-sex attracted and who marry for convenience, or

to have children, or to satisfy religious convictions, or

for any other reason are married under Alabama law.

Two heterosexual-oriented men (or two women) who

seek a marriage license only to obtain marital privileges

and benefits will be denied a marriage license under

Alabama law, not because they are heterosexual but

because they are both of the same gender. Three or

more people of whatever sexual orientation will also be

denied a marriage license. Alabama law draws lines on

the basis of the structure of the relationship—conjugal

union (marriage) or not (not a marriage)—and ignores

the motivations and sexual proclivities of the parties to

the union. Nor do Alabama’s marriage laws draw a line

with heterosexual relationships on one side and

homosexual relationships on the other. Same-sex

couplings are not the only relationships excluded from

the definition of marriage. All non-marital relations are

excluded.

Neither the Constitution nor any other law requires

this Court to impose Alabama’s conception of marriage

on Massachusetts or vice versa. What the Petitioners

seek “is not the protection of a deeply rooted right but

the recognition of a very new right,” with no ground in

history, tradition, or the Constitution. United States v.

33

Windsor, 133 S.Ct. 2675, 2714-16 (2013) (Alito, J.,

dissenting). By asking this court to choose

Massachusetts dogmas about marriage over Alabama

law, Petitioners are “really seeking to have the Court

resolve a debate between two competing views of

marriage.” Windsor, 133 S.Ct. at 2718 (Alito, J.,

dissenting).

The legitimacy of judicial rulings and the integrity of

judicial decision-making rest entirely in the court’s

reasoning from law to judgment. “[A] court must

discern not only the limits of its own authority, but also

when to exercise forbearance, recognizing that the

legitimacy of its decisions rests on reason, not power.”

Lewis v. Harris, 908 A.2d 196, 223 (N.J. 2006). A court

that commands what a party prefers rather than what

law requires promulgates a personal opinion. Those

courts that have required States to redefine marriage

have succumbed to the temptation of creating morally-

contestable laws instead of interpreting law.

To force Massachusetts’ incidents of marriage on

States such as Michigan and Alabama would be

arbitrary. If the purpose of marriage is only to promote

stability in caring relationships, as the Massachusetts

high court insisted in Goodridge, then neither marriage

law nor the Constitution provides an objective, or even

discernible, standard for determining who may, and

who may not, require a State to call such relationships

marriages. There can be no reason to deny the same

marital privileges, or impose the same marital

obligations, on other loving groups of people, whether

couples or plural groups, whether sexually intimate or

34

not, and whether same-sex or mixed. Nor is there any

reason to retain incest prohibitions and other incidents

of marriage that presuppose real marriage. Where one

can discern no “objective and workable standard” for

choosing a benchmark by which to evaluate a

specification of state law, there is no ground on which to

challenge the State’s chosen specification. Holder v.

Hall, 512 U.S. 874, 881 (1994). Unless the Petitioners

have a precise answer to the question what marriage is,

and are able to articulate limiting principles for their

new definition, they are asking this Court to create

something out of nothing.

Perhaps, as some scholars have suggested, marriage

will no longer be a unitary institution, valid (or not) for

all purposes, but instead States will differentiate

incidents for different marriage institutions. Larry

Kramer, Same-Sex Marriage, Conflict of Laws, and

the Unconstitutional Public Policy Exception, 106

Yale L.J. 1965, 1971 (1997); MacLeod, The Search for

Moral Neutrality, 23 BYU J. Public Law at 54-58;

William Baude, Beyond DOMA: Choice of State Law in

Federal Statutes, 64 Stanford L. Rev. 1371, 1390 (2012).

This Court can preserve its special authority as a

neutral institution of judgment, and not will, by allowing

the States to sort out the incidents of these new

marriage institutions.

CONCLUSION

Amicus Curiae Governor Robert J. Bentley urges

the Court to affirm the decision below of the U.S. Court

of Appeals for the Sixth Circuit, and thereby overrule

35

the contrary decisions of the U.S. Courts of Appeals for

the Fourth, Seventh, Ninth, and Tenth Circuits.

Respectfully submitted this 17th day of March, 2015.

Algert S. Agricola, Jr.*

*Counsel of Record

Or COUNSEL:

RYALS, DONALDSON & AGRICOLA, P.c.

60 Commerce Street, Suite 1400

Montgomery, AL 36104

(334) 834-5290 P

(334) 834-5297 F

aagricola@rdafirm.com

David B. Byrne, Jr.

Legal Advisor to the Governor

OFFICE OF THE GOVERNOR

Alabama State Capitol

600 Dexter Avenue, Suite NB-05

Montgomery, AL 36130

(334) 242-7120 P

(334) 242-2335 F

david.byrne@governor.alabama.gov

pam.chesnutt@governor.alabama.gov

Adam J. MacLeod

5345 Atlanta Highway

Montgomery, AL 36109

(334) 386-7527

amacleod@faulkner.edu