# Amicus Curiae Brief — Obergefell v. Hodges > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0306%3A029 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2015 - **Citation:** 576 U.S. 644 ## Text 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. » 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0306%3A029. Public record. Not legal advice.