Amicus Curiae Brief — Obergefell v. Hodges

- Bupraine Coun, Ue.

FUED

MAR 3- 2015

E OL-PK

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

IN THE

Supreme Court of the Gnited States

a Nei

JAMES OBERGEFELL, et al,

Petitioners,

Vv.

RICHARD HODGES, Director,

Ohio Department of Health, et ai,

Respondents.

On Writs of Certiorari To the

United States Court of Appeals For the Sixth Circuit

BRIEF OF AMICUS CURIAE BILAW IN SUPPORT

OF PETITIONERS

SSE FEE EEE EEE SE EE EE EEE EE HOEK EEE CEH EO ee KE OE TE SR Oe Oe ee ee ee

KYLE C. VELTE

UNIVERSITY OF DENVER

STURM COLLEGE OF LAW

2255 E. Evans Ave.,

Room 365L

Denver, CO 80208

(720) 648-9266

kyle.velte@gmail.com

Counsel of Record

PROF. NANCY C. MARCUS

INDIANA TECH LAW SCHOOL

1600 E. Washington Blvd.

Fort Wayne, IN 46803

TOBY PHOEBE ©. ADAMS

TOBY ADAMS, ATTORNEY AT LAW

40087 Mission Blvd. #275

Fremont, CA 94538

PROF. NAOMI MEZEY

GEORGETOWN UNIVERSITY LAW CENTER

600 New Jersey Ave NW,

Washington, D.C. 20001

PROF. ANN TWEEDY

HAMLINE U. SCHOOL OF LAW

1536 Hewitt Ave,

St. Paul, MN 55104

DIANA ADAMS

DIANA ADAMS LAW & MEDIATION, PLLC

48 Wall Street, 11th Floor

New York, NY 10005

JODI A. ARGENTINO

ARGENTINO & JACOBS, LLC

159 E. Main St.

Rockaway, NJ 07866

Counsel for Amicus Curiae

TABLE OF CONTENTS

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TO GF A iaiisiisinnstiscsvesiccicsscsniccies iii

INTEREST OF AMICUS CURIAE................-:2000+5

SUMMARY OF ARGUMENT...................6....0. 0000 1

i erccvisnceissiesiinsiusisistsiiiiiiiindeaecnitislaespetbianiauiatea 4

I. Bisexual Erasure and the Importance of Bisexual

Inclusion in Same-Sex Marriage

a aiciicsicecceesssnesiietstecsiniessiliebiasnceihinctiontisbieieiciabeainbabtieha 4

A. The Troubling History of Bisexual Invisibility

in LGBT-Rights

IIIc dd enntinundeasigiddiebioniiedmiditaibismbiinedaidiil 5

B. The Harms of Bisexual

ETAT RTT ATE OE Me eT T RT ORL ODE TEETER POT EO Te 10

1. The General Harm of Bisexual

PIII i icccnicninneniinadueaiininniiiidinbiinaniadditins 1]

2. Harms to Bisexuals in Other Legal

C. This Court Should Include Bisexuality in its

Terminology to Prevent Present and Future Harm

Op BS BED sciccnccccncisnsiscesnnissssovssisennen 17

Il.Denying Bisexuals Marriage Equality Is Sex

Discrimination and Requires Heightened

| ST we meee et Pe race eM mee ei ree mace 21

A. Bisexual People’s Experience Offers a Salient

Illustration that Marriage Bans Are Sex

B. This Court Should Follow Those Lower Courts

that Have Found that Same-Sex Marriage Bans

Impermissibly Categorize According to Sex......... 27

aeanieaemedeneel 36

I ais ptccnicccsnectnnconinmnemnecees App. |

TABLE OF AUTHORITIES

CASES

Apilado v. North American Gay Amateur Athletic

Alliance, 2011 WL 5563206 (W.D. Wash. Nov. 10.

RSE AS eR SAE APS Pee ae aee ea Ee 17

Baehr v. Lewin, 852 P.2d 44 (Haw. 1993)......... 22, 29

Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971)...... 29

Baker v. Nelson, 409 U.S. 810 (1972).................4.. PY

Baker v. State, 744 A.2d 864 (Vt. 1999)............ 30-31

Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014)....5-7

Bowers v. Hardwick, 478 U.S. 186 (1986)................ 5

Brause v. Bureau of Vital Statistics, 1998 WL 88743

(AK Super. Ct. Feb. 27, 1998)...............cccccecceeeeeee 30

City of Cleburne v. Cleburne Living Ctr.. 473 U.S.

re iincnscnciissddinpdnutnenignnsumantennntuntens 26-27, 35

DeBoer v. Snvder, 772 F.3d 388 (6th Cir. 2014...... 35

Dorn v. Dorn, 724 So. 2d 554 (Ala. App. 1998)....... 15

Equality Found. v. City of Cincinnati, 128 F.3d 289

ETETELTEIIEL, SUITE icsieseniicebindenenishenteindeienenbinnbdebeniandiindedaidaniediiiiead 35

Garcia-Jaramillo v. INS. 604 F.2d 1236 (9th Cir.

IV

Goodridge v. Dept of Pub. Health, 798 N.E.2d 941

I 33

Hollingsworth vv. ferry. 133 S. Ct. 2652

Hurley v. Irish-American Gay, Lesbian and Bisexual

Group of SBoston, Inc., 515 U.S. 557

Ee ae ee een ee RN eT 2,8

In re Marriage Cases, 183 P.3d 384 (Cal.

In the Matter of the Appeal in Pima County Juvenile

Action B-10489. 727 P.2d 830 ~ (Ariz.

Sistas ciel 14

J.E.B. v. Alabama, 511 U.S. 127 (1994)............ 26, 28

Jones v. Hallahan, 501 S.W.2d 588 (Ky. 1973)....... 28

Kitchen v. Herbert. 961 F. Supp. 2d 1181 (D. Utah

a al a a 30

Kitchen v. Herbert. 755 F.3d 1193 (10th Cir.

SSSA TN APR EW IN PEN ae OR Sens 5, 31

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

iiilicisininiciiiidnmbaiiiipenmaiiintiediinn 2, 5, 7, 19-21, 24, 31

Lawrence v. Texas, 539 U.S. 558 (2003)........ 5, 32. 36

Loving v. Virginia, 388 U.S. 1 (1967)........... 28, 29, 34

McLaughlin v. Florida, 379 U.S. 184 (1964)........... 28

Opinions of the Justices to the Senate. 802 N.E.2d

III, TIIIIIE -s1:ccs cn ccenteusupennbeenenineetenbicineneenes 33

Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012)........ 31

Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D.

ELE a Oe Ae a 31

Plyler v. Doe, 457 U.S. 202 (1982)...........00. cece 27

Romer v. Evans, 517 U.S. 620

ash Se 1, 5, 7-8, 12. 36

Rosenbrahn v. Daugaard, 2014 WL 6386903 (D.S.D.

I 31

Rowland v. Mad River Local Sch. Dist., 730 F.2d 444

I: a a nieeamunenniaiaen, 7,17

S.B. v. L.W., 793 So. 2d 656 (Miss. App. 2001.......... 15

Skinner v. Oklahoma, 316 U.S. 535. 541 (1942)...... 34

United States v. Virginia. 518 U.S. 515

IS Seen nae eee” 22, 34

United States v. Windsor. 133 S. Ct. 2675

aa 5, 7. 9. 14, 27. 35

Varnum v. Brien, No. CV5965, 2007 WL 2468667 (D.

SII CIE TT icsrcincs capacusnesactiateinsunhaedadainidiadias 30

Varnum vv. Brien, 763 N.W.2d 862 (lowa

ES ann aa ee 30°31, 33

Wygant v. Jackson Bd. of Educ., 476 U.S. 267

Vi

CONSTITUTIONAL PROVISIONS

GED, GRUNGE, FEW ccccccccoccsocteccsccesescsoes passim

ey COL, CE. Th Or TE cncicnacegnciedesennagionnsuiinisl 7,12

STATUTES AND RULES

See tis Mis GE ndacenntiencendincnssineiantbecenessesenseneubed 21

SECONDARY AND OTHER SOURCES

Apilado v. North American Gay Amateur Athletic

Alliance Complaint, 2010 WL 1654117 (W.D.

RRR Rene Re Deere eee rem ie mee i Ar 17

Bostic v. Schaefer Appellees Br. 2014 WL 1398088

SETI Dicndihacicenandadibauieisisicdtietenieediamesiinthisuidiniion 5, 7

Michael Boucai, Sexua/ Liberty and Same-Sex

Marriage: An Argument from Bisexuality, 49 SAN

ee Bins Be GID Fi icseccacccencccscescrsccccsesscesessce 7

Bowers v. Hardwick Respt Br., 1986 WL

EEE ae ee eee ocr Deen Se REE oe eto” 5

Benedict Carey, Straight, Gay, or Lying? Bisexuality

Revisited, N.Y. Times (July 5, 2005),

http://www.nytimes.com/2005/07/05/health/05sex.ht

Vil

Faith Cheltenham, The Curious Case of Ivo Widlak.

Huffington Post Blog (Dec. 12, 2012),

http://www.huffingtonpost.com/faith-cheltenham/

the-curious-case-of-ivo-

widlak b_2317756.html.......... 0... cc cece ccc ee eee neeceeess 15

Ruth Colker, A Bisexual Jurisprudence, 3 LAW &

BUARSTY UBT CIDOE)..cccccccccccccccesesccccccecccccccces 6,11

Eliel Cruz, When Bisexual People Get Left out of

Marriage, Advocate.com (Aug. 26, 2014),

http://www.advocate.com/bisexuality/2014/08/26/whe

n-bisexual-people-get-left-out-

I ndiinbcinincenendnnddenanbaneusenscsspsistnenstonineeeientnreenints 8

Gary J. Gates, LGBT Demographics: Comparisons

Among Population-Based Surveys. Williams

Institute, http://williamsinstitute.law.ucla.edu/

wp-content/uploads/lgbt-demogs-sep-

SP cakaadadidsaaannmbeniesiseniieenenedasenbeniebsio 6, 10

Harassment of Bisexual Emplovee, Equal

Opportunities Rev., Issue 212 (May

Si bhdidpsennncentainbeebeianAnesiamninkedbenneebiotent 16

Mark L. Hatzenbuehler et al.. The Jmpact of

Institutional Discrimination on Psychiatric Disorders

in Lesbian, Gay, and Bisexual Populations: A

Prospective Study, AM. J. PUB. HEALTH, vol. 100, no.

I a eaeneaenaniammenaien 13

Mark L. Hatzenbuehler et al, Structural Stigma and

All-Cause Mortality in Sexual Minority Populations,

103 SOCIAL SCIENCE & MEDICINE 33 (2014)......... 12-13

Vill

Gregory M. Herek, Heterosexuals’ Attitudes Toward

Bisexual Men & Women in the United States, 39 J.

OF SEX RESEARCH 264 (Nov. 2002)............:000.0000- 10

Hollingsworth v. Perry Oral Arg.,

http://www.supremecourt.gov/oral_arguments/argum

Gh, SHMMMOTAENI 1S 144.9. 0 ccccccccccccsscccscccccsccscscess 27

Hollingsworth v. Perry Respt Br., 2013 WL

Ivo Widlak Investigates, Popular Chicago Journalist

Facing Deportation Because of Bisexuality (Sept. 26,

2013), http‘//ivowidlak.com/ivo-widlak-popular-

chicago-journalist-facing-deportation-chicago-radio-

media-

Maria L. La Ganga, Oregon's New Governor Blazes a

Trail in U.S, LA. Times 1 (Feb. 19,

Latta v. Otter Appellees Br., Case No. 14-35420,

Docket Entry 76-1 (9th cir.)................2ceeeeeeeeeeees 5, 7

Nancy C. Marcus, Bridging Bisexual Erasure in

LGBT-Rights Discourse and Litigation, __ Mich. J.

Gender & L. (forthcoming 2015)..................c.eeeeeeee 5

Nancy C. Marcus, Deeply Rooted Principles of Equal

Libertv. Not "Argle Bargle": The Inevitability of

Marriage Equality After Windsor, 23 TUL. J. L. &

NE Oo We icaccuncdeisenenisicescisamncnns 23, 35-36

1x

Laura McClure. Same-Sex Family Values, Salon

Monday, Oct 20. 2008, http://www.salon.com/

2003/10/20/same_sex_marriage’/.....................2+.-. 24-25

Naomi Mezey, Dismantling the Wall: Bisexualitv and

the Possibilities of Sexual Identity Classification, 10

BERKELEY WOMEN’S L..J. 98 (1995)..............00000 6,11

Justin Reinheimer, Same-Sex Marriage Through the

Equal Protection Clause: A Gender-Conscious

Analysis, 21 BERKELEY J. GENDER L. & JUST. 213

Si cnitidsatninndatsianninsidiinaionnimbeeimmminnenins 29-30

Romer vv. Evans Respt Br., 1995 WL

IT bi. snsaidinidacniieenengiaebenndieniaetinianieiel 5, 7-8

Lori E. Ross et al.. Perceived Determinants of Mental

Health for Bisexual People’ A Qualitative

Examination, AM. J. PUBLIC HEALTH, vol. 100, no. 3

ETERS Beer Orr eene me 13

San Francisco Human Rights Comm'n LGBT

Advisory Committee, Bisexual Invisibility: Impacts

and Recommendations (2011), http://sf-

hrce.org/sites/sf-hrc.org/files/migrated/FileCenter/

Documents/HRC_Publications/Articles/Bisexual_Invi

siblity_Impacts_and_Recommendations_March_2011

O° RRC ATLA RO Ne 10, 12-13

Ann E. Tweedy and ~Karen Yescavage.

Discrimination Against Bisexuals: An Empirical

Study, WILLIAM & MARY J. OF WOMEN & THE LAW

ETS EC Ce eae He Eee 16

United States v. Windsor Resp’t Br., 2012 WL

Erasure, 52 STAN. L. REV. 353

INTEREST OF AMICUS CURIAE

Amicus curiae is BiLaw, a group of professors

and practitioners of law who specialize in gender and

sexuality, including the discrimination faced by and

the rights afforded to bisexuals, and many of whom

identify as bisexual.! Amicus has an interest in this

Court's consideration of the extent of the right to

same-sex marriage and the inclusion of bisexuals as

holders of such a right. Amicus submits this brief to

provide the Court with the history of bisexual

invisibility—even in the context of laws meant to

protect gays and lesbians—and to provide the Court

with the legal justifications for framing a right to

same-sex marriage in such a way that explicitly

includes and protects bisexuals.

SUMMARY OF ARGUMENT

Demographic data consistently demonstrate

that bisexuals constitute more than half of the

lesbian, gay, bisexual and transgender populace.

Bisexuals’ existence, however, is not reflected in

litigation for the rights of lesbian, gay. and bisexual

people. Starting with Homer v. Evans, 517 U.S. 620

(1996), federal courts and litigants have generally

omitted mention of bisexuals in defining the class of

individuals affected by same-sex marriage bans and

other forms of laws targeting lesbian, gay. bisexual.

No counsel for a party authored this brief in whole or

in part, and no person or entity other than amicus, its

members, its counsel, or their employers, made any monetary

contribution toward the preparation or submission of this brief.

All counsel of record have consented to the filing of this brief.

Some of the members of amucus are listed in Appendix A.

and transgender (“LGBT”) individuals.? Outside the

context of litigation, however, academics and

activists have become increasingly aware of the

harms of bisexual exclusion from LGBT-rights

discourse and have begun to make more of an effort

to be inclusive of bisexuals. In the context of

marriage, bisexuals, like gay men and lesbians, are

harmed when their same-sex relationships are

deemed unworthy of equal marriage rights and

responsibilities, or when their same-sex marriages

are denied equal recognition.

Amicus urges this Court to return to the

inclusive terminology previously used in cases such

as Hurley v. Irish-American Gay, Lesbian and

Bisexual Group of Boston, 515 U.S. 557 (1995), and

by Judge Berzon of the Ninth Circuit in her recent

Latta v. Otter concurrence, acknowledging the

existence of bisexual people. 771 F.3d 456, 482 & n.5,

495 (9th Cir. 2014) (Berzon, J., concurring). Amicus

thus urges the Court to use, in addition to the phrase

“same-sex couples,” the phrase “gay and bisexual

couples” (rather than “gay and lesbian”) because it is

a more accurate and inclusive descriptor of the

2 “LGBT” is the inclusive acronym referencing both

sexual orientation and gender identity minorities, i.e., lesbians,

gays. bisexuals, and transgender individuals. This brief uses

the acronym of “LGBT” to refer to the group of individuals

burdened by laws barring same-sex marriage because

transgender individuals may identify as lesbian, gay or

bisexual, or may be discriminated against because they are

perceived to be in same-sex relationships. Moreover, the brief

uses “gay” to refer to both gay men and lesbians. As suggested

herein, “gay and bisexual” is a more accurate and inclusive

umbrella phrase to capture all individuals of non-heterosexual

orientation than “gay and lesbian.”

individual members of the affected class in this case

and because failing to accurately describe the class

will lead to incorrect and harmful results in these

cases as well as future cases.

Bisexuals play a particularly unique role in

this Court’s equal protection analysis. Specifically.

bisexuals illustrate that the denial of marriage

equality is primarily based on the gender of one’s

partner. rather than one’s sexual orientation. As a

result, the proper standard of review for the

marriage bans at issue in this case is at least

intermediate scrutiny. Although amicus agrees with

other marriage equality advocates that legal

categories based on sexual orientation should be

subject to strict scrutiny. amicus urges that if strict

scrutiny is held inapplicable, the Court must apply

heightened scrutiny because same-sex marriage bans

unconstitutionally categorize on the basis of gender.*

Under that review, the Court should strike down

same-sex marriage bans.

8 In this bref, amicus addresses only the equal

protection doctrine as it applies to sex discrimination because

our central contention is that bisexuals present a unique and

salient illustration of how marriage bans are, at their core, sex

discrimination. The briefs sole focus on equal protection and

sex discrimination is not a rejection of other grounds on which

the marriage bans must fall, such as a fundamental due process

right to marry the person of one’s choice and the equal

protection analysis that the bans also discriminate on the basis

of sexual orientation and must fall under any level of scrutiny.

Rather, amicus agrees with these alternative analyses—and

contends that none of them is inconsistent with the arguments

made by amicus herein—but focuses solely on equal protection

sex discrimination because of its saliency to bisexuality and its

power to reverse bisexual erasure.

To be bisexual-inclusive is to recognize that,

like gay men and lesbians, many bisexuals enter into

lifelong same-sex partnerships, raise children with

their same-sex partners, and are equally affected by

the denial of equal marital rights and protections for

their families. Bisexuals should be acknowledged

within LGBT-rights cases because they are affected

deeply by the issues at stake in these cases as well.

ARGUMENT

In recent years, bisexuals have all but

disappeared from the face of LGBT-rights litigation.

In marriage equality cases in particular, bisexuals

have been rendered largely invisible, even though

the denial of marriage equality is just as harmful to

bisexuals who are in same-sex partnerships as it is to

gay men and lesbians. Almost without exception,

however, gay men and lesbians have been the

exclusive focus of cases addressing sexual orientation

discrimination and discrimination against same-sex

couples. Indeed, the rights of same-sex couples are

described solely in terms of “gays and lesbians” in

many court opinions, without mention that bisexuals

also are harmed by same-sex marriage bans.

The importance of bisexual inclusion is

manifold, with various potential harms arising from

the invisibility of bisexuality in LGBT-rights

discourse, as described below.

A

A. The Troubling History of Bisexual] Invisibility

in LGBT-Rights Litigation

In litigation affecting gay and bisexual

individuals, there has been an unfortunate trend of

bisexual exclusion from briefings and court opinions.

For example, there was not a single reference to

bisexuals in the language of the majority opinions in

the following cases addressing same-sex marriage or

other rights of gays and bisexuals: United States v.

Windsor, 133 S. Ct. 2675 (2013); Hollingsworth v.

Perrv, 133 S. Ct. 2652 (2013): Lawrence v. Texas, 539

U.S. 558 (2003); Latta v. Otter, 771 F.3d 456 (9th

Cir. 2014) (majority opinion): Bostic v. Schaefer. 760

F.3d 352 (4th Cir. 2014); Ajvtchen v. Herbert, 755

F.3d 1193 (10th Cir. 2014): Romer v. Evans, 517 U.S.

620 (1996): and Bowers v. Hardwick, 478 U.S. 186

(1986), overruled, Lawrence v. Texas, 539 U.S. 558

(2003). For the most part, the terminology of the

majority opinions in these cases mirrored the

briefing of the LGBT-rights attorneys, who similarly

excluded bisexuals. See Windsor Resp't Br., 2012 WL

3900586; Perry, Resp’t Br.. 2013 WL 648742: Latta,

Appellees Br., Case No. 14-35420, Docket Entry 76-1:

Bostic, Appellees Br. 2014 WL 1398088; Romer.

Resp’t Br., 1995 WL 17008447; Bowers, Resp’t Br..

1986 WL 720442. See also Nancy C. Marcus,

Bridging Bisexual Erasure in LGBT-Rights

Discourse and Litigation, __ MICH. J. GENDER & L.

(forthcoming 2015) (tracking bisexual invisibility

within nomenclature in LGBT-rights cases) (on file

with author).

The invisibility of bisexuality in LGBT-rights

discourse is not’ attributable to bisexuals’

nonexistence; in fact, some surveys show that

bisexuals constitute over half of the gay and bisexual

population. For example, in surveys of adults aged

18-44 who identify as lesbian, gay or bisexual by the

National Survey of Family Growth, 2.6% out of 4.1%

identified as bisexual; in General Social Surveys,

2.5% of 4.2% identified as bisexual: and in National

Health Interview Surveys, 1.0% of 2.8% identified as

bisexuals. Gary J. Gates, LGBT Demographics:

Comparisons Among Population-Based Surveys.

Williams Institute,

http://williamsinstitute.law.ucla.edu/wp-

content/uploads/lgbt-demogs-sep-2014.pdf, at 4.

This discrepancy between the relatively large

size of the bisexual population and their comparative

invisibility in LGBT-rights discourse has led to a

scholarly examination of bisexual invisibility, also

termed “bisexual erasure.” Kenji Yoshino, 7he

Epistemic Contract of Bisexual Erasure, 52 STAN. L.

REV. 353, 361, 363-88 (2000); see also Naomi Mezey,

Dismantling the Wall: Bisexuality and _ the

Possibilities of Sexual Identity Classification, 10

BERKELEY WOMEN’S L.J. 98 (1995); Ruth Colker, A

Bisexual Jurisprudence, 3 LAW & SEXUALITY 127-28,

136-37 (1993). While there are various forms of

bisexual erasure. the more benign and common

forms (as compared to the more deliberate

delegitimizing stigmatization of bisexuals), as

described by Yale Law Professor Kenji Yoshino, are

categorical class erasure (bisexuality categorically

does not exist) and individual erasure (bisexual

individuals are described by others as being gay

rather than bisexual). Yoshino, supra, at 395-99.

While bisexual (in)visibility has been the

subject of legal scholarship, bisexuality is rarely

mentioned in litigation involving LGBT rights.

Among federal appellate decisions, there has been

only one written opinion substantively addressing

the rights of bisexuals. See Rowland v. Mad River

Local Sch. Dist., 730 F.2d 444 (6th Cir. 1984)

(reversing district court’s holding that plaintiff was

improperly terminated after coming out as bisexual).

Otherwise, there has been a near-total lack of

reference to bisexuals in briefs and opinions in

LGBT-rights cases. In marriage equality litigation

specifically, bisexuals have been “virtually invisible.”

Michael Boucai. Sexua/ Liberty and Same-Sex

Marriage: An Argument from Bisexuality, 49 SAN

Dieco L. REy. 415, 453 (2012); see also generallv

Windsor, Perry, Latta, and Bostic (failing to mention

bisexuality in briefs or majority opinions).

The courts are not solely to blame for omitting

reference to bisexuals; it is understandable that

courts followed the lead of advocates who have

framed the claims of members of partnerships

seeking marriage equality as “gays and lesbians,”

not “gays and bisexuals” (or “gay men. lesbians, and

bisexuals”). Romer v. Evans provides an example of

the courts mirroring the bisexual erasure of LGBT-

rights litigants. In that case, although the language

of the Colorado Amendment ruled unconstitutional

by this Court explicitly included bisexuals, the

parties challenging the amendment dropped all

references to bisexuals from their briefing. Compare

Colo. Const. art. II, § 30b (prohibiting “Protected

Status Based on Homosexual, Lesbian or Bisexual

Orientation”), with Romer br. for respondents, 1995

WL 17008447. This Court followed in_ kind,

describing the class in that case as “homosexual

persons or gays and lesbians.” Romer, 517 U.S. at

624.

The media has compounded the problem of

bisexual erasure, for example reporting that

marriage equality litigant and prominent bisexual

activist Robyn Ochs is lesbian, not bisexual. See

Eliel Cruz, When Bisexual People Get Left out of

Marriage, Advocate.com (Aug. 26, 2014),

http://www.advocate.com/bisexuality/2014/08/

26/when-bisexual-people-get-left-out-marriage. Upset

by the erasure of her identity, Ochs has explained,

“My identity is hard-won—lI worked very hard and

for a very long time to come to a place of comfort and

pride about who I am, and it matters to me that

people see me accurately.” Jd.

In Supreme Court jurisprudence, however,

bisexual exclusion has not always been the case.

Before Romer, in the 1995 case Hurley v. Irish-

American Gay, Lesbian and Bisexual Group of

Boston, Inc., the party’s name explicitly referenced

bisexuals. Thus, the tone was set for this Court to

similarly be bisexual-inclusive, and it was,

mentioning bisexuals frequently throughout the

Hurley majority opinion. However, this bisexual

inclusivity was short-lived. A year later, the bisexual

erasure within the Romer briefs and majority opinion

marked the beginning of the post-Romer era of

bisexual invisibility in Supreme Court litigation.

Other than in the context of quoting the Colorado

Amendment's text in Romer, the word “bisexual” has

not appeared in a single majority opinion by this

Court since Romer.

That said, in Windsor and Perry, this Court's

language reflected a greater degree of inclusivity

than in the plaintiff-appellants’ own briefings. In

those majority opinions, this Court frequently

described the pertinent class as “same-sex couples”

rather than the less-inclusive phrase “gay and

lesbian.” which permeated the plaintiff-appellants’

briefs. While their briefs on the merits contained

hundreds of references to “gays,” “homosexuals,” or

“gays and lesbians,” there was not a single reference

to bisexuals in the body of any of these briefs, other

than in a footnote of Windsor'’s brief referencing an

expert statement regarding the immutability of “gay.

lesbian, and bisexual” sexual orientations. See

Windsor Resp’t Br., 2012 WL 3900586. at *25 n.16.

Other than that passing citation. the merits briefs

failed to explain that bisexuals, like gay men and

lesbians, are harmed by same-sex marriage bans.

By employing the nomenclature of “same sex

couples” rather than “gay men and lesbians,” this

Court commendably. if implicitly. shifted the

discourse in a more accurate and inclusive direction.

Amicus urges the Court to continue in this direction

by not only continuing to use umbrella phrases such

as “same-sex couples” over less inclusive phrases

such as “gay and lesbian couples,” but also by

explicitly recognizing and stating that same-sex

couples do, in fact, include bisexuals. The failure to

do so will contribute to the ongoing serious harms

caused by bisexual exclusion.

10

B. The Harms of Bisexual Exclusion

While bisexual erasure may, at first glance,

appear to be relatively innocuous, it is not. The

erasure perpetuates the common but erroneous views

that (1) bisexuals have little or nothing at stake in

LGBT-rights struggles, and (2) bisexuals do not face

discrimination based on their bisexuality. In reality,

research confirms that the _ stigmatization of

bisexuals is greater than that of homosexuals. See

Gregory M. Herek, Heterosexuals' Attitudes Towards

Bisexual Men & Women in the United States, 39 J.

OF SEX RESEARCH 264, 268 (Nov. 2002) (noting

heterosexuals rated bisexuals as the second lowest

group among a variety of political, racial, ethnic,

religious, and social groups, with only injecting drug

users receiving a less favorable rating); San

Francisco Human Rights Comm'n LGBT Advisory

Committee, Bisexual IJnvisibility: Impacts and

Recommendations (2011), http://sf-hre.org/sites/sf-

hrc.org/files/migrated/FileCenter/Documents/HRC_P

ublications/Articles/Bisexual_Invisiblity_Impacts_an

d_Recommendations_March_2011.pdf. When this

stigmatization is coupled with the data showing that

bisexuals are the largest group in the LGBT

community, the magnitude of the harm caused by

erasure becomes apparent. See Gates, supra.

Bisexuals are directly harmed by the implicit

invalidation of their lived experiences. Moreover, the

erasure creates additional harm, namely harm

promulgated by others, who believe bisexuality is

irrelevant, and whose belief is reinforced by the

erasure, for example in court briefings. The

compounding of the erasure enables various types of

harms to bisexuals, described below.

1]

1. The General Harm of Bisexual] Stigmatization

Erasure of bisexuals, whether intentional or

unintentional, is a form of discrimination against

bisexuals that causes serious harm to bisexuals. In

his article coining the phrase “bisexual erasure,”

Professor Yoshino observed that “self-identified

straights and self-identified gays have shared

political interests that lead them to engage in

strategies, consciously or unconsciously, that erase

bisexuality.” Yoshino, supra, at 399. This is due in

part to negative (and inaccurate) stereotvpes

associated with bisexuals. such as perceptions that

they are immature, unfaithful, and indecisive—if not

outright fictitious. See. e.g., id. at 395-99 (describing

and compiling examples of “categorical class erasure”

of bisexuals by those who contend bisexuality doesn't

exist; “individual erasure” of those who come out as

bisexual by re-labeling them with another sexual

orientation; and _ bisexual erasure’ through

delegitimization via disparaging stereotypes such as

the abovementioned ones); Benedict Carev, Straight.

Gay, or Lying? Bisexualitv Revisited. N.Y. Times

(July D, 2005).

http://www.nytimes.com/2005/07/05/health/O5sex.ht

mi?_r=0. In the lesbian community, bisexual women

who date men have even been condescendingly

dismissed as “hasbians.”4

*“There is. in fact, a word for traitors: hasbians. It is a powerful

pun that invokes the abyss of not being what you had been thought to be.

of really being nothing.” Mezey. Dismantling the Wall: Bisexuality and

the Possibilities of Sexual Identity Classification Based on Acts, 10

BERKELEY WOMEN’S L.J. at 117 (1995). See also Colker. A Bisexual

Jurisprudence, 3 LAW & SEXUALITY at 129 (describing being called a

“hasbian™ after marrving a man).

12

When court opinions, like the Homer opinion,

omit bisexuals despite the fact that their rights are

explicitly at stake, LGBT-rights discourse is framed

to suggest that bisexuals’ rights and lived

experiences are not important in comparison to those

of gay men and lesbians—or even that there is

something shameful and less acceptable about

bisexual people that necessitates keeping their

presence hidden. Moreover, this erasure is not the

result of an evidence-based determination about the

merit of particular claims by individual bisexuals or

the likelihood that bisexuals would be discriminated

against under the law, such as Amendment 2 in

Romer. Instead, the distinction is class-wide without

regard for the merit of any individual claim.

The pervasive erasure of bisexuality in LGBT-

rights advocacy, in court opinions, and elsewhere

likely contributes to the increased health and mental

health problems that bisexuals experience compared

to gay men and lesbians. Specifically, bisexual men

and women have much higher rates of suicidal

ideation than gay men and lesbians respectively. See

Bisexual Invisibility: Impacts and

Recommendations, at 12. Additionally, the data

indicate that bisexual women are more likely to

experience frequent mental distress than lesbians

and that they have poorer general health than

lesbians. /d. at 11-12. The concept of “minority

stress” and the relationship between discrimination

against LGBT persons and mental and physical

health detriments is well-documented. Mark L.

Hatzenbuehler et al, Structural Stigma and All-

Cause Mortality in Sexual Minority Populations, 103

SOCIAL SCIENCE & MEDICINE 33 (2014) (reporting

13

that the life expectancy of sexual minorities living in

communities with high levels of anti-gay prejudice is

twelve years shorter than for those living in low-

prejudice communities); Lori E. Ross et al, Perceived

Determinants of Mental Health for Bisexual People:

A Qualitative Examination, AM. J. PUBLIC HEALTH,

vol. 100, no. 3, at 497 (March 2010) (detailing

bisexual participants’ perception that biphobia and

monosexism played critical roles in their mental

health experiences); Mark L. Hatzenbuehler e¢ a/,

The Impact of Institutional Discrimination on

Psychiatric Disorders in Lesbian. Gay, and Bisexual

Populations: A Prospective Study. AM. J. PUB.

HEALTH, vol. 100, no. 3, 452 (March 2010) (reporting

increased rates of psychiatric disorders, especially

mood disorders and generalized anxiety disorder,

among LGBT respondents living in states that

passed anti-marriage equality constitutional

amendments). Researchers theorize that the worse

mental health outcomes for bisexual people

compared to lesbians and gay men are likely related

to the fact that membership in the LGBT community

is a protective factor for lesbians and gay men.

insulating them from the _ experiences’ of

discrimination they may face from the heterosexual

world. See Bisexual Invisibility: Impacts and

Recommendations at 12. Bisexuals, however, face

consistent prejudice and exclusion from both the

heterosexual and gay communities. and lack the

same protective sense of community when faced with

bias and discrimination.

To avoid further stigmatizing bisexual people

as unworthy of acknowledgement or inclusion within

the LGBT community, the Court should use bisexual-

14

inclusive language in its opinions in cases that affect

the rights of bisexual people. See Windsor, 133 S. Ct.

at 2692 (“[Marriage]) is a far-reaching legal

acknowledgment of the intimate _ relationship

between two people. a relationship deemed by the

State worthy of dignity in the community equal with

all other marriages.”) By doing so, the Court will

model for the rest of society that bisexuals both exist

and are entitled to fair treatment.

2. Harms to Bisexuals in Other Legal Contexts

Using language in LGBT-rights cases that

excludes bisexuals will contribute to collateral harms

to bisexual people in future cases. This is because

lack of mention of bisexual interests perpetuates the

general lack of understanding among judges and

juries as to what bisexuality is and how

discrimination against bisexuals occurs. Given that

the right to marry has far-reaching effects in family

law, immigration law, and elsewhere, if the right to

marry is framed in a way that excludes bisexuals, it

may be unclear in future cases whether

discrimination against bisexuals is permissible.

For example, in Garcia~Jaramillo v. INS, 604

F.2d 1236, 1239 (9th Cir. 1975), the immigration

board determined that an applicant’s marriage must

be a sham. Petitioner was asked “an inordinate

number of questions concerning [his] homosexuality”:

the INS never considered bisexuality as a possibility.

Instead, it ruled against the petitioner because it

perceived a conflict between his past homosexual

relationships and his present opposite-sex marriage:

that “conflict” was so suspect as to render the

marriage a sham in the court’s mind. This case

15

illustrates the problem with sexual orientation being

viewed as a binary—either exclusively heterosexual

or exclusively homosexual—thus ignoring that

bisexuals get married too.®

Bisexuals, like gays and lesbians, have also

been discriminated against in the adoption context.

See, e.g., In the Matter of the Appeal in Pima County

Juvenile Action B-10489, 727 P.2d 830 (Ariz. 1986)

(holding discrimination based on _ bisexuality

permissible in adoption context). Similar

discrimination against bisexuals has occurred in

other family law cases. See, e.g., S.B. v. L.W., 793 So.

2d 656, 661 (Miss. App. 2001) (denying mother

custody, holding “mother’s bisexual lifestyle” was

indicative of her “lack of financial and emotional

stability,” as compared to the stable environment the

father offered, including “a traditional family

environment”): Dorn v. Dorn, 724 So. 2d 554, 556

(Ala. App. 1998) (denying custody to mother, court

quoted guardian ad litem report describing mother

as lacking stability, in part because she “engaged in

a lesbian relationship while the minor children were

in close vicinity” and also “had sexual relations with

a man prior to obtaining a divorce from the [father]”).

When this Court affirms that a lesbian. gay, or

bisexual person has the nght to marry the person of

her choice, this will have ripple effects in other

5 For a more recent example. see Ivo Widlak

Investigates, Popular Chicago Journalist Facing Deportation

Because of Bisexuality (Sept. 26, 2013),

http:/Aivowidlak.com/ivo-widlak-popular-chicago-journalist-

facing-deportation-chicago-radio-media-tv/; Faith Cheltenham,

The Curious Case of Ivo Widlak, Huffington Post Blog (Dec. 12,

2012), http://www.huffingtonpost.com/faith-cheltenham/the-

curious-case-of-ivo-widlak_b_2317756.html.

16

family law contexts including adoption, foster care,

and child custody, because affirming the right to

marry negates arguments that a person may be an

unfit parent based on sexual orientation alone.

However, if opinions on same-sex marriage are

framed in a way that implicitly exclude bisexuals,

such opinions will not send a clear message to lower

courts that discrimination against bisexual parents

is unfair and presumptively unlawful, and bisexual

parents could continue to be singled out for

discrimination in future cases relating to adoption,

foster care, and custody. This would be unacceptable,

and the Court should take care, through careful

drafting, to foreclose such a possibility.

Bisexual litigants face considerable barriers in

accessing justice in the employment context as well.

In the United States, no bisexual plaintiff has

ultimately prevailed in a case alleging employment

discrimination based on sexual orientation or raising

a related claim.6 See Rowland, 730 F.2d 444

(reversing district court ruling that plaintiff was

discriminated against for coming out as bisexual).

Furthermore, in a federal district court case brought

by bisexual plaintiffs who alleged exclusion by an

6 The only case located by counsel in which a bisexual

employee ultimately succeeded on the merits in a sexual

orientation-based discrimination case was a harassment case

from the United Kingdom. See Harassment of Bisexual

Employee, Equal Opportunities Rev., Issue 212, at 29 (May

2011) (citations omitted); see also Ann E. Tweedy and Karen

Yescavage, Discrimination Against Bisexuals: An Empirical

Study, _._ WILLIAM & MARY J. OF WOMEN & THE LAW

(forthcoming 2015) at 12-14; 14, n.45, available at

http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1103

720.

17

LGBT non-profit acting as a public accommodation,

the judge failed to understand that the organization's

facially discriminatory rules harmed bisexuals in

contravention of its own professed mission. Apilado

v. North American Gay Amateur Athletic Alliance,

2011 WL 5563206, at *1-*3 (W.D. Wash. Nov. 10.

2011) (failing to mention claim that defendant

discriminated based on bisexuality in order granting

partial summary judgment to defendant, instead

framing the issue as whether the NAGAAA had a

right to exclude “straight or closeted players” or

“people who chose not to identify as predominantly

interested in the same sex”). In light of the

considerable obstacles that bisexuals face in

accessing justice, the Court is in a position to effect

considerable progress simply by using inclusive

language in its marriage equality opinions. We urge

it to do so.

C. This Court Should Include Bisexuality in its

Terminol to

Harm to Bisexual Litigants

In recent vears, LGBT-rights advocates have

begun to recognize the problematic nature of

bisexual exclusion, and have become more bisexual-

inclusive in their terminology. For example. in 2010

the National Center for Lesbian Rights represented a

group of bisexual softball players challenging their

exclusion from the Gay Softball World Series

tournament for not being “gay enough.” Apilado v.

North American Gay Amateur Athletic Alliance.

Complaint, 2010 WL 1654117. The case settled after

the North American Gay Amateur Athletic

Association agreed to change its rules to explicitly

18

permit bisexual and transgender players. to

participate in the league. The National LGBT Bar

Association has also facilitated bisexual inclusion by

hosting the “BiLaw” organization’s inaugural

National BiLaw Caucus in 2014. See

http://lgbtbar.org/annual/program/friday-august-22-

2014/. The National LGBT Bar Association also

recently changed its name from the less inclusive

“Lesbian and Gay Bar Association,” joining a number

of other national organizations that have recently

changed their names to become more bisexual- and

transgender-inclusive, such as the ACLU'’s former

Lesbian and Gay Rights Project, renamed the LGBT

Project; the National Gay and Lesbian Task Force,

renamed the National LGBTQ Task Force: and

Parents, Families and Friends of Lesbians and Gays,

renamed PFLAG. Very recently, the media also has

begun to be more inclusive of bisexuals. See, e.g.,

Maria L. La Ganga, Oregon's New Governor Blazes a

Trail in U.S.. L.A. Times 1 (Feb. 19, 2015) (“Kate

Brown made history in more ways than one

Wednesday, when she was sworn in as Oregon’s new

governor while her mother and husband stood

proudly by. . . . Brown also became the first openly

bisexual governor in the U.S. In doing so, she kicked

off a conversation about a slice of America that is

often stigmatized and misunderstood.”).

Amicus implores this Court to similarly adjust

its language to reflect greater inclusivity. To be

bisexual-inclusive is to recognize that, like gay men

and lesbians, many bisexuals enter into lifelong

same-sex partnerships, raise children with their

same-sex partners, and are equally affected by the

denial of equal marital rights and protections for

19

their families. It is thus discriminatory to render

bisexuals invisible from the face of LGBT-rights

litigation. Bisexuals should be acknowledged within

LGBT-rights cases because they are affected deeply

by the issues at stake in these cases as well.

As discussed above, this Court has been

commendably more inclusive in its terminology in

recent cases addressing marriage equality by

employing the umbrella terms “same-sex” couples

and “same-sex” marriage. To be more explicitly

inclusive, this Court could follow the example of

Ninth Circuit Judge Berzon, who recognized that

bisexuals, too, are affected by same-sex marriage

bans, not just gay men and lesbians. As Judge

Berzon wrote in her concurrence to Latta v. Otter‘

The need for such a presumption, as to

a factor that does not appear on the

face of the same-sex marriage bans,

suggests that the gender

discrimination analysis is, if anvthing,

a closer fit to the problem before us

than the sexual orientation rubric.

While ‘the same-sex marriage

prohibitions obviously operate to the

disadvantage of the people likely to

wish to marry someone of the same

gender—i.e. lesbians. gay men.

bisexuals. and otherwise-identified

persons with same-sex attraction—the

individuals’ actual orientation is

irrelevant to the application of the

laws.

20

I do not mean. by presenting

this alternative analysis, to minimize

the fact that the same-sex marriage

bans necessarily have their greatest

effect on lesbian, gay, bisexual, and

transgender individuals. Still, it bears

noting that the social exclusion and

state discrimination against lesbian.

gay, bisexual, and transgender people

reflects, in large part, disapproval of

their nonconformity with gender-

based expectations.

I do recognize, however, that

the gender classification rubric does

not adequately capture the essence of

many of the restrictions targeted at

lesbian, gay. and bisexual people.

Latta, 771 F.3d at 482 & n.d, 495 (Berzon, J.,

concurring).

Amicus respectfully requests that this Court

acknowledge that marriage is a fundamental right,

not just for heterosexuals and gays, but for bisexuals

as well, who are greater in number than gays, and

who also enter into same-sex partnerships, but are

rarely explicitly recognized as being similarly

situated. This Court can increase the inclusivity

and accuracy of its language by continuing to use

umbrella phrases such as “same-sex couple,”

“lesbian, gay, and bisexual,” or even “gay and

bisexual” (with “gay” encompassing gay men and

women) and by noting explicitly that “same-sex

couples” and “same-sex marriages” include bisexuals.

21

-

Acknowledging the existence of bisexuals and the

impact of these issues on their lives is critical for a

coherent, consistent, and honest jurisprudence.

Same-sex marriage bans violate equal

protection because they constitute sex

discrimination. Bisexuals play a unique role in the

Court’s equal protection analysis, a role that has not

been brought to the Court's attention by the parties:

this amicus brief thus fills a unique and important

gap in the briefing in the present cases. SUP. CT. R.

37.1.

The lived experience of bisexuals saliently

illustrates that the denial of marriage equality is. at

its core, sex discrimination. For bisexuals in States

with same-sex marriage bans. it is the gender of the

person we choose to spend our life with that

determines whether we have marriage rights. If we

seek to marry a person of a different sex, we have full

rights. If we seek to marry a person of the same sex,

we have no rights. Our sexual orientation did not

change; only the sex of our partner was different. As

Judge Berzon pointed out. the sex discrimination

analysis is a closer fit for the issue of same-sex

marriage than the sexual orientation rubric. Latta.

771 F.3d at 482 & n.5, 495 (Berzon, J., concurring).

For bisexual people in particular, the sex

discrimination framework also more accuratelv

describes the harm caused by same-sex marriage

bans. For this reason, amicus urges that the Court

recognize that the marriage bans at issue in these

22

cases constitute sex discrimination as well as sexual

orientation discrimination.

Under firmly established precedent,

classifications based on sex—where a law treats

persons in similar situations differently on the basis

of sex—trigger intermediate scrutiny; sex is a quasi-

suspect classification under existing law. United

States v. Virginia, 518 U.S. 515, 519 (1996). Because

bisexuals are in the unique position of having the

authentic opportunity to fall in love with a man or

with a woman, they are uniquely situated in the

marriage equality analysis generally and in the sex-

discrimination analysis in particular: A bisexual's

right to marry hinges solely on the gender of their

chosen future spouse. The application of the sex-

discrimination framework thus explicitly includes

and reflects the lived experiences of bisexuals. This

framework allows the Court to focus on whether the

law treats persons in similar situations differently on

the basis of sex (it does), and whether that

classification is substantially related to an important

government interest (it is not).

The term “gay marriage” has been used

extensively by the media, the legislature, and the

courts. That term is a misnomer, however, because,

not all same-sex marriages are between

homosexuals: some are between bisexuals. BaehAr v.

Lewin, 852 P.2d 44, 51 n.11 (Haw. 1993). Several

concrete examples, illustrate this point.

23

First, Professor Nancy Marcus explains why a

bisexual person’s experience under the marriage

bans constitutes impermissible sex discrimination:

One of the clearest illustrations of why

the denial of marriage equality is a

form of sex discrimination is this: if I

were to apply for a marriage license in

my state, Indiana, which [then]

prohibit[ed] same-sex marriage, and if,

in the process, I announced to the

clerk issuing marriage licenses that I

am bisexual and want to marry a man,

my state would allow me to do so. If,

on the other hand, I were to approach

the clerk with the statement that I am

bisexual and want to marry a woman,

I would be refused a marriage license.

The only thing that would have

changed is the sex of the person I want

to marry. and not my _ sexual

orientation, which was bisexual all

along. Thus, the denial of marriage

equality for same-sex couples is a form

of sex discrimination, based on the sex

of those in the partnership. and not,

necessarily, on sexual orientation.

Nancy C. Marcus, Deep/lv Rooted Principles of Equal

Liberty, Not "Argle Bargle"’ The Inevitabilitv of

Marriage Equality After Windsor, 23 TUL. J.L. &

SEXUALITY 17, 59 (2014).7 This illustration mirrors

” See also, for example, the story of Jean and Toby

Adams. Laura McClure, Same-Sex Familv Values, Salon

24

the description by Judge Berzon in her Latta

concurrence of a real-life example of such an

exchange with a marriage license bureau:

When Karen Goody and Karen Vibe [a

Nevada plaintiff couple] went to the

Washoe County Marriage Bureau to

obtain a marriage license, the security

officer asked, “Do you have a man

with you?” When Karen Vibe said they

did not. and explained that she wished

to marry Karen Goody, she was told

she could not even obtain or complete

a marriage license application

[because] “[t)wo women can't apply” ...

land] marriage is “between a man and

a woman.”

Notably, Goody and Vibe were not

asked about their sexual orientation:

Vibe was told she was being excluded

because of her gender and the gender

of her partner.

Of course, the reason Vibe wants to

marry Goody, one presumes, is due in

part to their sexual orientations. But

that does not mean the classification

at issue is not sex-based.

Latta, 771 F.3d at 481-82 (Berzon, J., concurring)

(see also previously discussed language in her

Monday, Oct 20, 2003,

http://www .salon.corm/2003/10/20/same_sex_marriage/ .

25

opinion at 482 n.5 and 495, elaborating upon

explanation that same-sex marriage is a matter of

sex discrimination). These illustrations are more

than thought experiments: to be bisexual-inclusive is

to recognize that, like gay men and lesbians. many

bisexuals enter into lifelong same-sex partnerships,

raise children with their same-sex partners, and are

equally affected by the denial of equal marital rights

and protections for their families.

A second iUlustration of the sex discrimination

embedded in the marriage bans comes in the context

of divorce and an attempt to remarry. For example,

if a bisexual woman is in a devoted relationship with

a man, she may legally marry him. If that bisexual

woman later divorces her husband and subsequently

falls in love with and enters into a committed

relationship with a woman, she would not be allowed

to legally marry her female partner in many states.

The only difference between the bisexual’s first

relationship and her second relationship is the sex of

her partner.

Finally, the sex discrimination of the marriage

bans is thrown into sharp relief when the example of

two bisexual couples is considered side-by-side. The

first bisexual couple is a man and a woman in a

committed relationship who are raising children

together. The second bisexual couple is two women

in a committed relationship. also raising children

together. The first, different-sex bisexual couple may

marry under the current laws of Kentucky,

Michigan, Ohio, and Tennessee. The second same-

sex couple is denied the rights and responsibilities of

marriage under the state marriage bans. All four of

26

the people in these relationships are bisexual. so the

denial of rights is dependent on sex of the bisexual’s

chosen partner.

All of these examples aptly illustrate that, for

a bisexual person, the denial of marriage rights is a

result of sex discrimination, and not based solely on

sexual] orientation discrimination.

Not only do same-sex marriage bans on their

face employ a form of sex discrimination, but the

discriminatory effect of the bans further serves to

reinforce gender stereotypes. In discriminating on

the basis of the sex of a bisexual woman’s chosen

partner, for example, a ban on same-sex marriage

imposes a gender classification on the bisexual

woman by requiring that, as a woman, she must

partner with a man, if at all, because that is her role

as a woman, taking away her autonomy and volition

in the matter, and failing to account for the fact that

a bisexual woman. like a lesbian, may also fall in

love with a life partner who is also female.

Equal Protection requires that “no State shall

‘deny to any person within its jurisdiction the equal

protection of the laws,’ which is essentially a

direction that all persons similarly situated should

*" This Court's gender discrimination case law has

focused (in addition to the harm of restricting an individual's

opportunities based on gender) on the harm inflicted by

governmental enforcement of gender stereotypes when it

acknowledged that “the real danger that government policies

that professedly are based on reasonable considerations in fact

may be reflective of ‘archaic and overbroad’ generalizations

about gender... .” J.E.B. v. Alabama, 511 U.S. 127, 135 (1994)

(internal citations omitted).

27

be treated alike.” City of Cleburne v. Cleburne Living

Ctr., 473 U.S. 432, 439 (1985), quoting Pivier v. Doe,

457 U.S. 202, 216 (1982). To trigger this test,

plaintiffs claiming a mght must show that they are

similarly situated to the comparable persons who are

receiving the claimed right. The bisexuals in the

foregoing examples are treated differently depending

on the sex of their partner. And there is no question

that a bisexual person who wishes to marry a

partner of the same sex is similarly situated to a

bisexual person who wishes to marry a partner of the

opposite sex. Like the different-sex couple. the same-

sex couple (regardless of homosexual or bisexual

orientation) is seeking to “affirm their commitment

to one another before their children, their family,

their friends, and their community” and “live with

pride in themselves and their union.” Windsor. 133

S. Ct. at 2689.

B. j w_ Thos wer Courts

that Have Found that Same-Sex Marriage

issib ategori j to

Sex

Some lower courts have persuasively held that

marriage bans categorize according to sex, and

constitute sex discrimination.? Amicus urges this Court

to follow the reasoning of these lower courts.

* Furthermore, at least one member of this Court has

grappled with this question. Justice Kennedy asked during oral

arguments in the Perry case: “Do you believe this can be treated

as a gender-based classification? ... It's a difficult question

that I've been trying to wrestle with.” Perry Oral Arguments,

p.13,http://www.supremecourt.gov/oral_arguments/argument_tr

anscripts/12-144.pdf. Amicus contends that the answer to this

question should be a resounding “Yes.”

28

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

analogous and supports the application of heightened

scrutiny under the sex discrimination framework,

notwithstanding that the marriage bans apply

equally to men and women. The Loving Court struck

down Virginia’s anti-miscegenation under the Equal

Protection Clause and in doing so, rejected the

“notion that the mere ‘equal application’ of a statute

containing racial classifications is enough to remove

the classifications from the Fourteenth Amendment’s

proscription of all invidious racial discriminations.”

Loving, 388 U.S. at 8: see also McLaughlin v.

Florida, 379 U.S. 184, 191 (1964) (stating equal

protection inquiry “does not end with a showing of

equal application among the members of the class

defined by the legislation”). These principles are not

limited to laws which discriminate based on race.

The principle of white supremacy, which underlay

the laws struck down in Loving was not a

prerequisite to the application of heightened

scrutiny: “[Wle find the racial classifications in these

statutes repugnant to the Fourteenth Amendment,

even assuming an even-handed state purpose to

protect the ‘integrity’ of all races.” Loving, 388 U.S.

at 11, n.11. Thus, under Loving, application of

intermediate scrutiny to sex classifications—like

those embedded in the marriage bans—is proper

notwithstanding that the bans (1) apply equally to

men and women, and (2) are not expressly based on

the principle of maintaining the superiority of men

over women. See, e.g., j.#.B., 511 U.S. at 140-42 &

142 n.13 (holding gender-based peremptory strikes of

jurors violate equal protection whether exercised

against men or women, and even though there was

no showing of disproportionate impact on one sex).

29

Following Loving, some cases brought in the

1970s att-mpted to secure the right to marriage for

same-sex couples based on an analogous sex

discrimination theory.'° Although these early cases

were unsuccessful, in 1993 the Hawaii Supreme

Court accepted the sex discrimination theory in a

marriage equality case. See Baehr v. Lewin, 852 P.2d

44 (Haw. 1993). In Baehr, a group of same-sex

couples filed suit alleging solely that Hawai'i's

marriage ban constituted sex discrimination under

the Hawaii Constitution’s Equal Protection Clause:

the plaintiffs did mot assert sexual orientation

discrimination. Although the State tried to frame

the issue as one of sexual orientation discrimination.

the court did not agree and, as a result, did not reach

the question of which level of scrutiny should be

afforded to sexual orientation discrimination. BaedAr.

852 P.2d at 52, n.12.

The SBaehr court held that the _ statute

discriminated on the basis of sex and failed the strict

scrutiny applied under Hawaiis Equal Protection

Clause. Jd. at 66. The court reasoned that the

State’s marriage ban was impermissible sex

discrimination because denying an individual's right

to marry a person of the same sex was a

classification based solely on sex. In so holding, the

court relied on Loving to reject the argument that

Hawai'ls marriage ban was not sex discrimination

because it applied equallv to men and women. /d. at

67-68. See also Justin Reinheimer, Same-Sex

10 Attempts in Minnesota and in 1971 and Kentucky in

1973 both failed. See Baker v. Nelson, 191 N.W.2d 185 (Minn.

1971), appeal dismissed in Baker v. Nelson, 409 U.S. 810

(19722 Jones v. Hallahan. 501 S.W.2d 588 (Ky. 1973).

30

Marriage Through the Equal Protection Clause: A

Gender-Conscious Analysis, 21 BERKELEY J. GENDER

L. & JUST. 213, 233 (2006).

Although the Baer decision was based on the

Hawaii Constitution, which mandated strict scrutiny

for sex discrimination. its reasoning is sound and

persuasive and may be applied to the cases at bar.

This Court has held that sex is a quasi-suspect class,

and the BaehAr reasoning applies with equal force

under an intermediate, rather than strict, scrutiny

analysis. Moreover, as described throughout this

brief, the bisexual experience puts into sharp relief

the lesson from Baehr that marriage bans are. at

their core, classifications based on sex which fail both

intermediate and strict scrutiny. See also Brause v.

Bureau of Vital Statistics, 1998 WL 88743, *6 (AK

Super. Ct. Feb. 27, 1998) (“That this is a sex-based

classification can readily be demonstrated: if twins,

one male and one female, both wished to marry a

woman and otherwise met all of the Code’s

requirements, only gender prevents the twin sister

from marrving under the present law. Sex-based

classification can hardly be more _ obvious.”),

overruled by statute; Varnum v. Brien, No. CV5965.,

2007 WL 2468667 (D. Iowa Aug. 30, 2007)

(invalidating Iowa's marriage ban on the basis that

“such as Plaintiffs ... may not be denied licenses to

marry ... by reason of the fact that both persons

comprising such a couple are of the same sex.”).

holding affd on other grounds in Varnum v. Brien,

763 N.W.2d 862 (Iowa 2009): Baker v. State, 744

A.2d 864, 904-12 (Vt. 1999) (Johnson, J., concurring

in part) (“I write separately to state my belief that

3]

this is a straightforward case of sex discrimination. .

Pe |

Similarly, some lower federal courts have held

marriage bans unconstitutional on the ground that

such statutes constitute sex discrimination. See

Kitchen v. Herbert, 961 F. Supp. 2d at 1206 (“[T]he

court finds that the fact of equal application to both

men and women does not immunize Utah's

Amendment 3 from the heightened burden of

justification that the Fourteenth Amendment

requires of state laws drawn according to sex.”), affd

on other grounds Kitchen v. Herbert, 755 F.3d 1193:

Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 996

(N.D. Cal. 2010) (“Sexual orientation discrimination

can take the form of sex discrimination.”), revd

Perry v. Brown 671 F.3d 1052 (9th Cir. 2012), revd

Hollingsworth v. Perry. See also Latta, 771 F.3d at

482 n.5 (Berzon, J., concurring) (“[Glender

discrimination analysis is. if anything, a closer fit to

the problem before us than the sexual orientation

rubric. While the same-sex marriage prohibitions

obviously operate to the disadvantage of the people

likely to wish to marry someone of the same

gender—1i.e. lesbians, gay men, bisexuals, and

otherwise-identified persons with same-sex

attraction—the individuals’ actual orientation is

irrelevant to the application of the laws.”):

Rosenbrahn v. Daugaard, 2014 WL 6386903, *11 (D.

S.D. Nov. 14. 2014) (denying motion to dismiss

because “complaint sufficiently states a claim for

relief because it plausibly shows a classification

related to gender.”).

32

Finally, Justice Scalia has articulated the case

for applying a sex discrimination analysis to

marriage bans. He has stated:

[In an] equal-protection challenge .. .

[the Texas sodomy statute] does

distinguish between the sexes insofar

as concerns the partner with whom

the sexual acts are performed: men

can violate the law only with other

men, and women only with other

women... . [It is precisely the same

distinction regarding partner that is

drawn in_ state laws _ prohibiting

marriage with someone of the same

sex while permitting marriage with

someone of the opposite sex.

Lawrence, 539 U.S. at 600 (Scalia, J.. dissenting).

Justice Scalia used this rationale to argue that the

sodomy law held unconstitutional in Lawrence could

not be a violation of equal protection on the basis of

sex, because same-sex couples could not, at that

time. get married. Because the denial of marriage

equality had not yet been found to be a violation of

equal protection on the basis of sex, Justice Scalia

concluded that sodomy law at issue in Lawrence was

not unconstitutional sex discrimination. /d.

However, for all the reasons articulated herein, and

by the very logic of Justice Scalia’s Lawrence dissent,

this Court should hold same-sex marriage bans are

sex-based classifications that violate equal

protection.

33

Treating marriage bans as a_e sex-based

classification under the Equal Protection Clause is

the correct analysis. From a bisexual perspective,

amicus argues that same-sex marriage bans are

facially discriminatory as to sex because the

determining factor for whether a bisexual may marry

is the sex of one’s chosen spouse.

Moreover, the reasoning of those courts that

have rejected the sex discrimination theory’! is

unpersuasive, particularly when the lived

experiences of bisexuals are brought to light. Once

bisexual erasure is reversed, these courts’ reasoning

falls apart because for bisexuals, the marriage bans

do in fact treat individual men and women

differently because of their sex, rather than because

of their sexual orientation. Because the cases that

rejected the sex discrimination theory assumed onlv

two possible orientations—homosexual or

heterosexual—they are doctrinally infirm. Applying

the same analysis to bisexual persons, the outcome is

very different. The right to marry is a right available

to a bisexual person but on/y when that bisexual

choor 2s to marry a different-sex partner; that right is

not available to the bisexual who wishes to marry a

'' While other lower courts have rejected the sex discrimination

theory advocated herein, amicus respectfully disagrees with these

opinions to the extent they reject this theory. and urge this Court to accept

the sex discrimination theory. See. e.g.. Goodridge v. Department of

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

the Senate, 802 N.E.2d 565 (Mass. 2004)(analyzing marriage equality

based solely on sexual orientanon under the Equal Protectiodop-n and

Due Process clauses): Jn Re Marriage Cases. 183 P.3d 384 (Cal. 2008)

(same); I ‘arnum v. Brien, 763 N.W.2d 862 (lowa 2009) (same). As noted

previously, amicus agrees with the other theorics supporting marriage

equality but focus solely on sex discrimination in this brief. See n.3.

supra.

34

partner of the same sex. As a result. the sex

discrimination theory should be the Court's central

analytical framework in the cases at bar, and such

fremework is further bolstered by the Loving

analogy: Just as the anti-miscegenation laws

impermissibly categorized and _ discriminated

according to race notwithstanding that such laws

applied equally to White and to Black individuals,

the marriage bans improperly categorize and

discriminate according to sex. notwithstanding that

such laws applv equally to men and women. See

Loving. 388 U.S. at 7-8 (“[W]e deal with statutes

containing racial classifications, and the fact of equal

application does not immunize the statute from the

very heavy burden of justification which the

Fourteenth Amendment has traditionally required of

state statutes drawn according to race.”). Amicus

argues that the sex discrimination equal protection

framework is the most inclusive, accurate, and

appropriate and urges the Court to adopt it here.

Moreover, the marriage bans should be

stricken under the heightened scrutiny standard

applied in sex discrimination cases. Laws alleged to

violate substantive due process or equal protection

are subject to one of three levels of scrutiny: strict,

intermediate, or rational basis. Wygant v. Jackson

Bd. of Educ., 476 U.S. 267 (1986). Heightened

scrutiny must be applied when a fundamental right

is denied or the classification is suspect or quasi-

suspect. Skinner v. Oklahoma, 316 U.S. 535, 541

(1942). Because marriage statutes constitute sex

discrimination, heightened scrutiny applies. See

United States v. Virginia, 518 U.S. at 519. Where

legislation negatively affects a quasi-suspect class

35

and intermediate scrutiny controls, the classification

(here. “sex”) is deemed valid onlv if it is

“substantially related to a sufficiently important

governmental] interest.” Equalitv Found. v. Citv of

Cincinnati, 128 F.3d 289, 293 (6th Cir. 1997):

Cleburne, 473 U.S. 441.

Here, the marriage bans of Kentucky.

Michigan, Ohio, and Tennessee fail under an

intermediate scrutiny analysis because’ the

classification employed (sex) is not substantially

related to an important governmental interest. The

Sixth Circuit in this case seemed to find a rational

basis for denying same-sex couples and their families

protections in a government interest in

“encouragling] couples to create and maintain stable

relationships within which children may flourish.”

DeBoer v. Snyder. 772 F.3d 388, 405 (6th Cir. 2014).

Even assuming that this were a correct identification

of the government’s interest in banning same-sex

marriage, that interest is not substantially served by

denying protections to same-sex couple-headed

families with children. As this Court recognized in

Windsor, however, it is same-sex marriage bans that

threaten the well-being of children, not the provision

of same-sex marriages. See Windsor, 133 S. Ct. at

2694 (DOMA “humiliates tens of thousands of

children now being raised by same-sex couples [and]

makes it even more difficult for the children to

understand the integrity and closeness of their own

family and its concord with other families in their

community and in their daily lives.”). See also

Marcus, Deeplv Rooted Principles of Equal Liberty,

Not “Argle Bargle,” 23 TUL. J.L. & SEXUALITY at 52-

57 “But Think of the Children! (and Other Irrational

36

Rationalizations”)). Thus, the rationales seemingly

accepted by the Sixth Circuit fail under any degree of

scrutiny, but would most certainly fail under

intermediate scrutiny, under which respondents

have failed to meet their burden of establishing any

substantial relationship between protecting children

and denying children of same-sex parents and their

parents the myriad of rights and protections that

accompany same-sex marriage rights.

This Court recognized in Romer and Lawrence

that gay men and lesbians are entitled to equal

dignity and respect for their personal life choices and

that they are entitled to live as equal citizens. The

Constitution protects bisexuals to the same degree.

As the Court continues to _ recognize the

Constitution’s related protections for equal liberty,

particularly in protecting individual autonomy in

intimate associations and personal life choices,

bisexuals should be accorded the same respect for

their intimate life partnerships as gays and

heterosexuals.

CONCLUSION

Amicus respectfully requests that this Court

strike down same-sex marriage bans and non-

recognition statutes, and that in doing so that it use

language that acknowledges the existence of

bisexuals and the impact of these bans on bisexuals

and their families. While, on the one hand, the

fundamental right and liberty interest in marrying

the person of one’s choice is a long-standing right

that should trigger strict scrutiny analysis, amicus

urges that even were this court to employ a pure

equal protection analysis, heightened scrutiny should

37

apply. While others have argued persuasively that

sexual orientation is a classification that warrants

strict scrutiny. and amicus agrees with that analysis.

amicus alternatively suggests that heightened

scrutiny is warranted for yet another reason. The

inclusion of bisexual couples and individuals in

marriage equality jurisprudence illustrates that

marriage bans. constitute sex discrimination.

subjecting them to heightened scrutiny. If this Court

agrees that a same-sex marriage ban is. sex

discrimination it must apply, at the very least,

intermediate scrutiny. Applying heightened scrutiny

on whichever basis, this Court should conclude that

same-sex marriage bans and recognition denials are

unconstitutional.

Respectfully submitted,

KYLE C. VELTE

Counsel of Record

UNIVERSITY OF DENVER STURM COLLEGE OF LAW

2255 E. Evans Ave., Room 365L

Denver, CO 80208

(720) 648-9266

kyle. velte@gmail.com

App. |

Appendix A

Some Members of Amicus include:*

TOBY PHOEBE E. ADAMS

BLLAWMEMBER

TOBY ADAMS, ATTORNEY AT LAW

JopI A. ARGENTINO

BILAW MEMBER

ARGENTINO & JACOBS, LLC

PROF. RUTH COLKER

MORITZ COLLEGE OF LAW

THE OHIO STATE UNIVERSITY

HERON GREENESMITH

BILAW MEMBER

MOVEMENT ADVANCEMENT PROJECT

PROF. NANCY C. MARCUS

BILAW MEMBER

INDIANA TECH LAW SCHOOL

PROF. NAOMI MEZEY

BILAW MEMBER

GEORGETOWN UNITVERSITY LAW CENTER

POLLY SHOEMAKER

BILAW MEMBER

* The organizationa! identifiers are for identification

purposes; the contents of this brief represent the views of the

individuals listed above and do not necessarily represent the

views of the organizations. Moreover, BiLlaw has more

members than those listed above.

App. 2

WILLIAM S. SINGER

SINGER & FEDUN, LLC

ILONA TURNER

BILAW MEMBER

TRANSGENDER LAW CENTER

JER WELTER

BIlILAW MEMBER

FREESTATE LEGAL PROJECT, IN¢