Amicus Curiae Brief — Obergefell v. Hodges

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

Supreme Court, U.S.

FILED

MAR 6 - 2065

OFFICE OF THE CLERK

an The

Supreme Court of the United States

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

Petitioners,

Vv.

HICHARD HODGES, DIRECTOR, OHIO DEPARTMENT

OF HEALTH, ET AL., Respondents.

VALERIA TANCO, ET AL., Petitianers,

Vv.

WILLIAM EDWARD “BILL” HASLAM, GOVERNOR OF

TENNESSEE, ET AL., Respondents.

APRIL DEBOER, ET AL., Petitioners,

Vv.

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

GREGORY BOURKE, ET AL., and

TIMOTHY LOVE, ET AL., Petitioners,

Vv.

STEVE BESHEAR, GOVERNOR OF KENTUCKY, ET AL., Respondents.

On Writa of Certiorari to the United States

Court of Appeals for the Sixth Circuit

BRIEF OF AMICI CURIAE CONFLICT OF LAWS

AND FAMILY LAW PROFESSORS IN SUPPORT

OF PETITIONERS

OF FAMILY LAW MARJORY A. GENTRY

Hofstra Law School Counsel of Record

121 Hofstra University JOHN 8S. THROCKMORTON

Hempstead, NY 11549 EMILY H. Woop

Center

10th Floar

Sbetnen 415.471.3100

marjory.gentry@aporter.com

Attorneys For Amici Curiae

Canflict of Laws and Family Law Professors

WALSON-EPes PRinmiIna Co., inc. — (202) 788-0006 — WasrancTon, D.C. 20002

i

TABLE OF CONTENTS

Page

IDENTITY AND INTEREST OF AMICI

CURIAE 1

SUMMARY OF ARGUMENT 1

ARGUMENT 5

I. BLANKET ANTI-RECOGNITION

LAWS ARE HISTORICALLY

UNPRECEDENTED. 5

A. States Have Traditionally Recog-

nized Marriages That Wass Valid

Where Celebrated. 5

B. The Four States Within The

Sixth Circuit Exemplify Laws

Singling Out Benen tier Mar-

riages For Categorically Unequal

Treatment

1 Kentucky 9

2 Tennessee 11

3 Michigan 14

4 Ohio. 16

Il. THE ANTI-RECOGNITION LAWS AT

ISSUE DENY EQUAL PROTECTION. 18

A. The Historically Unprecedented

Anti-Recognition Laws Single

Out Same-Sex Couples For’ Dis-

advantageous Treatment. 18

$3

TABLE OF CONTENTS

Page

B. Blanket Non-Recognition Laws

Cannot Survive Constitutional

Scrutiny. 23

Ill. THE ANTI-RECOGNITION LAWS

UNCONSTITUTIONALLY

INTERFERE WITH THE

FUNDAMENTAL LIBERTY

INTEREST IN MARRIAGE. 25

CONCLUSION 30

APPENDIX A A-1

TABLE OF AUTHORITIES

Cases

Atherton v. Atherton, 181 U.S. 155

(1901)

Bonds v. Foster, 36 Tex. 68 (1871)

Campbell v. Sundquist, 926 S.W.2d 250

(Tenn. Ct. App, 1996), abrogated on

other grounds by Colonial e

Co. v. Morgan, 363 S.W.3d ahr

(Tenn. 2008)

Carey v. Population Servs., Int7, 431

S. 678 (1977)

Cleveland Bd. of Educ. v. LaFleur, 414

U.S. 632 (1974)

Commonwealth v. Lane, 113 Mass. 458

(1873)

Courtright v. Co ight, 1891 WL 1022

(Ohio Com. Pl. 1891)

DeBoer v. Snyder, 772 F.3d 388 (6th

Cir. 2014), cert. granted, 135 S. Ct.

1039 (2015)

Estate of Glover, 882 S.W.2d 789 (Tenn.

Ct. App. 1994) .

Estate of Lenherr, 314 A.2d 255 (Pa.

1974)

Estate of Loughmiller, 629 P.2d 156

(Kan. 1981)

Estate of May, 114 N.E.2d 4 (N.Y. 1953)

Page(s)

12

25

25

14

16, 17

iv

TABLE OF AUTHORITIES

Estate of Miller, 214 N.W. 428 (Mich.

1927)

Farnham v. Farnham, 323 S.W.3d 129

(Tenn. Ct. App. 2009)

Griswold v. Connecticut, 381 U.S. 479

(1965)

Hardin v. Davis, 16 Ohio Supp. 19,

1945 WL 5519 (Ohio Com. PI. 1945)

Hoffman v. Hoffman, 146 S.W.2d 347

(Ky. 1940)

Holt v. Shelton, 341 F. Supp. 821 (M.D.

Tenn. 1972)

Hopkins Cnty. Coal Co. v. Williams, 292

S.W.1 (Ky. 1927)

Howard v. Central Nat? Bank of

Marietta, 152 N.E. 784 (Ohio Ct.

App. 1926)

Hutchins v. Kimmell, 31 Mich. 126,

1875 WL 3626 (1875)

Inhabitants of Medway v. Inhabitants

of Needham, 16 Mass. 157 (1819)

Keith v. Pack, 187 S.W.2d 618 (Tenn.

1945)

v. Jackson Iron Co., 43 N.W.

(Mich. 1889)

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

Page(s)

14,15

11

16

14

15

12, 24, 30

Vv

TABLE OF AUTHORITIES

Lightsey v. Lightsey, 407 S.W.2d 684

(Tenn. Ct. . 1966)

—— v. Loughran, 292 U.S. 216

934)

Louisville Gas & Elec. Co. v. Coleman,

277 U.S. 32 (1928)

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

oer eT v. Mangrum, 220 S.W.2d 406

. 1949)

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

Mazzolini v. Mazzolini, 155 N.E.2d 206

(Ohio 1958)

Meyer v. Nebraska, 262 U.S. 390 (1923)

Mon ery v. Carr, 101 F.3d 1117

(6th Cir. 1996)

Moore v. City of East Cleveland, 431

U.S. 494 (1977)

Noble v. Noble, 300 N.W. 885 (Mich.

1941)

Peefer v. State, 182 N.E. 117 (Ohio Ct.

App. 1931)

Penn v. State, 10 S.W. 305 (Tenn.

1889).

le v. Schmidt, 579 N.W.2d 431

ich. Ct. App. 1998)

11,12

14, 15

vi

TABLE OF AUTHORITIES

Page(s)

Rhodes v. McAfee, 457 S.W.2d 522

(Tenn. 1970) 12

Robinson v. Commonwealth, 212

S.W.3d 100 (Ky. 2006) 9

Romer v. Evans, 517 U.S. 620 (1996) 3, 22, 23, 30

Saenz v. Roe, 526 U.S. 489 (1999) 24

Shelby County v. Williams, 510 S.W.2d

73 (Tenn. 1974) 11

Slovenian Mut. Ben. Ass’n v. Kn

173 N.E. 630 (Ohio Ct. App. 193 17

State v. Kennedy, 76 N.C. 251 (1877) 7

State v. Ross, 76 N.C. 242 (1877)

Stevenson v. Gray, 56 Ky. 193 (1856)

Toler v. Oakwood Smokeless Coal

Corp., 4 S.E.2d 364 (Va. 1939) 7

Toth v. Toth, 212 N.W.2d 812 (Mich. Ct.

App. 1973) 14

Tryling v. Tryling, 53 S.W.2d 725 (Ky.

1932) 9

Turner v. Safley, 482 U.S. 78 (1987) 20

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

528 (1973) 21

vii

TABLE OF AUTHORITIES

Page(s)

United States v. Windsor, 133 S. Ct.

2675 (2013) 3, 4, 20, 21, 22,

23, 24, 26, 28, 29, 3

Williams v. North Carolina, 317 U.S.

287 (1942) 7

Zablocki v. Redhail, 434 U.S. 374 (1978) 20, 25

Ky. Const. §233A 10

Mich. Const. art. I, §25 15

Ohio Const. art. XV, §11 18

Tenn. Const. art. XI, §18 13

Statutes and Rules

Sup. Ct. R

37 1

37.3(a) 1

37.6 1

H. ° No. 13, . 258 (Ky. nee

ed as Ky te ~otat. Ann

S08. O40 (West 2015) 9

H.B. No. 5662, Public Act No. 334

(Mich. 1996), codified as Mich.

Comp. Laws §551.271 (2015) 14

eee

TABLE OF AUTHORITIES

H.B. No. 272, 2004 Ohio Laws File 61,

codified as Ohio Rev. Code Ann.

§3101.01(C) (West 2015)

H.B. No. 2907, Pub. Ch. 1031 (Tenn.

1996), codified as Tenn. Code Ann.

§36-3-113 (2015)

Ky. Rev. Stat. Ann. (West 2015)

§199.470

§311.631

§391.010

§402.040

§402.045

Mich. Comp. Laws (2015)

§551.271

§700.2102

§710.24

Ohio Rev. Code Ann. (West 2015)

$1337.16

§2105.06

§3101.01(C)

§3107.03

Tenn. Code Ann. (2015)

§31-2-104

§36-1-115

§36-3-113

Other Authorities

Fletcher W. Battershall, The Law of

Domestic Relations in the State of

New York (1910)

Page(s)

16

ix

TABLE OF AUTHORITIES

Page(s)

Joanna L. Grossman, Resurrecting

Comity: Revisiting the Problem of

Non-Uniform Marriage Laws, 84 OR.

L. REV. 433 (2005) 10, 11, 14, 19

Susan D. James, Lesbians Sue When

Partners Die Alone, ABC News

(May 20, 2009) 28

Andrew Koppelman, Interstate

pee of Same-Sex Marriages

and Civil Unions: A Handbook for

Judges, 153 U. Pa. L. Rev. 2143

(2005) 8

Andrew Koppelman, Same Sex,

Different "States (2006) 8

Andrew Koppelman, Same-Sex

Marriage, Choice of Law, and Public

Policy, 76 Tex. L. Rev. 921 (1998) 7,18

J ——_ R. Long, Law of Domestic

lations ( 905) 5,6

David Margolick, A Mixed ‘s

25th Anniversary of Legality, i J

Times, June 12, 1992 7

Evan Puschak, NV Haspital Denies

ts of Domestic Partners,

NBC (Oct. 2, 2013, 10:03 p.m.) 28

William M. Richman et al.,

Understanding Conflict Of Laws

$119 (4th ed. 2013) 5,8

TABLE OF AUTHORITIES

Steve Sanders, The Constitutional

_ t to (Keep Your) Same-Sex

arriage, 110 Mich. L. Rev. 1421

(2012)

James Schouler, Law of the Domestic

Relations (2d ed. 1874)

Eugene Scoles et al., Conflict Of Laws

4th ed. 2004)

$13.2

§13.9

Cavan a —n Arrested

at Missouri Hospi Refusing to

Leave Sick Partner, Not Recognized

as Family, The H Post

(Apr. 12, 2013, 2:33 p.m.)

Joseph William Si r, Same Sex

Marriage Full Faith and Credit,

and the Evasion of Obligation,

1 Stan. J. C.R. & C.L. 1 (2005)

Joseph Story, Commentaries on the

onflict of Laws §113 (8th ed. 1883)

Mark Strasser, The Privil of

National Citizenship: Saenz

Same-Sex Couples, and the Right to

jt 52 Rutgers L. Rev. 553

1 Chester G. Vernier, American Family

Laws §45 (1921)

Page(s)

©@

8, 24

24

10, 11, 14

xi

TABLE OF AUTHORITIES

Page(s)

Lois A. Weithorn, Can A Subsequent

C. in Law Void a Marriage that

Considering the Legal Effect of

ering the Oo

ie ene 8 on California’s

Existing Same-Sex Marriages, 60

Hastings L.J. 1063 (2009) 26

Tobias Barrington Wolff, Interest

Analysis in Interjurisdictional

Marriage Disputes, 153 U. Pa. L.

Rev. 22165 (2005) 23, 24

1

IDENTITY AND INTEREST OF AMICI

CURIAE

Pursuant to Rule 37 of this Court, Amici Curiae,

all scholars with expertise in family law, conflict of

laws, and state regulation of marriage, respectfully

submit this brief in support of Petitioners. Amici

support all of Petitioners’ arguments in their merits

briefs and submit this brief to provide the Court with

additional information about the states’ historical

recognition of marriages solemnized in sister states.

Appendix A sets forth a list of all the amici on whose

behalf this brief is submitted.’

SUMMARY OF ARGUMENT

The anti-recognition laws before the Court are

historically unprecedented. Even when many states

had anti-miscegenation laws, those states almost

always recognized interracial marriages validly for-

malized in sister states. That outcome flowed from

the touchstone of marriage recognition law: the

“place of celebration” rule, under which a marriage

valid where celebrated is valid everywhere. In so

ruling—as a matter of state law—courts recognized

that out-of-state marriages should be respected as a

matter of comity, as well as to avoid the impractical

‘Pursuant to this Court’s Rule 37.3(a), all ies have con-

sented to the of this-brief. Letters evi cing such con-

sent have been wtih the Clash of Gen Gonst. Further,

pursuant to Rule 37.6, no person other than Amici Curiae and

their counsel have participa ted in this brief or made a

monetary contribution iended to fund the P ony mon or

submission of this brief. In connection with proceedings

before the trial court in Obergefell v. Hodges, Professor Joanna

yay any submitted an expert aw ae nena of

cs discussed within this v. Hodges, No.

1: 13 cy 0050 LTSB (S.D. Ohio) at Dkt. Nod

Se

2

and chaotic results that would stem from having a

couple’s marital status change each time they cross a

state border.

The place of celebration rule was nominally sub-

ject to oft-recited exceptions that were not only nar-

row but also, more importantly, rarely applied.

These exceptions became nearly vestigial after the

demise of anti-miscegenation laws and the general

convergence of state rules about which individuals

and couples could and could not marry. This trend

coincided with social and technological developments

that made our nation’s population increasingly

mobile, which meant more married couples travelled

across state lines and moved from state to state. The

mobility of the population—sometimes by choice and

sometimes not, such as in cases of work reassign-

ments or the need to relocate due to lack of work—

made the portability of marriage all the more

important.

The respect each state provided to out-of-state

marriages provided stability and predictability to

families, promoted marital responsibility, facilitated

interstate travel, and protected private expectations.

It was widely understood that a contrary approach,

one that leaned toward denying recognition of valid

marriages celebrated in other states, would produce

devastating consequences affecting vital interests,

such as parentage of children, eligibility for spousal

benefits from private employers and public programs

like Social Security, property and inheritance rights,

medical decisions, and hospital visitation rights in

the event of medical emergencies.

All of this changed in the late twentieth century,

when the movement to afford same-sex couples mar-

riage equality came to the fore. In reaction to early

3

indications that at least some states might begin to

recognize marriages between individuals of the

same-sex, a number of states adopted statutory and

constitutional bans on the recognition of marriages

by same-sex couples (“the Anti-Recognition Laws”).

These widespread Anti-Recognition Laws are histori-

cally unprecedented in singling out a class of persons

for unequal treatment regarding recognition of their

marriages. Even when anti-miscegenation laws

existed in some states, few states categorically

refused to recognize interracial marriages validly

performed in other states.

The categorical restrictions on recognizing same-

sex marriages fundamentally altered the terrain of

marriage recognition law, which previously turned

on individualized determinations by courts. These

new statutes shifted decision-making power from

courts, where it had largely resided, to the legisla-

ture. And, contrary to many historical precedents,

the Anti-Recognition Laws draw no distinction

between marriages contracted in a particular state

to evade restrictions of the couple’s home state (“eva-

sive marriages”) and those contracted by residents of

another state without any evasive intent. Even

worse, the constitutional amendments enshrined the

rule of non-recognition into state constitutions in an

attempt to stem the tide of change and to thwart

judicial review by state courts.

Under Romer v. Evans, 517 U.S. 620 (1996), and

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

these blanket prohibitions on the recognition of mar-

riages involving same-sex couples violate the Equal

Protection and Due Process Clauses of the Four-

teenth Amendment. In Windsor, this Court invali-

dated the portion of the federal Defense of Marriage

4

Act (“DOMA”), in which Congress denied federal

recognition to marriages by same-sex couples. The

Court deemed DOMA’s departure from Congress’s

long history and tradition of deferring to state-law

determinations of marital status a discrimination of

“unusual character” that warranted “careful

consideration” for constitutionality and raised a

strong inference of improper animus the Equal

Protection Clause forbids. 133 S. Ct. at 2693.

Because DOMA’s purpose and effect of imposing

disadvantage on same-sex married couples served no

legitimate purpose, DOMA ran afoul of equal protec-

tion principles. Id. The Anti-Recognition Laws now

before the Court suffer the same flaws. They were

adopted for no reason other than to disadvantage

same-sex married couples, and the states in question

have offered no legitimate reason—nor could any be

offered—to explain their deviation from the long

tradition of respecting out-of-state marriages.

The Anti-Recognition Laws also run afoul of the

Due Process Clause. Marriage, and the right to

make personal decisions concerning marriage, has

long been recognized as a fundamental liberty inter-

est. Windsor reconfirmed this robust constitutional

protection. Given the importance of this liberty

interest, laws that infringe on an individual’s right

to remain married are inherently suspect and must

be subjected to heightened scrutiny. Here, the Anti-

Recognition Laws at issue deprive these same-sex

couples of all of the rights and privileges connected

with marriage as soon as those couples cross the

state borders, rendering them legal strangers.

Because there is no legitimate justification for such

interference with the liberty interests of married

same-sex couples, the Anti-Recognition Laws violate

the Due Process Clause as well.

5

ARGUMENT

I.

BLANKET ANTI-RECOGNITION LAWS

ARE HISTORICALLY UNPRECEDENTED.

A. States Have A ee Recognized Marriages

That Were Valid Where Celebrated.

States have long applied a general rule that a

marriage valid where celebrated is valid everywhere.

See, e.g., Joseph Story, Commentaries on _ the

Conflict of Laws §113, at 187 (8th ed. 1883) (“[tlhe

general principle certainly is ... that .. . marriage is

to be decided by the law of the place where it is cele-

brated”); Fletcher W. Battershall, The Law of

Domestic Relations in the State of New York 7-8

(1910) (describing “the universal practice of civilized

nations” that the “permission or prohibition of

particular marriages, of right belongs to the country

where the marriage is to be celebrated”); William M.

Richman et al., Understanding Conflict Of Laws

§119 at 415 (4th ed. 2013) (noting the “overwhelming

tendency” in the United States to recognize the

validity of marriages valid where performed); see

also Estate of Loughmiller, 629 P.2d 156, 158 (Kan.

1981) (same); Estate of May, 114 N.E.2d 4, 6 (NLY.

1953) (same). This rule, known as the “place of cele-

bration” rule or Jex loci celebrationis, is widely recog-

nized as a central element of American family law.

The general rule was traditionally subject to

exceptions for out-of-state marriages that violated

the state’s “positive law” (eg., a statute that

expressly bars extraterritorial recognition of a

particular type of marriage) or “natural law,”

sometimes described as “public policy.” See, e.g.,

Joseph R. Long, Law of Domestic Relations 87-89

6

(1905) (describing exceptions). The instances and

regularity of application of these exceptions has var-

ied between states. Many states have rarely, if ever,

applied either exception and, when they did, it was

generally in the context of a fact-specific analysis by

a court considering a particular request for

recognition.

Under that individualized process, state courts

frequently upheld marriages from other states that

could not have been celebrated in the forum state.

See, e.g., Estate of Loughmiller, 629 P.2d at 161

(upholding first-cousin marriage because it was not

an “odious” form of incest even though the parties

married in another state to evade the forum state’s

prohibition on their marriage). Indeed, this Court on

at least one occasion did the same, applying District

of Columbia law. Loughran v. Loughran, 292 U.S.

216, 222-23 (1934) (recognizing Florida marriage

despite D.C. statute prohibiting remarriage by

adulterer).

Even in the era of anti-miscegenation statutes,

which prohibited and sometimes criminalized

interracial marriages in certain states, courts in

states with race-based restrictions on marriage

almost uniformly recognized interracial marriages

validly performed in other states. See, e.g., Inhabit-

ants of Medway v. Inhabitants of Needham, 16

Mass. 157, 159 (1819) (upholding evasive, interracial

marriage from Rhode Island); State v. Ross, 76 N.C.

242, 246 (1877) (upholding interracial marriage from

South Carolina as a defense to criminal charges in

North Carolina of fornication and adultery); Bonds v.

Foster, 36 Tex. 68, 70 (1871) (validating interracial

marriage from Ohio despite Texas statute

criminalizing such marriages). In short, while many

7

courts “cited the public policy exception, many have

never actually used it to invalidate a marriage.”

Andrew Koppelman, Same-Sex Marriage, Choice of

Law, and Public Policy, 76 Tex. L. Rev. 921, 923

(1998).

Only a minority of decisions refused recognition to

out-of-state marriages that for one reason or another

could not have been formalized in the forum state.

See, e.g., State v. Kennedy, 76 N.C. 251, 252-53

(1877) (denying recognition but noting that courts in

Massachusetts and Kentucky had both refused to

apply the exception in similar circumstances); Toler

v. Oakwood Smokeless Coal Corp., 4 S.E.2d 364,

366-69 (Va. 1939). But it bears noting that one of

those minority decisions led to the landmark

decision in which this Court put an end to anti-

tion laws. Loving v. Virginia, 388 U.S. 1,

2 (1967); see also David Margolick, A Mixed

Marriage’s 25th Anniversary of Legality, N.Y. Times,

June 12, 1992, at B20.

The liberal approach states generally employed

regarding recognition of marriages celebrated in

other states, even if those marriages could not have

been solemnized in the forum state, reflected

important concerns of practicality, fairness and pre-

dictability. One nineteenth-century scholar wrote

that the general principle that out-of-state mar-

riages would be respected reflected “public policy,

common morality, and the comity of nations.” James

Schouler, Law of the Domestic Relations 47 (2d ed.

1874). This Court in 1942 wrote that being married

in one state but not another is one of “the most per-

plexing and distressing complication|[s) in . . . domes-

tic relations.” Williams v. North Carolina, 317 U.S.

287, 299 (1942) (reversing state court order that

8

refused to recognize out-of-state divorce; quoting

Atherton v. Atherton, 181 U.S. 155, 162 (1901)).

Modern scholars agree that the general rule

“avoids the potentially hideous problems that would

arise if the legality of a marriage varied from state to

state.” Richman et al., supra, §119, at 415; see also

Eugene Scoles et al., Conflict Of Laws §13.2, at 559

(4th ed. 2004) (a strong policy of marriage is to “sus-

tain its validity once the relationship is assumed to

have been freely created”); Andrew

Same Sex, Different States 17 (2006) (“[iJt would be

ridiculous to have people’s marital status blink on

and off like a strobe light” as they travel or move

across state lines). Such problems have only magni-

fied in modern times: “In an age of widespread travel

and ease of mobility, it would create inordinate

confusion and defy the reasonable expectations of

citizens whose marriage is valid in one state to hold

that marriage invalid elsewhere.” Cf Estate of

Lenherr, 314 A.2d 255, 258 (Pa. 1974) (marriage

valid in another state recognized even though forum

state law prohibited adulterers from marrying dur-

ing lives of their former spouses).

In the twentieth century, with the trend toward

uniformity in state marriage laws— including the

elimination of restrictions on interracial marriage—

the “public policy” exception was on the verge of

“becoming obsolete.” See Joseph William Singer,

Same Sex Marriage, Full Faith and Credit, and the

Evasion of Obligation, 1 Stan. J. C.R. & C.L. 1, 40

(2005); Andrew Koppelman, Interstate Recognition

of Same-Sex Marriages and Civil Unions: A Hand-

book for Judges, 153 U. Pa. L. Rev. 2143, 2148 (2005)

(public policy exception was becoming “archaic”).

Prior to the current controversy, in fact, the

9

tendency to recognize out-of-state marriages—even

evasive ones—was so strong that only in “an

exceptional case [should] a court... refuse

recognition of a valid foreign marriage of one of its

domiciliaries even in the face of a local prohibition.”

Scoles et al., supra, §13.9, at 575. But the issue

reemerged in the late twentieth century, when

controversy over marriage by people of the same sex

reinvigorated attempts to invoke the exception.

B. The Four States Within by ty Circuit

Mosiness For Categorically Unequal Treatment.

1. Kentucky.

Prior to the enactment of House Bill 13 in 1998,’

which purported to change the rules of marriage

recognition in anticipation of marriages by same-sex

couples, Kentucky had long followed the “place-of-

celebration rule.” Stevenson v. Gray, 56 Ky. 193,

222-23 (1856) (recognizing Tennessee marriage that

was technically incestuous and would have been void

if solemnized in Kentucky); Mangrum v. Mangrum,

220 S.W.2d 406 (Ky. 1949) (recognizing Mississippi

marriage between a thirteen-year-old and a sixteen-

year-old even though Kentucky imposed a parental

consent requirement for persons of that age);

Robinson v. Commonwealth, 212 S.W.3d 100, 104

(Ky. 2006) (recognizing Tennessee marriage between

a thirty-seven-year-old man and a fourteen-year-old

girl); Tryling v. Tryling, 53 S.W.2d 725, 727 (Ky.

1932) (recognizing Ohio common-law marriage);

Hoffman v. Hoffman, 146 S.W.2d 347, 350 (Ky. 1940)

7H.B. No. 13, Ky. Legis. 258 (Ky. 1998), codified as Ky. Rev.

Stat. Ann. §402. (West 2015).

10

(same). In other words, Kentucky adhered to the

principle that a “marriage, valid where it takes

place, is valid everywhere.” Hopkins Cnty. Coal Co.

v. Williams, 292 S.W. 1088, 1089 (Ky. 1927).

Kentucky was not among the minority of states

that prohibited so-called “evasive” marriages in

which a couple solemnized their marriage in another

state to avoid their home state’s prohibition of their

marriage. See also 1 Chester G. Vernier, American

Family Laws §45 (1931) (unlike some other states,

Kentucky never adopted a statute to expressly pre-

clude recognition of evasive marriages); see

Joanna L. Grossman, Hesurrecting Comity: Revisit-

ing the Problem of Non-Uniform Marriage Laws, 84

Or. L. Rev. 433, 464-65 (2005).

In 1998, however, Kentucky's generous approach

changed when it singled out same-sex couples as

unworthy of the state’s longstanding deference to

marriages performed in other states. Ky. Rev. Stat.

Ann. §402.040 (West 2015) (marriages by same-sex

couples are “against Kentucky public policy”). To

drive the point home, Kentucky enacted another

statute prohibiting judicial consideration of out-of-

state marriages. Ky. Rev. Stat. Ann. §402.045 (West

2015) (“Any rights granted by virtue of the mar-

riage...shall be unenforceable in Kentucky

courts”). And, to top it off, in 2004 the Kentucky

Constitution was amended to categorically exclude

same-sex marriages from recognition. Ky. Const.

§233A (“Only a marriage between one man and one

woman shall be valid or recognized as a marriage in

Kentucky.”).

11

2. Tennessee.

Prior to the enactment of House Bill 2907 in

1996,° Tennessee had long followed the place of

celebration rule—that “a marriage valid where cele-

brated is valid everywhere.” Farnham v. Farnham,

323 S.W.3d 129, 134 (Tenn. Ct. App. 2009) (quoting

Pennegar v. State, 10 S.W. 305, 306 (Tenn. 1889)).

Consistent with the general rule, Tennessee courts

routinely acknowledged out-of-state marriages that

could not have been formalized in Tennessee. See

Farnham, 323 S.W.3d at 140 (recognizing Florida

marriage that was bigamous because final divorce

decree from prior marriage had not yet been issued

but was valid under Florida law as “marriage by

estoppel”); Keith v. Pack, 187 S.W.2d 618, 619 (Tenn.

1945) (recognizing Georgia marriage of a thirteen-

year-old even though that was too young to be mar-

ried in Tennessee); Shelby County v. Williams, 510

S.W.2d 73, 74 (Tenn. 1974) (recognizing Mississippi

common-law marriage although Tennessee law did

not allow for common-law marriage); Estate of

Glover, 882 S.W.2d 789, 789-90 (Tenn. Ct. App.

1994) (recognizing Alabama common-law marriage);

Lightsey v. Lightsey, 407 S.W.2d 684, 690 (Tenn. Ct.

App. 1966) (recognizing Georgia common-law

marriage).

Like Kentucky, Tennessee never adopted a

statute to expressly preclude recognition of evasive

marriages. See Vernier, supra, §45; Grossman,

supra, at 464-65 (discussing marriage evasion laws).

In fact, Tennessee courts repeatedly held that

*H.B. No. 2907, Pub. Ch. 1031 (Tenn. 1996), codified as

Tenn. Code Ann. §36-3-113 (2015).

12

evasive, prohibited marriages would be recognized as

long as valid where celebrated. See, e.g., Keith, 187

S.W.2d at 618-19 (underage marriage valid even

though “[nJo reason is apparent why these parties

went to Georgia to contract their marriage except

that the girl was not qualified under the laws of

Tennessee by reason of her age to enter into such a

contract”); Pennegar, 10 S.W. at 308 (prohibited

marriages from other states can be recognized even

when the parties married elsewhere “for the purpose

of avoiding our own laws in matters of form,

ceremony, or qualification”).

Tennessee typically denied recognition to out-of-

state marriages only when such marriages violated

“settled public policy regarding public morals or good

order in society,” such as those marriages declared

criminal. See, e.g., Rhodes v. McAfee, 457 S.W.2d

522, 524 (Tenn. 1970) (refusing to give effect to out-

of-state marriage between former stepfather and

stepdaughter where such marriage constituted a

felony in Tennessee and, in any event, had not been

validly celebrated in Mississippi in the first

instance). But this rule cannot support Tennessee’s

singling out of same-sex marriages for non-recogni-

tion because the state does not and could not crimi-

nalize a marriage or sexual relationship between

people of the same-sex solely based on the gender or

sexual orientation of the parties. See Lawrence v.

Texas, 539 U.S. 558 (2003); Campbell v. Sundquist,

926 S.W.2d 250, 262 (Tenn. Ct. App. 1996) (“an

adult’s right to engage in consensual and

noncommercial sexual activities in the privacy of

that adult’s home is a matter of intimate personal

concern which is at the heart of Tennessee’s protec-

tion of the right to privacy .. .”), abrogated on other

13

grounds by Colonial Pipeline Co. v. Morgan, 263

S.W.3d 827 (Tenn. 2008).

In 1996, Tennessee carved out an exception to its

deference to marriages of sister states for marriages

by same-sex couples. Tenn. Code Ann. §36-3-113

(2015). It declared that this new exception serves

Tennessee’s “long-standing public policy . . . to recog-

nize the family as essential to social and economic

order and the common good and as the fundamental

building block of our so ‘ety.” Id. Consequently,

marriages of same-sex couples were uniquely singled

out in Tennessee for categorical non-recognition.

And, in an even stronger statement of disapproval,

bans on both the celebration and recognition of mar-

riages by same-sex couples were enshrined into the

Tennessee Constitution in a 2006 amendment.

Tenn. Const. art. XI, §18. This amendment was

designed to preclude not only judicial consideration

as to the validity of a particular marriage, but also

judicial consideration of the validity of the non-

recognition rule itself. Jd. (“Any policy or law or

judicial interpretation, purporting to define marriage

as anything other than the historical institution und

legal contract between one (1) man and one (1)

woman, is contrary to the public policy of this state

and shall be void and unenforceable in Tennessee. If

another state or foreign jurisdiction issues a license

for persons to marry and if such marriage is prohib-

ited in this state by the provisions of this section,

then the marriage shall be void and unenforceable in

this state.”).

14

3. Michigan.

Prior to the enactment of House Bill 5662 in

1996, Michigan had long followed the place of

celebration rule. See Hutchins v. Kimmell, 31 Mich.

126, 1875 WL 3626, at *3 (1875) (“a marriage valid

where it is celebrated, is valid everywhere”); see also

Estate of Miller, 214 N.W. 428, 429 (Mich. 1927)

(recognizing marriage of two first cousins); Toth v.

Toth, 212 N.W.2d 812, 813 (Mich. Ct. App. 1973)

(same); Noble v. Noble, 300 N.W. 885, 887 (Mich.

1941) (recognizing Indiana marriage of a seventeen-

year-old girl to a nineteen-year-old boy, despite

couple’s failure to comply with parental consent

provisions of Indiana law); People v. Schmidt, 579

N.W.2d 431, 434 (Mich. Ct. App. 1998) (recognizing

common-law marriage under Alabama law).

Michigan also has never adopted a _ statute

expressly to preclude recognition of evasive

marriages. See Vernier, supra, §45; Grossman,

supra, at 464-65. In fact, Michigan courts have held

repeatedly that evasive marriages can be recognized

as long as they were valid where celebrated. See,

e.g., Estate of Miller, 214 N.W. at 429 (Michigan

recognizes a marriage if it was valid where

celebrated, even if the parties “have gone abroad for

the purpose of evading our laws”) (quoting

Commonwealth v. Lane, 113 Mass. 458, 464 (1873));

Noble v. Noble, 300 N.W. at 886 (underage couple

had travelled to Indiana “to avoid Michigan law”).

*H.B. No. 5662, Public Act No. 334 (Mich. 1996), codified as

Mich. Comp. Laws §551.271 (2015).

15

Before 1996, Michigan typically denied recogni-

tion only to out-of-state marriages deemed “contrary

to the law of nature,” a rule invoked for polygamy or

marriages of siblings. See, e.g., Estate of Miller, 214

N.W. at 429 (public policy exception to the place of

celebration rule applies only where the Legislature

“has clearly enacted that such marriages out of the

state shall have no validity here”); but see Kobogum

v. Jackson Iron Co., 43 N.W. 602, 605 (Mich. 1889)

(recognizing bigamous marriage because it was valid

under law of Indian tribe).

In 1996, the Michigan Legislature departed from

the state’s traditional approach of judging the valid-

ity of a marriage by the law of the place of celebra-

tion by enacting an amendment to its marriage

recognition statute that invalidated marriages

between members of the same sex no matter where

those marriages took place. See People v. Schmidt,

579 N.W.2d at 435 _ Legislature enacted a law to

refuse to recognize... same-sex marriage”). That

amendment created an 1 exception to the longstanding

rule of deference to marriages of sister states for

marriages by same-sex couples. Mich. Comp. Laws

§551.271 (2015).

With this change, marriages by same-sex couples

became the only ones expressly singled out by

Michigan law for categorical non-recognition. And,

like Kentucky and Tennessee, Michigan piled on in

2004 by enshrining the categorical ban into its

constitution. Mich. Const. art. I, $25 (“To secure and

preserve the benefits of marriage for our society and

for future generations of children, the union of one

man and one woman in marriage shall be the only

agreement recognized as a marriage or similar union

for any purpose.”).

16

4. Ohio.

Prior to the enactment of House Bill 272 in 2004,°

Ohio had long followed the place of celebration rule.

As early as 1891, an Ohio court noted that “/[tjhe

validity of a marriage depends upon the question,

whether it was valid where celebrated. [If valid

there, it is valid everywhere.” Courtright v.

Courtright, 1891 WL 1022, at *2 (Ohio Com. Pi.

1891). This rule has been applied to give effect to

marriages that were otherwise prohibited by Ohio

law, but valid where celebrated. See, e.g., Peefer v.

State, 182 N.E. 117, 122 (Ohio Ct. App. 1931) (recog-

nizing an underage marriage solemnized in

Kentucky); Courtright v. Courtright, 1891 WL 1022,

at *3-4 (same); Howard v. Central Nat] Bank of

Marietta, 152 N.E. 784, 787-88 (Ohio Ct. App. 1926)

(recognizing common-law marriage established in

Pennsylvania); Mazzolini v. Mazzolini, 155 N.E.2d

206, 208-09 (Ohio 1958) (recognizing marriage

between first cousins entered into in Massachusetts);

Hardin v. Davis, 16 Ohio Supp. 19, 1945 WL 5519, at

*3 (Ohio Com. Pl. 1945) (recognizing marriage by

proxy performed in Mexico).

Ohio has followed its place of celebration rule

even when the parties married out-of-state marriage

specifically to evade Ohio marriage restrictions.

Courtright, 1891 WL 1022, at *2 (marriage between

Ohio residents valid even though “the parties went

out of the state for the purpose of evading the [mar-

riage] laws of this state.”); Hardin v. Davis, 1945 WL

5519, at *3 (“a marriage so celebrated in conformity

°H.B. No. 272, 2004 Ohio Laws File 61, codified as Ohio Rev.

Code Ann. §3101.01(C) (West 2015).

17

with the local law will be recognized, notwithstand-

ing any evasion of the law pertaining to marriage

ceremonies of the state in which the parties are

domiciled”). Ohio courts have emphasized that “it is

the policy of the law to sustain marriages wherever

possible.” Hardin, 1945 WL 5519, at *6.

While Ohio courts have acknowledged certain

exceptions to the place of celebration rule—

specifically, for marriages that were incestuous,

polygamous, contrary to the laws of nature, or which

the legislature has expressly prohibited (Courtright,

1891 WL 1022, at *2; Mazzolini, 155 N.E.2d at 208-

09, Ohio courts have not in fact applied a blanket

prohibition against recognizing those prohibited out-

of-state marriages. For example, in Slovenian Mut.

Ben. Ass’n v. Knafelj, 173 N.E. 630, 631-32 (Ohio Ct.

App. 1930), the husband had a wife confined to an

insane asylum at the time he married his second

“wife.” Although void under Ohio law, the court rec-

ognized the second “wife’s” marriage and allowed her

to collect on insurance proceeds on the grounds that

she was a dependent of the husband and was una-

ware of his prior wife. Id. Similarly, although first

cousins are prohibited from marrying in Ohio, Ohio

courts have stated that they would recognize such

marriages if celebrated in another state where such

marriages are allowed. Id. at 632.

In what by then was a familiar pattern, Ohio in

2004 created an exception to its longstanding prac-

tice of deference to marriages of sister states for

marriages by same-sex couples. The Ohio Legisla-

ture adopted a provision declaring that

faJny marriage between persons of the same sex

is against the strong public policy of this state.

Any marriage between persons of the same sex

18

shall have no legal force or effect in this

state .... Any marriage entered into by per-

sons of the same sex in any other jurisdiction

shall be considered and treated in all respects

as having no legal force or effect in this state

and shall not be recognized by this state. (Ohio

Rev. Code Ann. §3101.01(C) (West 2015))

With this change, only same-sex marriages were sin-

gled out for a rule of categorical non-recognition.

And, to make an even stronger statement of disap-

proval, the ban on recognizing marriages by same-

sex couples was enshrined into the Ohio Constitu-

tion that same year. Ohio Const. art. XV, §11 (“Only

a union between one man and one woman may be a

marriage valid in or recognized by this state and its

political subdivisions.”).

Il.

THE ANTI-RECOGNITION LAWS AT

ISSUE DENY EQUAL PROTECTION.

A. The Historically Unprecedented Anti-Recogniti

Laws Single Out Same-Sex Couples For -

Disadvantageous Treatment.

The categorical bans preventing any individual-

ized consideration regarding the recognition of out-

of-state marriages between individuals of the same

sex are historically unprecedented. See, €.g.,

Andrew Koppelman, Same-Sex Marriage, Choice of

Law, and Public Policy, 76 Tex. L. Rev. 921, 929-30

(1998) (noting that “[bjlanket non-recognition of

same-sex marriage . . would be an extraordinary

rule. There is no evidence that any of the

legislatures that recently acted gave any thought to

how extraordinary it would be”). As already shown,

19

even interracial marriages were not categorically

denied effect in most states that banned such

marriages before such bans were ruled

unconstitutional in Loving v. Virginia, 388 U.S. 1

(1967). In other words, same-sex married couples

are subject to even more discrimination in states

that do not permit same-sex marriage than were

interracial couples during the heyday of anti-

miscegenation statutes.

The new rules of blanket non-recognition fly in

the face of the tolerant approach that governed

generations of marriages, even during periods of

extreme controversy among states about eligibility to

marry, such as during the era of anti-miscegenation

statutes. Tolerance of disfavored out-of-state mar-

riages, in the name of comity, uniformity, and porta-

bility of marital status, was an important and

widespread value, which was honored by a strong

general rule of marriage recognition. See Grossman,

supra, at 471-72.

More specifically, the Anti- -Recognition Laws

implemented three key changes to marriage recogni-

tion law that are applicable only to same-sex cou-

ples: (1) denial of an individualized fact-based analy-

sis of each out-of-state marriage in favor of a cate-

gorical ban subject to no exceptions; (2) drawing no

distinction between evasive marriages by residents

and non-evasive marriages by non-residents who

traveled through or moved to the prohibiting state;

and (3) barring judicial consideration of each mar-

riage’s validity by application of a blanket ban

through statute andi state constitutional

amendment.

While the four states of the Sixth Circuit have

rejected those values categorically for marriages

20

between persons of the same sex, they continue to

adhere to the place of celebration rule and its very

narrow exceptions for al/ other prohibited marriages.

See, supra, Section I(B). This two-track approach for

marriage recognition—one applicable to opposite-sex

couples and another to same-sex couples—violates

equal protection. Marriage laws must conform to the

mandates of the United States Constitution,

including guarantees of equal protection and due

process. See, e.g., Loving v. Virginia, 388 U.S. 1

(1967) (invalidating Virginia’s miscegenation ban for

failure to comply with equal protection and due

process requirements of federal constitution);

Zablocki v. Redhail, 434 U.S. 374 (1978); Turner v.

Safley, 482 U.S. 78 (1987); see also Holt v. Shelton,

341 F. Supp. 821, 822-23 (M.D. Tenn. 1972) (“it now

seems settled beyond peradventure that the right to

marry is a fundamental one.... Any such

infringement is constitutionally impermissible

unless it is shown to be necessary to promote a

compelling state interest.”).

Most recently, in United States v. Windsor, this

Court unequivocally affirmed that state laws regard-

ing marriage are “subject to constitutional guaran-

tees” and “must respect the constitutional rights of

persons.” 133 S. Ct. 2675, 2691, 2692 (2013). The

four states’ refusal to recognize marriages by same-

sex couples from other states violates those constitu-

tional standards.

In Windsor, this Court invalidated Section 3 of the

federal Defense of Marriage Act (““DOMA”), which

denied federal recognition to marriages by same-sex

couples celebrated under state law. The Court held

that this categorical non-recognition provision vio-

21

lated the due process and equal protection guaran-

tees of the Fifth Amendment. 133 S. Ct. at 2696.

DOMA’s rejection of “the long-established precept

that the incidents, benefits, and obligations of mar-

riage are uniform for all married couples within each

State” represented an “unusual deviation from the

usual tradition of recognizing and accepting state

definitions of marriage.” Id. at 2692-93. Except for

marriages subject to DOMA, the federal government

deferred to state law determinations of marital

status when implementing important rights and

obligations such as Social Security, taxation, and

family and medical leave. By enacting DOMA,

however, Congress singled out one type of marriage

for non-recognition—regardless of the particular law

at issue or any particular federal policy and

regardless of the particular couple’s need for, or

expectation of, recognition. Never before had

Congress taken such a drastic measure with respect

to marital status. Windsor, 133 S. Ct. at 2690.

Indeed, the text, structure, and history of DOMA

made clear that its “avowed purpose and practical

effect” was “to impose a disadvantage, a separate

status, and so a stigma upon all who enter into

same-sex marriages made lawful by the unques-

tioned authority of the States.” Jd. at 2693. Both

the law’s structure and the legislative history made

clear that DOMA was enacted from a bare desire to

harm an unpopular minority group, something the

United States Constitution forbids. Id. (citing U.S.

Dep't of Agric. v. Moreno, 413 U.S. 528 (1973)). “[Nlo

legitimate purpose overcomes the purpose and effect

to disparage and to injure those whom the State, by

its marriage laws, sought to protect in personhood

and dignity.” Id. at 2696.

22

“Discriminations of an unusual character espe-

cially suggest careful consideration to determine

whether they are obnoxious to the constitutional pro-

vision.” Romer v. Evans, 517 U.S. 620, 633 (1996)

(quoting Louisville Gas & Elec. Co. v. Coleman, 277

U.S. 32 (1928)). In Romer, the Supreme Court

invalidated Colorado's Amendment2, which

amended the state Constitution to prohibit any

special protections for gays and lesbians. The

provision, the majority wrote, is not “directed to any

identifiable legitimate purpose or discrete objective.

It is a status-based enactment divorced from any

factual context from which we could discern a

relationship to legitimate state interests; it is a

classification of persons undertaken for its own sake,

something the Equal Protection Clause does not

permit.” 517 U.S. at 635.

Rather than serving a “proper legislative end,”

Colorado classified homosexuals in order to “make

them unequal to everyone else.” Id. “This,” the

Court concluded, “Colorado cannot do.” Id.

In DOMA, the Court saw a similar constitutional

defect. Congress’s sudden departure from its usual

recognition of state marital status laws was, indeed,

a discrimination of “an unusual character.”

Windsor, 133 S. Ct. at 2693. The unusual character

of the discrimination was “strong evidence of a law

having the purpose and effect of disapproval of that

class.” Id.

The categorical state bans on recognition now

before the Court suffer a similar constitutional

defect. Those bans came about amid a national

panic over the possibility that same-sex marriages

would be legalized in some states and foisted upon

other states through marriage recognition law. But,

23

just as this Court concluded with respect to DOMA,

the “interference with the equal dignity of same-sex

marriages ... was more than an incidental effect of

the .. . statute. It was its essence.” Windsor, 133 S.

Ct. at 2693. The “avowed purpose and practical

effect” of each of the Anti-Recognition Laws is to dis-

advantage, burden and stigmatize a particular

category of people and their families. Its means and

end are one in the same, for the “purpose of disad-

vantaging the group burdened by the law.” Romer,

517 U.S. at 633.

B. Blanket Non-Recognition Laws Cannot Survive

Constitutional] Scrutiny.

Even if the Anti-Recognition Laws under review

were not so obviously rooted in impermissible

animus, and unconstitutional for that reason alone,

no constitutionally permissible justification exists to

justify the blanket non-recognition of marriages by

same-sex couples. Although traditional rules of mar-

riage recognition nominally permitted states to

refuse recognition to out-of-state marriages that

violated their strong public policy (a right rarely

exercised, see Section I(A), supra), the most common

reasons for refusal are no longer valid given develop-

ments in constitutional jurisprudence. Three types

of interests were commonly invoked in defense of a

claimed public policy exception to marriage recogni-

tion: (1) “a desire to exclude certain sexual couplings

or romantic relationships” from the state; (2) “a

dashes to caamene Gn eet Geel fe at

tionship, and (3) “a desire to dissuade couples in the

disfavored relationship from migrating to the state

in the first place.” Tobias Barrington Wolff, Interest

Analysis in Interjurisdictional Marriage Disputes,

24

153 U. Pa. L. Rev. 2215, 2216 (2005). None of these

reasons survives modern constitutional standards.

Lawrence v. Texas, 539 U.S. 558 (2003), rules out

reliance on excluding same-sex relationships as a

legitimate state interest. There, the Court identified

a liberty interest in private and consensual sexual

relationships, regardless of the gender of the parties.

Gays and lesbians, like everyone else, have the right

to make decisions about intimate relationships with-

out interference from the state. Lawrence also

explained that moral repugnance is an insufficient

basis upon which to infringe an important aspect of

the right to privacy. Id. at 577-78; see also Wolff,

supra, at 2231; Singer, supra, at 23-24. And, of

course, states may not seek to dissuade interstate

travel without running afoul of the right to travel

that the federal Constitution assures. See, e.z.,

Saenz v. Roe, 526 U.S. 489, 192-96 (1999) (invalidat-

ing California law that forced new residents to wait

a year for a higher level of benefits); Mark Strasser,

The Privileges of National Citizenship: On Saenz,

Same-Sex Couples, and the Right to Travel, 52

Rutgers L. Rev. 553 (2000).

The federal Constitution prohibits a state, just as

Congress is restrained, from “identifyling] a subset

of state-sanctioned marriages and mak[ing] them

unequal” as well as from telling “those couples, and

all the world, that their otherwise valid marriages

are unworthy of... recognition.” Windsor, 133 S.

Ct. at 2694. Equal protection demands no less.

25

IIT.

THE ANTI-RECOGNITION LAWS

UNCONSTITTUTIONALLY INTERFERE

WITH THE FUNDAMENTAL LIBERTY

INTEREST IN MARRIAGE.

While this Court has never directly addressed the

question of whether there is a fundamental liberty

interest that attaches to the status of marriage, the

conclusion that such a liberty interest exists follows

naturally from this Court’s prior decisions upholding

the extensive freedoms that attach to decisions

regarding marital relationships. “[{F]reedom of per-

sonal choice in matters of marriage and family life is

one of the liberties protected by the Due Process

Clause of the Fourteenth Amendment.” Cleveland

Bd. of Educ. v. LaFleur, 414 U.S. 632, 639-40 (1974);

see also Meyer v. Nebraska, 262 U.S. 390, 399 (1923)

(the right “to marry, establish a home and bring up

children” is protected by the Due Process Clause);

Carey v. Population Servs., Intl, 431 U.S. 678, 684-

85 (1977) (“{w)Jhile the outer limits of this aspect of

privacy have not been marked by the Court, it is

clear that among the decisions that an individual

may make without unjustified government

interference are personal decisions relating to

marriage ...”) (internal quotation marks omitted);

see also Zablocki v. Redhail, 434 U.S. 374, 397 n.1

(1978) (Powell, J., concurring) (“[T]here is a sphere of

privacy or autononfy surrounding an _ existing

marital relationship into which the State may not

lightly intrude.”).

The right to make personal decisions with respect

to marital relationships is rendered meaningless if

states can refuse to recognize disfavored classes of

marriages without a constitutionally permissible

26

basis. While the majority of spouses can be assured

that their personal decision to enter into a marital

relationship will remain recognized, this is not the

case for legally married same-sex spouses in states

with Anti-Recognition Laws. Those laws take away

the status of being married to same-sex married cou-

ples who move or travel to states where those laws

are in effect. As a result, legally married spouses

find themselves stripped of marital rights and con-

verted into legal strangers simply by crossing state

lines. See Steve Sanders, The Constitutional Right

to (Keep Your) Same-Sex Marriage, 110 Mich. L.

Rev. 1421, 1450-51 (2012).

The consequences are far reaching. Whether a

couple is considered married controls a wide range of

issues including “housing, taxes, criminal sanctions,

copyright.” Windsor, 133 S. Ct. at 2694-95; see also

Sanders, supra, at 1450 (“property rights are poten-

tially altered, spouses disinherited, children put at

risk, and financial, medical, and personal plans and

decisions thrown into turmoil”). “[{N]ullification of a

valid marriage when both partners wish to remain

legally married constitutes the most extreme form of

state interference imaginable in the marital relation-

ship.” Lois A. Weithorn, Can A Subsequent Change

in Law Void a Marriage that Was Valid at its Incep-

tion? Considering the Legal Effect of Proposition 8

on California’s Existing Same-Sex Marriages, 60

Hastings L.J. 1063, 1125 (2009).

Here, the laws in each of the states within the

Sixth Circuit, as in all states, provide married cou-

ples with comprehensive protections and

responsibilities. In Kentucky, for instance, those

protections include the right to a share of a

decedent’s estate (Ky. Rev. Stat. Ann. §391.010

27

(West 2015)); the right to make medical decisions in

the absence of an advance medical directive or

surrogate decision (id. §311.631); the right to adopt

children as a couple (id. §199.470); and many rights

with respect to divorce and custody matters (see

generally Title XXXV of Kentucky Revised Statutes).

The other three states within the Sixth Circuit grant

similarly important and substantive rights to

married couples but deny those rights to same-sex

couples validly married in other states. See, e.g., the

right to a share of a decedent’s estate (Tenn. Code

Ann. §31-2-104 (2015); Mich. Comp. Laws §700.2102

(2015); Ohio Rev. Code Ann. §2105.06 (West 2015));

the right to adopt children as a couple (Tenn. Code

Ann. §36-1-115 (2015); Mich. Comp. Laws §710.24

(2015); Ohio Rev. Code Ann. §3107.03 (West 2015));

the right to make medical decisions in the absence of

an advance medical directive or surrogate decision

(Tenn. Code Ann. §36-1-115 (2015); Ohio Rev. Code

Ann. §1337.16 (West 2015)).

Without the protection of a legally recognized

marriage, couples of the same sex risk being denied

the right to participate fully in society as a couple.

See, e.g., Obergefell Pet. Brief at 6-12 (detailing diffi-

culties and impact of Ohio’s refusal to recognize Peti-

tioners’ marriages); Tanco Pet. Brief at 4-6. The

difficulties experienced by the Petitioners with

respect to obtaining death certificates, birth

certificates, and the recognition of adoptions, as well

as their challenges in obtaining health insurance

and securing their property rights, are only some of

the many hurdles that same-sex couples face as a

result of the non-recognition of their marriages. For

example, as alluded to in the Bourke petitioners’

brief, same-sex couples continue to report being

denied hospital visitation rights on the grounds that

28

they do not qualify as “family.” See, e.g., Cavan

Sieczkowski, Gay Man Arrested at Missouri Hospital

for Refusing to Leave Sick Partner, Not Recognized

as Family, The Huffington Post (Apr.12, 2013,

2:33 p.m.), http:/Avww.huffingtonpost.com/2013/04/

11/gay-man-arrested-missouri-hospital_n_ 3060485.

html (gay man removed from partner’s hospital room

on grounds he was not “family”). As a result of the

non-recognition of these couples’ relationships, they

have been denied access to each other during such

traumatic medical events as miscarriages and the

final moments of life. See, e.g., Evan Puschak, NV

Hospital Denies Rights of Domestic Partners,

MSNBC (Oct.2, 2013, 10:03 p.m.), http://www.

msnbc.com/the-last-word/nv-hospital-denies-rights-

domestic-pa (lesbian denied access to her domestic

partner who was experiencing a miscarriage because

she did not have power of attorney); Susan D. James,

Lesbians Sue When Partners Die Alone, ABC News

(May 20, 2009), http://abcnews.go.com/Health/story?

id=7633058 (lesbian and children denied access to

dying legal spouse because hospital refused to recog-

nize the family). When recognition is denied to legal

same-sex marriages solemnized in other states, not

only is the status of being married denied, but the

very safety, security, and support that attaches to

that status is put into jeopardy.

“State laws defining and regulating marriage, of

course, must respect the constitutional rights of per-

sons.” Windsor, 133 S. Ct. at 2691. Each state that

has enacted an Anti-Recognition Law has opted to

select a disfavored class of people whose marriages

will be nullified within that state. See, e.g., Section

I(B), supra. Heightened scrutiny must be used in

determining whether the State’s action in unila-

terally voiding a marriage, against the will of either

29

spouse, comports with the requirements of due

process. Moore v. City of East Cleveland, 431 U.S.

494, 499 (1977) (When the government “undertakes

such intrusive regulation of the family .. . the usual

judicial deference to the legislature is inappropri-

ate.”); Sanders, supra, at 1452-53. When a law

imposes a “direct and substantial” burden on an

i marital relationship, the law cannot be

upheld “unless it is supported by sufficiently

important state interests and is closely tailored to

effectuate only those interests.” Montgomery v.

Carr, 101 F.3d 1117, 1124 (6th Cir. 1996) (citation

and internal quotation marks omitted); see also

Griswold v. Connecticut, 381 U.S. 479, 485-86 (1965)

(applying heightened constitutional scrutiny in

striking down law barring use of contraceptives by

married couples). The Court should therefore apply

a heightened standard of review in analyzing

whether Anti-Recognition Laws comport with the

requirements of Due Process.

In support of Anti-Recognition Laws, numerous

state interests have been advanced. These include

concerns about reproduction and childrearing, main-

taining traditions in the form of a “man-woman” cou-

ple, and allowing states more time to assess the

possible repercussions of permitting couples who are

of the same sex to marry. See, e.g., DeBoer v.

Snyder, 772 F.3d 388 (6th Cir. 2014), cert. granted,

135 S. Ct. 1039, 1040> 1041 (2015). Each of these

justifications for stripping couples of the same sex

(and only same-sex couples) of their marriages has

been considered and rejected by this Court in

connection with its decision in Windsor. See 133 S.

Ct. at 2696. And, to the extent that these Anti-

Recognition Laws are justified on the grounds of

history, tradition, and moral disapproval, those

30

rationales cannot survive constitutional scrutiny.

See Windsor, 133 S. Ct. at 2695; Lawrence, 539 U.S.

at 571; Romer, 517 U.S. at 634-35. Because there is

not a constitutionally sufficient justification for the

serious harms inflicted by the Anti-Recognition

Laws, these laws unconstitutionally deprive married

same-sex couples of their liberty interests in their

existing marriages. Such an unjustified deprivation

of fundamental liberties cannot be tolerated.

CONCLUSION

For the foregoing reasons, this Court should hold

that the state non-recognition laws before it violate

equal protection and due process. Same-sex couples

should not be summarily stripped of a marriage, “the

most important relation in life” (Maynard v. Hill,

125 U.S. 190, 205 (1888)), simply by crossing state

lines.

Respectfully,

JOANNA L. GROSSMAN ARNOLD & PORTER LLP

SIDNEY & WALTER SIBEN SEAN M. SELEGUE

DISTINGUISHED PROFESSOR TRENTON H. NORRIS

OF FAMILY LAW MARJORY A. GENTRY

Hofstra Law School Counsel of Record

121 Hofstra Universi JOHN 8S. THROCKMORTON

Hempstead, NY 1154 EMILY H. Woop

Three Embarcadero Center

10th Floor

San Francisco, CA 94111

Telephone: 415.471.3100

marjory.gentry@aporter.com

Attorneys For Amici Curiae

Canftlict of Laws and Family Law Professors

March 6, 2015.

35068334F

APPENDIX

App. A-1

APPENDIX A

Amici Curiae are scholars with a wide range of

expertise relating to family law, conflict of laws, and

state regulation of marriage. Their expertise thus

bears directly on the issues before the Court in this

case. These Amici are listed below. Their institu-

tional affiliations are listed for identification pur-

poses only.

Susan Frelich Appleton

Vice Dean and

Lemma Barkeloo & Phoebe Couzins Professor of Law

Washington University School of Law

Katharine T. Bartlett

A. Kenneth Pye Professor of Law

Duke University Law School

Sara R. Benson

Lecturer in Law

University of Illinois College of Law

Brian H. Bix

Frederick W. Thomas Professor of

Law and Philosophy

University of Minnesota

June Carbone

Robina Chair of Law, Science and Technology

University of Minnesota Law School

J. Herbie DiFonzo

Professor of Law

Maurice A. Deane School of Law at

Hofstra University

App. A-2

Maxine Eichner

Reef C. Ivey II Professor of Law

UNC-Chapel Hill School of Law

Ann Laquer Estin

Aliber Family Chair

University of Iowa College of Law

Lawrence M. Friedman

Marion Rice Kirkwood Professor of Law

Stanford Law School

Jennifer S. Hendricks

Associate Professor

University of Colorado Law School

Suzanne A. Kim

Associate Dean and Professor of Law

Rutgers University, School of Law-Newark

Kevin Noble Maillard

Professor of Law

Syracuse University College of Law

Barbara Stark

Professor of Law

Hofstra Law School

Bela August Walker

Associate Professor of Law

Roger Williams University School of Law

Rhonda Wasserman

Professor of Law

Buchanan, Ingersoll & Rooney Faculty Scholar

University of Pittsburgh School of Law

App. A-3

Verna Williams

Judge Joseph P. Kinneary Professor of Law

University of Cincinnati College of Law

Jennifer Wriggins

Sumner T. Bernstein Professor of Law

University of Maine School of Law

Marcia Yablon-Zug

Associate Professor of Law

University of South Carolina School of Law