Amicus Curiae Brief — Obergefell v. Hodges

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

Supreme Court of the Anited States

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

PETITIONERS,

Vv

RICHARD HODGES, DIRECTOR, OHIO DEPARTMENT OF

HEALTH, ET AL., RESPONDENTS.

VALERIA TANCO, ET AL., PETITIONERS,

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 Writs of Certiorari to the United States Court of

Appeals for the Sixth Circuit

BRIEF OF AMICUS CURIAE

EXPERIENTIAL LEARNING LAB AT

NEW YORK UNIVERSITY SCHOOL OF LAW

IN SUPPORT OF PETITIONERS

ADERSON BELLEGARDE FRANCOIS PEGGY COOPER DAVIS

Civil Rights Clinic Counsel of Record

HOWARD UNIVERSITY Experiential Learning Lab

SCHOOL OF LAW NEW YORK UNIVERSITY

2900 Van Ness Street, N.W. SCHOOL OF LAW

Washington, DC 20008 40 Washington Square

(202) 806-8065 South, 301

afrancois@law howard.edu New York, NY 10012

(212) 998-6465

peggy.cooper.davis@nyu.edu

VALSON-EPES PRINTING CO., INC. — (202) 789-0006 — WASHINGTON, D. C. 20002

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................0cccccc0000000- ii

STATEMENT OF INTEREST .......0..0.....000000000..- 1

SUMMARY OF ARGUMENT ......00.0000......000000000- 1

| TT 3

I. REPUDIATION OF SLAVERY AND

THE EMBRACE OF UNIVERSAL

FREEDOM WERE MOTIVATED BY

ABHORRENCE OF SLAVERY’S

DENIAL OF FAMILY RECOGNITION ... 6

Il. SECURING THE RIGHT OF

MARRIAGE RE-COGNITION WAS AN

EXPLICIT OBJECTIVE OF THE

FOURTEENTH AMENDMENTS

Pe bcceccnsncsscsnsnscsisnnsenenesetuceonnnsieianees 13

Il. WITH PASSAGE OF THE

THIRTEENTH AND FOURTEENTH

AMENDMENTS EXTENSION OF THE

RIGHT OF MARRIAGE RECOG-

NITION WAS PRESUMED TO BE

REQUIRED IN EVERY STATE ............... 18

SIIIIIIIIED isiinirsicineinendaimnneninmmatimemmmedoogiiaisiiontée 20

APPENDIX

Contributors in Alphabetical Order................ la

(i)

ii

TABLE OF AUTHORITIES

CASES Page(s)

Andrews v. Page, 50 Tenn. 653 (1870)......... 7

Baskin v. Bogan, 766 F.3d 648 (7th Cir.

dae alia 21

Bishop v. Smith, 760 F.3d 1070 (10th Cir.

STITT cchiesteieiieiaincu lak iieeiaiiiindielieiideiccaicheaat lala nani 21

Bostic v. Schaefer, 760 F.3d 352 (4th Cir.

Sin Tae eee aN 2,21

Campaign for S. Equal. v. Bryant, No. 3:14-

CV-818-CWR-LRA, 2014 WL 6680570

(S.D. Miss. Nov. 25, 2014) ........................ 21

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

Ea ee ence NEN SOE NBR 2,6

Hall v. United States, 92 U.S. 27 (1875)...... 7

Hamby v. Parnell, No. 3:14-CV-00089-

TMB, 2014 WL 5089399 (D. Alaska Oct.

a aia eda 21

Jennings v. Webb, 8 App. D.C. 43

neha iia titan aietiiiaticat attain iie lleas 8, 19, 21

Johnson v. Johnson, 45 Mo. 595 (1870)....... 8

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

STII biinsdeiennbaneentiipindupeidinnnpmemnanpdaipemnienitinis 2

Latta v. Otter, 771 F.3d 456 (9th Cir. 2014) 21

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

Loving v. Virginia, 388 U.S. 1 (1967) .......... 2

Malinda v. Gardner, 24 Ala. 719 (1864)...... 6

TABLE OF AUTHORITIES—Continued

Page(s)

McDonald v. City of Chicago, Il., 561 U.S.

Ra Sia aA a

McReynolds v. State, 45 Tenn. 18 (1867).....

Meister v. Moore, 96 U.S. 76 (1877 ..............

Munzn v. Illinois, 94 U.S. 113 (1876)............

Planned Parenthood of Se. Pennsylvania v.

Casey, 505 U.S. 833 (1992)....................... 22

Powell v. Pennsylvania, 127 U.S. 678

aon ©

Rosenbrahn v. Daugaard, No. 4:14-CV-

04081-KES, 2015 WL 144567 (D.S.D.

SPEER reer 21

Scott v. Raub, 14 S.E. 178 (Va. 1891)

Slaughter-House Cases, 16 Wall 36 (1873).. 4

Taylor v. Beckham, 178 U.S. 548, 602

SEERA SENSE A ete nO ereoe MERE EN 4-5

Turner v. Safley, 482 U.S. 78 (1987)............ 2, 22

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

Is clcciiesideidciaebilaniiepieieinidineniidhabbdiaisiimanaaeaions 1

Zablocki v. Redhail, 434 U.S. 374 (1978) .... 2

CONSTITUTION

U.S. Const. amend. XTI1....................... 3, 6, 13, 17

U.S. Const. amend. XIV .......................eceeee passim

U.S. Const. amend. XIV, § 1 .................. 2, 3, 5, 19

Wl GROUND, GUID, TG cccccccccscnccccsnnccssnseseces 3, 6,14

OTHER AUTHORITIES

iv

TABLE OF AUTHORITIES—Continued

Danielle Allen, Our Declaration: A

Reading of the Declaration of

Independence in Defense of Equality

STITT idensepinenstenninbistinedeeisditeianennendmmmmnanieen

Akhil R. Amar, The Bill of Rights: Creation

and Reconstruction (1998)........................

Akhil R. Amar, Substance and Method in

the Yeur 2000, 28 Pepperdine L. Rev. 601

Aderson Bellegarde Francois, To Go into

Battle with Space and Time:

Emancipated Slave Marriage, Interracial

Marriage, and Same-Sex Marriage, 13 J.

Gender Race & Just. 105 (2009)...............

Henry Bibb, Narrative of the Life and

Adventures of Henry Bibb, an American

Slave (3d ed. 1969) (1850).........................

B.A. Botkin, Lay My Burden Down: A Folk

History of Slavery (1989)......................00+.

Steven G. Calabresi & Hannah Begley,

Originalism and Same Sex Marriage

i icictaiaienhbhneniiiatdeiaiaianebnniaibaaiideaime

Thomas R.R. Cobb, An Inquiry into the Law

of Negro Slavery in the United States of

I Se strentcccicensentiereiasteinnisn

Cong. Globe, 38th Cong., lst Sess. 1324

Page(s)

22

18

15

Vv

TABLE OF AUTHORITIES—Continued

Page(s)

Cong. Globe, 38th Cong., Ist Sess. 1439,

aa eal ic dialled 16

Cong. Globe, 38th Cong., Ist Sess. 2984

See RNC NSO O Name 17

Cong. Globe, 38th Cong., 2d Sess. 120, 193,

PTT scieescetibesceeideteeeiininiiiehdeicilatetelaiaguniiandataiiaaiiaiitiats 17

Cong. Globe, 38th Cong., 2d Sess. 221

Sr hecithiscsttuininpaceieteaeeeiae iii lieieiumneeniiidaiiraieee 15

Cong. Globe, 39th Cong., lst Sess. 474, 504

el ite ala tear aia aat 18

Peggy Cooper Davis, Neglected Stories and

the Lawfulness of Roe v. Wade, 28 Harv.

C.R.-C.L. L. Rev. 299 (1993)..................... 15

Court annuls San Francisco gay marriages,

ASSOCIATED PRESS (Aug. 12, 2004, 4:23 p.

m.), http://Awww.nbcnews.com/id/5685429

/ns/politics/t/court-annuls-san-francisco-

gay-marriages /#.VO7YcxbF_Ec. .............. 12

Declaration of Independence (U.S. 1776)..... 1,3

W.E.B. Dubois, Black Reconstruction 1860-

a aelielinenalalidaeaiads 11, 13, 14

1 Freedom: A Documentary History of

Emancipation 1861-1867 (Ira Berlin et

a I ecricsiiricatiialinidieaineianesldanetaeiniiuins 12,13

3 Freedom: A Documentary History of

Emancipation 1861-1867 (Ira Berlin et

St, RAS 12

vi

TABLE OF AUTHORITIES—Continued

Page(s)

Eric Foner, The Supreme Court and the

History of Reconstruction-and Vice-

Versa, 112 Colum. L. Rev. 1585 (2012)....

Shelby Foote, The Civil War: A Narrative

Paula Giddings, When and Where I Enter:

The Impact of Black Women on Race and

Sere im Ammerses (IGBSE)..ccccccccsvcccccescosccscecces

William Goodell, The American Slave Code

in Theory and Practice; its Distinctive

Features Shown by its Statutes, Judicial

Opinions and Illustrative Facts (1853),

microformed on 19th Century Legal

Treatises Nos. 27329-27333 (Research

PD TTD eccesceeseverenesesemsnstenmanin

Darlene C. Goring, The History of Slave

Marriage in the United States, 39 J.

Marshall L. Rev. 299 (2006) .....................

Tiffany C. Graham, Something Old,

Something New: Civic Virtue and the

Case for Same-Sex Marriage, 17 UCLA

Women’s L.J. 53 (2008)..................0.-eeeeeee

Herbert G. Gutman, The Black Family in

Slavery and Freedom 1750-1925 (1976) ..

Linda C. McClain, The Domain of Civic

Virtue in a Good Society: Families,

Schools, and Sex Equality, 69 Fordham

He ST, GEE GI ccansdesscccerensensctnisniinininns

James Mcpherson, Battle Cry of Freedom:

The Civil War Era (1988) ........................:

14

11

9, 10

7, 20

4

8,9

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Orlando Patterson, Freedom in the Making

of Western Culture (BasicBooks 1991)....

Orlando Patterson, Slavery and Social

6

Death (Harvard University Press 1982) ..5, 6, 7

Petition, dated May 25, 1774, to the

Governor, the Council and the House of

Representatives of Massachusetts,

reprinted in Herbert Aptheker, A

Documentary History of the Negro

People in the United States (1969) ..........

Report of the Joint Committee on

Reconstruction, Part Il, 39th Cong., Ist

TE

S.F.D., People of Color, 1 New York’s

Freedom J. No. 7 (Apr. 27, 1827) .............

Harriet Beecher Stowe, A Key to Uncle

TR

Succession of George Devezin, 7 Orleans

App. 111 (La. App. Orleans 1910)............

The Disruption of Family Ties, Antislavery

LS ea

Ronald G. Walters, The Antislavery

Appeal: American Nationalism After

a enrenemceces

10

10

10

TABLE OF AUTHORITIES—Continued

Page(s)

Richard Wolf, Michigan couple poised

to make gay marriage history, USA

Today (Jan. 16, 2015, 5:33 p.m.),

http://www.usatoday.com/story/news/201

5/01/15/supreme-court-gay-marriage-

michigan/21 768849) ...............ces-cssccsseseees 6

William Wells, Family Government, The

Liberator (Dec. 1, 1837).................2.....2+++- 4

Heather Andrea Williams, Help Me to Find

My People: The African American Search

for Family Lost in Slavery (2012)............. 11

STATEMENT OF INTEREST'

Since its founding, our country has aspired to

respect the dignity and liberty of all people.* We

floundered at our birth as we tried to reconcile

principles of equal dignity with laws that supported

human enslavement. The contradictions between

respect for human dignity and protection of the rights

of some to own and control others plunged us into Civil

War. At the end of that war, we reconstructed our

Constitution to make the blessings of democratic

liberty secure for all of our people.

We are students and scholars*® with an interest

in assuring that the enlightened heritage of emancipa-

tion guides interpretation of our reconstructed

Constitution.

SUMMARY OF ARGUMENT

Little more than a decade after the Fourteenth

Amendment reconstructed our federal system, this

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

and no counsel or party made a monetary contribution intended

to fund the preparation of this brief. The parties have consented

to the filing of amici curiae briefs.

? The Declaration of Independence para. 2 (U.S. 1776) (“We

hold these truths to be self-evident, that all men are created

equal, that they are endowed by their Creator with certain

unalienable Rights, that among these are Life, Liberty and the

pursuit of Happiness.”); see also Danielle Allen, Our Declaration:

A Reading of the Declaration of Independence in Defense of

Equality 268-269 (2014) (“Equality is the foundation of freedom

because from a commitment to equality emerges the people

itself—we, the people—with the power... to create a shared

world in which all can flourish. . . .”).

* This brief was a project of the Experiential Learning Lab at

New York University School of Law and is submitted in its name

as Amicus Curiae. The names of contributors are attached as an

Appendix.

2

Court described marriage as “a thing of common

right.™* The Court has subsequently affirmed the right

to marry as fundamental to democratic liberty." In

doing so, the Court has upheld a principle that was

avowed by the Founders,*® deepened by the experience

of slavery, and formalized by the Fourteenth Amend-

ment’s charter of freedom.

Many have expressed concern that because mar-

riage rights are “unenumerated” their constitutional

grounding is uncertain.’ A judge in one of the cases

below seemed to express this concern when he said

that “[nJobody . . . understood [the Fourteenth

Amendment] to require the States to change the

definition of marriage.” We write to answer concerns

about the constitutional grounding of marriage rights

* Meister v. Moore, 96 U.S. 76, 79 (1877).

® See Turner v. Safley, 482 U.S. 78, 96 (1987); Zablockhi v.

Redhail, 434 U.S. 374, 384 (1978); Loving v. Virginia, 388 U.S. 1,

12 (1967).

®* See generally Steven G. Calabresi & Hannah Begley,

Originalism and Same Sex Marriage (2014) (unpublished) (on file

with authors) (providing an originalist argument in support of

same-sex marriage).

’ See United States v. Windsor, 133 S. Ct. 2675, 2707 (2013)

(Scalia, J., dissenting) (“[T]he Constitution neither requires nor

forbids our society to approve of same-sex marriage, much as it

neither requires nor forbids us to approve of no-fault divorce,

polygamy, or the consumption of alcohol.”); see also Bostic v.

Schaefer, 760 F.3d 352, 389 (4th Cir. 2014) (Niemeyer, J., dissent-

ing) (“The Constitution contains no language directly protecting

the right to same-sex marriage or even traditional marriage”);

Kitchen v. Herbert, 755 F.3d 1193, 1230 (10th Cir. 2014) (Kelly,

J., dissenting) (“The Constitution is silent on the regulation of

marriage; accordingly, that power is reserved to the States, albeit

consistent with federal constitutional guarantees.”).

® DeBoer v. Snyder, 772 F.3d 388, 403 (6th Cir. 2014).

3

and to establish that a broadening of state definitions

of marriage was immediately understood to be neces-

sary upon ratification of the Fourteenth Amendment.

As students and heirs of antislavery traditions, we

argue that unjustified denials of the right of family

recognition violate the privileges we hold under the

Fourteenth Amendment’s Citizenship Clause and the

Liberty we are guaranteed under its Due Process

Clause.

We embrace, but do not repeat here, Petitioners’

argument that to deny recognition of same sex mar-

riages is to deny the equal protection of the laws.

Similarily, we embrace, but do not repeat here,

Petitioners’ argument that there is no legitimate

justification for denying same-sex marriage recogni-

tion. Our focus is on the constitutional need to give

skeptical scrutiny to a state’s failure to honor a

couple’s commitment to marry.

In what follows, we demonstrate that the

Fourteenth Amendment’s Citizenship, Privileges or

Immunities, and Due Process Clauses were designed

and rightfully understood in the postbellum period

to encompass rights of family recognition. We make

that demonstration first with reference to popular

understandings of what it meant to repudiate slavery

and eliminate its defining constraints, then with

reference to the statements of Reconstruction lawmak-

ers, and finally with documentation that the right of

family recognition was in every state presumed to

have been assured by passage of the Thirteenth and

Fourteenth Amendments.

Our argument is not simply that slavery teaches the

importance of family recognition or the hurtfulness

of its denial. Our argument is that our ancestors

4

understood the inalienability of rights of family

recognition through the experience of slavery and

secured those rights when they drafted and ratified

the Thirteenth and Fourteenth Amendments.

ARGUMENT

The Fourteenth Amendment restructured the rela-

tionship between the Federal Government and the

States to ensure protection of human liberty after the

abolition of slavery. This establishment of federally

guaranteed civic freedom “represented a radical

change in the nature of American public life.” As

Justice Field explained in his Slaughterhouse dissent,

“[tl]he fundamental rights, privileges, and immunities

which belong to . . . free people and free citizens, now

belong to all as . . . citizen[s] of the United States... .

They do not derive their existence from .. . [state]

legislation, and can not be destroyed by .. . [state]

power.”’° Nationalization of fundamental rights was

necessary, for, as Justice Thomas has observed,

“liberty would be assured little protection if [the

Fourteenth Amendment] left each state to decide

which privileges or immunities of United States

citizenship it would protect.”"' Emancipation, Recon-

struction, and the explicit conferral of United States

citizenship brought to every person born or natura)-

ized in our nation a bundle of federally protected

rights that are appropriately understood as privileges

® Eric Foner, The Supreme Court and the History of Recon-

struction-and Vice-Versa, 112 Colum. L. Rev. 1585, 1586 (2012).

” Slaughter-House Cases, 16 Wall 36, 95—96 (1873) (Field, J.,

dissenting).

"! McDonald v. City of Chicago, Il., 561 U.S. 742, 834-35 (2010)

(Thomas, J., concurring).

5

of citizenship,” but have more often been recognized

by this Court as aspects of the liberty guaranteed

by the Due Process Clauses."* Over a century of

constitutional deliberation, we have come to under-

stand “the respect the Constitution demands for the

autonomy of the person” in making “decisions relating

to marriage, procreation, contraception, family rela-

tionships, child rearing and education.”** This evolved

understanding of free and autonomous citizenship

should not surprise us. It is a predictable result of our

experience and repudiatic’: of slavery.

Slavery has been described by one of its most

thoughtful and learned students as social death."

The social death of slaves resulted from three

overlapping factors: degradation, powerlessness and

1 The Slaughter-House Court’s narrower interpretation of the

Privileges or Immunities Clause has been roundly criticized. See

generally, e.g., Akhil R. Amar, The Bill of Rights: Creation and

Reconstruction (1998); Akhil R. Amar, Substance and Method in

the Year 2000, 28 Pepperdine L. Rev. 601, 631, n.178 (2001)

(“Virtually no serious modern scholar—left, right, and center—

thinks that this [interpretation] is a plausible reading of the

Amendment.”); James Blacksher & Lani Guinier, Free at Last:

Rejecting Equal Sovereignty and Restoring the Constitutional

Right to Vote Shelby County v. Holder, 8 Harv. L. & Pol’y Rev. 39,

42 & n.19 (2014) (“There is, in fact, a growing ‘academic

consensus [that] Slaughter-House was wrong... .””).

‘3 Since the Fourteenth Amendment’s ratification, the “liberty”

protected by its Due Process Clause has been understood by this

Court as “something more than freedom from the enslavement of

the body or from physical restraint.” Taylor v. Beckham, 178 U.S.

548, 602 (1900); see also, e.g., Munn v. Illinois, 94 U.S. 113, 142

(1876); Powell v. Pennsylvania, 127 U.S. 678, 691 (1888).

Lawrence v. Texas, 539 U.S. 558, 574 (2003).

‘6 See generally Orlando Patterson, Slavery and Social Death

(1982).

6

“natal alienation.”** Natal alienation is the outsider

status that results when a society refuses to recognize

one’s kin or kind. It was a defining feature of

enslavement:

American slaves, like their ancient Greco-Roman

counterparts, had regular sexual unions, but such

unions were never recognized as marriages; .. .

both sets of parents were deeply attached to their

children, but the parental bond had no social

support.*’

Natal alienation is also a defining feature of the status

your Petitioners endure. For example, although Peti-

tioners April DeBoer and Jayne Rowse are life

partners raising three children together, Rowse is the

legal guardian of two children, and DeBoer is the legal

guardian of only one.”* The laws of Michigan do not

allow DeBoer and Rowse to marry, nor do they allow

two unmarried people to adopt the same child.’* The

children’s parental ties could be broken on the death

or incapacity of either of their parents. In Rowse’s

words, “in Michigan, we’re legal strangers. ... Ajudge

could give our kids to anybody.””°

As we shall show, the American people, the United

States Congress, and the courts and legislators of the

reconstructed states appreciated the profound social

16 Orlando Patterson, Freedom in the Making of Western

Culture 77—78 (1991).

17 Orlando Patterson, Slavery and Social Death 6 (1982).

18 DeBoer v. Snyder, 772 F.3d 388, 423 (6th Cir. 2014).

19 Id.

® Richard Wolf, Michigan couple poised to make gay marriage

history, USA Today (Jan. 16, 2015, 5:33 pm), http:/Awww.usatoday.

com/story/news/20 15/0 1/15/supreme-court-gay-marriage-michigan/

21768849/.

7

isolation of natal alientation. They understood family

recognition as an essential component of democratic

freedom.

I. REPUDIATION OF SLAVERY AND THE

CONSTITUTIONALIZATION OF UNIVER-

SAL FREEDOM WERE MOTIVATED BY

ABHORRENCE OF SLAVERY’S DENIAL

OF FAMILY RECOGNITION

The laws of every siave-holding state made it

impossible for a slave to enter a legally binding

marriage,”' and the laws of every slave-holding state

permitted the separation, by sale or otherwise, of

slaves who considered themselves married. The

categorical exclusion of slaves and former slaves from

this aspect of civic life was generally undisputed.”* It

was said to arise out of slaves’ incapacity to make

contracts and the “incompatability” of the duties and

obligations of marriage with “the relation of slavery.”™

#1 Darlene C. Goring, The History of Slave Marriage in the

United States, 39 J. Marshall L. Rev. 299, 303-04 (2006).

= Thomas R.R. Cobb, An Inquiry Into the Law of Negro Slavery

in the United States of America x (1858); Orlando Patterson,

Slavery and Social Death: A Comparative Study 189 (1982)

(“Throughout the modern Americas the union of slaves and the

integrity of their households rarely received legal sanction.”).

*% Although Tennessee recognized that slaves had a limited

right to marry, the benefits and obligations of slave marriages did

not rise to the level of formal, civic marriage. Andrews v. Page,

50 Tenn. 653, 666 (1870) (“We do not hold that [slaves’] marriages

were followed by all the legal consequences, resulting from the

marriage of white persons.”).

* Td. at 660; see also Scott v. Raub, 14 S.E. 178, 179 (Va. 1891)

(“It was an inflexible rule of the law of African slavery, wherever

it existed, that the slave was incapable of entering into any

contract, not excepting the contract of marriage.”) (quoting Hall

8

Henry Bibb, an American slave, provided a first-

hand account of the legal and social situation that

ensued. Bibb described the process by which he and

his “wife” were “married” by clasping hands, pledging

to be true, and calling “on high heaven to witness the

rectitude of [their] purpose.”™ Bibb wrote in 1850 that

no more binding ceremony was available, “for

marriage among American slaves is disregarded by

the laws of this country.”* Bibb’s marriage was

disrupted when he was sold to a distant master. It

v. United States, 92 U.S. 27, 30 (1875)); Johnson v. Johnson, 45

Mo. 595, 598 (1870) (“Persons in that condition are incapable of

contracting marriage, because that relation brings with it certain

duties and rights with reference to which it is supposed to be

entered into. But the duties and rights which are deemed

essential to this contract are necessarily incompatible with the

nature of slavery, as the one can not be discharged nor the other

be recognized without doing violence to the rights of the owner.”

(quoting Malinda v. Gardner, 24 Ala. 719, 727 (1854)); Jennings

v. Webb, 8 App. D.C. 43, 53 (1896) (“That the legal relation of

husband and wife could not exist among slaves, was not an

arbitrary rule, prompted by a spirit of cruelty and oppression, but

a necessary condition of the institution of slavery whilst it

existed. Slaves could make no contracts, own no property; they

were themselves property. The recognition of duties, obligations

and rights of the legal relation of husband and wife was

necessarily incompatible with those conditions.”).

*® Henry Bibb, Narrative of the Life and Adventures of Henry

Bibb, an American Slave 38 (3d ed. 1969) (1850).

%* Id. at 38. A former slave interviewed in the 1930s described

the process more simply: “When they got married on the places,

mostly they just jumped over a broom and that made ‘em married.

Sometimes one the white folks read a little out of the Scriptures

to ‘em, and they felt more married.” B.A. Botkin, Lay My Burden

Down: A Folk History of Slavery 86 (1989). For a description of

slave marriage rituals and suggestions concerning their origins,

see Herbert G. Gutman, The Black Family in Slavery and

Freedom 1750-1925, at 273-81 (1976).

9

ended years later when he learned that his wife was

the mistress of a slaveowner and mother of several of

the slaveowner’s children. Stories like that of Henry

Bibb were common and notorious in the mid-

nineteenth century. Herbert Gutman’s comprehensive

analysis of the slave family probes “[t]he best available

evidence — that reported by Mississippi and northern

Louisiana ex-slaves [to Union Army clergy registering

marriages} — [and] discloses that about one in six (or

seven) slave marriages were [sic] ended by force or

sale... .””"

The importance of family independence and integ-

rity and the devastating effects of slavery upon the

African-American family were paramount themes of

the antislavery movement. Harriet Beecher Stowe

wrote in 1853 that “[t}he worst abuse of the system of

slavery is its outrage upon the family; and ... it is

one which is more notorious and undeniable than

any other. An essay on the family appearing in

The Liberator in 1837 declared: “the most appalling

feature of our slave system is, the annihilation of the

family institution.” William Goodell’s treatise on

slave law was published by the American and Foreign

Anti-Slavery Society to “test the moral character

of American slaveholding” by exhibiting statutes

27 Gutman, supra note 25, at 318.

*% Harriet Beecher Stowe, A Key to Uncle Tom’s Cabin 133

(1853). Stowe writes in response to charges that family separa-

tions depicted in Uncle Tom’s Cabin were unrealistic or atypical.

Her evidence of the prevalence of slave family disruption includes

eye-witness accounts of family separations resulting from slave

auctions, id. at 137, and advertisements for the sale of slaves in

South Carolina, id. at 134-36, 138-42.

® William Wells, Family Government, The Liberator 192 (Dec.

1, 1837).

10

governing American slavery and documenting their

effects.” To make vivid the effects of laws governing

the slave family, Goodell supplemented his legal

treatise with anecdotal accounts of families separated

by sale and distanced by the demands of servitude,

and with a collection of advertisements from Southern

newspapers offering rewards for the capture or killing

of slaves reported to have run away attempting to

rejoin their families.*’

Slaves did, of course, run away to reunite their

families, and free antislavery advocates maintained

an Underground Railroad in part to facilitate family

reunifications. Moreover, slaves and other antislav-

ery advocates consistently undergirded the demand

for release from bondage with the argument that

rights of marriage and family were necessary to

fulfillment of religious and moral duty and therefore

inalienable.” To be recognized as human was to be

recognized as morally autonomous, and moral and

religious autonomy required family autonomy. As

early as 1773, slaves claiming “a natural right to

*® William Goodell, The American Slave Code in Theory and

Practice; its Distinctive Features Shown by its Statutes, Judicial

Opinions and Illustrative Facts 3 (1853), microformed on 19th

Century Legal Treatises Nos. 27329-27333 (Research Publica-

tions 1987).

31 Td.

* Eric Foner, Gateway to Freedom: The Hidden History of the

Underground Railroad 200—205 (2015).

% The Disruption of Family Ties, Antislavery Record 9 (Mar.

1836); Ronald G. Walters, The Antislavery Appeal: American

Nationalism After 1830, at 91-92, 95 (1976); Petition, dated May

25, 1774, to the Governor, the Council and the House of Repre-

sentatives of Massachusetts, reprinted in Herbert Aptheker, A

Documentary History of the Negro People in the United States 8-

9 (1969).

11

[their] freedoms” petitioned the Massachusetts

legislature demanding the liberty to fulfill Christian

familial obligations. “How,” they asked, “can a

husband leave master and work and cleave to his wife?

. . How can the wilves] submit themselves to

husbands in all things?”* The remedy was clear:

“(Sllaves must be immediately recognized as human

beings by the laws, their persons and their rights must

be protected. Provisions must be made to establish

marriage among them.”*®

As the institution of slavery began to crumble, the

right to marry was enthusiastically seized by former

slaves, not only for its private meaning, but also for its

social meaning.* By formalizing family relationships,

African-Americans consciously claimed the status

and responsibilities of spouse, of parent, and of citizen.

The formation of legally recognized marriage bonds

marked them as human beings and members of the

political community, rather than as chattel.

The rush of former slaves to take a place in the

American political community by forming marriages

under American law resonates with the rush of many

gay and lesbian couples to legalize their commitments

when same-sex marriage bans are overturned. Like

the nearly 4,0000 same-sex couples who thronged to

San Francisco during a one-month period in 2004

when same-sex marriage was newly (and briefly)

* Paula Giddings, When and Where I Enter: The Impact of

Black Women on Race and Sex in America 60 (1984).

% S_F.D., People of Color, 1 New York’s Freedom J. No. 7, p. 1

(Apr. 27, 1827).

% This process is well documented in Heather Andrea

Williams, Help Me to Find My People: The African American

Search for Family Lost in Slavery (2012).

12

available there,*’ former slaves rushed to legalize their

partnerships as soon as legalization was possible. For

many, it began on Civil War battlefields. In what

W.E.B. Du Bois described as a labor strike against

the slave system, blacks abandoned Confederate

plantations and swarmed to Union camps.” Many

traveled in families, for family members left behind

were at risk of retaliatory abuse and eviction.” After

a period of consternation, the Union army put the

labor of these people to the service of the Union cause

on the theory that they were “contraband.“” When

black enlistment was belatedly authorized, black

regiments were created, consisting both of escaped

slaves and of free blacks. As “contrabands” and free

blacks became soldiers, they moved to claim rights of

family and take their places as free citizens. As a

7 Court Annuls San Francisco gay marriages, ASSOCIATED

PRESS (Aug. 12, 2004, 4:23 pm), http-//www.nbcnews.com/

id/5685429/nsa/politics//court-annuls-san-francisco-gay-marriages

/# VOTYcxbF_Ec. Although the marriages were later invali-

dated, the number of couples who traveled to San Francisco in

hopes that they would receive official recognition was significant.

See generally Tiffany C. Graham, Something Old, Something

New: Civic Virtue and the Case for Same-Sex Marriage, 17 UCLA

Women’s L.J. 53, 57 & n.17 (2008) (discussing the relationship

between family recognition and participation in civic life); Linda

C. McClain, The Domain of Civic Virtue in a Good Society:

Families, Schools, and Sex Equality, 69 Fordham L. Rev. 1617,

1642-43 (2001) (explaining that the care-giving function of a

family unit nurtures civic virtue).

3% W.E.B. Dubois, Black Reconstruction 1860-1880, at 57

(1935).

%° 1 Freedom: A Documentary History of Emancipation 1861-

1867, ser. 2 at 658 (Ira Berlin et al. eds., 1982) [hereinafter A

Documentary History].

“ 3 A Documentary History, supra note 35, ser. 1 at 625-26

(1990).

13

result, in 1865, before passage of the Thirteenth

Amendment, Congress passed and President Lincoln

signed a bill freeing the families of black Union

soldiers who had not been freed by the Emancipation

Proclamation.*' Military chaplains authorized to

solemnize marriages between African-Americans,

were innundated with requests. A Freedman’s

Bureau agent, who reported legalizing seventy-nine

marriages in a single day, quoted the response of a

black soldier whose character was such “that every

word had power”:*

Fellow Soldiers: J praise God for this day! I have

long been praying for it. The Marriage Covenant

is at the foundation of all our rights. In slavery

we could not have legalised marriage: now we

have it. Let us conduct ourselves worthy of such

a blessing — and all the people will respect us —

God will bless us, and we shall be established as a

people.“

The chaplain of a Mississippi Black Regiment reported

the legalization of forty-three marriages, saying “I

think I witness a very decided improvement in the

social and domestic feelings of those married by the

authority and protection of Law. It causes them to feel

that they are beginning to be regarded and treated as

human beings.” The chaplain of an Arkansas Black

*' Amy Dru Stanley, Instead of Waiting for the Thirteenth

Amendment: The War Power, Slave Marriage and Inviolate

Human Rights, 115 Am. Hist. Rev. 332 (2010).

*2 1 A Documentary History, supra note 35, ser. 2 at 672.

* Td.

“ Id. at 604.

14

Regiment reported registration of twenty-five mar-

riages during the month of January 1865 alone.“ He

added, “The Colored People here, generally consider,

this war not only their exodus, from bondage; but the

road, to Responsibility; Competency; and an honorable

Citizenship... .”“

Il. SECURING THE RIGHT OF MARRIAGE

RECOGNITION WAS AN _ EXPLICIT

OBJECTIVE OF THE FOURTEENTH

AMENDMENT’S FRAMERS

The legislators who drafted and approved the Four-

teenth Amendment had lived through a passionate

national debate over slavery and a prolonged and

bloody civil war fought, ostensibly if not entirely,*’ to

resolve the slavery question. Like all politically

conscious Americans, federal legislators had been

bombarded with stories of slavery’s denial of formal

family ties and its brutal disregard of extra-legal

kinship. Members of the Reconstruction Congress also

knew that despite emancipation, rights of family

remained fragile in the former Confederacy. As Carl

Schurz reported to Congress, southern whites still

had “an ingrained feeling that the blacks at large

“ Td. at 712.

a |

*’ DuBois writes that “(t]he duty then of saving the Union

became the great rallying cry of [the] war . . . . The only thing that

really threatened the Union was slavery and the only remedy was

Abolition.” Dubois, supra note 34, at 56. For other analyses of the

causes of the Civil War, see James Mcpherson, Battle Cry of

Freedom: The Civil War Era 36 (1988); Shelby Foote, The Civil

War: A Narrative (1974).

15

belong{ed] to the whites at large.“ Schurz used the

example of a southern planter to describe how the

deeply engrained habit of regarding black people as

property rather than as free citizens persisted:

As to recognizing the rights of freedmen to their

children, I will say there is not one man or woman

in all the South who believes they are free, but we

consider them as stolen property — stolen by the

bayonets of the damnable United States govern-

ment.“

Working with an awareness of the notorious and

continuing deprivation of African-American family

integrity, members of Congress repeatedly acknow!l-

edged during debates over the Reconstruction Amend-

ments and related legislation that freedom required

restoration of family rights. We include here a

representative sample of their remarks.”

Senator Clark declared that slavery had “practiced

concubinage, destroyed the sanctity of marriage, and

sundered and broken the domestic ties.” Representa-

tive Broomall pronounced it,

strange that an appeal should be made to

humanity in favor of an institution which allows

the husband to be separated from the wife, that

allows the children to be taken from the mother;

* Dubois, supra note 36, at 136 (quoting S. Exec. Doc. No. 2,

39th Cong., Ist Sess., Report of Carl Schurz (1865)).

* Id. at 142 (quoting Report of the Joint Committee on

Reconstruction, Part II, 39th Cong., Ist Sess. 1866).

* For a more comprehensive account, see Peggy Cooper Davis,

Neglected Stories: The Constitution and Family Values 38-40,

112-17 (1997).

5! Cong. Globe, 38th Cong., Ist Sess. 1369 (1864).

16

ah! that allows the very children of the deceased

slaveholder himself to be sold to satisfy his

merciless creditors.™

In response to the claim that slavery had biblical

or divine sanction, Representative Shannon asked,

“What divinity [is there] in tearing from the mother’s

arms the sucking child, and selling them to different

and distant owners?” Senator Harlan spoke of

“incidents of slavery” that did violence to divine law.

The first mentioned were denials of the rights to marry

and to parent: “[I]n none of the slave States .. . was

[the marriage] relation tolerated in opposition to the

will of the slaveowner; and .. . in many of them ... it

. was prohibited absolutely by their statute laws.”™

Senator Sumner asked his colleagues to imagine an

extraterrestrial visitor beholding the spectacle of

slavery: “[A]stonishment . . . would swell into marvel

as he learned that in this Republic . . . there were four

million human beings in abject bondage, degraded to

be chattels . . . despoiled of all rights, even the .. .

sacred right of family.“ Representative Kelly

borrowed language from 1780 legislation abolishing

slavery in Pennsylvania to say that enslaved African-

Americans had been “deprived . . . of the common

blessings that they were by nature entitled to [and] . . .

cast .. . into the deepest afflictions, by an unnatural

separation and sale of husband and wife from each

® Cong. Globe, 38th Cong., 2d Sess. 221 (1865).

5 Cong. Globe, 38th Cong., Ist Sess. 2948 (1864).

* Id. at 1439 (statement of Sen. Harlan).

* Id. at 1479.

17

other and from their children... .“™ Congressman

Creswell reminded the House that:

[t]he slave could sustain none of those relations

which give life all its charms. He could not say my

home, my father, my mother, my wife, my child,

my body. It is for God to judge whether he could

say my soul. The law pronounced him a chattel,

and these are not the rights or attributes of

chattels.”

In response to the slaveholders’ claim of vested rights

in their slave property, Congressman Farnsworth

exclaimed,

Vested rights! What vested rights so high or so

sacred as a man’s right to himself, to his wife and

children, to his liberty, and to the fruits of his own

industry? Did not our fathers declare that those

rights were inalienable?™

Congressman Kasson identified the marital relation,

the parental relation, and the right of personal liberty

as the “three great fundamental natural rights of

human society” and pronounced them inalienable.”

Expressing faith that freedom encompassed rights of

family integrity, Senator Wilson declared that upon

ratification of the Thirteenth Amendment, “[t]he

sharp cry of the agonizing hearts of severed families

% Id. at 2984 (emphasis added).

57 Cong. Globe, 38th Cong., 2d Sess. 120 (1865) (statement of

Rep. Creswell).

5 Cong. Globe, 38th Cong., 2d Sess. 200 (1865) (emphasis

added).

* Id. at 193 (emphasis added).

18

[would] cease to vex the weary ear of the nation... .”"~

During a discussion of civil rights legislation, Senator

Trumbull offered an amendment to make former

slaves citizens.*' His subsequent remarks describe the

intended scope of the rights to be conferred:

It is difficult, perhaps, to define accurately what

slavery is and what liberty is. Liberty and slavery

are opposite terms; one is opposed to the other... .

Civil liberty . . . is thus defined by Blackstone:

“Civil liberty is no other than natural liberty, so

far restrained by human laws and no further, as

is necessary and expedient for the general

advantage of the public.” That is the liberty to

which every citizen is entitled.”

When consideration of the Trumbull amendment

resumed on the following day, Senator Howard

responded to colleagues who claimed that Congress

lacked the authority to enforce general citizenship

rights on behalf of freedmen. In doing so, he spoke

specifically of rights of home and family:

[The slave] had no rights, nor nothing which he

could call his own. He had not the right to become

a husband or a father in the eye of the law, he had

no child, he was not at liberty to indulge the

natural affections of the human heart for children,

for wife, or even for friend. ... What definition

will you attach to the word “freeman” that does

not include these ideas?™

© Cong. Globe, 38th Cong., Ist Sess. 1324 (1864) (emphasis

added).

®! Cong. Globe, 39th Cong., Ist Sess. 474 (1866).

® Id. (emphasis added).

Id. at 504.

19

Citizenship and all of its privileges and immunities

were indisputably conferred with ratification of the

14th Amendment.“ As we shall see, there was no

dispute that this conferral encompassed a right of

marriage recognition.

Ill. WITH PASSAGE OF THE THIRTEENTH

AND FOURTEENTH AMENDMENTS

EXTENSION OF THE RIGHT OF MAR-

RIAGE RECOGNITION WAS PRESUMED

TO BE REQUIRED IN EVERY STATE

As we discussed in Section I of our Argument, the

laws of every slave-holding state, including the eleven

states of the former Confederacy, made it impossible

for a slave to enter a legally-binding marriage. Upon

emancipation, however, the former Confederate states

recognized that “domestic relations of that class of

persons who have been recently released from the

condition of slaves and given the rights and privileges

of free persons” was “of great importance.” In

response, they found that, “justice and humanity, as

well as sound public policy, demanded legislation

giving legal sanction, as far as possible, to the moral

obligations of [former slave marriages}, and rendering

legitimate the offspring thereof.”™

Accordingly, between 1865 and 1870 all eleven

states of the former Confederacy revised their laws to

“U.S. Const. amend. XIV, § 1 (“All persons born or naturalized

in the United States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State wherein they reside.

No State shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United States.”)

® McReynolds v. State, 45 Tenn. 18, 20 (1867).

% Jennings v. Webb, 8 App. D.C. 43, 54 (1896).

20

recognize marriages between former slaves.“ The

mechanism for recognizing former slave marriages

varied from state to state. Some states, like Tennes-

ee,™ Virginia,®’ and South Carolina,” considered the

marriage right to vest automatically in couples who

had entered customary slave marriages, so long as the

couple continued to cohabitate after both partners had

been emancipated. North Carolina” and Louisiana™

required that the partners declare their intent to be

married before a public official. Some states made the

marriage right available retroactively, recognizing

even those marriages that had dissolved before eman-

cipation, legitimizing the children of those marriages,

and protecting their inheritance rights.”

As the reactions of the formerly Confederate states

show, the right to marry was not only incompatible

5? See Goring, supra note 20, at 316 n. 87, 316 n.100, 324 n.123,

325 n.127, 326 n.131, 331 n.167, 332, 334 n.185, 335 n.193 & 336

n.196 (compiling Tennessee (1866), Louisiana (1868), Virginia

(1866), South Carolina (1865, modified in 1872), North Carolina

(1866), Florida (1866), Arkansas (1866), Mississippi (1865), and

Georgia (1866) statutes respectively); Washington, supra note 3

(describing Alabama (1865) and Texas (1870) statutes).

* See, e.g., Goring, supra note 20, at 316.

® Id. at 324—25 n.123.

7 Td. at 326 n.131.

" Jd. at 331 n.169.

™ Although the Act of 1868 provided that “slave couples were

required to acknowledge their moral marriage before a notary

public or other authorized governmental entity before 1870,

Goring, supra note 20, at 322, Louisiana courts recognized

marriages between former slaves who had failed to do so.

Succession of George Devezin, 7 Teiss 111, 114 (La. Ct. App. 1910).

3 See, e.g., Goring, supra note 19, at 326-27 (discussing the

retroactive application of South Carolina’s act legalizing certain

marriages).

21

with slavery, but also requisite to citizenship. Accord-

ingly, the highest court in our nation’s Capitol created

an enhanced presumption of legitimacy when

retroactively examining slave marriages. Holding

that any set of circumstances giving rise to the

inference of actual marriage among white persons,

should operate similarly, if not more strongly, when

experienced by former slaves, the court wrote: “The

liberality of the presumption, that may be indulged in

a case of this kind, beyond that in the case of free white

people, has a foundation in reason as well as in natural

justice.” ”*

CONCLUSION

Judges considering marriage rights cases have

frequently analogized the failure to recognize same-

sex marriages and the prohibition of miscegenation.”°

An analogy with the denial of slave marriages is even

more apt, for the denial of marriage rights goes beyond

the insult of segregation to the indifference of

exclusion. To bar a group altogether from an institu-

tion as central to civic and social life as marriage is

akin to imposing the social death that isolated slaves

from the body politic. Both exclusions are “rooted in a

fundamental refusal to provide social recognition

to the humanity” and dignity of the excluded

™ Jennings v. Webb, 8 App. D.C. 43, 56 (1896).

Bishop v. Smith, 760 F.3d 1070, 1113 (10th Cir. 2014); Latta

v. Otter, 771 F.3d 456, 478 (9th Cir. 2014) (Reinhardt, J.,

concurring); Baskin v. Bogan, 766 F.3d 648, 666 (7th Cir. 2014);

Bostic v. Schaefer, 760 F.3d 352, 376 (4th Cir. 2014); Hamby v.

Parnell, No. 3:14-CV-00089-TMB, 2014 WL 5089399, at *5 (D.

Alaska Oct. 12, 2014); Rosenbrahn v. Daugaard, No. 4:14-CV-

04081-KES, 2015 WL 144567, at *7-8 (D.S.D. Jan. 12, 2015);

Campaign for S. Equal. v. Bryant, No. 3:14-CV-818-CWR-LRA,

2014 WL 6680570, at *13-14 (S_D. Miss. Nov. 25, 2014).

22

group.” Both are resisted in order that the excluded

group might acquire the measure of civil and political

autonomy appropriate to a scheme of ordered liberty.

The fundamental human right to own and define

ourselves and to exercise moral autonomy is justly

limited to prevent tangible harms to others or to

achieve material advances of the common welfare. It

should never be limited for the purpose of imposing a

majoritarian choice about the beauty, morality, or

religious acceptability of a particular family form.”

Respectfully submitted,

ADERSON BELLEGARDE FRANCOIS PEGGY COOPER DAVIS

Civil Rights Clinic Counsel of Record

HOWARD UNIVERSITY Experiential Learning Lab

SCHOOL OF LAW NEW YORK UNIVERSITY

2900 Van Ness Street, N.W. SCHOOL OF LAW

Washington, DC 20008 40 Washington Square

(202) 806-8065 South, 301

afrancois@law.howard.edu New York, NY 10012

(212) 998-6465

peggy.cooper.davis@nyu.edu

78 Aderson Bellegarde Francois, To Go into Battle with Space

and Time: Emancipated Slave Marriage, Interracial Marriage,

and Same-Sex Marriage, 13 J. Gender Race & Just. 105, 108, 147

(2009) (“[Wlhite society faced no greater obstacle to recognizing

marriage for newly-emancipated slaves than the belief best

expressed by Thomas Jefferson that African American [intimate]

relationships were based on ‘eager desire.”). To recognize a

people’s marriages is, rather, to appreciate the depth and com-

plexity of their life partnerships. Turner v. Safley, 482 U.S. 78,

95 (187) (describing marriage as an expression “of emotional

support and public commitment” and an aspect of religious life).

™ Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S.

833, 851 (1992) (“At the heart of liberty is the right to define one’s

own concept of existence, of meaning, of the universe, and of the

mystery of human life. Beliefs about these matters could not

define the attributes of personhood were they formed under

compulsion of the State.”).

APPENDIX

la

APPENDIX

Contributors in Alphabetical Order

Omomah I. Abebe

Student

Howard University School of Law

Anthony Appiah

University Professor

New York University

James Blacksher

Attorney at Law

Lauren Brachman

Student

New York University School of Law

Elsie Chandler

Attorney at Law

Peggy Cooper Davis

John S.R. Shad Professor of Lawyering and Ethics

New York University School of Law

Norman Dorsen

Stokes Professor of Law and

Counselor to the President

New York University

Aderson Bellegarde Francois

Professor

Howard University School of Law

Darlene Goring

Sam D'Amico Endowed Professor of Law and Nolan

J. Edwards Professor of Law

Louisiana State University Law School

2a

Andrew Jondahl

Student

New York University School of Law

Adeoye Johnson

Student

Howard University School of Law

Kimberly Jones

Student

Howard University School of Law

Summer Lee

Student

Howard University School of Law

Andrew A. Ortiz

Student

Howard University School of Law

Orlando Patterson

John Cowles Professor of Sociology

Harvard University

Anna Roberts

Assistant Professor

Seattle University School of Law

Colin Starger

Associate Professor

University of Baltimore School of Law

Martin R. Stolar

Attorney at Law

Kendall Thomas

Nash Professor of Law

Columbia University