Amicus Curiae Brief — Obergefell v. Hodges

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Supredie Coot. US

FILED

MAR 6 - 2013

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

IN THE ——$ + =

Supreme Court of the Gnited 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,

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 AMICI CURIAE FAMILY LAW

SCHOLARS IN SUPPORT OF PETITIONERS

Joan Heifetz Hollinger E. Joshua Rosenkranz

UC BERKELEY SCHOOL OF Counsel of Record

LAW Mark S. Davies

Berkeley, CA 94720 Jeremy Peterman

ORRICK, HERRINGTON &

Courtney Joslin SUTCLIFFE LLP

UC Davis SCHOOL oF LAW 51 West 52nd Street

Davis, CA 95616 New York, NY 10019

(212) 606-5000

jrosenkranz@orrick com

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................... cntuininiianadad iv

INTEREST OF AMICI CURIAE ..................2..0..2024+ l

SUMMARY OF ARGUMENT .........0.........-....cc0eeceeees ]

a aaa iene tna aceite iia ineesinaied 3

I. State Family Laws Support The

Emotional And Economic Unity Of

Married Couples And Have Never

Limited Marriage To Those Who Can

Ee 3

A. State laws demonstrate that

encouraging a strong spousal

relationship is a defining purpose

SEES ESA A 4

B. State laws demonstrate that

procreation is not the defining

purpose of marriage..........................++- 8

Il. State Family Laws Recognize Multiple

Ways To Establish Legal Parent-Child

Relationships And Do Not Privilege

Biological Parents Over Other Legal

Eee 11

A. State laws permit and protect

non-biological parent-child

relationships established through

adoption, assisted reproduction,

| 12

Il.

B. State laws do not privilege

biological parent-child

relationships over other types of

legal parent-child relationships ........ 17

State Marital, Parentage, And Custody

Laws Have Abandoned Gender

Distinctions And Do Not Privilege

“Gender-Differentiated” Parenting.............. 18

A. States have abandoned marital,

parentage, and custody laws

based on gender stereotypes ............. 19

B. State laws do not and cannot

limit marriage to those who

parent according to prescribed

Se 24

1. States do not limit

marriage to those who

satisfy specific parental

EE ee 24

2. States cannot enforce

gender-based parental

EE 26

State Family Laws Recognize That It Is

Impermissible To Punish Children To

Influence The Behavior Of Adults............... 29

A. State laws reflect that it is

impermissible to punish children

to influence parental behavior .......... 29

B. The marriage bans punish

children raised by same-sex

ST icicdadnicsitincssistennhaisibinisiinteinmmannndiiin 31

lil

CONCLUSION ... siuinseaeilinabiahiniacininstriiatiies MN

APPENDIX A............. pdaiedtdiemnéncmnenteewiadlll

TABLE OF AUTHORITIES

Page(s)

Federal Cases

Adoptive Couple v. Baby Girl,

|, ! a — sere 16

Astrue v. Capato,

+f Bee 3. ignencennenniadaiiiad 11

Bd. of Trs. of Univ. of Ala. v. Garrett,

EE CF tk BD GE Pecccccccccccccsscccssccccsccccsccseccssscceses 24

Bostic v. Schaefer,

oe Gf Of 8S eee 26

Caban v. Mohammed,

SD I TT nin enn reeueignsineimedsennineinnnel 28

Califano v. Goldfarb,

gn a Ne 27

City of Cleburne v. Cleburne Living Ctr.,

LS 24

DeBoer v. Snyder,

772 F.3d 388 (6th Cir. 2014).....000000000 ccc. passim

DeBoer v. Snyder,

973 F. Supp. 2d 757 (E.D. Mich. 2014)......... 25, 26

Eisenstadt v. Baird,

405 U.S. 438 (1971)

Frontiero v. Richardson,

A 27

Gomez v. Perez,

Eee een 31

Griswold v. Connecticut,

4 | cama nn mee 10

Kirchberg v. Feenstra,

es Ge tcnrecccemsncnnicnsssensesssnersnenssscnenes 27

Latta v. Otter,

771 F.3d 456 (9th Cir. 2014)....... sidtaneenetbondene 18, 26

Lawrence v. Texas,

TSR TERR ene Ree ena e ae 11

Lehr v. Robertson,

renee 15, 16

Levy v. Louisic na,

OE OI iia ai 30

Meyer v. Nebraska,

| em 28

Michael H. v. Gerald D..,

ere 14, 15

Miss. Univ. for Women v. Hogan,

Se CE ON I ccncincniccecmecnsemeundienassneimiiiness sel 28

Orr v. Orr,

440 U.S. 268 (1979) 00... ccccccccccceceececee 18, 27

Palmore v. Sidoti,

TR Re Ee eRe 27

Perry v. Schwarzenegger,

704 F. Supp. 2d 921 (N.D. Cal. 2010).................. 26

Pierce v. Soc’y of Sisters,

TE ne Renn TET 28

Quilloin v. Walcott,

a I ieaameniiaeiadiiddibids 15

Smith v. O.F.F.E.R.,

ee 12

Stanley v. Illinois,

ill 27

Stanton v. Stanton,

aaa 28

Trammel v. United States,

I a eclailel 5

Trimble v. Gordon,

I celine 30

Troxel v. Granutlle,

8 Ce eee 28

Turner v. Safley,

I seins 7,8

United States v. Virginia,

TS re 27

vill

United States v. Windsor,

nS I ss 8, 26, 29

Weber v. Aetna Cas. & Sur. Co.,

| A A ee: 30, 34

Weinberger v. Wiesenfeld,

EEA Se TT aE RE: 27

Wolf v. Walker,

766 F.3d G48 (7th Cir. BO14).........cccccccccccccoscesceces 26

Zablocki v. Redhail,

EE eee eee Lee ee 25

State Cases

Atkinson v. Atkinson,

408 N.W.2d 516 (Mich. Ct. App. 1987) ............... 14

Basham v. Wilkins,

851 S.W.2d 491 (Ky. Ct. App. 1993)..............000... 31

Boone v. Ballinger,

228 S.W.3d 1 (Ky. Ct. App. 2007)........................ 14

Bowen v. Kil-Kare, Inc.,

585 N.E.2d 384 (Ohio 1992) ...............c cece eee eee eee 5

In re Dearing,

648 N.E.2d 57 (Ohio 1994) .................................. 16

Elisa B. v. Superior Court,

ee I Si cinncsntntutactasescosecnsnneiticanani 13

Vill

Ex parte Devine,

398 So.2d 686 (Ala. 1981) ...............................0.00 28

Frazier v. Goudschaal,

295 P.3d 542 (Kan. 2013) ...... sisleiiadaipraaiblammunsiuiebamaliennin 13

Goodridge v. Dep’t of Pub. Health,

798 N.E.2d 941 (Mass. 2003)...................cccceeeeeees 33

In re Guardianship of Madelyn B.,

Se Se I II SII irr nicdnnticnsctmeduntdnioembnentante 13

Ireland v. Smith,

547 N.W.2d 686 (Mich. 1996) ....................e00e0000+ 22

Krieger v. Krieger,

ee ee ee ND ID cicicicnccvesscnsecenconsscnncces 21

Lapides v. Lapides,

I alia 9

Leguillon v. Leguillon,

707 N.E.2d 571 (Ohio Ct. App. 1998).................. 14

Linda R. v. Richard E.,

162 A.D.2d 48 (App. Div. 1990).............0............. 23

Mahle v. Mahle,

500 N.E.2d 907 (Ohio Ct. App. 1985).................... 7

In re Marriage Cases,

eae ee Ce ncictcsesncsenentebenitininnnsiod 8, 33

In re Mullen,

963 N.B.2d 302 (Oli 2011) ...........00cc.ccccesveeseceees 15

In re Nicholas H.,

ER 15

In re Parentage of Robinson,

890 A.2d 1036 (N.J. Super. Ct. Ch. Div.

RTA ERR RICE RSIS ie OO 13

People v. Wallace,

434 N.W.2d 422 (Mich. Ct. App. 1988) ............... 20

Picklesimmer v. Mullins,

By ee IG, IED sccctnncscccctccctccsensiestossses 15

Preston v. Smith,

293 S.W.2d 51 (Tenn. Ct. App. 1955).................. 20

Pusey v. Pusey,

. i ef 2: gs REE enon 21

S. Ry. Co. v. Sanders,

Be Ee ate EP I, BID vnccccctcccecececccccccctesasces 31

Shineovich v. Shineovich,

214 P.3d 29 (Or. Ct. App. 2009) .......................... 13

Sinicropi v. Mazurek,

729 N.W. 256 (Mich. Ct. App. 2006).................... 14

Tuter v. Tuter,

120 S.W.2d 203 (Mo. Ct. App. 1938) ................... 22

Varnum v. Brien,

763 N.W.2d 862 (lowa 2009) ..........0.. cc ccccc eee eee eee 25

Waite v. Waite,

64 S.W.3d 217 (Tex. App. 14th Dist.

Rae ELSES a ene See IE Nes hn 7

Welch v. Welch,

195 S.W.3d 72 (Tenn. Ct. App. 2005).................. 14

Federal Statutes

Family Support Act of 1988, Pub. L. No.

100-485, 102 Stat. 2343 (1988)............0..00000........ 23

State Statutes

pS ee 10

ns eS iateciicennsenscininsnencdinninisimennmnnntin 13

DU, Oe I aoiciceccscncneevcinmninsvsncntesirtreeessninteinnns 13

750 Ill. Comp. Stat. Ann. 5 § 212(a)(4).......c.cecese0e0e0- 10

Ind. Code Ann. § 31-11-1-2(2) .................cseseeceesseeeeees 10

Sts eR, CI, Er Aral ia inreisnininincinenaceciseninineannnnpuencnsuaneie 5

Sa es I ITI cst cia cnareaninitiapneeiamtianndintenicide 12

Bes Se, SR, Te UPI cisvccccccccccccccsccnnecscsscvccnsnneas 32

ee a A EE poop dctain iiccstanienieiaeesimincnionbiinapentantnbaaia 32

Bs a, Ss Oe ee I iiiicciscccmnetnnniannncennitntiinsas 5

Ng I isin oaitsigceriiiensiannnemmntnginisanseiion 5

Be Sn, Ss Ut CED ciciesicninccisciscsiscsnsninionndininiaeivincnidonngiaial 5

5 FI Te GRID enrnctcnssinnncsensennesesinnnmnie 6, 21

Sy a RE A SI ircreatnanoenineianmnenien 32

Pe En I iansncetnicomintaiendiiidneieimnteviaiaien 31

ED icntinedenesinsiniinininnisisianamnsebeniuanianta 6

iP Ot ETT cnccinsiesioniniaeiicinieibehiinihinnicisipenindinienmiiantel 9

ne I csccscitsainesincslictinénsisiiviinsiseisaiannsionn 9

pT Ncaicniicrnstinciiarntbenisinnasienasiccinibebdensiodiie 9

ep nr aIETETEITETTT Dice aniline 7

nn Hi asinissinesecictindcniitceisaniamuneiianiniasnemeetians 21

SEG: AEE tseeselnniGinhntoersitanieabiinibambonsaannaias 21

Se Se encnnnscepnenicecuiisnininiasentamaneianiian 21

es et aiscsentacsencesonsensiemvensiscioteons 6, 21

A incccctntcnnadiciunsindaciindicmiineinenl 6, 21

Sn A TIINThiccnttsadeiteninenstmidtieinecdassedesaiienk 23

% | e n een a RIE 22

. Stat. §§ 404.020—404.030 ......0. 0... 20

Ny IE brinronctonscuntonnennssnnaenieneeseseens 20

Pent IIIT tncstensintiiomianioenatidunsiaonervnemiatel 32

St EEE It icewescunenstcecnceunienmesstnbesedennioten 32

ee es I, Ti i cerneeceniscnsinsnieeSneisnihaeiesltasallhaiemieeaal 5

St BIN, “PP UENs Ut SIE i lasnsencenminennssissnsiaitisiieitanineadicimmmimamaad 5

Mich. Comp. Laws Be NTI ii: cicssasbemsinidiiaiaaiiosienmeaicats 12

Mich. Comp. Laws § 205.201 .................cccccceeccseeeceeeeee 5

Bebo. Comme. Laren © BOGB.BOB .....ccccccccccccccccccoccsccsecceseces 5

Mich. Comp. Laws § 333.2824(6)..................2...002.200 13

Mich. Comp. Laws § 418.321 ....................cccccsccsecseccees 5

Mich. Comp. Laws § 481.331 ............................ceseoceees 5

GG eae 9

ee: CI. Ba Te A cincessecicssiccteniosecntmmeanaanl 9

Be, CRT. EI TD icccccsnncecsccccecencennesoneiniaseaiial 9

ee. CO. SO Bh GI IBS wscccasserictccninncescesescncaanimaal 9

Mich. Comp. Lawe § 661.108 .........cccccccccccccccccscesccscees 9

Se. CHD. BI Te ee seneniciocitesnsicetnnnaaiasenieniadiameaae 7

8 ee 21

8 ee eee 21

Mich. Comp. Laws § 562.18 ............ccccccscccsceesecscess 6, 21

Sees COUR. IGE Th a sicicrctascccntnnouicncnecnessuiicnanal 21

Mich. Comp. Laws § 652.23 .....................ccccseecceees 6, 21

xii

Mich. Comp. Laws § 552.605. ...................cccccseecseeeeees 23

Mich. Comp. Laws §§ 557.21-557.28 ........................ 20

Le 5

Mich. Comp. Laws § 557.811 ....................cccccccceeceeeeeeees 5

Mich. Comp. Laws § 600.2162 .....2........... cc ccc ccc ceceeeeees 5

Mich. Comp. Laws § 600.2922 ................ccccccceceeees 5, 32

Mich. Comp. Laws § 700.2102 ........0.............c.ce0ee 6, 21

Mich. Comp. Laws § 700.2108 .....................ccceeeeeeeees 32

Mich. Comp. Laws § 700.2114 ...................cccccceceeeeees 31

Mich. Comp. Laws § 700.5301 ...................ccccseceseseeees 5

Mich. Comp. Laws §§ 710.24(1)-(2) .................00.00.0. 32

Mich. Comp. Laws § 710.60(2)................ccccccccecceeeeeee 12

Mich. Comp. Laws § 722.21, et seq. ................006 22, 31

Nev. Rev. Stat. Ann. § 126.670.....................00.00000000. 13

N.D. Cent. Code Ann. § 14-20-61...............0.......00000e. 13

N.H. Rev. Stat. Ann. § 168-B:2.......................c0c000000 13

N.M. Stat. Ann. § 40-11A-703..................cccccceeeeeeeees 13

a ccssrosnconennans 5

Ohio Rev. Code §§ 145.46—46........................ccc0cee000000. 5

Ohio Rev.

eee een nee 5

Code § 1337.16(D)(1)(b)(ii) ......................... 5

a iy Ne cecscccesesnisinnensinnemmmenmcenese 32

Code §§ 2106.01, et seq..................22004+- 6, 21

Ce ea 32

SE Oe ID cicitccencsnsniccninnicnansiciaiemsinnia 31

Re Oe I scicincniccencsdcniensenimionvcinnsilsaill 20

SE Oy OD ctecciciecccnnsnniicensietininaideibumiaind 5

Ry ee ticetntncevtnnnninnscsnninibindiainnenbieiiel 5

SED FB SID cxcccencccscsscscescessnnssnngssnsenal 9

Code § 3103.03 .........cccccccceseeees 5, 20, 22, 23

ey Ge ID ncicccncenssncnsnnsiesiinipeniiciasituiieiida 20

SN SP INT snctesccntinsnsiniienenntntiniguinintia 20

Se Op I cnnccrensccsnsnneninssenemmneitanstiiiii 20

Sy Oe ED tenicecenssncinsninenincnptimniniiaini 21

Code §§ 3105.01(A)-(K) ............0...202ecceeeeeeee 6

as EET cherntecsicintamnntidinitntanaiidii 6, 21

kee 21

Code § 3105.18(C)(2) ................-scccccseeereees 20

Gee IED sdpticiercinnnccciansitntscunionneiacdneaneiiis 9

Ohio Rev. Code § 3107.03(D)(1)..................2222..2.0000+- 32

Se ns ey IIE ciscicicnininctantiintanmtenenteiiiiiions 12

Ohio Rev. Code § 3107.081(B) ......................2..2csc000e 12

ee es SE Oe I tncinicnccsinsccnterisienccatenscntanncadina 22

I aaa 22

I 31

Ohio Rev. Code § 3111.01(B) ....00......0.0...ccec cece 31

Ohio Rev. Code § 3111.95(A) .................0cccceccce eee eeees 13

Ohio Rev. Code § 4123.59 .........-ceccececeecececesereceeeseeeeees 5

ts I i nintsesciesirieideeeitigciiintaal 6

RE ee eee 6

pO rN 32

Tenm. Code Amm. § 24-1-201.................0.....cccccsccccccsseeee 5

I, el 5

, Se BI, Fe i cccccctesicitntccincitncsintscctenitial 6, 21

pS es 32

Tenn. Code Ann. § 36-1-102(15)(B) ..................00...... 12

Tenn. Code Amn. § 36-2-31G...................ccccccscccccccccsces 31

Tenn.

xvi

| | ee ee 9

ese eee 9

BN ir II iiiicitieinsisinsiidaciianainininincntnaniiintetai 9

| TE eer eae 20

I len 5

I 21

Code Ann. § 36-4-101 (a)(2)-(15) ...................... 6

Code Amn. § 96-4-108...............0.cecec.cseseceoeeeeses 21

I il 6

Code Ann. § 36-5-101........................ 6, 21, 23, 2

ii Mite: I aciicsetetecccnssistectersonc 6, 21

Code Amn. § 36-G-101..............-..0-2c.ecec-csescosese- 32

Code Ann. § 36-6-101(d) (2001)...................... 22

Se SI, Fe ee ictrccsennecsccenserssccennnsssnncesed 32

Se Fis Fe ee cecetccnecnteienssnnsccenmemesnsienns 5

es SE icttnacicencentvcsnintstiiestnnesinnnnd 5

es Be iectececninsnsintnnsscnnnnseninnemienviail 6

Se a: Bo i ccenttennnrssncnsisncsncncssseenneeni 6

ee I: Sra crereninccnaccncenensimnacsentdnneiid 6

Ga A, Fer rcnncscccncesneeverpetsevensemmaneeisil 6

Tenn. Code Ann. § 68-3-30G.....................ccsseessseccsseees 13

Tenn. Code Ann. § 68-11-1806(c)(3)(A) ...................... 5

Utah Code § 30-1-1(2)(a)-(D) ......... 2. ee cece ee eee ee nsec eee 10

Wash. Rev. Code Ann. § 26.26.710 ...................0.00002. 13

I a GREy Ob SHRI ccccvenseccssnenssscssentenssnensansene 10

SG as CA, Oe Se entcenicncennescnnsnescnmmensensinnnonens 13

Constitutional Provisions

ESOL ASA ON TE 1

I i eialtileteell 20

Other Authorities

Adoption Law & Practice (J.H. Hollinger

SS 12, 16

4 A.L.R.2d 227 (Originally published in

Brief Amicus Curiae Catholic Conference of

Ohio In Support of Appellant, Henry v.

Himes, 772 F.3d 388 (6th Cir.) .............00.000000c0c ce. 4

Brief for Michigan Defendants-Appellants

at 46, DeBoer v. Snyder, 772 F.3d 388

(No. 14-1341) (6th Cir. 2014)................... 17, 18, 33

June Carbone & Naomi Cahn, Marriage,

Parentage, and Child Support, 45 Fam.

RK SES SE GI Srccccencecorevecevessesvcesvencseseseee

Centers for Disease Control and

Prevention, ART Success Rates,

available at

http://www.cdc.gov/art/reports/index.ht

Michael L. Eisenberg, M.D. et al.,

Predictors of not Pursuing Infertility

Treatment After an Infertility

Diagnosis: Examination of a Prospective

U.S. Cohort, 94 Fertility & Sterility

ee Gi ccccccccnscascocssescenccoesasentseessusenseseoseeses

Family and Society, Encyc. of Contemp.

Am. Soc. Issues (Michael Shally-Jensen

Cy FES Op coveccevevesesesseseesvennsnevensennncseseetanceceuseece

Courtney G. Joslin, Modernizing Divorce

Jurisdiction: Same-Sex Couples and

Minimum Contacts, 91 B.U. L. Rev.

BN Ge Eprcsecscecccsescncsssnveesavenvesnensvesovevesevsences

Michael E. Lamb, Mothers, Fathers,

Families, and Circumstances Factors

Affecting Children’s Adjustment, 16

Applied Developmental Sci. 98 (2012) ..........

Laura W. Morgan, Child Support

Guidelines: Interpretation and

Application § 1.07 (2d ed. 2013) ....................

xix

Melissa Murray, Marriage As Punishment,

Sy A, Gat, SEL, III a inceninineesnensedeenennnientl 30

Joshua C. Tate, Caregiving and the Case for

Testamentary Freedom, 42 U.C. Davis L.

I a i cnet aeermeeleaieaanniiiaiinins 7,21

Unif. Parentage Act (2001 & Supp. 2010).......... 15, 31

Uniform Law Commission, f urentage Act,

http://www.uniformlawcommission.com/

Act.aspx?title=Parentage%20Act...................... 15

INTEREST OF AMICI CURIAE'

Amici Curiae—seventy four scholars of family

law2—respectfully submit this brief in support of Pe-

titioners. The two questions presented here concern

whether the Fourteenth Amendment requires a state

to license or recognize a marriage between two peo-

ple of the same sex. Amici have substantial

knowledge of, and experience with, the state family

laws that address marriage, parentage, and the well-

being of children. Our brief demonstrates that the

rationales proposed by Respondents for declining to

license or recognize same sex marriages fundamen-

tally conflict with basic family laws and policies in

every state.

SUMMARY OF ARGUMENT

Kentucky, Michigan, Ohio, and Tennessee ban

same-sex couples from marriage and deny recogni-

tion to marriages that same-sex couples enter into

elsewhere (“marriage bans”). In defending the mar-

riage bans, these states and their amici (collectively

“ban defenders”) rely on two primary arguments:

first, that a core, defining element of marriage is the

possibility of biological, unassisted procreation; and

second, that the “optimal” setting for raising chil-

dren is a home with their married, biological moth-

1 This brief is filed with written consent of the Petitioners

and under Respondents’ blanket consent. Pursuant to

Rule 37.6, no counsel for any party authored this brief in whole

or in part, and no party or counsel for any party made a

monetary contribution intended to fund the preparation or

submission of this brief.

2 Amici professors are listed in Appendix A.

ers and fathers. But the family laws that govern

marital and parental relationships in these very

states, as well as in the rest of the country, tell a dif-

ferent story.

No state has ever limited marriage to couples

who can demonstrate that they have procreative ca-

pacity and desire. Instead, in these four states and

elsewhere, the state family laws that govern mar-

riage recognize that couples marry for many reasons,

including public acknowledgement of their private

choice to share their lives with someone they love

and to enter a legally binding union that confers

hundreds of mutual rights and obligations. These

rights and obligations help the couple care for each

other, as well as their children (if any), regardless of

how those children were conceived.

State family laws that govern the parent-child

relationship also refute the “optimal parenting” ar-

gument. These laws do not privilege parenting by

biological parents who parent in “gender differenti-

ated” ways over other forms of parenting. States af-

ford full parental rights to legal parents who have no

biological or genetic ties to a child. In many circum-

stances, a biological or genetic tie is neither neces-

sary nor sufficient to establish a legal parent-child

relationship. State family laws also reject once

prevalent notions that a parent’s sex or gender is le-

gally relevant to determinations of a child’s best in-

terests. Moreover, states exclude no other couples

from marriage based on a belief that they will pro-

vide a suboptimal setting for raising children.

Finally, state family laws recognize that it is un-

constitutional to punish children to influence the be-

havior of adults. Yet the marriage bans do just this.

They deprive the children of same-sex couples of

valuable governmental, social, and personal benefits

in the name of incentivizing others to be “ideal” par-

ents or to have more children.

The marriage bans cannot stand.’

ARGUMENT

I. State Family Laws Support The Emotional

And Economic Unity Of Married Couples

And Have Never Limited Marriage To

Those Who Can Procreate.

In Kentucky, Michigan, Ohio, and Tennessee, as

in every other state, couples get married for any

number of reasons, including a desire for public ac-

knowledgment of their private choice to share their

lives with someone they love and to enter a legally

binding union that confers enduring, mutual rights

and obligations. State family laws reflect that

providing a sustaining environment for a couple is a

fundamental purpose of marriage independent of

whether a couple has or intends to have children.

These laws provide married couples with valuable

legal protections and hundreds of state and federal

benefits that make it easier for spouses to support

each other during life and in death. And state di-

vorce laws enable spouses to end a marriage when-

ever their personal relationship ends.

3 Although Amici agree with Petitioners that the marriage

bans should be subject to heightened scrutiny, the ban is

unconstitutional under any standard of review.

Ignoring this state law background, the ban de-

fenders argue that excluding same-sex couples from

marriage is justified because such couples lack “pro-

creative capacity” and marriage has always been

linked to procreation. Some ban defenders argue

that marriage, by definition, is limited to couples

who have the potential to engage in unassisted, bio-

logical procreation. See, e.g., Brief Amicus Curiae

Catholic Conference of Ohio In Support of Appellant

at 6, Henry v. Himes, 772 F.3d 388 (6th Cir.). Other

ban defenders argue that the core purpose of mar-

riage is to channel heterosexual irresponsible cou-

ples’ “procreative urges” into marriage. DeBoer v.

Snyder, 772 F.3d 388, 404 (6th Cir. 2014). Under

both articulations, the core element or purpose of

marriage relates to unassisted, biological procrea-

tion. The laws of no state reflect this limited under-

standing of marriage and its purposes. Any effort to

restrict marriage only to those couples who can bio-

logically procreate without assistance would also be

constitutionally impermissible.

A. State laws demonstrate that

encouraging a strong spousal

relationship is a defining purpose of

marriage.

In Kentucky, Michigan, Ohio, and Tennessee, as

in every other state, the laws that establish marital

rights and responsibilities enable spouses to protect

and foster their personal, intimate, and mutually

dependent relationship to one another. Some of

these laws help married couples care for one anoth-

er, including the rights to make healthcare deci-

sions,* secure workers’ compensation and pension

benefits,5 pursue claims for loss of consortium,® and

invoke testimonial privileges.’

Other state laws facilitate the economic interde-

pendence of the married spouses. Many common-

law states, including Kentucky, Michigan, and Ten-

nessee, permit spouses to own property as tenants by

the entirety, which gives each spouse an equal, un-

divided ownership interest.* During marriage,

spouses have mutual rights and support obligations

to one another. They may file their taxes as a mar-

ried couple and enjoy various state tax benefits. !°

4 See, e.g., Ky. Rev. Stat. § 311.631(1)(c); Mich. Comp.

Laws § 700.5301; Ohio Rev. Code § 1337.16(D)(1)(b)(ii); Tenn.

Code Ann. § 68-11-1806(c)(3)(A).

5 See, e.g., Ky. Rev. Stat. § 342.750; Mich. Comp. Laws

§§ 418.321, 481.331; Ohio Rev. Code §§ 145.43, 145.45—46,

742.37, 4123.59; Tenn. Code Ann. § 50-6-210.

6 See, e.g., Ky. Rev. Stat. § 411.145; Mich. Comp. Laws

§ 600.2922; Bowen v. Kil-Kare, Inc., 585 N.E.2d 384, 391 (Ohio

1992) (noting well-established tort); Tenn. Code Ann. § 25-1-

106.

7 See Ky. R. Evid. § 504; Mich. Comp. Laws § 600.2162;

Ohio Rev. Code §§ 2317.02, 2945.42; Tenn. Code Ann. § 24-1-

201. The Federal Rules of Evidence also recognize the

common-law rule that spouses cannot be compelled to testify

against one another, furthering “the important public interest

in marital harmony.” Trammel v. United States, 445 U.S. 40,

53 (1980).

8 See, e.g., Ky. Rev. Stat. § 381.050; Mich. Comp. Laws

§§ 557.71, 557.81; Tenn. Code Ann. §§ 66-1-109, 36-3-505.

® See, e.g., Ky. Rev. Stat. § 402.005 (‘community of the

duties” mutually owed between spouses); Ohio Rev. Code

§§ 3103.03 (spousal support).

10 See Ky. Rev. Stat. § 141.180 Goint filing); Mich. Comp.

Laws §§ 205.201, 202 (spousal transfer tax exemptions); Ohio

Upon divorce, the parties have a right to an equita-

ble or equal share of the marital property'! and to

alimony.!2 And upon death, the spouses have a right

to intestate succession!3 and may not be disinherited

if there is a will.'4 These laws may relieve the state

of the obligation to care for some individuals who

might otherwise become unable to support them-

selves.

State laws governing divorce confirm that the re-

lationship between spouses is a defining feature of

marriage. In the past, when a marriage was dis-

solved, fault-based divorce laws focused on spousal

misconduct that harmed the spousal relationship,

such as adultery, cruel and inhuman treatment, or

desertion.'5 Today, every state provides at least one

Rev. Code § 5747.01, 5747.05; Tenn. Code Ann. §§ 67-8-102, 67-

8-302, 67-8-305, 67-8-314 (inheritance and gift tax benefits for

spouses).

11 See, e.g., Ky. Rev. Stat. § 403.190; Mich. Comp. Laws

§ 552.18; Ohio Rev. Code § 3105.18; Tenn. Code Ann. §§ 36-5-

101, 36-4-121.

12 See, e.g., Ky. Rev. Stat. § 403.200; Mich. Comp. Laws

§ 552.23; Ohio Rev. Code § 3105.18; Tenn. Code Ann. § 36-5-

121.

13 See, e.g., Ky. Rev. Stat. § 391.010(4); Mich. Comp. Laws

§ 700.2102; Ohio Rev. Code §§ 2106.01, et seq. (surviving

spouse's rights in probate); Tenn. Code Ann. § 31-2-104.

14 See Joshua C. Tate, Caregiving and the Case for

Testamentary Freedom, 42 U.C. Davis L. Rev. 129, 160 (2008)

(“With the exception of Georgia, every American state limits

the ability of a testator to disinherit a surviving spouse.”).

15 See, e.g., Ohio Rev. Code §§ 3105.01(A)-(K) (grounds for

divorce, none of which involve procreative ability or desire);

Tenn. Code Ann. § 36-4-101 (a)(2)-(15) (listing the many non-

procreative grounds for divorce).

no-fault ground for divorce.'® No-fault divorce is

premised on the notion that the spouses can end

their marriage based on the breakdown of the spous-

al relationship, without having to prove fault or mis-

conduct.'7 Many states, including Michigan and

Kentucky, have gone even further, repealing all

fault-based grounds and enacting only no-fault

grounds.'® In every state, a marriage can be dis-

solved when the personal relationship between the

adults is over.

All these state laws illustrate that furthering

the committed union between two individuals is a

fundamental purpose of marriage. These laws ena-

ble the couple to make a particular “expression[] of

emotional support and public commitment” and enti-

tle the couple to “the receipt of government benefits”

that help sustain the commitment. Turner v. Safley,

482 U.S. 78, 95-96 (1987). The support and protec-

tions that a couple receive from the state’s acknowl-

16 See Waite v. Waite, 64 S.W.3d 217, 240 (Tex. App. 14th

Dist. 2001) (recognizing that “[e]very state in the country has

some form of no-fault divorce statute”).

17 See, e.g., td.; see also Mahle v. Mahle, 500 N.E.2d 907,

909 (Ohio Ct. App. 1985) (living separately for one year is

meant to be a “no- fault” divorce remedy, foreclosing the

applicability of fault-oriented defenses); see generally Courtney

G. Joslin, Modernizing Divorce Jurisdiction: Same-Sex Couples

and Minimum Contacts, 91 B.U.L. Rev. 1669, 1670 n.5, 1704

(2011) (“No-fault divorce’ means that a divorce can be obtained

solely on the basis of the breakdown of the marital] relationship

without a showing of fault or misconduct.”).

18 See, eg., Ky. Rev. Stat. § 403.025 (“irretrievable

breakdown of the marriage” only standard for dissolution);

Mich. Comp. Laws § 552.6 (“breakdown of the marriage

relationship” only standard for divorce).

edgment of their private and personal union can en-

hance a couple’s emotional well-being and enable

them to enjoy a greater level of personal stability.

“Responsibilities, as well as rights, enhance the dig-

nity and integrity of the person.” United States v.

Windsor, 133 S. Ct. 2675, 2694 (2013).

B. State laws demonstrate that

procreation is not the defining purpose

of marriage.

Ban defenders’ insistence that marriage is inex-

tricably intertwined with procreation is simply

wrong. An ability, desire, or promise to procreate is

not, and has never been, a prerequisite for a valid

marriage in any state.'® States permit different-sex

couples to marry regardless of procreative ability or

desire. Because procreation is neither an essential

requirement of marriage nor its sole or primary pur-

pose, the states’ asserted interest in limiting mar-

riage to those who may procreate cannot justify the

ban. See Turner, 482 U.S. at 95 (unconstitutional to

deny right to marry when “important attributes of

marriage remain”).

No state requires couples to prove their fertility

in order to enter a valid marriage. In Kentucky,

Michigan, Ohio, and Tennessee, the only require-

ments for marriage are that the person be unmar-

19 In re Marriage Cases, 183 P.3d 384, 431 (Cal. 2008)

(‘[M]jen and women who desire to raise children with a loved

one in a recognized family but who are physically unable to

conceive a child with their loved one never have been excluded

from the right to marry.”).

ried, at the age of consent, marrying someone who is

not a close relative, and capable of giving consent.”

Indeed, these states do not even require sexual inti-

macy to enter into or validate a lawful marriage.

Moreover, absent fraud, once a couple is married,

the very common condition of infertility is not a basis

for invalidating the marriage.?' Likewise, lack of

procreative desire, absent fraud, cannot justify an-

nulment.22

Accordingly, no states prohibit elderly women

from marrying—a class of people who, just like

same-sex couples, have no potential ability to engage

in unassisted biological procreation with their

spouse. No state prohibits the eleven million indi-

viduals and two million couples who suffer from in-

fertility from choosing to marry.23 And some states

20 See, e.g., Ky. Rev. Stat. §§ 402.010 (close relative);

402.020(1)(b) (unmarried status), 402.030 (age of consent);

Mich. Comp. Laws §§ 551.3 (close relative), 551.4 (close

relative); 551.5 (unmarried status), 551.51, 551.103 (age of

consent); Ohio Rev. Code § 3101.01(A) (age of consent, close

relative and unmarried status); Tenn. Code Ann. §§ 36-3-101

(close relative); 36-3-102 (unmarried status), 36-3-105 (age of

consent).

21 See, e.g., Ohio Rev. Code § 3105.31; Lapides v. Lapides,

171 N.E. 911, 913 (N.Y. 1930) (‘The inability to bear children is

not such a physical incapacity as justifies an annulment”); Brief

Amicus Curiae Historians of Marriage.

22 See 4 A.L.R.2d 227 §§ 2[a], 3[a] (Originally published in

1949) (listing U.S. cases in which the desire not to have

children was considered grounds for annulment only in

instances of fraud, if at all).

23 See Michael L. Eisenberg, M.D. et al., Predictors of not

Pursuing Infertility Treatment After an Infertility Diagnosis:

permit certain persons to marry only if they prove

that they cannot procreate.*4 Because states support

the freedom to marry for these other classes who

cannot engage in unassisted procreation, the ban de-

fenders’ insistence that same-sex couples may be de-

nied the freedom to marry due to their inability to

engage in unassisted procreation makes no sense.

This Court has also recognized that procreation

is not an essential element of marriage, and that the

rights to marry and to procreate are distinct. In Ei-

senstadt v. Baird, this Court extended its conclusion

in Griswold v. Connecticut, 381 U.S. 479, 485-86

(1965), that married couples have a constitutionally

protected right to engage in non-procreative sexual

intimacy to every individual, married or single, and

indicated that “matters so fundamentally affecting a

person as the decision whether to bear or beget a

child” should be “free from unwarranted governmen-

tal intrusion.” 405 U.S. 438, 453 (1971).

Examination of a Prospective U.S. Cohort, 94 Fertility &

Sterility No. 6, 2369 (2010); Surrogacy: A Brief U.S. History, 3

Family and Society, Encyc. of Contemp. Am. Soc. Issues, 1182

(Michael Shally-Jensen ed., 2011).

24 See, eg. Ariz. Rev. Stat. § 25-101(B) (proposed

legislation) (first cousins may marry only if both are age 65 or

older or if one is proven to be unable to reproduce); 750 III.

Comp. Stat. Ann. 5 § 212(a)(4) (first cousins may marry only if

both are age 55 or older or if one is permanently sterile); Ind.

Code Ann. § 31-11-1-2(2) (first cousins may marry only if both

are age 65 or older); Utah Code § 30-1-1(2)(a)-(b) (first cousins

may marry only if age 65 or older, or, if between ages 55-65,

one is unable to reproduce); Wis. Stat. Ann. § 765.03(1) (first

cousins may marry only if female is age 55 or older or if one is

permanently sterile).

The characterization of marriage as, essentially,

a state-sponsored incentive program for different-sex

couples and the fruits of their procreative sexual ac-

tivity garners no support from state family laws or

decisions of this Court. The ban defenders’ limited

view of the purpose of civil marriage demeans the

relationship between spouses and ignores the multi-

ple other personal and societal purposes marriage

has always served. See Lawrence v. Texas, 539 U.S.

558, 567 (2003) (“it would demean a married couple

were it to be said marriage is simply about the right

to have sexual intercourse”).

Il. State Family Laws Recognize Multiple

Ways To Establish Legal Parent-Child

Relationships And Do Not Privilege

Biological Parents Over Other Legal

Parents.

State family laws provide many ways to estab-

lish a legal parent-child relationship. A biological or

genetic connection to a child is one such means, but

it is neither a necessary nor always a sufficient one.

Astrue v. Capato, 132 S. Ct. 2021, 2030 (2012) (“A

biological parent is not necessarily a child’s parent

under [state}) law.”). Ignoring these state laws, ban

defenders argue that it is permissible to exclude all

same-sex couples from marriage because states have

a strong interest in using marriage to facilitate “op-

timal parenting,” which they define as married bio-

logical mothers and fathers providing “gender-

differentiated” parenting. This argument is deeply

flawed. In this Part, we show that state family laws

do not always privilege biological parentage over

other forms of parentage or limit marriage to couples

who agree to parent only their own biological chil-

dren. In Part III, we demonstrate that an alleged

interest in “gender-differentiated” parenting is con-

trary to state family law and constitutional princi-

ples.

A. State laws permit and protect non-

biological parent-child relationships

established through adoption, assisted

reproduction, and other ties.

Kentucky, Michigan, Ohio and Tennessee, like

all other states, recognize multiple bases for estab-

lishing legal parentage.

Every state has long had laws that facilitate the

adoption of children by married couples or single

adults who are not their biological parents. See

Adoption Law & Practice, at ch. 1 (J.H. Hollinger ed.

1988 & supp. 2014). States permit stepparents to

adopt their spouse’s biological children.”5 All states

recognize adoption “as the legal equivalent of biolog-

ical parenthood,” granting adoptive parents the

same rights, privileges, and obligations as biological

parents.26 Smith v. O.F.F.E.R., 431 U.S. 816, 844,

n.51 (1977).

States also allow married couples to have chil-

dren using donor genetic material and assisted re-

25 See, e.g., Ky. Rev. Stat. § 199.470; Mich. Comp. Laws

§ 199.470; Ohio Rev. Code § 3107.081(E); Tenn. Code Ann. § 36-

1-102(15)B).

26 See, e.g., Mich. Comp. Laws § 710.60(2) (‘No distinction

between the rights and duties of natural progeny and adopted

persons”); Ohio Rev. Code § 3107.15 (Adoptive parents are

treated as equivalent “for all purposes” to other legal parents).

productive technologies. Every year, tens of thou-

sands of couples have children as a result of assisted

reproduction that involves donor eggs or sperm.??

The states that have addressed assisted reproduc-

tion by statute or case law treat the resulting chil-

dren as the legal children of both spouses.28 Some

states similarly recognize unmarried different- and

same-sex couples as the legal parents of children

conceived with donor gametes.”®

27 See Centers for Disease Control and Prevention,

Assisted Reproductive Technology (ART) Success Rates,

available at http://www.cdc.gov/art/reports/index.htm!l (CDC

data reporting that in 2012 65,160 babies resulted from ART

cycles, some of which included donor sperm in 2012; 19,847 of

these children were born from donor eggs). Moreover, the CDC

does not include artificial insemination in its definition of ARTs

and does not keep records of donor inseminations so this data

significantly underestimates the number of children born from

donor genetic material.

28 See, e.g., Mich. Comp. Laws § 333.2824(6) (“A child

conceived by a married woman with consent of her husband

following the utilization of assisted reproductive technology is

considered to be the legitimate child of the husband and wife.”);

Ohio Rev. Code § 3111.95(A) (same); Tenn. Code Ann. § 68-3-

306 (same).

2 See, e.g., 13 Del. C. § 8-703; N.H. Rev. Stat. Ann. § 168-

B:2; Nev. Rev. Stat. Ann. § 126.670; N.M. Stat. Ann. § 40-11A-

703; N.D. Cent. Code Ann. § 14-20-61; Wash. Rev. Code Ann. §

26.26.710; Wy. Stat. Ann. § 14-2-903; D.C. Code § 16-909(e)(1);

Elisa B. v. Superior Court, 117 P.3d 660 (Cal. 2005); Frazier v.

Goudschaal, 295 P.3d 542 (Kan. 2013); In re Guardianship of

Madelyn B., 98 A.3d 494, Nos. 2013-403, 2013-445, 2013-593,

2014 WL 2958752 (N.H. 2014); In re Parentage of Robinson,

890 A.2d 1036, 1042 (N.J. Super. Ct. Ch. Div. 2005); Shineovich

v. Shineovich, 214 P.3d 29 (Or. Ct. App. 2009).

States’ parentage laws also privilege parental

“relationships that develop within the unitary fami-

ly” over biological relationships in some circum-

stances. Michael H. v. Gerald D., 491 U.S. 110, 123

(1989). All states presume that a husband is a legal

parent of a child born to his wife during their mar-

riage.*° While rebuttable, this presumption has of-

ten withstood challenge when the husband (as a non-

biological father) has had a caring and supportive

parental relationship to the child.*! States often es-

top husbands who are non-biological fathers from

denying their parentage when continuation of that

status is in the child’s best interests.32 And this

% See, e.g., June Carbone & Naomi Cahn, Marriage,

Parentage, and Child Support, 45 FAM. L.Q. 219, 220 (2011)

(‘All states continue to recognize at least a rebuttable

presumption that a child born within marriage is the child of

the husband, and many limit the circumstances in which it can

be rebutted.” (footnotes omitted)).

31 See, e.g., Boone v. Ballinger, 228 S.W.3d 1, 10 (Ky. Ct.

App. 2007) (husband's parental status upheld against biological

father “in order to prevent the harm that inevitably results

from the destruction of the bond that develops between a

‘psychological father’ and a child who was born during his

marriage, and who has been raised as his own daughter or

son”); Leguillon v. Leguillon, 707 N.E.2d 571, 579 (Ohio Ct.

App. 1998) (rejecting “an interpretation of parentage that

would place the genetic relationship of the parties above all

other considerations”); Atkinson v. Atkinson, 408 N.W.2d 516,

517 (Mich. Ct. App. 1987) (wife estopped from denying former

husband's status as child’s legal father because he had always

treated child as his); Sinicropi v. Mazurek, 729 N.W. 256, 264

(Mich. Ct. App. 2006) (“equities of the case” warranted

protection of child’s relationship and custody with ex-husband

over proof that he was not the biological) father).

32 See, e.g. Welch v. Welch, 195 S.W.3d 72, 75 (Tenn. Ct.

App. 2005) (non-biological father could not disclaim paternity

Court has recognized the constitutionality of state

laws that allow a husband and wife to resist a biolog-

ical father’s challenge to the husband’s presumed

parentage. Michael H. v. Gerald D., 491 U.S. at 123.

There are also other circumstances where many

states recognize and protect parent-child relation-

ships based on functional parenting, even in the ab-

sence of a marital or biological connection.*°

In addition to the circumstances where a biologi-

cal or genetic tie is unnecessary to establish parent-

age, there are others where the existence of a biolog-

ical or genetic tie is insufficient to give rise to a legal

parent-child relationship. Consistent with this

Court’s decisions concerning unwed fathers,* state

upon divorcing child's mother; Tennessee law “clearly rejects a

bright-line rule” that genetic testing may automatically relieve

a legal father of his obligations).

33 See Picklesimmer v. Mullins, 317 S.W.3d 569 (Ky. 2010);

In re Mullen, 953 N.E.2d 302 (Ohio 2011); In re Nicholas H., 46

P.3d 932, 933 (Cal. 2002); Unif. Parentage Act § 204(a)(5)

(providing that a man is presumed to be a child’s legal parent if

“for the first two years of the child’s life, he resided in the same

household with the child and openly held out the child as his

own.”). At least 19 states have enacted the original UPA, while

others have enacted significant portions of it. See Uniform

Parentage Act of 2002, Prefatory Note. Nine states have

enacted the Revised UPA, promulgated in 2002. See Uniform

Law Commission, Parentage Act,

http://www.uniformlawcommission.com/Act.aspx?title=Parenta

ge%20Act.

4 See, e.g., Quilloin v. Walcott, 434 U.S. 246, 254-55 (1978)

(best interests standard for child in adoption proceeding does

not violate Due Process rights of biological father who showed

no commitment to parental responsibilities); Lehr v. Robertson,

463 U.S. 248, 261-62 & n.19 (1983) (“biological link” provides a

family laws make clear that “the mere existence of a

biological link” is insufficient to merit protection of

an unwed father’s parental rights in proceedings

where other adults are seeking to adopt his child.

See Lehr v. Robertson, 463 U.S. 248, 261-62 & n.19

(1983). In approximately half the states, an unwed

biological father’s consent to his child’s adoption is

not required unless he has filed a timely paternity

claim with the State Putative Father Registry and

developed a “substantial relationship” to the child.

In states without a Registry, unwed fathers cannot

block an adoption unless they have lived with, cared

for, paid child support for, or otherwise manifested a

genuine parental interest in the child.3’7

man the opportunity to “develop a relationship with his

offspring,” but if he fails to “accept[] some measure of

responsibility for the child’s future,” he is not entitled to

exercise parental rights or block the child’s adoption).

3% Cf. Adoptive Couple v. Baby Girl, 570 U.S. ___ (2013)

(holding that a biological father who had never had legal or

physical custody of his child cannot invoke the protections of

the federal Indian Child Welfare Act to block the proposed

adoption of his child).

36 See Adoption Law & Practice § 2.04A.

37 See, e.g., In re Dearing, 648 N.E.2d 57 (Ohio 1994),

review denied, 646 N.E.2d 467 (1995) (putative father who was

notified of proposed adoption failed to file objection within 30

days required by Ohio statute and lost his right to challenge

adoption).

B. State laws do not privilege biological

parent-child relationships over other

types of legal parent-child

relationships.

The ban defenders contend that the marriage

ban is necessary so that marriage can serve as the

ideal setting for biological parenting by opposite-sex

parents. As Michigan put it in the proceedings be-

low: “It is certainly within the realm of rational

speculation to believe that ... it is beneficial for chil-

dren to have a biological connection to both of their

parents.” Brief for Michigan Defendants-Appellants

at 40-42, DeBoer v. Snyder, 772 F.3d 388 (No. 14-

1341) (6th Cir. 2014). Limiting marriage to opposite-

sex couples, the argument goes, “reinforces the idea”

that biological parents are best for children. 7d.

In light of the range of circumstances in which

states permit non-biological parenting, this argu-

ment is baffling. Whether same-sex couples may

marry or not, marriage will remain an institution in

which couples raise biological children, non-

biological children, or no children at all.

Indeed, the states could not expressly limit mar-

riage to “model” biological parents. In Eisenstadt,

this Court made clear that “matters so fundamental-

ly affecting a person as a decision whether to bear or

beget a child” should “be free from unwarranted gov-

ernmental intrusion.” 405 U.S. at 453. Conditioning

marriage on biological parenting is just such an un-

warranted governmental intrusion. By permitting

and facilitating non-biological parenting both inside

and outside of marriage, the states have made clear

that an interest in encouraging “optimal” parenting

by children’s biological parents cannot justify the

marriage bans.

III. State Marital, Parentage, And Custody

Laws Have Abandoned Gender Distinctions

And Do Not Privilege “Gender-

Differentiated” Parenting.

Since the mid-19th century, states have gradual-

ly removed the “baggage of sexual stereotypes” from

marriage. Orr v. Orr, 440 U.S. 268, 283 (1979).

Marriage used to be an institution replete with state

imposed gender- and sex-specific roles and responsi-

bilities addressing, for example, property ownership,

employment, wages, and childrearing.**® Today, the

laws governing marriage are free of state-mandated

gender norms in nearly “every respect except the re-

quirement that would-be spouses be of different gen-

ders.” Latta v. Otter, 771 F.3d 456, 485-90 (Sth Cir.

2014) (Berzon, J., concurring). Similarly, state fami-

ly laws no longer allow courts to rely on stereotypical

notions that a parent’s sex or gender is legally rele-

vant to child custody determinations or to the alloca-

tion of child support obligations.

Swimming against the tide of this transfor-

mation, ban defenders suggest that the marriage ex-

clusions can be justified by the states’ interest in en-

couraging children to be “raised by both a mother

and a father,” each performing distinct sex-based

roles. Brief for Michigan Defendants-Appellants at

40, DeBoer v. Snyder, 772 F.3d 388 (No. 14- 1341)

(6th Cir. 2014). This is best for children, the ban de-

38 See infra pp. 19-24.

fenders argue, because mothers and fathers bring

different abilities to the parenting enterprise. Moth-

ers, they argue, “tend to be more emotion focused,

while fathers, in turn, are more playful and a little

bit more task-oriented.” Jd. at 42 (internal quota-

tion marks omitted). This asserted interest in “op-

timal parenting” relies on the very gender stereo-

types about parents that the states have abolished,

conflicts with social science research and constitu-

tional principles, and is belied by the states’ failure

to exclude any other alleged “non-optimal” parents

from marriage.

A. States have abandoned marital,

parentage, and custody laws based on

gender stereotypes.

Under the laws of every state, marriage has

gradually evolved to become a union free of state

mandated sex- or gender-specific roles. Since the

mid-19th century, state legislatures and courts have

progressively eliminated the once prevalent sex-

specific laws regulating entry into marriage, allocat-

ing marital roles, establishing the consequences of

divorce, and determining child custody and support.

Kentucky, Michigan, Ohio, and Tennessee have

all participated in this transformation. Every state

has removed gender-based distinctions that once de-

fined the marital relationship under the now-

abolished doctrine of coverture.°9 State laws now

39 Mich. Comp. Laws §§ 557.21—557.28 (established in

1844 as the Married Women’s Property Acts, which became the

Rights and Liabilities of Married Women Act of 1981,

acknowledge that both husbands and wives have the

right to retain their own earnings, manage their

jointly owned marital or community property, and

control their separate property.“ Even states like

Ohio that retain the common law doctrine of neces-

saries, which, historically, obligated only the hus-

band to pay creditors for his wife’s necessaries, have

made that obligation gender-neutral.*!

Like other states, Kentucky, Michigan, Ohio, and

Tennessee have also eliminated traditional gender-

based distinctions upon divorce or the death of a

spouse. The grounds for obtaining a divorce are the

same for each spouse, and either spouse may initiate

protecting married women’s property, earnings, and full

contract rights, as if unmarried); Mich. Const. art. X, § 1 (1963

edit officially abolished coverture); Tenn. Code Ann. § 36-3-504

(established in 1919 as the Married Women’s Act, permitting

married women separate and full rights in real estate as if

unmarried); Ky. Rev. Stat. §§ 404.020—-404.030, 404.060

(established in 1894 as the Weissinger Act, and amended in

1942, granting married women the right to acquire, hold, and

dispose of real and personal property, to contract, sue, and be

sued as if unmarried); see also People v. Wallace, 434 N.W.2d

422, 428 (Mich. Ct. App. 1988) (married women now have

property rights “free from their husbands’ interference”); Ohio

Rev. Code §§ 3103.04, 3103.07, 3103.08, 2307.09 (various equal

and separate spousal legal and property rights); Ohio Rev.

Code § 3105.18(C)(2) (both spouses are considered to have

contributed equally to the production of marital income);

Preston v. Smith, 293 S.W.2d 51, 57 (Tenn. Ct. App. 1955)

(‘(M]arriage shall not impose any disability or incapacity on a

woman as to the ownership, acquisition or disposition of

property of any sort.”).

40 Id.

41 See, eg., Ohio Rev. Code § 3103.03 (doctrine of

necessaries applies to both spouses).

a dissolution action.*? Upon divorce, states treat the

marriage as an economic partnership subject to the

court’s distribution of the spouses’ accumulated as-

sets as the equities of each case require, without re-

gard to gender.*? Either party can seek spousal sup-

port or “maintenance,” as determined on the basis of

their needs, not their sex.*4 In every state, married

spouses have a right of intestate succession regard-

less of gender,*5 and, except for Georgia, surviving

spouses—without regard to gender—are entitled to

some kind of elective or forced share of the decedent-

spouse’s property.*®

The principle of equal rights and responsibilities

for both spouses applies equally to their roles as par-

ents. In the past, gender-specific family laws like

the “tender years doctrine,” presumed that mothers

were entitled to custody of young children because

they were “naturally” nurturing.*? See Pusey v. Pu-

42 Ky. Rev. Stat. §§ 403.140, 403.170; Mich. Comp. Laws

§ 552.11; Ohio Rev. Code § 3105.01; Tenn. Code Ann. §§ 36-4-

101, 36-4-103.

43 See, e.g., Ky. Rev. Stat. § 403.190; Mich. Comp. Laws

§§ 552.18, 552.19; Ohio Rev. Code § 3105.18; Tenn. Code Ann.

§§ 36-5-101, 36-4-121.

44 See, e.g., Ky. Rev. Stat. §§ 403.160, 403.200; Mich.

Comp. Laws §§ 552.13, 552.23; Ohio Rev. Code § 3105.18(C);

Tenn. Code Ann. § 36-5-121.

45 See, e.g., Ky. Rev. Stat. § 391.010(4); Mich. Comp. Laws

§ 700.2102; Ohio Rev. Code §§ 2106.01, et seq.; Tenn. Code

Ann. § 31-2-104.

# Joshua C. Tate, Caregiving and the Case for

Testamentary Freedom, 42 U.C. Davis L. Rev. 129, 160 (2008).

47 See, e.g., Krieger v. Krieger, 81 P.2d 1081, 1083 (idaho

1938) (the maternal preference “needs no argument to support

it because it arises out of the ... instincts of motherhood; nature

sey, 728 P.2d 117, 119-20 (Utah 1986) (rejecting the

“tender years presumption” as based on “outdated

stereotypes’).

Today, both parents are equally responsible for

the care and support of their children, and, upon

separation or divorce, the standards for child custody

determinations are gender-neutral. The prevailing

legal standard for determining child custody is the

broadly defined and gender-neutral “best interests of

the child” standard. This standard grants trial

courts discretion to “liberally construe” a long list of

specific child-centered factors relevant to the circum-

stances of each case.*® Many appellate courts have

overruled trial court determinations that depart

from these factors in favor of lingering gender-role

stereotypes.‘

has ordained it”); Tuter v. Tuter, 120 S.W.2d 203, 205 (Mo. Ct.

App. 1938) (‘There is but a twilight zone between a mother’s

love and the atmosphere of heaven.”).

#8 Michigan’s comprehensive Child Custody Act of 1970,

1970 PA 91, Mich. Comp. Laws § 722.21 et seq., has been a

model for the statutory reforms in many other states. See also

Ky. Rev. Stat. § 403.270; Ohio Rev. Code §§ 3103.03, 3109.03,

3109.04 (both parents have equal rights and responsibilities as

to the care and custody of their children; parent’s gender is

legally irrelevant); Tenn. Code Ann. § 36-6-101(d) (2001)

(gender cannot “constitute a factor in favor or against the

award of custody”).

49 See, e.g., Ireland v. Smith, 547 N.W.2d 686 (Mich. 1996)

(noting that young child was thriving in mother’s care and

reversing order transferring custody to father based on trial

court's personal view that there is “no way that a single parent,

attending an academic program at an institution as prestigious

as the University of Michigan, can do justice to their studies

State and federal child support laws and guide-

lines also apply equally to both parents. In every

state, either or both parents may be liable for child

support, based on the child’s needs and parental re-

sources and without regard to the parents’ gender or

marital status.

The elimination of sex- and gender-based dis-

tinctions in family laws described here is attributa-

ble, in part, to decades of social science research.

This research demonstrates that a child’s adjust-

ment, school performance, peer relations, cognitive

functioning, and self-esteem is “best accounted for by

variations” in the “the quality of the relationship be-

tween the parents or significant adults in the chil-

dren’s and adolescent’s lives, and the availability of

economic and socio-economic resources.”5! As de-

tailed further in the Brief Amicus Curiae American

Sociological Association, these studies make clear

that the “parents’ sex and sexual orientation ... do

and to raising of an infant child.” (citation omitted)); see also

Linda R. v. Richard E., 162 A.D.2d 48 (App. Div. 1990)

(reversing custody order to father where trial court expected

mother, but not father, to give priority to child over career).

5° See Laura W. Morgan, Child Support Guidelines:

Interpretation and Application § 1.07 (2d ed. 2013); Ky. Rev.

Stat. § 403.212; Ohio Rev. Code §§ 3103.03, 3109.03, 3109.04;

Mich. Comp. Laws § 552.605; Tenn. Code Ann. § 36-5-101. The

federal Family Support Act of 1988, Pub. L. No. 100-485, 102

Stat. 2343 (1988), also applied a support obligation to both

parents.

51 Michael E. Lamb, Mothers, Fathers, Families, and

Circumstances Factors Affecting Children’s Adjustment, 16

Applied Developmental Sci. 98-111 (2012).

not affect either the capacity to be good parents or

their children’s healthy development.”52

B. State laws do not and cannot limit

marriage to those who parent according

to prescribed gender norms.

Beyond relying on the same discredited sex and

gender stereotypes about women and men having

different parental abilities, the ban defenders’ as-

serted interest in “optimal” gender-differentiated

parenting cannot support the ban for at least two

additional reasons: (1) states do not limit marriage

to those who can satisfy specific parental norms, and

(2) any effort to enforce gender-differentiated roles in

marriage or parenting would be unconstitutional.

1. States do not limit marriage to those

who satisfy specific parental norms.

The exclusion of same-sex couples from marriage

because they allegedly cannot satisfy gender-based

parental norms, also “[makes] no sense in light of

how [states] treat[] other groups similarly situated

in relevant respects.” Bd. of Trs. of Univ. of Ala. v.

Garrett, 531 U.S. 356, 366 n.4 (2001) (citing City of

Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 447-

50 (1985)). States deny no other couples the right to

marry based on a belief that they will provide a

suboptimal setting for raising children. No state re-

quires applicants for a marriage license to prove

their ability to parent or to pledge to raise their chil-

dren in accordance with state-prescribed childrear-

52 Id.

ing standards.®* Likewise, no state excludes impov-

erished couples from marriage, despite the fact that

parental resources strongly correlate with better

outcomes for children. Cf. Varnum v. Brien, 763

N.W.2d 862, 900 (Iowa 2009) (noting that, except for

same-sex couples, states do “not exclude from mar-

riage ... child abusers, sexual predators, parents ne-

glecting to provide child support, and violent fel-

ons—{groups] that are undeniably less than optimal

parents”).

Excluding same-sex couples from marriage and

its attendant legal protections because they allegedly

do not provide a certain kind of parenting imposes

an unjustified burden on same-sex couples. This is

especially so because different-sex couples are not

required to have children at all, much less prove

53 The Michigan defendants conceded this point at the trial

court hearing:

As defendant Lisa Brown testified, Michigan county

clerks are not authorized to consider a couple's

stability, criminal record, ability to procreate,

parenting skills, or the potential future outcomes of

their children before issuing a marriage license.

County clerks may only evaluate the age and residency

of the license applicants and whether either of the

applicants is currently married.

DeBoer v. Snyder, 973 F. Supp. 2d 757, 764 (E.D. Mich. 2014).

54 See supra note 52 and accompanying text.

55 It would also be unconstitutional to limit marriage in

this way. As this Court long ago recognized in Zablocki v.

a it is impermissible to condition the right to marry on

the adequate performance of parental responsibilities. 434

U.S. 374, 386, 388-89 (1978) (unconstitutional to condition

marriage on payment of outstanding child support).

their parental fitness. A desire to mark the relation-

ships and parenting abilities of same-sex couples as

less worthy of respect is an impermissible interest,

under any standard of constitutional review. Wind-

sor, 133 S. Ct. at 2695-96. Accordingly, it is hardly

surprising that the Court of Appeals in this case and

courts throughout the country have overwhelmingly

rejected the optimal parenting argument, recognizing

that “the capacity to raise children ... turns not on

sexual orientation but on individual choices and in-

dividual commitment.” DeBoer v. Snyder, 772 F.3d

388, 405 (6th Cir. 2014).

2. States cannot enforce gender-based

parental norms.

Beyond its inconsistency with state family laws,

any effort to enforce gender-based roles in marriage

or parenting would be unconstitutional. The ban de-

fenders’ claims about the “unique relational roles”

that men and women play in the development of

their children, including that women are better at

“nurturing,” while fathers are more “task-oriented,”

see supra p. 18, are precisely the type of “overbroad

generalization[s] about the different talents, capaci-

56 See, e.g., Wolf v. Walker, 766 F.3d 648, 667 (7th Cir.

2014); Latta, 771 F.3d at 476; Bostic v. Schaefer, 760 F.3d 352,

384 (4th Cir. 2013); DeBoer v. Snyder, 973 F. Supp. 2d 757, 770

(E.D. Mich. 2014) (noting that over 150 sociological and

psychological studies have repeatedly confirmed that there is

no scientific basis to differentiate between children raised in

same-sex versus heterosexual households); Perry v.

Schwarzenegger, 704 F. Supp. 2d 921, 980 (N.D. Cal. 2010),

reinstated in Hollingsworth v. Perry, 133 S. Ct. 2652 (2013).

ties, or preferences of males and females” that the

Constitution prohibits, United States v. Virginia, 518

U.S. 515, 533 (1996), even when the generalization

“is not entirely without empirical support,” Wein-

berger v. Wiesenfeld, 420 U.S. 636, 645 (1975). See,

e.g., Kirchberg v. Feenstra, 450 U.S. 455 (1981) (in-

validating state law that gave husbands the unilat-

eral right to dispose of jointly owned community

property without wives’ consent); Weinberger, 420

U.S. at 652 (“a father, no less than a mother, has a

constitutionally protected right to the [custody and

care]” of their children); Orr, 440 U.S. at 279-280 (re-

jecting state alimony statutes that used “sex as a

proxy for need” in order to announce “the State’s

preference for an allocation of family responsibilities

under which the wife plays a dependent role.”); Cali-

fano v. Goldfarb, 430 U.S. 199, 205, 207 (1977) (in-

validating Social Security provisions premised on the

“archaic and overbroad” generalizations that “wives

in our society frequently are dependent upon their

husbands, while husbands rarely are dependent up-

on their wives”); Frontiero v. Richardson, 411 U.S.

677 (1973) (military benefits for service member's

dependents must be calculated the same for men and

women).*7

This Court has also invalidated sex-specific dis-

tinctions in state parentage laws. See, e.g. Stanley v.

Illinois, 405 U.S. 645, 653, 657 (1972) (striking down

state law that conclusively presumed that all un-

married fathers were “unqualified to raise their chil-

57 Cf. Palmore v. Sidoti, 466 U.S. 429, 433 (1984) (holding

that “private biases and the possible injury they might inflict”

are not permissible considerations in a custody dispute).

dren”); Caban v. Mohammed, 441 U.S. 380, 389

(1979) (rejecting the claim that “any universal dif-

ference between maternal and paternal relations at

every phase of a child’s development” justified sex-

based distinctions in adoption laws). Other courts

have similarly ruled. Accord Ex parte Devine, 398

So. 2d 686, 695-96 (Ala. 1981) (“[T]he tender years

presumption represents an unconstitutional gender-

based classification which discriminates between fa-

thers and mothers in child custody proceedings sole-

ly on the basis of sex.”).

Any state effort to ensure that children will be

socialized into gender roles that are allegedly appro-

priate for their biological sex would also be imper-

missible. See Stanton v. Stanton, 421 U.S. 7, 14-15

(1975) (“A child, male or female, is still a child. No

longer is the female destined solely for the home and

the rearing of the family, and only the male for the

marketplace and the world of ideas.”); see also Miss.

Univ. for Women v. Hogan, 458 U.S. 718, 729 (1982)

(rejecting “outmoded assumptions” that only women

should be nurses). In addition, the powerful com-

mon-law traditions—bolstered by constitutional de-

cisions—that protect the rights of parents to control

the care and socialization of their children prohibit

states from requiring parents to parent in an “opti-

mal” way. See Pierce v. Soc’y of Sisters, 268 U.S.

510, 534-35 (1925); Meyer v. Nebraska, 262 U.S. 290,

399 (1923); Troxel v. Granville, 530 U.S. 57, 72-73

(2000).

IV. State Family Laws Recognize That It Is

Impermissible To Punish Children To

Influence The Behavior Of Adults.

As family law scholars, Amici are committed to

ensuring the well-being of all children. The mar-

riage bans, by design and operation, violate the basic

tenet of family law that all children should be treat-

ed with equal dignity regardless of who their parents

are. The bans deprive children of same-sex couples

of the potentially stabilizing effects of marriage, in-

cluding important governmental benefits and the

feeling of self-worth that comes from knowing that

their parents’ relationship is equally worthy of

“recognition, dignity, and protection.” Windsor, 133

S.Ct. at 2692.

As explained in Brief of Petitioners at 50, Tanco

v. Haslam (No. 14-562), it is utterly implausible to

believe that barring same-sex couples and their chil-

dren from marriage improves the well-being of chil-

dren raised by different-sex couples. But even if

such laws achieved some social good, punishing in-

nocent children is an impermissible and unconstitu-

tional means of trying to influence the behavior of

adults. It is also contrary to the basic goals of every

state’s family laws.

A. State laws reflect that it is

impermissible to punish children to

influence parental behavior.

Historically, state parentage laws saddled the

children of unwed parents with the demeaning label

“illegitimate” and denied these children important

rights in an effort to encourage childrearing within

marriage. See Weber v. Aetna Cas. & Sur. Co., 406

U.S. 164, 175 (1972) (“The status of illegitimacy has

expressed through the ages society's condemnation of

irresponsible liaisons beyond the bonds of mar-

riage.”); Melissa Murray, Marriage As Punishment,

112 Colum. L. Rev. 1, 33 n.165 (2012) (marriage was

offered as a way to lead unwed mothers away “from

vice towards the path of virtue”). These laws denied

nonmarital children the right to a relationship with

and support from their fathers, intestate succession,

and compensation for their parents’ wrongful death

or injury solely because of the circumstances of their

birth. See Trimble v. Gordon, 430 U.S. 762, 768

(1977) (recognizing “harsh common-law rule under

which an illegitimate child was filius nullius”).

Since the late 1960s, however, this Court has

recognized that “imposing disabilities on the illegit-

imate child is contrary to the basic concept of our

system that legal burdens should bear some rela-

tionship to individual responsibility or wrongdoing.”

Weber, 406 U.S. at 175. Because “no child is respon-

sible for his birth ... penalizing the illegitimate child

is ... an unjust[] way of deterring the parent.” Id.;

see also Levy v. Louisiana, 391 U.S. 68, 71 (1968)

(“Why should the illegitimate child be denied rights

merely because of his birth out of wedlock?”).

Consistent with this directive, state family laws

no longer support the proposition that it is permissi-

ble to deny critical benefits and security to nonmari-

tal children in order to influence parents to procreate

within marriage or to provide more benefits and se-

curity to the children of married couples. States now

recognize that children of unmarried parents are en-

titled to the same rights as children born to married

parents.** Children born to unmarried parents have

the same inheritance rights as children born to mar-

ried parents when paternity has been established.*?

In custody disputes, state courts consider the same

factors for determining the best interests of nonmar-

ital and marital children. And states impose child

support and other parental obligations on all parents

regardless of their marital status.®!

B. The marriage bans punish children

raised by same-sex couples.

The marriage bans function in a way that is re-

markably similar to the now-repudiated laws that

58 See, e.g., Unif. Parentage Act § 202 (2001 & Supp. 2010)

(“A child born to parents who are not married to each other has

the same rights under the law as a child born to parents who

are married to each other.”); Ohio Rev. Code § 3111.01(B) (‘the

parent and child relationship extends equally to all children

and all parents, regardless of the marital status of the

parents”); Tenn. Code Ann. § 36-2-316.

59 See Unif. Parentage Act § 202; Ky. Rev. Stat. § 391.105;

Mich. Comp. Laws § 700.2114; Ohio Rev. Code § 3111.01; Tenn.

Code Ann. § 36-2-316.

® See, e.g., Basham v. Wilkins, 851 S.W.2d 491 (Ky. Ct.

App. 1993) (though Kentucky hasn’t adopted the UPA, the

“best interests of the child’ standard applies in determining

custody of children born out of wedlock and gone is our

preference for the mother of the illegitimate child”); Mich.

Comp. Laws § 722.21 et seq.; Ohio Rev. Code § 2151.231; S. Ry.

Co. v. Sanders, 246 S.W.2d 65, 66 (Tenn. 1952) (statutes

regarding rights of nonmarital children were enacted “solely for

the purpose of fixing the status of natural children”).

61 See Gomez v. Perez, 409 U.S. 535 (1973) (denying

nonmarital children the opportunity to obtain paternal support

violates equal protection).

stigmatized and denied legal and economic protec-

tions to children born out-of-wedlock.

The bans harm the children of same-sex couples

by denying their families access to hundreds of state

and federal benefits that may be conducive to provid-

ing stable and secure environments for raising chil-

dren. The plight of the DeBoer plaintiffs, who have

been unable to jointly adopt their children, clearly

illustrates these harms. Because, like a number of

states, Michigan prohibits joint adoption unless a

couple is married,®? and Ohio and Kentucky limit

stepparent adoptions to married couples, ® these

states deny children of same-sex couples all the ben-

efits that follow from a legal parental relationship:

the right to have medical decisions made by both

parents,® the right to child support from both par-

ents,®5 the right to inheritance and Social Security

benefits,“ and the right to bring a wrongful death

suit to name but a few.®’

Moreover, the bans deny children of same-sex

couples the same stable family structure that the

62 Mich. Comp. Laws §§ 710.24(1)-(2).

68 Ky. Rev. Stat. § 199.470(2); Ohio Rev. Code

§§ 3107.03(D)(1).

64 See, e.g., Ky. Rev. Stat. § 311.631; Tenn. Code Ann.

§§ 36-6-101, 36-6-103.

85 See, e.g., Ky. Rev. Stat. 405.020; Tenn. Code Ann. § 36-5-

101.

8 See, e.g., Ky. Rev. Stat. § 391.010 et seq.; Mich. Comp.

Laws §§ 700.2103; Ohio 2105.06 (until 3/23/15); Tenn. 31-2-105.

87 See, e.g., Ky. Rev. Stat. § 411.130; Mich. Comp. Laws

§ 600.2922; Ohio Rev. Code § 2125.02; Tenn. Code Ann. § 20-5-

106.

states themselves assert to justify the ban. The bans

categorically exclude children of same-sex couples

from the rights and protections intended to promote

the security of families and assist them in times of

crisis. Because all children and adolescents do bet-

ter psychologically when their parents are emotion-

ally secure and supported, the categorical exclusion

of same-sex couples from marriage and its protec-

tions deprives children of same-sex couples of these

stabilizing forces. Indeed, Michigan recognized as

much in the proceedings below when it conceded

that “extending the boundaries of marriage (for ex-

ample, to same-sex couples) might give some chil-

dren being raised in those arrangements more stabil-

ity.” Brief for Michigan Defendants-Appellants at

46, DeBoer v. Snyder, 772 F.3d 388 (No. 14-1341)

(6th Cir. 2014).

The marriage bans are an official statement

“that the family relationship of same-sex couples is

not of comparable stature or equal dignity” to that of

married couples. In re Marriage Cases, 183 P.3d

384, 452 (Cal. 2008). This stigma leads children to

understand that the state considers their gay and

lesbian parents to be unworthy of participating in

the institution of marriage and devalues their fami-

lies compared to families headed by married hetero-

sexuals. Goodridge v. Dep’t of Pub. Health, 798

N.E.2d 941, 963 (Mass. 2003). The bans implicitly

and inherently signal to children that the state

thinks their families are inferior.

Whether defended as an effort to increase pro-

creation, encourage biological, “gender-

differentiated” parenting, or to foster stable envi-

ronments for children, the marriage bans all have

the same effect: They deprive children of benefits in

order to influence the behavior of others. This Court

declared such policies “unjust” in the illegitimacy

cases. Weber, 406 U.S. at 175. It should likewise

recognize the unjust effects the marriage bans have

on same-sex couples and their children.

CONCLUSION

Amici ask that this Court reverse the Sixth Cir-

cuit’s decisions in the above-captioned actions.

Respectfully submitted,

Joan Heifetz Hollinger E. Joshua Rosenkranz

UC BERKELEY SCHOOL OF Counsel of Record

LAW Mark S. Davies

Berkeley, CA 94720 Jeremy Peterman

ORRICK, HERRINGTON &

Courtney Joslin SUTCLIFFE LLP

UC DAvis SCHOOL OF 51 West 52nd Street

LAW New York, NY 10019

400 Mrak Hall Drive (212) 506-5000

Davis, CA 95616 jrosenkranz@orrick.com

Date: March 6, 2015

APPENDIX A!

SARAH JAMIE R. ABRAMS

ABRAMOWICZ Associate Professor of

Associate Professor of Law

Law University of Louisville

Wayne State University

Louis D. Brandeis

Law School School of Law

KERRY ABRAMS EREZ ALONI

Professor of Law Assistant Professor of

University of Virginia Law

School of Law Whittier Law School

RALPH RICHARD ELIZABETH

BANKS BARTHOLET

Jackson Eli Reynolds Morris Wasserstein

Professor of Law Professor of Law

Stanford Law School Faculty Director, Child

Advocacy Program

Harvard Law School

MARIANNE BLAIR GRACE GANZ

Professor of Law BLUMBERG

University of Tulsa Distinguished Professor

College of Law of Law Emerita

UCLA School of Law

1 University affiliation of the professors is given for

identification purposes only, and implies no endorsement by

the universities.

MICHAEL BOUCAI

Associate Professor of

Law

SUNY Buffalo Law

School

KATHRYN WEBB

BRADLEY

Professor of the Practice

of Law

Duke Law School

ROBERT A. BURT

Alexander M. Bickel

Professor of Law

Yale University Law

School

PATRICIA A. CAIN

Professor of Law

Santa Clara University

Aliber Family Chair in

Law Emerita

University of lowa

JOHN CULHANE

Distinguished Professor

of Law

Co-Director, Family

Health Law & Policy

Institute

Widener University

School of Law—

Delaware

CYNTHIA GRANT

BOWMAN

Professor of Law

Cornell Law School

TONYA L. BRITO

Burrus-Bascom

Professor of Law

University of Wisconsin

Law School

NAOMI R. CAHN

Harold H. Greene

Professor of Law

George Washington

University Law School

DAVID L.

CHAMBERS

Wade H. McCree Jr.

Collegiate Professor of

Law Emeritus

University of Michigan

Law School

KAREN CZAPANSKTY

Francis & Harriet

Iglehart

Research Professor of

Law

University of Maryland

Carey School of Law

ANNE C. DAILEY

Evangeline Starr

Professor of Law

University of

Connecticut School of

Law

DR. JENNIFER A.

DROBAC

Professor of Law

Indiana University

Robert H. McKinney

School of Law

IRA MARK ELLMAN

Charles J. Merriam

Distinguished Professor

of Law and

Affiliate Professor of

Psychology

Arizona State University

Sandra Day O’Connor

College of Law

NANCY E. DOWD

David H. Levin Chair in

Family Law

Director, Center on

Children & Families

University of Florida,

Levin College of Law

DONALD N.

DUQUETTE

Clinical Professor of

Law

Child Advocacy Clinic

University of Michigan

Law School

LINDA HENRY

ELROD

Richard S. Righer

Distinguished Professor

of Law

Director, Washburn Law

School Children and

Family Law Center

Washburn University

School of Law

MARTHA M. ERTMAN

Carole & Hanan

Research Professor of

Law

University of Maryland

Law School

ZANITA E. FENTON

Professor of Law

University of Miami

School of Law

CYNTHIA GODSOE

Assistant Professor of

Law

Brooklyn Law School

MARTIN

GUGGENHEIM

Fiorello LaGuardia

Professor of Clinical Law

New York University

School of Law

KATHERINE HUNT

FEDERLE

Joseph S. Platt-Porter

Wright Morris & Arthur

Professor of Law

Director, Center for

Interdisciplinary Law &

Policy Studies

The Ohio State

University

Michael E. Moritz

College of Law

DEBORAH L.

FORMAN

Professor of Law

J. Allan Cook & Mary

Schalling Cook

Children’s Law Scholar

Whittier Law School

LOUISE GRAHAM

Wendell Ford Professor

of Law

University of Kentucky

College of Law

VIVIAN HAMILTON

Cabell Research

Professor of Law

William & Mary Law

School

MEREDITH

HARBACH

Associate Professor of

Law

University of Richmond

KARI E. HONG

Assistant Professor of

Law

Boston College Law

School

LISA C. IKEMOTO

Professor and Martin

Luther King, Jr.

Research Scholar

University of California,

Davis School of Law

JOAN HEIFETZ

HOLLINGER

John and Elizabeth

Boalt

Lecturer-in-Residence

Emerita

Senior Scholar,

Henderson Social

Justice Center &

Center for Reproductive

Rights

University of California,

Berkeley School of Law

CLARE

HUNTINGTON

Professor of Law

Fordham University

School of Law

MELANIE B. JACOBS

Associate Dean for

Graduate

and International

Programs and

Professor of Law

Michigan State

University College of

Law

COURTNEY G.

JOSLIN

Professor of Law

University of California,

Davis School of Law

LAURA T. KESSLER

Professor of Law

University of Utah

S.J. Quinney College of

Law

MAYA MANIAN

Professor of Law

University of San

Francisco Schoo] of Law

KAIPONANEA

MATSUMURA

Associate Professor of

Law

Arizona State University

Sandra Day O’Connor

College of Law

ALICIA B. KELLY

Distinguished Professor

of Law,

Co-Director, Family

Health Law & Policy

Institute

Widener Delaware Law

School

HOLNING LAU

Professor of Law

University of North

Carolina School of Law

MARY ANN MASON

Professor and Co-

Director, Center for

Health, Economics &

Family Security

University of California,

Berkeley School of Law

NANCY G. MAXWELL

Professor of Law

Washburn University

School of Law

LINDA C. MCCLAIN

Professor of Law

Paul M. Siskind

Research Scholar

Boston University School

of Law

MARTHA MINOW

Professor of Law

Harvard Law School

DOUGLAS NEJAIME

Professor of Law

University of California,

Irvine School of Law

LAURA OREN

Professor of Law

Emerita

University of Houston

Law Center

CLIFFORD J. ROSKY

Professor of Law

University of Utah

S.J. Quinney College of

Law

JENNIFER B.

MERTUS

Professor of Law

Director, Center for

Children’s Rights

Whittier Law School

MELISSA MURRAY

Professor of Law

University of California,

Berkeley School of Law

ANGELA

ONWUACHI-WILLIG

Charles M. & Marion J.

Kierscht Professor of

Law

University of Iowa

College of Law

DARA E, PURVIS

Assistant Professor of

Law

Penn State University

Dickinson School of Law

CATHERINE J. ROSS

Professor of Law

George Washington

University Law School

JOHN J. SAMPSON

William Benjamin

Wynne Professor

University of Texas

School of Law

Reporter, Uniform

Parentage Act &

Interstate Family

Support Act

REBECCA L. SCHARF

Associate Professor of

Law

University of Nevada,

Las Vegas

William S. Boyd School

of Law

JULIE SHAPIRO

Professor of Law

Faculty Fellow, Fred

T. Korematsu Center for

Law and Equality

Seattle University

School of Law

JANA SINGER

Professor of Law

University of Maryland

Francis King Carey

School of Law

SUELLYN

SCARNECCHIA

Clinical Professor of

Law

University of Michigan

Law School

ELIZABETH S.

SCOTT

Harold R. Medina

Professor of Law

Columbia Law School

KATHARINE

SILBAUGH

Professor of Law and

Law Alumni Scholar

Boston University

School of Law

EDWARD STEIN

Professor of Law and

Director, Gertrud

Mainzer Program in

Family Law, Policy, and

Bioethics

Yeshiva University

Cardozo School of Law

MARK STRASSER

Trustees Professor of

Law

Capital University Law

School

FRANK E.

VANDERVORT

Clinical Professor of Law

Child Advocacy Law

Clinic

University of Michigan

School of Law

MONICA HOF

WALLACE

Dean Marcel Garsaud,

Jr. Distinguished

Professor

Loyola University New

Orleans College of Law

LOIS A. WEITHORN

Professor of Law

University of California

Hastings College of the

Law

HARRY L. TINDALL

Tindall England PC

Chair, Uniform

Parentage Act Drafting

Committee

MICHAEL S. WALD

Jackson Eli Reynolds

Professor of Law

Emeritus

Stanford Law School

D. KELLY WEISBERG

Professor of Law

University of California

Hastings College of the

Law

DEBORAH WIDISS

Associate Professor of

Law

Indiana University

Maurer School of Law

10a

WENDY W. WILLIAMS BARBARA BENNETT

Professor, Emerita

WOODHOUSE

Georgetown University L. Q. C. Lamar

Law Center

Professor of Law and

Director of the Child

Rights Project

Emory University

School of Law

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.