Amicus Curiae Brief — Obergefell v. Hodges

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

FOUNDATION FOR MORAL LAW

IN SUPPORT OF RESPONDENTS

JOHN A. EIDSMOE

Counsel of Record

FOUNDATION FOR MORAL LAW

One Dexter Avenue

Montgomery, AL 36104

(334) 262-1245

eidsmoeja@juno.com

Counsel for Amicus Curiae

WALSOn-EPES Pruning Co., inc. — (202) 789-0086 — WASHINGTON, D.C. 20002,

QUESTION PRESENTED

Whether the Fourteenth Amendment to the United

States Constitution prohibits a state from defining or

recognizing marriage only as the legal union between

a man and a woman.

(i)

TABLE OF CONTENTS

QUESTION PRESENTED ......................:0ceceee00e-

TABLE OF AUTHORITIES .................ccc-ssecceseees

STATEMENT OF IDENTITY AND INTER-

ESTS OF AMICUS CURIAE ..................cccce0000

SUMMARY OF ARGUMENT .........00000000.0..0........

I. THE CONSTITUTIONALITY OF MAR-

RIAGE LAWS SHOULD BE DETER-

MINED BY THE TEXT OF THE

CONSTITUTION, THE SUPREME LAW

ll. STATE LAWS AND CONSTITU-

TIONAL PROVISIONS WHICH DE-

FINE MARRIAGE AS A UNION OF

ONE MAN AND ONE WOMAN DO

NOT VIOLATE THE PRIVILEGES

AND IMMUNITIES CLAUSE, THE

DUE PROCESS CLAUSE, OR THE

EQUAL PROTECTION CLAUSE OF

THE FOURTEENTH AMENDMENT,

AS INTERPRETED BY THIS COURT IN

LAWRENCE V. TEXAS AND UNITED

A. “All men are created equal” and as

either male or female ..........................

(ii)

iv

TABLE OF CONTENTS—Continued

B. Rightly or wrongly, homosexual con-

duct was, at least until recently,

strongly disapproved in most cultures

and in Anglo-American law, and opin-

ion remains sharply divided today .....

C. Same-sex “marriage” was inconceiva-

ble in Anglo-American common law ...

Ill. BECAUSE OF THIS HISTORY, THE

JUDICIARY SHOULD EXERCISE

RESTRAINT AND NOT MAKE SAME-

SEX MARRIAGE A CONSTITUTION-

ALLY-MANDATED RIGHT......................

IED ceccevenesccsennasnsinenesesrmenensmennnns

Page

14

17

20

30

Vv

TABLE OF AUTHORITIES

CASES Page(s)

Adams v. Palmer,

Ta a 19

Borman v. Pyles-Borman,

No. 2014-CV-36 (Cir. Ct. Roane County,

Tenn., August 5, 2014).....................eses00e-- 29

Bowers v. Hardwick,

i ee 4,16

Brown et al. v. Herbert et. al,

No. 2:11-cv-00652-CW

a 29

District of Columbia v. Heller,

554 U.S. 570, 128 S. Ct. 2783 (2008)........ 7

Ex parte State of Alabama ex rel. Ala.

Policy Institute, Ala. Citizens Action

Program, and John E. Enslen, in his

official capacity as Judge of Probate

for Elmore County,

Case No. 1140460 (March 3, 2015)........... 4

Gibbons v. Ogden,

i a cn ane aceaieiats 7

Graves v. O’Keefe,

ee Sy Ge I ccccncenesccnsteccnsscszcsessonense 30

Hard v. Bentley,

Civ. Action

No. 2-13-cv-00922-WKW-SRW (2013)...... 2

Holmes v. Jennison,

39 U.S. (14 Peters) 540 (1840)..........0....... 7

In re Burris,

Be Cs Ge Ce Pereccccscecscssccensenessessesovens 3,9

vi

TABLE OF AUTHORITIES—Continued

Page(s)

Jacobson v. Massachusetts,

gg on 28

Lake County v. Rollins,

130 U.S. 662 (1889)....................... itil 6

Lawrence v. Texas,

ee Cs Ge GE ecccnccecceneerencccssensoesosonns passim

Loving v. Virginia,

RSE 21

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) .................... 6, 8

Maynard v. Hill,

Ls ee 19

McCreary County, Ky. v. ACLU of Kentucky,

Se Cy Ge SP ecceveccoccsseccscnssesssvessencese 8

McCulloch v. Maryland,

17 U.S. (4 Wheat.) 316 (1819)................... 2

Murphy v. Ramsey,

LE EE ee 9

Planned Parenthood of Southeastern Pa. v.

Casey,

Be ee Ce EE nntinenenantcnncssscsemsusonstnness 3

South Carolina v. United States,

Ce GN Ge tencenenscscessesevseteccsecersess 7

United States v. Sprague,

gg FR ee 7

United States v. Windsor,

BES BD. Cd. BOTS GHBRS)....nccccvcvccccescccescseseccss passim

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Washington v. Glucksberg,

Re 22

CONSTITUTION

is GD, GRRE, IT ccccccecescscccscecsensecscsees 11, 16

eer 3, 5, 6, 8

STATUTES

Defense of Marriage Act, 1 U.S.C. § 7......... 3,9

Ala. Amendment 774, Ala. Sanctity of

Marriage Amendment (2006) ................... 2

Justinian Code (IX.9.31) .................cccecceeeeee 14

Theodosian Code (TX.7.6) ....................cc000005 14

OTHER AUTHORITIES

Alexander Hamilton, The Farmer Refuted

ITT, TUE ci cosctnctsininesenenmectneiasnene 12

Allen D High school graduation rates

among children of same-sex households.

Rev Econ Househ. 11(4):635-58 (2013) .... 26

Carle C. Zimmerman, Family and

Civilization (New York: Harper 1947;

Wilmington: ISI Books 2007) ................... 24

D. Paul Sullins, Emotional problems among

children with same-sex parents: differ-

ence by definition, Brit. J. of Ed., Soc. &

Behav. Sci. 7(2):99-120 (2015), available

at http://www.sciencedomain.org/abstr

act.php?id=21&aid=8172.......................... 26

Declaration of Independence (1776) ............ 12,13

vill

TABLE OF AUTHORITIES—Continued

Page(s)

Documentary History of the Supreme Court

of the United States, 1789-1800 (Maeva

Marcus, ed., Columbus University Press

uit cctniinnnsdcdndutindanemescedebenpiiiiatinatinnms

Eran Shalev, American Zion: The Old

Testament as a Political text from the

Revolution to the Civil War (New Haven:

Yale University Press 2013).....................

Harlow Giles Unger, Noah Webster: The

Life and Times of an American Patriot

(John Wiley & Sons 1998) ........................

Hebrew and the Bible in America: The

First Two Centuries, Shalom Goldman,

ed. (Hanover: University Press of New

BS SII cctcinstndnctnstarinanrenidtinannnieniennsian

J.D. Unwin, Sex and Culture (London:

Oxford University Press 1934).................

James Iredell, Claypool’s American Daily

Advisor, April 11, 1799 (Philadelphia).....

James Madison, The Federalist No. 62

(George W. Carey & James McClellan

SINT sc cicsicdcnenanciainendiiensindoanbentpiaabaies

James Madison, Letter to Henry Lee (June

25, 1824), in Selections from the Private

Correspondence of James Madison from

1813-1836 (J.C. McGuire ed., 1853).........

James Madison, Letter to Thomas Ritchie,

September 15, 1821, in 3 Letters and

Other Writings of James Madison (Philip

Be es Olid, Ce actcscdeancnscniecesicsscsinecss

15

13

18

23-24

ix

TABLE OF AUTHORITIES—Continued

Page(s)

John Eidsmoe, Christianity and the Consti-

tution: The Faith of Our Founding

Fathers (Grand Rapids: Baker Book

0 San ee 14

John Eidsmoe, Historical and Theological

Foundations of Law (American Vision/Tolle

Eb ciceccntnnnacubsnenedcenincnvemecnsemetninenss 13-14

Joseph Story, Commentaries on the Conflict

of Laws Foreign and Domestic (3d ed.

Su iiciedinslahnstihesiadaetaiphadibiiniaiaiasdisia nia tdinsiee nt 18, 19

Michael Novak, On Two Wings: Humble

Faith and Common Sense at _ the

American Founding (San _ Francisco:

Encounter Books 2002)....................c.00.000: 13

Noah Webster, American Dictionary of

the English Language (Foundation for

American Christian Educ. 2002) (1828) .. 18

Paul Cameron, et al., Gay Marriage

Against Children’s Interests, Family

Research Institute (2015) ................... 25, 26, 27

Raymond B. Marcin, Natural Law, Homo-

sexual Conduct, and the Public Policy

Exception, 32 Creighton L. Rev. 67

SETI iaiiintsntidiaibiedimaiianiaiannaamdiivahnamimaeaibateinadiiies 15

Reminiscences of Abraham Lincoln by

Distinguished Men of His Time, ed. Allen

Thorndyke Rice (New York: Harper &

Brothers Publishers, 1909)....................... 21

x

TABLE OF AUTHORITIES—Continued

Page(s)

Robert P. George, Law and Moral Purpose,

First Things (January 2008), http://Awww.

firstthings.com/article/2008/0 1/001-law-

and-moral-purpose (last visited April 1,

stiches lcm innit 20

Sherif Girgis, Robert P. George & Ryan T.

Anderson, What is Marriage?, 34 Harv.

J.L. & Pub. Pol’y 245 (2011)..................... 20

The Holy Bible (King James):

I I ai inci liana teil oc nesinntngnidiendihiadaeneds 13

TI icin tile dccetediilieneeniaieibiipaai 13

I icici catalihailieineneainnilabdaie 14

SUI TTT inisiniccaniitccetemteidininaiiniidiginniananiitandiaiie 13

Ee 14

Thomas Aquinas, 4 Summa Theologica,

Secunda Secundae, Quest. 154, Art. 11

(Benziger Bros. Press 1947) ..................... 14

Vern L. Bullough, Homosexuality: A

History (New American Library 1979)..... 15

1 William Blackstone, Commentaries on

the Laws of England (1765).......... 12, 15, 17, 18

STATEMENT OF IDENTITY AND

INTERESTS OF AMICUS CURIAE,

FOUNDATION FOR MORAL LAW'

Amicus Curiae Foundation for Moral Law (the

Foundation), is a national public-interest organization

based in Montgomery, Alabama, dedicated to defend-

ing the unalienable right to acknowledge God as

the moral foundation of our laws; promoting a return

to the historic and original interpretation of the

United States Constitution; and educating citizens

and government officials about the Constitution and

the Godly foundation of this country’s laws and

justice system. To those ends, the Foundation has

filed amicus briefs in cases concerning the right of

counseling students to disapprove of homosexuality,

public display of the Ten Commandments, the

recitation of the Pledge of Allegiance and prayer,

partial-birth abortion and others.

The Foundation has an interest in this case because

it believes that this nation’s laws should reflect the

moral basis upon which the nation was founded, and

that the ancient roots of the common law, the pro-

nouncements of the legal philosophers from whom

this nation’s Founders derived their view of law, the

’ Pursuant to this Court’s rule 37.3, all respondents have given

blanket consent to the filing of this brief, and all appellants have

specifically consented to the filing of this brief. Further, pursuant

to Rule 37.6, these amici curiae state that no counsel for any

party authored this brief in whole or in part, and no party and no

counsel for a party made any monetary contribution intended to

fund the preparation or submission of this brief. No party’s

counsel authored this brief in whole or in part; no party or party’s

counsel contributed money that was intended to fund preparing

or submitting this brief; and no person other than the amicus

curiae, its members, or its counsel, contributed money that was

intended to fund preparing or submitting this brief.

2

views of the Founders themselves, and the views of

the American people as a whole from the beginning

of American history at least until very recently, have

held that homosexual conduct is immoral and should

not be sanctioned by giving it the official state sanction

of marriage.

The Foundation is interested in this case because

a similar lawsuit has been filed challenging

Ala. Amendment 774, Ala. Sanctity of Marriage

Amendment (2006), which was approved by Alabama

voters 81% - 19% in 2006. David Fancher, an Alabama

resident who was in a same-sex relationship with

Paul Hard, died in a vehicle accident August 1, 2011.

Hard has sued the State of Alabama, arguing

that Alabama’s Sanctity of Marriage Amendment is

unconstitutional and that he is therefore the lawful

spouse of David Fancher and is entitled to one-half of

Fancher’s estate. The mother of David Fancher does

not want her son’s name used to advance the cause

of same-sex marriage, and she has retained the

Foundation for Moral Law to represent her interests.

The federal district court has granted her motion to

intervene, and the decision of this Court concerning

the Sixth Circuit cases will very likely affect the

outcome of our Alabama case.

The State of Alabama, Mr. Hard, and Ms. Fancher

have all filed separate motions for summary judgment

which are pending before the District Court. See Hard

v. Bentley, Civ. Action No. 2-13-cv-00922-WKW-SRW

(2013).

SUMMARY OF ARGUMENT

As Chief Justice John Marshall wrote for this Court

in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407

(1819), “We must never forget, that it is a constitution

we are expounding.” Amicus urges this Court to apply

3

the first principles of constitutional law in this case

and to embrace the plain and original text of the

Constitution, the supreme law of the land. U.S. Const.

art. VI.

The Sixth Circuit ruling is consistent with this

Court’s ruling in United States v. Windsor, 123 S. Ct.

2675 (2013). In that case, this Court struck down

several provisions of the federal Defense of Marriage

Act (DOMA), 1 U.S.C. § 7, declaring that “[t]he whole

subject of the domestic relations of husband and wife,

parent and child, belongs to the laws of the states, and

not to the laws of the United States.” Windsor, 2691

(quoting In re Burris, 136 U.S. 586, 593-94 (1890)).

The supreme irony of this case is that the proponents

of same-sex marriage law have been now using this

very decision (Windsor) to persuade the federal courts

to strike down numerous state marriage laws and

force the states to adopt a marriage policy favored by

certain federal judges. If Windsor is to have any status

in its own right as an exposition of constitutional law

rather than merely a milestone on the journey toward

forcing same-sex marriage upon all fifty states, this

Court should affirm the Sixth Circuit decision and

explain the true meaning of Windsor.

This Court can uphold the marriage laws of the

states in the Sixth Circuit without contradicting this

Court’s ruling in Windsor. This Court can recognize

what Justice Kennedy in Lawrence v. Texas, called

“choices central to personal dignity and autonomy”

and “the right to define one’s own concept of existence,

of meaning, of the universe, and of the mystery of

human life.” Lawrence at 574, quoting Planned

Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833,

851 (1992), and at the same time recognize that

this right does not require strict or intermediate

4

scrutiny. This Court could conclude that there is,

as Justice Blackmun said in his Bowers v. Hardwick,

478 U.S. 186 (1986), dissent, “the right to be let alone,”

at 199, but that this general right to be let alone does

not merit strict or intermediate scrutiny except for a

few narrow areas of activity. Lawrence indeed decrim-

inalized homosexual conduct, but decriminalizing it is

a far cry from sanctioning same-sex relationships by

giving them the honored status of marriage.

This Court should be most reluctant to give height-

ened scrutiny to the right to same-sex conduct, and

even more the right to same-sex marriage, because

that right would have been unthinkable to the over-

whelming majority of Americans, as well as to most

legal scholars and other professionals, only a few

decades ago, and the public and the professionals

are still sharply divided on this issue today. Some

believe constitutional interpretation should reflect

changing social mores. But if so, the change in social

mores should come from the people and work its way

upward through the local, state, and federals of

government through the elected representatives of

the people. Such changes should not be imposed from

the top down by the federal judiciary, especially in

the absence of a clear constitutional provision. As

the Alabama Supreme Court said in a per curiam

opinion in Ex parte State of Alabama ex rel. Alabama

Policy Institute, Ala. Citizens Action Program, and

John E. Enslen, in his official capacity as Judge of

Probate for Elmore County, Case No. 1140460, decided

(March 3, 2015) pp.16-17:

Thus it is for the stability and welfare of society,

for the general good of the public, that a proper

understanding and preservation of the institution

of marriage is critical. It is the people themselves,

5

not the government, who must go about the busi-

ness of working, playing, worshiping, and raising

children in whatever society, whatever culture,

whatever community is facilitated by the frame-

work of laws that these same people, directly and

through their representatives, choose for them-

selves. It is they, who on a daily basis must

interact with their fellow man and live out their

lives within that framework, who are the real

161140460 stakeholders in that framework and in

the preservation and execution of the institutions

and laws that form it. There is no institution

more fundamental to that framework than that

of marriage as properly understood throughout

history.

ARGUMENT

I. THE CONSTITUTIONALITY OF MAR-

RIAGE LAWS SHOULD BE DETERMINED

BY THE TEXT OF THE CONSTITUTION,

THE SUPREME LAW OF THE LAND.

Few if any current issues are as fraught with

emotion, as well as with sincere religious and moral

conviction, as homosexuality and same-sex marriage.

The American people, state and local governmental

entities, and state and federal courts are confused and

conflicted as to what they should do and what the

Constitution allows or requires them to do.

It is therefore vitally important that this Court

affirm the Sixth Circuit ruling and ensure that judicial

pronouncements reflect the Constitution rather than

emotion or ideological positions.

The Constitution itself and all federal laws pursuant

thereto are the “supreme Law of the Land.” US.

Const. art. VI. All judges take their oaths of office

6

to support the Constitution itself—not a person,

office, government body, or judicial opinion. Id. The

Constitution and the solemn oath thereto should con-

trol, above all other competing powers and influences,

the decisions of federal courts.

As Chief Justice John Marshall observed, the very

purpose of a written constitution is to ensure that

government officials, including judges, do not depart

from the document’s fundamental principles. “[I)t is

apparent that the framers of the constitution contem-

plated that instrument, as a rule of government of

courts . Why otherwise does it direct the judges

to take an oath to support it?” Marbury v. Madison,

5 U.S. (1 Cranch) 137, 179-80 (1803).

James Madison insisted that “[ajs a guide in

expounding and applying the provisions of the

Constitution . . . the legitimate meanings of the

Instrument must be derived from the text itself.”

Madison, Letter to Thomas Ritchie, September 15,

1821, in 3 Letters and Other Writings of James

Madison (Philip R. Fendall, ed., 1865). “The object of

construction, applied to a constitution, is to give effect

to the intent of its framers, and of the people

in adopting it. This intent is to be found in the

instrument itself.” Lake County v. Rollins, 130 U.S.

662, (1889). A textual reading of the Constitution,

according to Madison, requires “resorting to the sense

in which the Constitution was accepted and ratified

by the nation” because “[i]n that sense alone it is the

legitimate Constitution.” Madison, Letter to Henry

Lee (June 25, 1824), in Selections from the Private

Correspondence of James Madison from 1813-1836,

(J.C. McGuire ed., 1853).

As men whose intentions require no concealment,

generally employ the words which most directly

7

and aptly express the ideas they intend to

convey, the enlightened patriots who framed our

constitution, and the people who adopted it, must

be understood to have employed words in their

natural sense, and to have intended what they

have said.

Gibbons v. Ogden, 22 U.S. 1, 188 (1824). The words

of the Constitution are neither suggestive nor super-

fluous: “In expounding the Constitution . . . every word

must have its due force, and appropriate meaning; for

it is evident from the whole instrument, that no word

was unnecessarily used, or needlessly added.” Holmes

v. Jennison, 39 U.S. (14 Peters) 540, 570-71 (1840).

This Court affirmed this approach in South

Carolina v. United States, 199 U.S. 437, 448 (1905),

declaring that “The Constitution is a _ written

instrument. As such, its meaning does not alter. That

which it meant when it was adopted, it means now.”

The Court reaffirmed this approach in District of

Columbia v. Heller, 554 U.S.570, 128 S. Ct. 2783,

(2008):

[W]e are guided by the principle that “[t]he

Constitution was written to be understood by the

voters; its words and phrases were used in

their normal and ordinary as distinguished from

technical meaning.” United States v. Sprague,

282 U.S. 716, 731 (1931); see also Gibbons v.

Ogden, 9 Wheat. 1, 188 (1824).

The meaning of the Constitution is not the province

of only the most recent or most clever judges and

lawyers: “Constitutional rights are enshrined with the

scope they were understood to have when the people

adopted them.” Heller, 128 S. Ct. at 2821.

8

Moreover, if the Constitution as written is not a

fixed legal standard, then it is no constitution at all.

By adhering to court-created tests rather than the

legal text, federal judges turn constitutional decision-

making on its head, abandon their duty to decide

cases “agreeably to the constitution,” and instead

mechanically decide cases agreeably to judicial prece-

dent. Marbury, 5 U.S. at 180; see also, U.S. Const. art.

VI. James Madison observed in Federalist No. 62 that,

[ijt will be of little avail to the people, that the

laws are made by men of their own choice, if the

laws be so voluminous that they cannot be read,

or so incoherent that they cannot be understood;

if they be repealed or revised before they are

promulgated, or undergo such incessant changes,

that no man who knows what the law is today, can

guess what it will be tomorrow.

James Madison, The Federalist No. 62, at 323-24

(George W. Carey & James McClellan eds., 2001).

“What distinguishes the rule of law from the dictator-

ship of a shifting Supreme Court majority is the

absolutely indispensable requirement that judicial

opinions be grounded in consistently applied princi-

ple.” McCreary County, Ky. v. ACLU of Kentucky, 545

U.S. 844, 890-91 (2005) (Scalia, J., dissenting). The

constitutional text should be the basis for the judicial

analysis in this and all other cases.

This Court should affirm the Sixth Circuit ruling

to ensure that court rulings in this vital and contro-

versial issue are decided according to the Constitution

rather than according to emotion or individual ideolog-

ical preferences.

9

ll. STATE LAWS AND CONSTITUTIONAL

PROVISIONS WHICH DEFINE MAR-

RIAGE AS A UNION OF ONE MAN

AND ONE WOMAN DO NOT VIOLATE

THE PRIVILEGES AND IMMUNITIES

CLAUSE, THE DUE PROCESS CLAUSE,

OR THE EQUAL PROTECTION CLAUSE

OF THE FOURTEENTH AMENDMENT,

AS INTERPRETED BY THIS COURT

IN LAWRENCE V. TEXAS AND UNITED

STATES V. WINDSOR.

This Court held in Murphy v. Ramsey, 114 U.S. 15,

45 (1885):

Certainly no legislation can be supposed more

wholesome and necessary in the founding of a

free, self-governing commonwealth, fit to take

rank as one of the co-ordinate States of the Union,

than that which seeks to establish it on the basis

of the idea of the family, as consisting in and

springing from the union for life of one man and

one woman in the holy state of matrimony; the

sure foundation of all that is stable and noble in

our civilization; the best guaranty of that reverent

morality which is the source of all beneficent

progress in social and political improvement.”

(emphasis added)

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

continues this emphasis on states’ rights by striking

down several provisions of the federal Defense of

Marriage Act 1 U.S.C. § 7, declaring that “[t}he whole

subject of the domestic relations of husband and wife,

parent and child, belongs to the laws of the states, and

not to the laws of the United States.” Windsor, 2691

(quoting In re Burris, 136 U.S. 586, 593-94).

10

The supreme irony of this case is that proponents of

same-sex marriage are now using this very decision

(Windsor) to persuade the federal courts to strike

down state marriage laws and force the states to adopt

a marriage policy favored by some federal courts. If

Windsor is to have any status at all in its own right as

a constitutional decision rather than merely another

milestone on the journey toward forcing same-sex

marriage upon all fifty states, this Court should stand

on the language of Windsor, explain the true meaning

of Windsor, and affirm the ruling of the Sixth Circuit.

This Court can uphold the marriage laws of the

states in the Sixth Circuit while following Justice

Kennedy’s reasoning in Windsor. This Court can do so

by simply ruling that the regulation of marriage is a

matter traditionally left to the states, that the states’

same-sex marriage policies require only rational-basis

analysis, and that states have a rational basis for their

same-sex marriage policy.

Likewise, this Court can uphold state marriage

laws without overruling or modifying the Supreme

Court’s decision in Lawrence v. Texas, 539 U.S. 558

(2003). Although Lawrence is commonly cited as

legalizing homosexual activity, the decision is actually

much narrower than is commonly supposed. As the

Court said at 578,

The present case does not involve minors. It

does not involve persons who might be injured or

coerced or who are situated in relationships where

consent might not easily be refused. It does not

involve public conduct or prostitution. It does not

involve whether the government must give formal

recognition to any relationship that homosexual

persons seek to enter.

11

It would appear that the language of Windsor and

Lawrence was carefully crafted to preserve the option

to stop short of a full recognition of a right to same-sex

marriage. Saying, as the Court did in Lawrence, that

the state may not prohibit private homosexual

activities, is far different from saying that the state

must give such activities the official status and

recognition of marriage. Saying, as the Court did in

Windsor, that Congress may not impede states that

choose to legalize same-sex marriage, is far different

from saying all fifty states must adopt a uniform policy

of legalized same-sex marriage. And saying, as the

Court did in Lawrence, that one has “the right to

define one’s own concept of existence, of meaning, of

the universe, and of the mystery of human life,” and

concluding that this right includes the right to be left

alone to do whatever one wants to do, is far different

from saying this right is entitled to the heightened

protection of strict scrutiny or intermediate scrutiny.

Before taking such a revolutionary step, this Court

should consider the history and meaning of marriage,

the many state benefits associated with marriage,

the unique role of religion in marriage, and many

other factors. It is one thing to take a practice that

is nowhere mentioned in the Constitution or the Four-

teenth Amendment and that was strongly disapproved

at the time the Constitution was adopted and equally

disapproved when the Fourteenth Amendment was

adopted and extend to that practice constitutional

protection. It is far different to suddenly elevate that

practice to the status of a preferred constitutional

right and accord to it strict or intermediate scrutiny.

The role of the Court is to expound the Constitution,

not to expand the Constitution. Before taking such

a drastic and revolutionary step, the Court should

12

consider the nature of equal protection historically

through the present.

A. “All men are created equal” and as either

male or female.

An analysis of “equal protection” should at least

start with the foundation of the American concept

of created equality. The “birth certificate” of the

United States and the first document in our organic

law asserts the self-evident truth that “all men are

created equal, [and] that they are endowed by their

Creator with certain unalienable rights.” Declaration

of Independence (1776). These rights were recognized

by the Declaration, but they did not originate with it:

“The sacred rights of mankind are not to be ruammaged

for, among old parchments, or musty records. They are

written, as with a sun beam, in the whole volume of

human nature, by the hand of the divinity itself; and

can never be erased or obscured by mortal power.”

Alexander Hamilton, The Farmer Refuted, (February

23, 1775) (emphasis added). Such rights are natural,

unalienable, and are defined by God:

Those rights then which God and nature have

established, and are therefore called natural

rights, such as are life and liberty, need not the

aid of human laws to be more effectually invested

in every man than they are; neither do they

receive any additional strength when declared

by the municipal laws to be inviolable. On the con-

trary, no human legislature has power to abridge

or destroy them, unless the owner shall himself

commit some act that amounts to a forfeiture.

1 William Blackstone, Commentaries on the Laws of

England 54 (1765).

13

Although we are “created equal,” we are not created

all the same, i.e., with the same talents, skills,

strength, beauty, personalities, wealth, etc. Rather,

this equality speaks to our standing before the law as

equal bearers of rights. But He Who created us with

such rights defines the limits of those rights. We are

told in Genesis that “God created man in His own

image, in the image of God He created him; male and

female He created them... . For this reason a man

shall leave his father and his mother, and be joined to

his wife; and they shall become one flesh.” Genesis

1:27, 2:24 (King James Version).

The law of the Old Testament enforced this distinc-

tion between the sexes by stating that “[i]f a man lies

with a male as he lies with a woman, both of them have

committed an abomination.” Leviticus 20:13 (KJV).

At creation, therefore, the sexes were established as

“male and female” and “/fjor this reason,” marriage

was defined at its inception as a union between a man

and his wife. Genesis 2:18-25. Only the male-female

marriage is inherent in the same created order

that gives us our legal equality before the law, as

recognized in the Declaration of Independence. The

Bible has been considered the authoritative source

of morality and worldview for Western civilizations

for nearly two millennia (three millennia for the

Tanakh or Old Testament), including the time period

in which the institutions of American law and

government were established.” The concept of being

2 See, for example, Hebrew and the Bible in America: The First

Two Centuries, Shalom Goldman, ed. (Hanover: University Press

of New England 1993); Eran Shalev, American Zion: The Old

Testament as a Political text from the Revolution to the Civil

War (New Haven: Yale University Press 2013); Michael Novak,

On Two Wings: Humble Faith and Common Sense at the

American Founding, (San Francisco: Encounter Books 2002);

14

“created equal” cannot be properly understood without

a recognition of “the laws of nature and of nature’s

God” upon which the concept of equality depends.

B. Rightly or wrongly, homosexual conduct

was, at least until recently, strongly

disapproved in most cultures and in

Anglo-American law, and opinion remains

sharply divided today.

Prohibitions against homosexual conduct go back

to ancient times. The Bible, which has influenced moral

values for Judaism, Christianity, Islam, and other

religions, contains clear disapproval of homosexual

conduct in the Old Testament (Leviticus 18:22) and in

the New Testament (Romans 1:26-27).2 Among the

Romans, homosexual conduct did exist, but homosexual

acts were capital offenses under the Theodosian Code

(IX.7.6) and under the Justinian Code (IX.9.31). In the

Middle Ages, St. Thomas Aquinas, a preeminent

disciple of natural-law theory, called homosexuality

“contrary to right reason” and “contrary to the natural

order.” St. Thomas Aquinas, 4 Summa Theologica,

Secunda Secundae, Quest. 154, Art. 11 (Benziger Bros.

Press 1947).

The English common law maintained similar provi-

sions. Sodomy was codified by statute as a serious

crime early in England. “The earliest English secular

John Eidsmoe, Historical and Theological Foundations of Law

(American Vision /Tolle Lege 2012); John Eidsmoe, Christianity

and the Constitution: The Faith of Our Founding Fathers (Grand

Rapids: Baker Book House 1987).

5 Although recently certain writers have tried to reinterpret

these and other passages, throughout most of history Jews,

Christians, and Muslims have interpreted them as prohibiting

and/or disapproving homosexual conduct.

15

legislation on the subject dates from 1533, when

Parliament under Henry VIII classified buggery (by

now a euphemism for same-sex activity, bestiality, and

anal intercourse) as a felony. Penalties included death,

losses of goods, and loss of lands.” Vern L. Bullough,

Homosexuality: A History 34 (New American Library

1979). Sir Edward Coke, the “Dean of English Law,”

called homosexuality “a detestable, and abominable

sin, amongst Christians not to be named, committed

by carnal knowledge against the ordinance of the

Creator, and order of nature, by mankind with

mankind, or with brute beast, or by womankind with

brute beast.” “At common law ‘sodomy’ and the phrase

Snfamous crime against nature’ were often used

interchangeably.” Raymond B. Marcin, Natural Law,

Homosexual Conduct, and the Public Policy Exception,

32 Creighton L. Rev. 67 (1998).

Sir William Blackstone—of whose Commentaries on

the Laws of England (1765) Justice James Iredell

said in 1799 that “[Flor near 30 years [it] has been the

manual of almost every student of law in the United

States™ —wrote in his Commentaries concerning

homosexual conduct:

IV. WHAT has been here observed, especially with

regard to the manner of proof [for the crime of

rape], which ought to be the more clear in

proportion as the crime is the more detestable,

may be applied to another offense, of a still deeper

malignity; the infamous crime against nature,

committed either with man or beast. A crime,

*U.S. Supreme Court Justice James Iredell, Claypool’s

American Daily Advisor, April 11, 1799 (Philadelphia) 3;

Documentary History of the Supreme Court of the United States,

1789-1800, at 347 (Maeva Marcus, ed., Columbus University

Press 1990).

16

which ought to be strictly and impartially proved,

and then as strictly and impartially punished. But

it is an offense of so dark a nature, so easily

charged, and the negative so difficult to be proved,

that the accusation should be clearly made out:

for, if false, it deserves a punishment inferior only

to that of the crime itself.

I WILL not act so disagreeable part, to my readers

as well as myself, as to dwell any longer upon a

subject, the very mention of which is a disgrace to

human nature. It will be more eligible to imitate

in this respect the delicacy of our English law,

which treats it, in its very indictments, as a

crime not fit to be named; “peccatum illud

horribile, inter christianos non nominandum”

(“that horrible crime not to be named among

Christians”]. A taciturnity observed likewise by

the edict of Constantius and Constans: “ubi scelus

est id, quod non proficit scire, jubemus insurgere

leges, armari jura gladio ultore, ut exquisitis

poenis subdantur infames, qui sunt, vel qui futuri

sunt, ret.”

The “crime against nature” was prohibited in many

of the colonial law codes. When the Constitution was

adopted, homosexual conduct was prohibited either by

statute or by common law in all thirteen states.

Bowers v. Hardwick, 478 U.S. 186, 192 (1986). When

the Fourteenth Amendment was adopted, homosexual

conduct was prohibited in 32 of 37 states, and during

the twentieth century it was prohibited in all states

until 1961. Id. at 192-3.

In light of this history, it is inappropriate for the

lower federal courts to take this newly-discovered

right to engage in homosexual conduct and require the

17

states to not only permit it but also give it the honored

status of marriage.

C. Same-sex “marriage” was inconceivable in

Anglo-American common law.

Defenders of marriage who seek to review ancient

and common-law texts for support of their position do

not easily find written sources stating “two men or two

women cannot marry” because it was, to those early

writers, as unnecessary and obvious as saying that

men cannot bear children. Rather, the common law

assumes the only definition of marriage is a union

between one man and one woman. In Blackstone’s

Commentaries, Chapter 15 of Volume I (“Of the Rights

of Persons”) is simply titled “Of Husband and Wife,”

in which is discussed the “second private relations

of persons .. . that of marriage, which includes

the reciprocal duties of husband and wife. . .”

1 Commentaries 421 (emphasis added). Blackston

notes that some legal disabilities prohibit a marriage

as “void ab initio, and not merely voidable: not that

they dissolve a contract already formed, but they

render the parties incapable of forming any contract

at all.” Id. at 423-4. The first of these legal disabilities

is “having another husband or wife living; in which

case, besides the penalties consequent upon it as a

felony, the second marriage is to all intents and

purposes void: polygamy being condemned both by the

law of the new testament, and the policy of all prudent

states.” Id. at 424 (emphasis added). If the aforemen-

tioned prohibition on polygamous marriages was

rooted in the New Testament of the Bible and in

international law, then especially considering the

strong condemnation of homosexual activity, a fortiori,

a “marriage” between two men or two women would be

void ab initio at common law.

18

Almost 60 years after the publication of Blackstone’s

Commentaries, Noah Webster’s American Dictionary

of the English Language (1828) defined marriage as

follows:

MAR’RIAGE, n. [L. mas, maris.] The act of

uniting a man and woman for life; wedlock; the

legal union of a man and woman for life. Marriage

is a contract both civil and religious, by which the

parties engage to live together in mutual affection

and fidelity, till death shall separate them...

-_Noah Webster, American Dictionary of the

English Language (Foundation for American

Christian Educ. 2002) (1828).°

Marriage at common law was defined as only between

one man and one woman because there was and is no

other definition of marriage. The family is the

fundamental unit of society. Marriage is the

foundation of the family. There is no institution in a

civilized society in which the public has any greater

interest. As Justice Joseph Story wrote,

The contract of marriage is the most important of

all human transactions. It is the very basis of the

whole fabric of civilized society.

Joseph Story, Commentaries on the Conflict of Laws

Foreign and Domestic § 109 (3d ed. 1846).

® Noah Webster was a close associate of many of the Conven-

tion delegates, frequently dined with some of them in the

evenings after sessions of the Convention, and at their request

wrote an essay urging ratification of the Constitution. Harlow

Giles Unger, Noah Webster: The Life and Times of an American

Patriot (John Wiley & Sons 1998).

19

The U.S. Supreme Court agreed:

(Marriage) is an institution, in the maintenance of

which in its purity the public is deeply interested,

for it is the foundation of the family and of society,

without which there would be neither civilization

nor progress.

Maynard v. Hill, 125 U.S. 190, 211 (1888). It “creatles]

the most important relation in life, ... having more to

do with the morals and civilization of a people than

any other institution.” Id. at 205. Maynard further

stated, at 211-12 (quoting Adams v. Palmer, 51 Me.

480, 484-85 (1863):

[Marriage] is not then a contract within the

meaning of the clause of the constitution

which prohibits the impairing the obligation of

contracts. It is rather a social relation like that of

parent and child, the obligations of which arise

not from the consent of concurring minds, but are

the creation of the law itself, a relation the most

important, as affecting the happiness of individu-

als, the first step from barbarism to incipient

civilization, the purest tie of social life, and the

true basis of human progress.

Again quoting Story, supra, at sec. 111:

'Mjarriage is a contract sui generis, and the

rights, duties, and obligations which arise out of

it, are matters of so much importance to the

wellbeing of the State, that they are regulated, not

by private contract, but by the public laws of the

State, which are imperative on all, who are

domiciled within its territory.

According to one observer, marriage is a “prepolitical”

“natural institution” “not created by law,” but

nonetheless recognized and regulated by law in every

20

culture and, properly understood, an institution that

must be preserved as a public institution based on the

following rationale: “The family is the fundamental

unit of society. . . . [Flamilies . . . produce something

that governments need but, on their own, they could

not possibly produce: upright, decent people who make

honest law-abiding, public-spirited citizens. Ard mar-

riage is the indispensable foundation of the family.”

Robert P. George, Law and Moral Purpose, First

Things, (January 2008), http://www.firstthings.com/

article/2008/01/001-law-and-moral-purpose (last vis-

ited April 1, 2015) see also Sherif Girgis, Robert P.

George & Ryan T. Anderson, What is Marriage?, 34

Harv. J.L. & Pub. Pol’y 245, 270 (2011) (discussing the

bases for laws supporting “conjugal” or “traditional”

marriage and noting that 151140460 “[mJarriages .

are a matter of urgent public interest, as the record of

almost every culture attests — worth legally recogniz-

ing and regulating. Societies rely on families, built on

strong marriages, to produce what they need but

cannot form on their own: upright, decent people who

make for reasonably conscientious, law-abiding citi-

zens. As they mature, children benefit from the love

and care of both mother and father, and from the

committed and exclusive love of their parents for each

other. ... In the absence of a flourishing marriage

culture, families often fail to form, or to achieve and

maintain stability).”

ll. BECAUSE OF THIS HISTORY, THE

JUDICIARY SHOULD EXERCISE

RESTRAINT AND NOT MAKE SAME-SEX

MARRIAGE A CONSTITUTIONALLY-

MANDATED RIGHT.

Abraham Lincoln is said to have asked a man, “How

many legs does a dog have?” “Four.” Lincoln then

asked, “But if we call the tail a leg, then how many legs

21

does a dog have?” The man answered, “Well, then he’d

have five legs.” “No,” Lincoln said, “he would still have

four. Calling a tail a leg does not make it a leg.™

The District Court below has engaged in a sleight-

of-hand known in logic as the fallacy of definition: The

Court recognized that marriage is a fundamental

right. The Court then redefined marriage to include

same-sex unions. The Court then announced that the

right to enter into same-sex unions is a fundamental

right to be accorded strict scrutiny.

But calling a same-sex union a marriage does not

make it a marriage, any more than calling a tail a leg

means a dog has five legs.

The District Court’s application of Loving uv.

Virginia, 388U.S. 1 (1967)’, is therefore inappropriate.

At that time Virginia law prohibited interracial

marriage. But Virginia did not deny that an inter-

racial marriage was a marriage; rather, it was a

prohibited kind of marriage. By contrast, same-sex

unions are outside the very concept of what marriage

is, a union of a man and a woman. By all traditional

concepts and definitions, a same-sex union is not a

marriage at all. As the Supreme Court acknowledged

in Windsor at 2675, “. . .marriage between a man and

a woman no doubt had been thought of by most people

as eswential to the very definition of that term and to

®* Reminiscences of Abraham Lincoln by Distinguished Men of

His Time, ed. Allen Thorndyke Rice (New York: Harper &

Brothers Publishers, 1909), 241-42. By some accounts including

this one, Lincoln used the example of a calf rather than a dog.

” Loving at 12 said marriage is one of the “basic civil rights of

man,” because it is fundamental to our very existence and

survival. The Court would not have said same-sex marriage is

fundamental to our very existence and survival.

22

its role and function throughout the history of

civilization.”

Amicus has presented the Biblical, historical, and

common law background of marriage, not to persuade

the Court that Lawrence and Windsor were erroneous

and should be overruled. Rather, Amicus has pre-

sented this background to ask the Court to consider

that, because homosexual conduct was generally

illegal and regarded as immoral, a sudden judicial

decision elevate this practice not only to a basic

privacy right but also to the preferred status of a strict

or intermediate scrutiny right that the states are

required to endorse, sanction and approve by giving

it the revered status of marriage, would be an

unprecedented step of judicial activism.

Forcing states to recognize same-sex marriages in

effect forces the states to make statements they do not

want to make, to endorse what they do not want to

endorse, to approve same-sex marriage as moral,

healthy, and wholesome for children and adults, when

in fact those states and the majority of the people

thereof believe and want to say the opposite.

The Supreme Court recently confronted a similar

divisive issue: physician-assisted suicide. In

Washington v. Glucksberg, 521 U.S. 702 (1997). Chief

Justice Rehnquist wrote for the Court that “for over

700 years, the Anglo-American common-law tradition

has punished or otherwise disapproved of both suicide

and assisting suicide,” Id. at syllabus of the Court, but

that in recent years attitudes were being re-examined.

Nevertheless, the Court upheld Washington’s ban on

physician-assisted suicide, concluding at 735:

Throughout the Nation, Americans are engaged

in an earnest and profound debate about the

23

morality, legality, and practicality of physician-

assisted suicide. Our holding permits this debate

to continue, as it should in a democratic society.

Amicus believes the courts should do the same with

same-sex marriage. Even if, public acceptance of

homosexuality, like public acceptance of physician-

assisted suicide, has risen in recent decades, but the

public is still sharply divided on whether homosexual

activity is moral or immoral, healthy or unhealthy,

safe or dangerous, and experts are similarly divided.

The public and the experts are still sharply divided on

whether children fare better in heterosexual vs.

homosexual homes and on whether or not same-sex

marriage would have long-term detrimental conse-

quences for society.

If this Court reverses the decision of the Sixth

Ciruit, the debate will be closed before the issues are

resolved. Same-sex marriage will be the nationally-

mandated policy of all fifty states regardless of

whatever negative consequences may result.

Before taking that plunge, we should consider words

of warning from distinguished scholars of the not-too-

distant past. Dr. J.D. Unwin (1895-1936), ethnologist

and social anthropologist at Oxford University and

Cambridge University, undertook an exhaustive study

of eighty primitive tribes and six advanced civilization

through 5,000 years of history. Those he studied

included island people of Melanesia and Polynesia,

tribes in Africa and Central America, Paleo-Siberians,

Native Americans of the Northwest, the Plains, the

Great Lakes, the South, and the Southeast, as well as

the Babylonians, the Athenians, the Romans, the

Anglo-Saxons, and the modern English. In 1934 he

published his findings in a 619-page book titled Sex

24

and Culture.“ Dr. Unwin concluded that the most

successful societies, those which advanced most

rapidly and retained their advanced state, were those

which restrained sexual energy by heterosexual

monogamous marriage. He wrote that “if the male as

well as the female is compelled to confine himself to

one sexual partner, the society begins to display some

expansive energy. It bursts over the boundaries of its

habitat, explores new countries, and conquers less

energetic peoples.” He also noted, however, that “We

must remember that no change in the sexual

opportunity of a society produces its full effect until

the third generation.”*®

Similarly, Dr. Carle E. Zimmerman, Professor of

Sociology at Harvard University, studied various

types of family structures throughout history: the

trustee family in which the marital union is consid-

ered sacred, immortal, and absolute; the domestic

family in which the marital union is strong but retains

more freedom; and the atomistic family in which

marriage is merely a contract for the parties’ mutual

benefit. Dr. Zimmerman compared societies of the

ancient world, the medieval period, up to the modern

period, and published his findings in Family and

Civilization."’ He concluded that there is a general

regression from the trustee family to the domestic

family to the atomistic family structure, and that

* J.D. Unwin, Sex and Culture (London: Oxford University

Press 1934).

* Id. 428.

© Id. 429.

Carle C. Zimmerman, Family and Civilization (New York:

Harper 1947; Wilmington: ISI Books 2007).

25

when the atomistic family structure becomes preva-

lent, social cohesion suffers.

Such words of warning by eminent scholars should

not be disregarded. Time must be given to see whether

their forecasts are accurate.

And a more recent study has focused on the more

immediate consequences of same-sex unions. Dr. Paul

Cameron, Ph.D., Kay Proctor, M.Ed., and Dr. Kirk

Cameron, Ph.D. have formed the Family Research

Institute (FRI). Working through the FRI, Drs.

Cameron have conducted extensive scientific research

on homosexuality and its effects on the individual, the

family, and society. Drs. Cameron compiled data from

nearly twenty scholarly sources each with its own

focus ranging from academic success to sexual abuse. '”

They concluded that the homosexual lifestyle has

several very negative consequences. For example: the

statistics of that case study show that homosexual

parents, as compared to straight parents, were five

times more likely to have harmed their children

through neglect, seduction, emotional distress, or

instability."

The Cameron study is unique in that it represents

an exhaustive effort to research appeals cases

involving child custody because this data represents

“the only study of homosexual parenting indexing

testimony under oath, subject to the winnowing effects

of cross-examination, opposition by an informed

Cameron, Paul Ph.D, Gay Marriage Against Children’s

Interests, p. 5, Family Research Institute, (2015).

% Paul Cameron, Ph.D, Gay Marriage Against Children’s

Interests, p. 1, Family Research Institute (2015).

26

opponent, and supervision by a judge.”"* Drawing

from perhaps the most legitimate pool of data on this

particular issue, the cases studied by Drs. Cameron

showed that “[h]omosexuals were held responsible for

111 (97%) of the 115 listed harms to children.” *

Startling as they may be, the Camerons’ conclusions

are well-founded. Addressing the academic impact of

same-sex parenting, Drs. Cameron cite a study based

on “large census samples from both the U.S. and

Canada” which reported that children raised by

homosexual parents were about 35% less likely to

graduate from High School on time.** To further dispel

any argument of bias, the Cameron case study also

incorporated reports by parents themselves. Accord-

ing to the U.S. National Health Interview Survey,

(NHIS) children of same-sex parents “had poorer

emotional health (17.4% [compared to] 7.4%) . . . had

more learning problems... 19.3 [compared to] 10.2

.. [and received more] therapy or special education

17.8 [compared to] 10.4.”"" This is based on data

collected from homosexual parents themselves."

Cameron p. 1.

‘6 Cameron at 1 (classifying ‘harms’ as “(parental] neglect,

seduction, emotional distress, or instability”).

‘6 See Cameron at 3 (citing Allen D High school graduation

rates among children of same-sex households. Rev Econ Househ

11 (4): 635-58 (2013) (explaining that Children living with gay

and lesbian families in 2006 were about 65 % as likely to graduate

compared to children living in opposite sex marriage families.”))

17 See Cameron, at 4 (citing D. Paul Sullins, Emotional

problems among children witi. same-sex parents: difference by

definition, Brit. J. of Ed., Soc. & Behav. Sci. 7 (2):99-120 (2015),

available at http://www.sciencedomain.org/abstract.php?id=21&

aid=8172

18 Td.

27

This certainly does not mean that every homosexual

is a poor parent. But it does suggest that children

brought up in homosexual families are much more

likely to face serious mental, physical, and emotional

challenges.

The Cameron study also suggests that the homo-

sexual lifestyle is unhealthy and not conducive to

longevity. Drs. Cameron and Cameron compiled 1,388

consecutive obituaries of homosexuals who had at

least one child, published in homosexual publications

in the Washington D.C. over two periods, 1988-1992

and 1993-1994:

The gay parents ranged in age at death from 30 to

69 with a median age of 48, while the lesbian

parents ranged in age at death from 32 to 74 with

a median of 44.5. A similar compilation of 1,552

homosexual obituaries from 2000-2014 in San

Francisco after widespread introduction of HIV

antiretroviral therapy (ART) yielded parents

listed among 6% of 1,461 gay obituaries and 20%

of 91 lesbian obituaries. Gay fathers ranged in

age at death from 36 to 90 with median age of 60,

while lesbian mothers ranged in age at death from

47 to 86 with median age of 70."

In contrast, Drs. Cameron say, as of 2010, the Centers

for Disease Control (CDC) estimated mean life

expectancy at 76.2 years for men in general and 81 for

women in general, and married men and women live

even longer on the average.”

Amicus presents these statistics, not out of any

animus toward homosexuals, but out of concern that

‘8 Cameron p. 2.

* Cameron p. 2.

28

there may be unhealthy aspects of the homosexual

lifestyle, both for adults and for their children, and

consequently the states should be hesitant about

sanctioning same-sex unions by giving them the

official status of marriage.

And in the face of such statistics, Amicus suggests

that the Court be cautious about redefining marriage

for the nation, because the interests of children and

adults will be directly affected. In Jacobson uv.

Massachusetts, 197 U.S. 11 (1905), a case involving

compulsory vaccination of children, this Court held

that the state police power includes authority to

legislate for the common good including public health

and safety, and that when legislators are presented

with conflicting evidence from conflicting authorities,

they have substantial discretion to determine which

evidence and which authorities are most persuasive.

Recognizing that experts differed from one another on

the effectiveness of vaccination, Justice Harlan wrote

for this Court at 30:

We must assume that, when the statute in

question was passed, the legislature of Massachu-

setts was not unaware of these opposing theories,

and was compelled, of necessity, to choose

between them. It was not compelled to commit a

matter involving the public health and safety to

the final decision of a court or jury.

Likewise, the legislators of Michigan, Ohio, Kentucky,

Tennessee, and the other 46 states are authorized to

make policies that promote the public health and

safety of their children and adult citizens without

being second-guessed by a federal district court.

29

Even the full legal fall-out from the decision of

the Tenth Circuit and other courts cannot yet be

measured. On 27 August 2014 U.S. District Judge

Clark Waddoups finalized an earlier ruling declaring

a portion of Utah’s polygamy ban —- a ban that

Congress had required Utah to include in its state

constitution as a pre-condition for statehood — uncon-

stitutional.** It is of course too early to determine the

final outcome of this case, but if the rationale for

recognizing same-sex marriage as a constitutional

right is accepted, a ban on polygamy (or other unions)

may be difficult to defend.

On the other hand, in the State of Tennessee Roane

County Circuit Judge Russell E. Simmons, Jr., has

rejected the suggestion that Windsor requires states to

recognize same-sex marriages and has therefore

refused to grant a divorce to two men who had gone

through a marriage ceremony in Iowa. See Borman

uv. Pyles-Borman, No. 2014-CV-36 (Cir. Ct. Roane

County, Tenn., August 5, 2014).

If the American people are moving toward full

acceptance of same-sex marriage, that revolution

should come from the bottom up, through the elected

voices of the people at the local, state, and federal

levels. It should not be imposed upon them from the

top by the federal judiciary, especially in the absence

of a clear constitutional provision requiring it.

By affirming the decision of the Sixth Circuit, this

Court can allow the debate to continue, and hopefully

with time the best wisdom will prevail.

| Brown et al. v. Herbert et. al, Case 2:11-cv-00652-CW

Memorandum Decision and Judgment filed 08/27/14.

30

CONCLUSION

Marriage is more than a private act; it is a civil and

religious institution that involves child welfare, child-

rearing, income tax status (individual, joint, or

separate tax returns; deductions; credits) estate and

inheritance tax considerations, testamentary rights,

privileged communications (husband-wife privilege),

Social Security and Medicare benefits, military hous-

ing allowances, and a host of other matters.

Justice Frankfurter once wisely wrote, “[T]he

ultimate touchstone of constitutionality is the Con-

stitution itself and not what we have written about

it.” Graves v. O’Keefe, 306 U.S. 466, 491-92 (1939)

(Frankfurter, J. concurring). As in any case, the

proper solution here is for this Honorable Court to fall

back to the supreme law of the land, the text of the

Constitution.

For the foregoing reasons, Amicus respectfully

urges this Court to affirm the decision of the Sixth

Circuit and uphold the marriage laws of Michigan,

Ohio, Tennessee, Kentucky, and the other states

of this nation.

Respectfully submitted,

JOHN A. EIDSMOE

Counsel of Record

FOUNDATION FOR MORAL LAW

One Dexter Avenue

Montgomery, AL 36104

(334) 262-1245

eidsmoeja@juno.com

Counsel for Amicus Curiae

April 3, 2015