Amicus Curiae Brief — Obergefell v. Hodges

“Supreme Coun, U5.

FILED

MAR 6 - 2015

OFFICE OF THE C.fAx |

Nos. 14-656, 14-562, 14-571 & 14-574

IN THE

Supreme Court of the Gnited States

APRIL DEBOER, ET AL.,

Petitioners,

Vv.

RICHARD SNYDER, ET AL.,

Respondents.

On Writs of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

BRIEF FOR

FREEDOM TO MARRY

AS AMICUS CURIAE

SUPPORTING PETITIONERS

JONATHAN P.SCHNELLER WALTER DELLINGER

DIMITRI PORTNOI (Counsel of Record)

O’MELVENY & MYERS LLP wdellinger@omm.com

400 South Hope Street JONATHAN D. HACKER

Los Angeles, Cal. 90071 O’MELVENY & MYERS LLP

1625 Eye Street, N.W.

ANTON METLITSKY Washington, D.C. 20006

O'MELVENY & MYERS LLP (202) 383-5300

Times Square Tower

7 Times Square

New York, N.Y. 10036

Counsel for Amicus Curiae

ALOE LPO LELEL RE OLE LENA LA LEE LAS OLLIE LEAL ELIE RE IIE

VALERIA TANCO, ET AL.,

Petitioners,

Vv.

WILLIAM EDWARD “BILL” HASLAM, ET AL.,

Respondents.

GREGORY BOURKE, ET AL.,

Petitioners,

v.

STEVE BESHEAR, ET AL.,

Respondents.

JAMES OBERGEFELL, ET AL.,

Petitioners,

Vv.

RICHARD HODGES, ET AL..,

Respondents.

i

TABLE OF CONTENTS

Page

INTEREST OF THE AMICUS CURIAE .................. 1

SUMMARY OF THE ARGUMENT ........................... 1

I seiiscnitceitiaciiiiieiiceeiichiiii iliac a atta 5

I. IF FORMAL HEIGHTENED SCRUTINY

DOES NOT APPLY, RESPONDENTS’

MARRIAGE BANS SHOULD BE

SUBJECT TO A SEARCHING

RATIONAL BASIS REVIEW ..................-.......--. 5

A. The Rational Basis Test Requires Careful

Scrutiny Of Laws That Deprive

Disfavored Social Groups Of Dignity And

ST stsincsieichtisicechnienbatenbeittiindtidatiieebieiiiaidieidbiiabdiepieiaaein 5

B. The Challenged Marriage Bans Require

Meaningful Scrutiny Even Under

Rational Basis Review .........................6.- 14

Il. RESTRICTIONS ON THE FREEDOM TO

MARRY BASED ON SEX AND SEXUAL

ORIENTATION CANNOT SURVIVE

MEANINGFUL REVIEW... a

A. The Rationales For “a Bans Based

On Sex And Sexual Orientation Proffered

By The Sixth Circuit Do Not Withstand

Searching Rational Basis Review.............20

B. The Absence Of A Valid Rationale For

The Marriage Bans Establishes That The

Withholding Of The Freedom To Marry

And Respect For Marriages Are

Motivated By Impermissible Animus......... 28

‘:

TABLE OF CONTENTS

(continued)

Page

C. There Is No Ground for Distinction

Between Respondents’ Refusal To

Respect Out-Of-State Marriages And

Withholding The Freedom To Marry

aaa a ra aa ll 32

Ee cnctcnnrnnscntintininatesedtnienniinnesibninetonteiel 34

TABLE OF AUTHORITIES

Page(s)

CASES

Adarand Constr. Inc. v. Pefia,

I emia 2

Allied Stores of Ohio, Inc. v. Bowers,

TES TT 6

Baehr v. Lewin,

Se , TIED __.... senenuetnnbnesonnantees 29

Baskin v. Bogan,

766 F.3d 648 (7th Cir.), cert. denied,

I il 3, 22, 25

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

I a peaeiomonaieisiiins 16, 29

Boddie v. Connecticut,

ARE See ee a RS 33

Bowen v. Gilliard,

NS a ee nT ee 7,8

City of Cleburne v. Cleburne Living Ctr.,

Inc.,

I a passim

DeBoer v. Snyder,

772 F.3d 388 (6th Cir. 2014) ............... 21, 22, 26, 32

Dep't of Agric. v. Moreno,

I el passim

Eisenstadt v. Baird,

406 U.S. 438 (1972) ........00cccccccsee.-22....- 12, 13, 18, 24

FCC v. Beach Commc'ns, Inc.,

I iinnctcnniinasedictntiiiinsniidannpesnnniena 6, 11

1V

TABLE OF AUTHORITIES

(continued)

Page(s)

Ferguson v. Skrupa,

I 6

Frontiero v. Richardson,

3 | & | a | REESE Saseeeeoeneem 7,15

Goodridge v. Dep't of Pub. Health,

798 N.E.2d 941 (Mass. 2003) ...................2-......0.4. 30

Griswold v. Connecticut,

8 RRR ENE SNe aera 25

Hayes v. Missouri,

So ee a ee 7

Heller v. Doe,

ES TT A a eR TS 23

Johnson v. Robison,

ene 2, 3,7

Kelo v. City of New London,

I 20

Kitchen v. Herbert,

961 F. Supp. 2d 1181 (D. Utah 2013),

aff'd, 755 F.3d 1193 (10th Cir. 2014)............. 26, 34

Lawrence v. Texas,

acre emmiiiananndialeninnil passim

Loving v. Virginia,

CE ener Tae 17, 32

M.L.B. v. S.L.d.,

I I ls 13, 17, 18

Meyer v. Nebraska,

I ica 17, 32

v

TABLE OF AUTHORITIES

(continued)

Page(s)

New Orleans v. Dukes,

TTL RCC LANES Re mT 11

Obergefell v. Wymsylo,

962 F. Supp. 2d 968 (S.D. Ohio 2013)............ 30, 31

Palmore v. Sidoti,

EE ree 27

Perry v. Schwarzenegger,

— FS Sd Eee 16

Pers. Adm’r of Mass. v. Feeney,

Re 29

Plyler v. Doe,

I 8, 28, 34

Reed v. Reed,

ETT ee aaa Re RE Nan TE RO 2

Romer v. Evans,

il passim

Turner v. Safley,

ET ne a ne ae 24, 25

United States v. Virginia,

Tn ene eee 27

United States v. Windsor,

RS aa passim

Vance v. Bradley,

I a 3

Williamson v. Lee Optical,

| a 11

vi

TABLE OF AUTHORITIES

(continued)

Page(s)

Zablocki v. Redhail,

NF 17, 25, 33

CONSTITUTIONAL PROVISIONS

Be, SN, St SEED CIEE ccinecnisesnncnpsnnenndossinneininniatidenine 30

Diets. Comet. Gt. FB GI ccocccevececceccvesccecccsssnces 30

Ohio Const. art. XV, § 11 (2004).............2.........0...... 30

Tenn. Const. art. XI, § 18 (2006) ............................- 30

STATUTES

Ky. Rev. Stat. § 402.005 (1998) ...........................2... 30

Mich. Comp. Laws § 551.1 (1996)............................ 30

Tenn. Code Ann. § 36-3-113(a) (1996)..................... 30

OTHER AUTHORITIES

American Enterprise Institute, Attitudes

About Homosexuality & Gay Marriage

TIE \iccicesivenihoniidieedenadecegtaiedinenmsinsinetneendininiciademennniiaedeiiinaaaie 30

Chauncey, Gay New York (1994) ..................ccceceeeee 15

Chauncey, Why Marriage? (2004) ..................0..0.0008 30

CNN, Poll: Majority Backs Same-Sex

Marriage (June 26th, 2013) .............2.....0.ceeeeee eee 34

Kelley, A Marriage of Politics and

Religion, The Nashville Scene, Oct. 19,

Leibovich, From Star Power to Blood

Sport, Tennessee Senate Race Has It,

Ok el UB eee neon 31

vii

TABLE OF AUTHORITIES

(continued)

Letter from John W. Macy to Mattachine

Society of Washington (Feb. 25, 1966)................. 16

Lewis, Gregory B., Lifting the Ban on

Gays in the Civil Service: Federal Policy

Toward Gay and Lesbian Employees

Since the Cold War, 57 Pub. Admin.

I a 15

Rountree, Venomous Speech: Problems

With American Political Discourse On

The Right And Left (2013)................00.00.0.cccceecee ee 31

Williams Institute, The Documenting

Discrimination on the Basis of Sexual

Orientation and Gender Identity in

State Employment (2009) .............ccccccccseccssceeseeces 16

Wolfson, Civil Rights, Human Rights, Gay

Rights: Minorities and the Humanity of

the Different, 14 Harv. J. L. Pub. Pol’y

RTE ae eran ane OnE nD OND 15

Wolfson, Why Marriage Matters: America,

Equality, and Gay People’s Right to

EST SAE aS en Rane eT 19

1

BRIEF FOR FREEDOM TO MARRY AS

AMICUS CURIAE SUPPORTING

PETITIONERS

This brief is submitted on behalf of Freedom to

Marry as amicus curiae.!

INTEREST OF THE AMICUS CURIAE

Freedom to Marry is the campaign to win mar-

riage nationwide. Founded in 2003, Freedom to

Marry has spearheaded a movement and partnered

with individuals and organizations across the coun-

try to assure that same-sex couples can share in the

freedom to marry and attain full legal respect for

their lawful marriages, with all the protections, re-

sponsibilities, and commitment that marriage

brings. Freedom to Marry thus has a uniquely

strong interest in the resolution of the question pre-

sented in these cases, i.e., whether the Constitution

guarantees to all Americans the fundamental free-

dom to marry. For the reasons offered by the peti-

tioners, and for the reasons further elaborated be-

low, the answer to that question is yes.

SUMMARY OF THE ARGUMENT

When this Court has in the past been confronted

with suspect governmental classifications, it has of-

ten subjected such measures to explicit heightened

constitutional scrutiny under the Equal Protection

1 No counsel for any party has authored this brief in whole

or in part, and no person other than amicus or its counsel] has

made any monetary contribution intended to fund the prepara-

tion or submission of this brief. Petitioners’ letter consenting to

the filing of this brief is submitted concurrently herewith. Re-

spondents’ letters consenting to the filing of amicus curiae

briefs generally have been filed with the Clerk's office.

2

Clause, see, e.g., Adarand Constr. Inc. v. Peria, 515

U.S. 200 (1995), and petitioners are correct that the

Court should explicitly apply heightened scrutiny

here. But even if the Court does not apply classic

heightened scrutiny—or if it declines to decide the

question whether explicit heightened scrutiny ap-

plies—the discriminatory marriage bans at issue

here fail under the meaningful review that this

Court has applied to classifications based on sexual

orientation. Indeed, because they serve no valid

purpose whatsoever, the bans cannot withstand even

conventional rational basis review.

This Court’s application of “rational basis” re-

view, no less than the application of heightened

scrutiny, “gives substance to” the core guarantee of

the Equal Protection Clause, Romer v. Evans, 517

U.S. 620, 632 (1996)—viz., that “all persons similarly

circumstanced shall be treated alike.” Johnson v.

Robison, 415 U.S. 361, 374-75 (1970) (quoting Reed

v. Reed, 404 U.S. 71, 75-76 (1970)). By requiring

that a legislative “classification bear a rational rela-

tionship to an independent and legitimate legislative

end,” the test “ensure[s] that classifications are not

drawn for the purpose of disadvantaging the group

burdened by the law.” Romer, 517 U.S. at 633.

Consistent with the test’s purpose of guarding

against arbitrary, discriminatory treatment, this

Court’s applications of rational basis review have

varied with context. “When social or economic legis-

lation is at issue, the Equal Protection Clause allows

the [government] wide latitude,” City of Cleburne uv.

Cleburne Living Ctr., Inc., 473 U.S. 432, 440 (1984),

on the understanding that “absent some reason to

infer antipathy,” the “Constitution presumes that ...

even improvident decisions will eventually be recti-

3

fied by the democratic processes.” Vance v. Bradley,

440 U.S. 93, 97 (1979). But when confronted with

measures that give special cause for constitutional

concern, this Court has engaged in “a more search-

ing form of rational basis review.” Lawrence v. Tex-

as, 539 U.S. 558, 580 (2003) (O’Connor, J., concur-

ring in the judgment). In such cases, this Court has

not accepted the government's proffered justification

for a classification at face value. Instead, the Court

has conducted a clear-eyed analysis to test the legit-

imacy of the classification and confirm the classifica-

tion rationally furthers legitimate governmental ob-

jectives, rather than bare prejudice or animus.

Through such meaningful review, the Court has as-

sured “all persons similarly circumstanced shall be

treated alike.” Johnson, 415 U.S. at 374-75.

Specifically, even rational basis review takes ac-

count of red flags that point to a likely constitutional

violation, including whether a measure: (i) disad-

vantages a disfavored minority, or (ii) burdens im-

portant personal interests, such as liberty or dignity.

Because respondents’ denial of the freedom to marry

and withholding of respect for lawful marriages im-

plicate both of these factors, they quintessentially

warrant no less than a meaningful review of their

rational connection to a legitimate purpose.

Accordingly, if this Court does not subject the

laws to classic heightened scrutiny, it should at the

least examine them carefully under rational basis

review. See, e.g., Baskin v. Bogan, 766 F.3d 648 (7th

Cir.) (Posner, J.), cert. denied, 135 S. Ct. 316 (2014).

The restrictions on the freedom to marry chal-

lenged here cannot survive meaningful scrutiny.

Respondents’ asserted interest in “responsible pro-

4

creation” is not in any way furthered by denying gay

people the freedom to marry—there is no reason to

think that respecting the marriages and rights of

same-sex couples will inhibit different-sex couples

from marrying and raising their children in stable

families. And even if such a reason existed, the chal-

lenged marriage bans would be a fatally under-

inclusive means of addressing it, because the bans

deny the freedom to marry to gay people—and only

gay people—while permitting heterosexuals to mar-

ry irrespective of their reproductive capacity.

Respondents’ professed desire to proceed with

“caution” before respecting lawful marriages of

same-sex couples is no more rational, because it is

hollow at its core. Caution is not an end in itself, but

is at best a means of furthering otherwise valid ob-

jectives, and at worst, an excuse for denial and de-

lay. Here, respondents’ withholding of the freedom

to marry and equal respect for lawful marriages,

even when garbed as “caution,” does not serve to ad-

vance any identified legitimate interest of the states,

but only perpetuates long-standing and profoundly

injurious discrimination against gay people.

Under this Court’s precedents, the lack of a val-

id justification for the challenged marriage bans

gives rise to the inference that they rest on animosi-

ty toward gay people. Romer, 517 U.S. at 634. In

these cases, the long history of discrimination

against gay people, together with the prevalence of

anti-gay attitudes and rhetoric at the time the bans

were enacted, render that inference conclusive.

For these purposes, there is no ground to draw a

distinction between state bans on marriage and state

refusals to respect out-of-state marriages. Both

5

types of restrictions rest on the same unpersuasive

state interests, both types of regulations burden the

marriage rights of gay people, and both types of reg-

ulations relegate same-sex couples to a subordinate

and stigmatizing status incompatible with equal pro-

tection of the laws.

ARGUMENT

I. IF FORMAL HEIGHTENED SCRUTINY

DOES NOT APPLY, RESPONDENTS’

MARRIAGE BANS SHOULD BE SUBJECT

TO A SEARCHING RATIONAL BASIS RE-

VIEW

Petitioners persuasively argue that restrictions

on the freedom to marry based on sex and sexual

orientation should be subject to classic heightened

equal protection scrutiny, and amicus Freedom to

Marry fully adopts and incorporates their position

here. But if the Court concludes that explicit

heightened scrutiny is inappropriate (or if the Court

chooses not to decide that question), it should never-

theless subject the challenged restrictions on the

freedom to marry to a meaningful rationality review.

Sexual orientation discrimination, such as perme-

ates respondent states’ denial of the freedom to mar-

ry and withholding of respect for lawful marriages,

raises red flags and warrants a presumption of un-

constitutionality.

A. The Rational Basis Test Requires Care-

ful Scrutiny Of Laws That Deprive Dis-

favored Social Groups Of Dignity And

Liberty

In its common application, rational basis review

is distinguished by its permissiveness. Under that

test, a law is typically presumed to be constitutional,

6

and will therefore be upheld “if any state of facts

reasonably can be conceived that would sustain it.”

Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522,

528 (1959). Such a state of facts “may be based on

rational speculation unsupported by evidence or em-

pirical data,” and it is “entirely irrelevant ... whether

the conceived reason for the challenged distinction

actually motivated the legislature.” FCC v. Beach

Commce’ns, Inc., 508 U.S. 307, 315 (1993). That def-

erential framework, this Court has explained, rests

on the premise that qualms with the incidental bur-

dens of ordinary social and economic legislation “are

properly addressed to the legislature, not to us.”

Ferguson v. Skrupa, 372 U.S. 726, 731 (1963).

In certain circumstances, however, this Court

has undertaken a more careful and less deferential

rationality review—one meant to confirm that a law

advances a legitimate purpose as a matter of fact,

rather than by judicial hypothesis. The presumption

changes.

Two such circumstances are relevant to the chal-

lenged marriage bans. First, where a classification

imposes burdens on an unpopular or disadvantaged

group, even where this Court has not applied ex-

press heightened scrutiny it has still undertaken a

considered inquiry to confirm that the classification

genuinely serves a valid, non-discriminatory pur-

pose. Second, where a classification implicates fun-

damental] personal! liberties or threatens individual

dignity, this Court has responded to the elevated

constitutional stakes with a probing rational basis

review.

This meaningful review is compelled by the fun-

damental purpose of the Equal Protection Clause:

7

assuring that “all persons similarly circumstanced

shall be treated alike.” Johnson, 415 U.S. at 374-75.

In the case of ordinary economic legislation, there is

no basis to presume that a legislative classification

illicitly treats similarly situated persons differently;

rather, the operative presumption is that the legisla-

ture has permissively determined that the persons

affected by the classification are not similarly situat-

ed in the first place. But when a legislative classifi-

cation disadvantages a historically disfavored group

or implicates fundamental liberties or individual

dignity, there is ample reason for courts to delve

deeper into the basic classification, to assure that

“all persons subjected to [the challenged] legislation

fare] treated alike, under like circumstances and

conditions, both in the privileges conferred and in

the liabilities imposed.” Hayes v. Missouri, 120 U.S.

68, 71-72 (1887).

1 se

The Court Carefully Reviews The Legitimacy

-———) 7 re | Minority G

This Court’s precedents frequently apply explicit

heightened scrutiny to measures that discriminate

against disadvantaged or vulnerable minorities. The

Court has identified multiple factors that determine

whether measures targeting a given group merit

such heightened scrutiny, including: (1) whether the

targeted group has historically been discriminated

against, Bowen v. Gilliard, 483 U.S. 587, 602 (1987);

(2) whether the characteristics that define the group

“frequently bear[] no relation to ability to perform or

to contribute to society,” Frontiero v. Richardson,

411 U.S. 677, 686 (1973) (plurality opinion); (3)

whether the group in question is defined by deep-

rooted or immutable characteristics, Gilliard, 483

8

U.S. at 602; and (4) whether the group is “a minority

or politically powerless,” id. (citation omitted). The

relation of those factors to the core concerns of the

Equal Protection Clause is readily apparent: Laws

that discriminate against disadvantaged groups on

the basis of traits that have no bearing on the

groups’ abilities or contributions “suggest[] the kind

of ‘class or caste’ treatment that the Fourteenth

Amendment was designed to abolish.” Plyler v. Doe,

457 U.S. 202, 216 n.14 (1982).

But even in the absence of formal heightened

scrutiny, such considerations remain salient in de-

termining whether a classification comports with the

Equal Protection Clause. Laws targeting disadvan-

taged or unpopular minorities naturally raise a con-

cern that a classification is motivated by invidious

discrimination, rather than a valid governmental

end. Accordingly, such measures, even if they do not

trigger formal heightened scrutiny, are subject to

meaningful rationality review.

Three of this Court’s cases illustrate this princi-

ple. In Department of Agriculture v. Moreno, 413

U.S. 528 (1973), a group of food stamp recipients

challenged a federal statute that denied food stamps

to “households” in which unrelated individuals re-

sided. Id. at 529. Recognizing that the statute’s leg-

islative history expressed a motivation to exclude

“hippies” and “hippie communes” from participation

in the food stamp program, this Court cautioned that

“a bare ... desire to harm a politically unpopular

group cannot constitute a legitimate governmental

interest.” Jd. at 534. It then proceeded to carefully

scrutinize the assertion that the exclusion served a

legitimate fraud-prevention purpose. Id. at 535-38.

The Court concluded that the classification drawn

9

was both under-inclusive and over-inclusive for com-

batting fraud: Those intent on fraud could easily

take steps to form legally separate “households,”

while the most impoverished of food-stamp recipi-

ents could not. Jd. at 537-38. The statute was thus

“without any rational basis.” Id.

This Court applied a similar analysis in City of

Cleburne v. Cleburne Living Center, 473 U.S. 432

(1985). There, a city relied on a local zoning ordi-

nance to deny a special use permit to a group home

for the intellectually disabled. Jd. at 435. This

Court repeated Moreno’s admonition that “a bare ...

desire to harm a politically unpopular group” is not a

legitimate state interest. Jd. at 446-47 (alteration in

original) (quoting Moreno, 413 U.S. at 534). This

Court then conducted a searching review of each of

the city’s justifications for the ordinance. The Court

rejected the city’s purported interests in flood safety,

overcrowding, and population density, noting that

each of those concerns would apply equally to other

uses, such as nursing homes, that the zoning ordi-

nance permitted. Id. at 449-50. The Court noted

that the record in the case did not indicate “how ...

the characteristics of the intended occupants of the

[group] home rationally justify denying those occu-

pants what would be permitted to groups occupying

the same site for different purposes.” Jd. at 450. It

therefore concluded that the ordinance “appears to

rest on an irrational prejudice against the mentally

retarded” in violation of the Equal Protection Clause.

Id.

And in Romer v. Evans, 517 U.S. 620 (1996), this

Court invalidated a Colorado constitutional amend-

ment prohibiting local legal protections for gays and

lesbians. This Court once again affirmed that the

10

“desire to harm a politically unpopular” group does

not constitute a legitimate state interest. Id. at 634

(quoting Moreno, 413 U.S. at 534). It then concluded

that the Colorado amendment was “at once too nar-

row and too broad,” 517 U.S. at 633, in relation to

the state’s proffered interests in freedom of associa-

tion and resource conservation, id. at 635. The

amendment, this Court stated, was “divorced from

any factual context from which we could discern a

relationship to legitimate state interests.” Jd. The

Court therefore accepted “the inevitable inference

that the disadvantage imposed is born of animosity

toward the class of persons affected.” Id. at 634.

Romer, Cleburne, and Moreno all feature a simi-

lar analysis. In each case, this Court considered

challenges to governmental classifications disad-

vantaging minority groups that were widely ma-

ligned or misunderstood: gay people in Romer; the

intellectually disabled in Cleburne; and unrelated

cohabitants in Moreno. And in each case, this Court

frankly recognized the prospect that the relevant

classification was motivated by “negative attitudes,”

“fear,” or “irrational prejudice.” Cleburne, 473 U.S.

at 448, 450; see Romer, 517 U.S. at 632; Moreno, 413

U.S. at 534. That recognition prompted the Court to

carefully examine the purported justifications for

each classification.

In doing so, this Court undertook at least three

inquiries that ordinary rational basis review fore-

goes:

* First, the Court carefully examined the

breadth of the classifications to confirm that

they constituted a reasonable “fit” for the pur-

poses adduced by the government. Compare

11

Romer, 517 U.S. at 633 (‘Amendment 2... is

at once too narrow and too broad.”) with Wil-

liamson v. Lee Optical, 348 U.S. 483, 489

(1955) (“The legislature may select one phase

of one field and apply a remedy there, neglect-

ing the others.”); see also Cleburne, 473 U.S.

at 449-50; Moreno, 413 U.S. at 538.

* Second, the Court treated the empirical

soundness of the government’s asserted justi-

fications as a valid consideration in assessing

the classification’s rationality. Compare

Cleburne, 473 U.S. at 448 (“[T]Jhe record does

not reveal any rational basis for believing that

the [group] home would pose any special

threat to the city’s legitimate interests.”) with

Beach Commce'ns, 508 U.S. at 315 (“[A] legisla-

tive choice is not subject to courtroom factfind-

ing and may be based on rational speculation

unsupported by evidence or empirical data.”);

see also Romer, 517 U.S. at 635; Moreno, 413

U.S. at 536-38.

* Third, the Court demanded that the purport-

ed justifications for a classification have

meaningful persuasive force. Compare

Cleburne, 473 U.S. at 449 (“[I]t is difficult to

believe that ... mentally retarded individuals

.. would present any different or special haz-

ard.”) with New Orleans v. Dukes, 427 U.S.

297, 303 (1976) (“[T]he judiciary may not sit

as a superlegislature to judge the wisdom ... of

legislative policy determinations.”); see also

Romer, 517 U.S. at 635.

It is not difficult to see why the Court, faced

with statutes that bore indicia of a “bare ... desire to

12

harm a politically unpopular group,” Moreno, 413

U.S. at 534, engaged in less deferential, meaningful

rationality review. Unlike routine economic legisla-

tion, classifications that burden marginalized minor-

ities raise ineluctable concerns about the possibility

of invidious discrimination. They therefore require

searching review to confirm that the justifications

offered by the state for the differential treatment are

truly based in reason, and not mere pretexts for un-

constitutional animus. See Romer, 517 U.S. at 633.

Otherwise said, where there is reason to suspect

that the state is treating similarly situated persons

differently for no good reason, this Court has es-

chewed ordinary deference and required the state to

provide a real and persuasive reason for the differen-

tial treatment. Under this Court’s precedents, sexu-

al orientation discrimination such as that challenged

here raises red flags, is presumptively unconstitu-

tional, and should be subjected to meaningful re-

view. See, e.g., Romer, 517 U.S. at 634-35.

2. Rational Basis Review Extends Less Defer-

en res That Infringe Important

Individual Interests

The rational basis test also takes account of the

personal interests that a governmental classification

may burden. Under this Court’s precedents, rational

basis review requires more thorough and skeptical

scrutiny when classifications hinder the exercise of

important personal interests, such as individual lib-

erty.

This Court has exercised particularly special

caution when evaluating classifications that burden

an individual's freedom to enter into and define per-

sonal or familial relationships. In Eisenstadt v.

13

Baird, 405 U.S. 438 (1972), the Court invalidated a

state law that prohibited the sale of contraceptives

to unmarried individuals, but not married ones.

That classification, Eisanstadt explained, trod upon

important personal liberties, including “matters so

fundamentally affecting a person as the decision

whether to bear or beget a child.” Jd. at 453. And

the plurality’s rationality review was corresponding-

ly exacting—the opinion highlighted elements of the

law that were over- and under-inclusive, and, on

that basis, rejected the law as irrational discrimina-

tion. Id. at 447-53.

The Court applied the same approach even more

explicitly in M.L.B. v. S.L.J., 519 U.S. 102 (1996).

There, the Court reviewed a law that conditioned a

parent’s appeal of a termination of parental rights on

her ability to pay substantial appellate court fees.

See id. at 106-07. M.L.B. recognized that the law

burdened “[c]hoices about marriage, family life, and

the upbringing of children” that are “among associa-

tional rights ... of basic importance in our society.”

Id. at 116 (quotation omitted). The Court held that

in the context of parental-rights terminations, ra-

tionality review “demands the close consideration

the Court has long required when a family associa-

tion so undeniably important is at stake.” Jd. at 116-

17.

Romer illustrates that such meaningful review

is not limited to measures burdening familial rela-

tionships—or even to measures burdening a specific

exercise of liberty. The amendment in Romer with-

drew anti-discrimination protections from gay people

with respect to critical personal interests such as

housing, employment, education, public accommoda-

tions, and welfare services. 517 U.S. at 623-24. The

14

Court thus had before it not only a measure that on

its face targeted members of a disadvantaged minor-

ity, but one that affected their equal participation in

“an almost limitless number of transactions and en-

deavors that constitute ordinary civic life in a free

society.” Id. at 631. The Court’s review was vigilant

for those important interests in full participation

and dignity.

B. The Challenged Marriage Bans Require

Meaningful Scrutiny Even Under

Rational Basis Review

Respondents’ marriage bans discriminate

against members of an historically disparaged mi-

nority—namely, gay people. And they deprive gay

people of personal liberty and dignity. They present

quintessential examples of measures that must be

presumed unconstitutional and subjected to mean-

ingful rationality review.

1. The Challenged Bans Disadvantage A Dis-

nority

There can be no serious dispute that gay people

have suffered discrimination, from the first modern

acknowledgments of gay identity? to the present day.

See Lawrence, 539 U.S. at 571 (“[FJor centuries there

have been powerful voices to condemn homosexual

conduct as immoral.”). That history, detailed in peti-

tioners’ merits briefs,3 includes public and private

_ 2 See Lawrence, 539 U.S. at 568 (“[T]he concept of the ho-

mosexual as a distinct category of person did not emerge until

the late 19th century.”).

3 See Br. for Pet. Obergefell 42-44; Br. for Pet. Deboer 51;

Brief for Pet. Bourke 33-34.

15

humiliations, assaults, and deprivations ranging

from police raids on gay establishments,‘ to a dec-

ades-long exclusion from the federal civil service,5 to

gay people’s loss of jobs, housing, and custody of

their children based solely on their sexual orienta-

tion. Although that noxious history supports

heightened scrutiny under this Court’s equal protec-

tion jurisprudence, it at a minimum requires that

laws discriminating on the basis of sexual orienta-

tion should enjoy no presumption of constitutionality

and receive careful review. See supra Part I.A.1.

That long and painful history of discrimination

against gay people has been based on perceived dis-

tinctions that “bear no relation to ability to perform

or contribute to society.” Frontiero, 411 U.S. at 686.

Rather, it has been based on stereotypes that have

no legitimate basis in fact. A 1966 letter from Civil

Service Commission Chairman John W. Macy to an

early gay rights organization defended the exclusion

of gay people from government service by reference

to “the apprehension caused other employees of ho-

mosexual advances, solicitations, or assaults, the

unavoidable subjection of the sexual deviate to erotic

stimulation through on-the-job use of the common

toilet, shower and living facilities,” and “the hazard

that the prestige and authority of a Government po-

sition will be used to foster homosexual activity, par-

4 See Chauncey, Gay New York 138-39 (1994).

5 See Lewis, Lifting the Ban on Gays in the Civil Service:

Federal Policy Toward Gay and Lesbian Employees Since the

Cold War, 57 Pub. Admin. Rev. 387, 387 (1997).

6 Wolfson, Civil Rights, Human Rights, Gay Rights: Minori-

ties and the Humanity of the Different, 14 Harv. J. L. Pub. Pol'y

21, 30-33 (1991) (collecting examples).

16

ticularly among the youth.” Perry v. Schwarzeneg-

ger, 704 F. Supp. 2d 921, 981 (2010) (quoting Letter

from John W. Macy to Mattachine Society of Wash-

ington 2-4 (Feb. 25, 1966)). Similar views have per-

sisted in more recent times, even among government

officials. See The Williams Institute, Documenting

Discrimination on the Basis of Sexual Orientation

and Gender Identity in State Employment ch. 14

(2009).

Even if this history of discrimination against

gay people were not premised largely on the types of

malicious stereotypes described above, but instead

rested on adherence to tradition or disapproval root-

ed in religious conviction, it would nevertheless re-

quire a demanding rationality inquiry. Invidious

discrimination can arise not only from outright hos-

tility, but also from “insensitivity caused by simple

want of careful, rational reflection or from some in-

stinctive mechanism to guard against people who

appear to be different in some respect from our-

selves.” Bd. of Trs. of the Univ. of Ala. v. Garrett,

531 U.S. 356, 374 (2001) (Kennedy, J., concurring).

Laws that serve no purpose but to disadvantage gay

people necessarily rest on such unexamined stereo-

typical thinking, as this Court has recognized by

thrice ruling that simple disapproval of homosexual-

ity does not provide a constitutionally valid justifica-

tion for classifications based on sexual orientation.

See United States v. Windsor, 133 S. Ct. 2675, 2693-

94 (2013); Lawrence, 539 U. S. at 577-78; Romer, 517

U.S. at 634-35.

Those rulings confirm not only that, as a general

rule, sexual orientation “bears no relation to ability

to perform or contribute to society,” Cleburne, 473

U.S. at 441 (quotation omitted), but also that it is

17

specifically irrelevant to the ability to participate ful-

ly in the institution of marriage, Windsor, 133 S. Ct.

at 2694 (affirming that same-sex couples are equally

worthy of the federal benefits and burdens of mar-

riage). At the very least, the lack of a nexus between

sexual orientation and social participation and con-

tributions—including the fulfillment of the responsi-

bilities of marriage—means that respondents’ mar-

riage bans cannot be accorded the same presumption

of constitutional validity that attaches to more ordi-

nary legislative enactments.

2. The Denial Of The Freedom To Marry And

Withholding Of Respect For Lawful

L n Lut l Liberty And

Dieni 7

This Court’s precedents have long recognized

“[t]he freedom to marry ... as one of the vital person-

al rights essential to the orderly pursuit of happiness

by free men.” Loving v. Virginia, 388 U.S. 1, 12

(1967); see Zablocki v. Redhail, 434 U.S. 374, 384

(1978) (“[T]he right to marry is of fundamental im-

portance for all individuals.”); Meyer v. Nebraska,

262 U.S. 390, 399 (1923) (citing right “to marry, es-

tablish a home and bring up children” as a central

protection of Due Process Clause). But even without

the strict scrutiny triggered by the denial of such a

fundamental right, the substantial burdens that the

challenged marriage bans impose on the liberty and

dignity of countless gay people at the very least re-

quire searching rational basis review.

On their face, the marriage bans restrict the

liberty of gay people to make basic “{c]hoices about

marriage, family life, and the upbringing of chil-

dren.” M.L.B., 519 U.S. at 116. As M.L.B. and Ei-

18

sensiadt each recognized, such encumbrances on in-

dividuals’ liberty to define and control their intimate

and familial relationships merit meaningful judicial

review. Id. at 116-17; see Eisenstadt, 405 U.S. at

453.

The bans not only infringe individual liberties in

family life, but also the equal dignity of gay people in

community and political life. Because marriage rep-

resents a state’s declaration that an intimate rela-

tionship is “worthy of dignity in the community,”

Windsor, 133 S. Ct. at 2692, respondents’ bans oper-

ate to withhold “a dignity and status of immense im-

port” from gay people, id. at 2681. That “interfer-

ence with the equal dignity of same-sex” relation-

ships, id. at 2693, imposes profound symbolic as well

as tangible harms that compromise the ability of gay

people to fully participate in American civic life. As

this Court has recognized, codified discrimination

against same-sex intimate relationships “demeans

the lives of homosexual persons” and amounts to “an

invitation to subject homosexual persons to discrim-

ination both in the public and in the private

spheres.” Lawrence, 539 U.S. at 575. Restrictions

on the freedom to marry likewise undermine the

self-worth and personal development of the children

of same-sex couples, who are left to question the “in-

tegrity and closeness of their own family” in the face

of inferior legal status and treatment. Windsor, 133

S. Ct. at 2694.

Respondents’ marriage bans impose more con-

crete public harms as well. The bans deprive same-

sex couples of the myriad economic and legal protec-

tions and responsibilities that marriage entails, in-

cluding access to health insurance, tax advantages,

and public welfare benefits. See id. at 2695. In this

19

manner, the marriage bans at issue here deprive gay

people of the seemingly mundane legal protections

that “constitute ordinary civic life in a free society”

for those lucky enough to enjoy them. Romer, 517

U.S. at 631.

This Court’s precedents recognize that such a

far-reaching classification calls for meaningful scru-

tiny even under rational basis review—scrutiny

commensurate to the burdens the classification im-

poses on public and private individual interests. See

Romer, 517 U.S. at 627, 632-35 (giving “careful con-

sideration,” id. at 633, to classification imposing

burdens “with respect to transactions and relations

in both the private and governmental spheres,” id. at

627).

II. RESTRICTIONS ON THE FREEDOM TO

MARRY BASED ON SEX AND SEXUAL

ORIENTATION CANNOT SURVIVE

MEANINGFUL REVIEW

Gay people share the same mix of reasons for

wanting and needing the freedom to marry and re-

spect for their lawful marriages as non-gay people.’

Restrictions on the freedom to marry based on sex

and sexual orientation—such as the marriage bans

challenged here—cannot survive even rationality

review of the sort described above.

7 See Wolfson, Why Marriage Matters: America, Equality,

and Gay People’s Right to Marry 8-24 (2004).

20

A. The Rationales For Marriage Bans

Based On Sex And Sexual Orientation

Proffered By The Sixth Circuit Do Not

Withstand Searching Rational Basis

Review

As described, when a classification shows indicia

of invidiousness or burdens important personal in-

terests, even rationality review requires that the

government's asserted justifications not be accepted

at face value. Instead, the Court assesses the legit-

imacy of the governmental purpose, the fit of the

classification to the interest it ostensibly serves, as

well as whether there exists a credible, non-

pretextual empirical basis for the government’s prof-

fered justification. See supra at I.A; Kelo v. City of

New London, 545 U.S. 469, 491 (2005) (Kennedy, J.,

concurring) (“[A] court applying rational basis review

under the Equal Protection Clause must strike down

a government classification that is clearly intended

to injure a particular class of private parties, with

only incidental or pretextual public justifications.”

(citing Cleburne, 473 U.S. at 446-47, 450, and More-

no, 413 U.S. at 533-36).

Insisting on an actual rational relationship be-

tween a classification and a legitimate governmental

purpose “ensure[s] that classifications are not drawn

for the purpose of disadvantaging the group bur-

dened by the law.” Romer, 517 U.S. at 633. Classifi-

cations that are lacking in factual support or ill-

suited to advance the government's stated purposes

“raise the inevitable inference that the disadvantage

imposed is born of animosity toward the class of per-

sons affected.” Id. at 634.

21

Respondents’ bans cannot survive such a search-

ing rationality review. The professed concerns that

the Sixth Circuit invoked to justify the bans lack any

factual basis whatsoever, and the bans’ scope and

effect in any event bear little, if any, relation to

those concerns. Even under rationality review, the

justifications cited by the Sixth Circuit provide no

basis for sustaining laws that deprive gay people of

the freedom to marry.

1 ; siete :;

ay Ee : S - ind Fails On Its O

Terms

a. The Sixth Circuit posited that respondents’

denial of same-sex couples’ freedom to marry was ra-

tionally related to a state interest in channeling het-

erosexual sex into committed relationships that mit-

igate the consequences of “unintended offspring.”

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

The institution of marriage, the court of appeals as-

serted, “create[s] an incentive for two people who

procreate together to stay together for purposes of

rearing offspring.” Jd. Respondents’ marriage bans,

it continued, simply reflected “the biological reality

that couples of the same sex ... do not run the risk of

unintended offspring.” /d.

That rationale suffers from a flaw that is fatal

under meaningful review: While respondents’ al-

leged interest in “responsible procreation” does not

compel that gay people be included in the institution

of marriage, it provides no logical basis for their ex-

clusion from the personal, economic, and dignitary

benefits that legal marriage provides. Marriage is

not a scarce resource the benefits of which must be

rationed: A same-sex couple’s marriage, or freedom

22

to marry, does not deprive different-sex couples of

their freedom to marry and responsibly raise their

offspring.®

The Sixth Circuit made no effort to explain how

the denial of the freedom to marry to gay people fur-

thers respondents’ interest in promoting “responsible

procreation.” It did not point to any record evidence

or other factual basis suggesting a rational relation-

ship between respondents’ marriage bans and the

welfare of unintended children.? Nor did the court

attempt to identify such a relationship through “ra-

tional speculation.” Jd. (quotation omitted). Instead,

the court found it unnecessary to verify that the

marriage bans in fact promoted responsible procrea-

tion, on the belief that rational basis review does not

hold governments to account “for doing too much or

too little in addressing a policy question.” Id.

But as shown in Part I above, even under ra-

tional basis, such extreme deference is inappropriate

for measures (such as the challenged marriage bans)

that target disfavored minorities and deprive them

of important personal interests. Because such

measures provide cause for concern about the pres-

8 Cf. Romer, 517 U.S. at 635 (rejecting argument that state

“interest in conserving resources to fight discrimination against

other groups” justified denial of anti-discrimination protections

to gay people).

§ On the contrary, the court appeared to acknowledge that

the “evidence ... and judicial factfinding” in these cases refuted

such a relationship. DeBoer, 775 F.3d at 405. Indeed, as Judge

Posner recognized, by denying the benefits of marriage to same-

sex couples who are or wish to become adoptive parents, such

bans serve only to undermine the government's interest in

managing the consequences of unintended offspring. See

Baskin, 766 F.3d at 672.

23

ence of invidious discrimination, courts must careful-

ly examine the government’s decision to “dof] ... too

little” in order to ensure that the exclusion of minori-

ties from benefits extended to others has factual and

logical justification and is not motivated by irration-

al prejudice. See, e.g., Romer, 517 U.S. at 630-31. In

Moreno, for example, this Court did not uncritically

accept the exclusion of non-traditional households

from the food stamp program as if it arose from an

ordinary governmental line-drawing exercise; rather,

it inquired whether that exclusion in fact furthered

the government’s professed objectives—and held

that it did not. Moreno, 413 U.S. at 536-38; see Hel-

ler v. Doe, 509 U.S. 312, 321 (1993) (“[T]he standard

of rationality ... must find some footing in the reali-

ties of the subject addressed by the legislation.”).

Here, the “record does not reveal any rational

basis for believing” that respecting gay people’s free-

dom to marry “would pose any special threat to [re-

spondents’] legitimate interests,” Cleburne, 473 U.S.

at 448, in “responsible procreation.” Under a mean-

ingful rationality review, that deficiency alone pro-

vides a sufficient basis to reject the “unintended off-

spring” rationale as insufficient, if not indeed pre-

textual. Id. at 449-50.

b. But even assuming that respondents’ mar-

riage bans helped advance respondents’ interest in

so-called “responsible procreation,” they would still

fail a meaningful review because they are “at once

too narrow and too broad” with respect to that goal.

Romer, 517 U.S. at 633.

The bans are too narrow because they do not de-

ny the freedom to marry to all couples that are inca-

pable of reproduction, but only to gay couples. The

24

logic of the “unintended offspring” rationale would

apply equally to different-sex couples that cannot

procreate, whether due to age, physical infirmity, or

incarceration. See Lawrence, 539 U.S. at 605 (Scalia,

J., dissenting) (“[W]hat justification could there be

for denying the benefits of marriage to homosexual

couples ...? Surely not the encouragement of procre-

ation, since the sterile and the elderly are allowed to

marry.”). Yet the challenged marriage bans do not

withhold the freedom to marry from such non-gay

couples, who are granted freedom to marry with no

apparent resulting harm to respondents’ interest in

promoting responsible childrearing. See, e.g., Turner

v. Safley, 482 U.S. 78, 95-96 (1987) (recognizing “a

constitutionally protected marital relationship in the

prison context”). Even if denying the freedom to

marry to couples incapable of reproducing could ad-

vance that interest, respondents’ bans on same-sex

couples (and only same-sex couples) marrying are “so

riddled with exceptions” that promotion of responsi-

ble procreation “cannot reasonably be regarded as

[their] aim.” Eisenstadt, 405 U.S. at 449; see

Cleburne, 473 U.S. at 449-50.

At the same time, the bans are too broad be-

cause their “sheer breadth is so discontinuous with

the reasons offered for [them] that [they] seem[] in-

explicable by anything but animus.” Romer, 517

U.S. at 632. As this Court has repeatedly stated,

marriage is about much more than procreation:

Marriage is a coming together for better or for

worse, hopefully enduring, and intimate to the

degree of being sacred. It is an association that

promotes a way of life, not causes; a harmony in

living, not political faiths; a bilateral loyalty, not

commercial or social projects. Yet it is an asso-

25

ciation for as noble a purpose as any involved in

our prior decisions.

Zablocki v. Redhail, 434 U.S. 374, 384 (1978) (quot-

ing Griswold v. Connecticut, 381 U.S. 479, 486

(1965)). The marriage bans challenged here thus do

much more than withhold incentives for “responsible

procreation”; they deprive gay people of the ability to

“express[] emotional support and public commit-

ment,” and to “exercise [their] religious faith” by sol-

emnizing their relationships under the law. Turner,

482 U.S. at 95-96.

Gay people are parents, too, and the challenged

marriage bans’ overbreadth is made yet more appar-

ent by their cruel impact on the children of same-sex

couples. The bans deprive those children of “the

emotional comfort that having married parents is

likely to provide,” Baskin, 766 F.3d at 663, while at

the same time injuring their equal status and digni-

ty by “telling them they don’t have two parents, like

other children,” id. at 671. The bans also inflict eco-

nomic harm on the children, raising their family’s

cost of healthcare and defeating or reducing their el-

igibility for important governmental benefits. See

Windsor, 133 S. Ct. at 2695. These emotional, digni-

tary, and economic harms to the adopted and biolog-

ical children of same-sex couples give the lie to the

notion that the bans rationally relate to any state

interest in child welfare.

Respondents’ infliction of such “immediate, con-

tinuing, and real injuries” on gay people and their

children—injuries that are untethered from and of-

ten inimical to any genuine state interest in child

raising—“outrun and belie any legitimate justifica-

26

tions that may be claimed” based on such interests.

Romer, 517 U.S. at 635.

2. The “Wait and See” Rationale Fails Rational

_—

The Sixth Circuit separately held that “a State

might wish to wait and see before changing a norm

that our society ... has accepted for centuries.”

DeBoer, 772 F.3d at 406. Although the court insisted

that this justification was not a matter of “preserv-

ing tradition for its own sake,” id., it did not identify

a single hazard—not one—that might ensue from

respecting the freedom to marry to couples of the

same sex.

Even under rational basis review, a classifica-

tion cannot be sustained based on inchoate fears

about unspecified dangers. Because the government

can always suggest proceeding with “caution,” the

Sixth Circuit’s “wait and see” rationale “would turn

the rational basis analysis into a toothless and per-

functory review.” Kitchen v. Herbert, 961 F. Supp.

2d 1181, 1213 (D. Utah 2013), affd, 755 F.3d 1193

(10th Cir. 2014).1°

This Court’s cases confirm that caution is not a

legitimate end in itself, but only a means of advanc-

ing otherwise legitimate government interests. In

Cleburne, for example, the City of Cleburne argued

10 Both Romer and Eisenstadt prove this proposition. In

each case, the government easily could have invoked an inter-

est in proceeding with caution—caution about the sale of con-

traceptives to unmarried people in Eisenstadt, and about the

recognition of new anti-discrimination rights in Romer. But

that argument would have made little difference to this Court's

conclusion that the classifications in those cases violated equal

protection.

27

that its zoning-permit denial was justified by con-

cerns that residents at a group home for the intellec-

tually disabled might come into conflict with neigh-

bors and children at a nearby school. 473 U.S. at

448-49. This Court did not reflexively validate the

city’s worries about unrealized future events, but in-

stead subjected them to careful review to determine

whether they embodied legitimate governmental in-

terests. Id. It concluded that they did not: the po-

tential reactions of the community could arise only

from “mere negative attitudes, or fear, unsubstanti-

ated by factors which are properly cognizable in a

zoning proceeding.” Id. at 448; see id. at 449.

That holding makes clear that caution itself

must be grounded in something real and concrete,

and not predicated on—or a proxy for—the legisla-

ture’s or community’s dislike for the minority group

affected by a classification. Cf., e.g., Palmore v. Si-

doti, 466 U.S. 429, 433-34 (1984) (rejecting cases

justifying housing segregation based on concerns

about public disquietude); United States v. Virginia,

518 U.S. 515, 543-45 (1996) (reviewing historical

concerns that institutions would be degraded by ad-

mission of females). The Sixth Circuit did not identi-

fy any specific concern warranting a “wait and see”

approach, much less one based on a valid govern-

mental interest unrelated to “mere negative atti-

tudes” against gay, lesbian, and bisexual people.

Cleburne, 473 U.S. at 448.

Although a concrete need for and the benefits of

“caution” were not substantiated by the Sixth Cir-

cuit, the costs of the discriminating states’ “caution”

here are clear. Every day in which respondents

withhold respect for gay people’s freedom to marry is

a day of real injury, indignity, and injustice for

28

same-sex couples and their children; injuries and in-

dignities such as those inflicted on petitioner James

Obergefell, who was forced to go to the expense and

difficulty of marrying his terminally ill, immobile

partner on a Maryland airport runway because their

home state of Ohio refused this loving and commit-

ted couple the freedom to marry. See Br. for Pet.

Obergefell 6-7. Measures that inflict such intense

and far-reaching harms on so many cannot be made

constitutionally whole by an amorphous state invo-

cation of “caution.”

B. The Absence Of A Valid Rationale For

The Marriage Bans Establishes That

The Withholding Of The Freedom To

Marry And Respect For Marriages Are

Motivated By Impermissible Animus

A central premise of this Court’s cases applying

meaningful rationality review is that a when legisla-

tive classification targets a social minority and lacks

any apparent legitimate goal, there arises “the inevi-

table inference that the disadvantage imposed is

born of animosity toward the class of persons affect-

ed.” Romer, 517 U.S. at 634. Put another way, when

legitimate explanations for a law targeting a disliked

minority fail, red flags go up and a reasonable con-

clusion is that the minority was targeted simply be-

cause it is disliked. See Cleburne, 473 U.S. at 450;

Moreno, 413 U.S. at 540. That is precisely the “kind

of ‘class or caste’ treatment” that the Equal Protec-

tion Clause was “designed to abolish.” Plyler, 457

U.S. at 216 n.14; see also Romer, 517 U.S. at 635

(“Class legislation is obnoxious to the prohibitions of

the Fourteenth Amendment.” (alterations and quota-

tion omitted)).

29

Such animus need not necessarily reflect fla-

grant bigotry or malice in order to render a classifi-

cation unconstitutional; it can arise from “insensitiv-

ity caused by simple want of careful, rational reflec-

tion or from some instinctive mechanism to guard

against people who appear to be different in some

respects from ourselves.” Garrett, 531 U.S. at 374

(Kennedy, J., concurring). But in all events, a state

violates the equal protection guarantee when it legis-

lates on the basis of “irrational prejudice,” Cleburne,

473 U.S. at 449-50, or “select[s}] or reaffirm[s] a par-

ticular course of action” because of its negative ef-

fects on specific group. Pers. Adm’r of Mass. v. Feen-

ey, 442 U.S. 256, 279 (1979).

As shown, the non-invidious explanations that

respondents have put forward for their marriage dis-

crimination do not withstand serious inquiry. See

supra Part II.A. The absence of legitimate rational

basis for the bans leads to the conclusion that they

reflect “a bare ... desire to harm” gay people. Romer,

513 U.S. at 634 (quotation omitted).

That inference finds support in the historical

and political context in which the challenged bans

(and numerous similar measures) arose. In the mid-

1990s, in response to the Hawaii Supreme Court’s

historic decision in Baehr v. Lewin, 852 P.2d 44

(Haw. 1993), states across the country began impos-

ing formal legal restrictions on the freedom to mar-

ry. At that time, the deep-seated anti-gay attitudes

described in Part I.B.1, supra, still persisted and

were exploited for political purposes. In 1994 opin-

ion polls, a majority of respondents stated that they

would not see a gay doctor or permit their children to

30

play in the home of a friend with a gay parent.!! Be-

cause of similar attitudes, it was not uncommon in

that period for gay or lesbian parents to lose custody

of their own children on the basis of judicial finding

that it was “not in the child’s best interest” to be

raised by a gay person. See Chauncey, Why Mar-

riage? 107 (2004). The statutory marriage bans here

at issue were enacted in the same setting, see Mich.

Comp. Laws § 551.1 (1996); Ky. Rev. Stat. § 402.005

(1998); Tenn. Code Ann. § 36-3-113(a) (1996), and

the widespread national support that such laws re-

ceived reflected the negative attitudes and prejudic-

es toward gay people at that time.

The challenged state constitutional amendments

were passed just a few years later, in the mid-2000s,

ostensibly in response to the Massachusetts Su-

preme Court’s decision in Goodridge v. Department

of Public Health, 798 N.E.2d 941 (Mass. 2003). See

Tenn. Const. art. XJ, § 18 (2006); Mich. Const. art. I,

§ 25 (2004); Ohio Const. art. XV, § 11 (2004); Ky.

Const. § 233A (2004). The sponsor of Ohio’s consti-

tutional marriage ban openly relied on vicious anti-

gay slurs, distributing literature stating that

“{s]exual relationships between members of the same

sex expose gays, lesbians and bisexuals to extreme

risks of sexually transmitted diseases, physical inju-

ries, mental disorders and even a_ shortened

lifespan.” Obergefell v. Wymsylo, 962 F. Supp. 2d

968, 975 (S.D. Ohio 2013). The same organization

accused advocates of the freedom to marry of seeking

to eliminate restrictions on underage, incestuous,

11 See American Enterprise Institute, Attitudes About Ho-

mosexuality & Gay Marriage 9 (2008), available at

http://www.aei.org/wp-content/uploads/20 1 1/10/20080603-

Homosexuality .pdf.

31

and polygamous marriage. Jd. At a 2006 rally in

support of Tennessee’s constitutional marriage ban,

a speaker described the ban as part of a “war against

homosexual militants” and against “debauchery” ?2;

in the same election, an organization that advocated

for the ban also bought advertisements denouncing a

senate candidate in that state as a backer of “the

radical homosexual agenda.”!* And in the run-up to

the election in which Kentucky’s marriage ban was

enacted, one candidate in the state’s senate election

attacked the other as “limp-wristed” and “a switch

hitter”—overtly anti-gay attacks that ultimately re-

sulted in electoral victory.'4 Because of the disfa-

vored position of gay people and the “gay exception”

in much of the law of the time, the launching of an

unprecedented wave of state constitutional amend-

ments targeting one group of people and denying

them a fundamental liberty interest was treated by

much of the media and political class not as radical

or shocking, but as mere politics that were, at worst,

tolerable.

In short, respondents’ marriage bans have their

roots in a period of rampant, unreflective, and often

malicious stereotyping of gay people—a “dislike and

disapproval against homosexuals.” Lawrence, 539

12 Kelley, A Marriage of Politics and Religion, The Nash-

ville Scene, Oct. 19, 2006, at 11, available at http://

www.nashvillescene.com/nashville/a-marriage-of-politics-and-

rehgion/Content?oid=1 193824.

13 Leibovich, From Star Power to Blood Sport, Tennessee

Senate Race Has It, N.Y. Times (Nov. 5, 2006), available at

http:/Awww_nytimes.com/2006/1 1/05/us/politics/

O05diary html?pagewanted=all&_r-0.

14 See Rountree, Venomous Speech: Problems With Ameri-

can Political Discourse On The Right And Left 240 (2013).

32

U.S. at 583. This background of actively hostile atti-

tudes toward gay people only confirms what the

states’ inability to set forth any valid explanation for

the challenged marriage bans already makes clear—

the bans advanced then-prevalent social attitudes

about gay people, rather than any legitimate gov-

ernmental purpose. See Cleburne, 473 U.S. at 450.

C. There Is No Ground for Distinction Be-

tween Respondents’ Refusal To Respect

Out-Of-State Marriages And Withhold-

ing The Freedom To Marry Itself

Neither respondents nor the Sixth Circuit—nor,

to our knowledge, any other court—has even hinted

at a rationale that would justify upholding respond-

ents’ outright denial of the freedom to marry, but not

their refusal to respect out-of-state marriages.

It nevertheless bears emphasis that no such ra-

tionale exists. Neither respondents’ professed inter-

est in “responsible procreation” nor their interest in

“Burkean caution,” see DeBoer, 772 F.3d at 405-06,

turns in any way on the physical location in which a

marriage license is issued. Whether a state affords

the freedom to marry or merely respects the out-of-

state marriages of same-sex couples, the hypothe-

sized injury to the state’s asserted interests would be

the same: significant numbers of same-sex couples

will enjoy legal recognition of their marital relation-

ship. To be sure, states enjoy a unique sovereign in-

terest over questions of domestic relations, including

the regulation of civil marriages. See Windsor, 133

S. Ct. at 2691. But that authority is circumscribed

by the Fourteenth Amendment’s requirements of

equal protection and due process. See Loving, 388

U.S. 1; Meyer, 262 U.S. 390. The constitutional prin-

33

ciples of equality and liberty that prohibit states

from denigrating the marriages of same-sex couples

wed in other states constrain the state’s discrimina-

tory denial of the freedom to marry within its bor-

ders.

This Court’s affirming only the limited right to

marriage recognition would but prolong the struggle

and perpetuate the injuries and indignity that the

challenged marriage bans inflict. While many can

travel to another state to marry, others lack the good

health or financial means to do so. For such couples,

denying a license in the state in which they reside

amounts to an outright denial of the freedom to mar-

ry. This Court has held that financial burdens on

marriage rights violate the right to due process. See

Boddie v. Connecticut, 401 U.S. 371, 380—81 (1981)

(holding filing fees for divorce actions violate due

process by burdening freedom of indigents to remar-

ry); Zablocki, 434 U.S. at 375-77 (holding that law

conditioning right to marriage on satisfaction of

child support obligations violates due process).

Where, as here, financial obligations would be im-

posed in order for same-sex couples to marry, but not

for different-sex couples, that requirement would al-

so violate the Equal Protection Clause.

Even for couples who could afford travel to a

freedom-to-marry state, the withholding of the free-

dom to marry within their home state would cast a

badge of inferiority on their lawful marriage by

“identify[ing] a subset of state-sanctioned marriages

and mak[ing] them unequal.” Windsor, 133 S. Ct. at

2694. As Windsor explained, “[b]y creating two con-

tradictory marriage regimes within the same

State”’—one for marriages celebrated within the

state’s borders and one for marriages celebrated out-

34

side its borders—the state would “undermine[] both

the public and private significance of ... same-sex

marriages; for it tells those couples, and all the

world, that their otherwise valid marriages are un-

worthy” of celebration within the state. Jd. In effect,

the state’s withholding the freedom to marry perpet-

uates stigma and consigns same-sex couples forced

to marry in other states to “a second tier marriage.”

Id.

Such an abridgment of the freedom to marry

undermines the security and clarity that marriage is

intended to bring; no less than any other codified

form of discrimination against gay people, it is an

open “invitation to subject homosexual persons to

discrimination both in the public and in the private

spheres.” Lawrence, 539 U.S. at 575. The perpetua-

tion of such “class or caste” legislation violates the

core guarantees of the Equal Protection Clause.

Plyler, 457 U.S. at 216 n.14. We are one country,

with one Constitution — and the dignity, security,

and meaning that the freedom to marry and respect

for marriages entail belong to all Americans, gay and

non-gay alike.

CONCLUSION

“It is not the Constitution that has changed, but

the knowledge of what it means to be gay or lesbian.”

Kitchen v. Herbert, 961 F. Supp. 2d 1181, 1203 (D.

Utah 2013). As Americans have come to a better

understanding of who gay people are and why mar-

riage matters, they have come to support the free-

dom to marry for same-sex couples.!5 This Court

15 See CNN, Poll: Majority Backs Same-Sex Marriage (June

26th, 2013), available at http-//politicalticker.blogs.

cnn.com/2013/06/26/poll-majority-backs-same-sex-marriage/.

35

should make clear that sexual orientation discrimi-

nation is presumptively unconstitutional and war-

rants meaningful scrutiny. Even under rational ba-

sis review, the withholding of the freedom to marry

and full and equal respect for lawful marriages must

end.

Respectfully submitted.

JONATHAN P.SCHNELLER WALTER DELLINGER

DIMITRI PORTNOI (Counsel of Record)

O’MELVENY & MYERS LLP’ wdellinger@omm.com

400 South Hope Street JONATHAN D. HACKER

Los Angeles, Cal. 90071 O”"MELVENY & MYERS LLP

1625 Eye Street, N.W.

ANTON METLITSKY Washington, D.C. 20006

O’MELVENY & MYERS LLP (202) 383-5300

Times Square Tower

7 Times Square

New York, N.Y. 10036

Counsel for Amicus Curiae Freedom to Marry

March 6, 2015