Amicus Curiae Brief — Obergefell v. Hodges

Supls -

t

MAR - 3 2015

Nos. 14-556, 14-562, 14-571, 14-5

ju The

Supreme Court of the Gnited States

@

JAMES OBERGEFELL, et al.,

Petition: 3,

Vv.

RICHARD HODGES, Director,

Ohio Department of Health, et al.,

Respondents.

[See Next Page For Other Consolidated Cases]

.

On Writ Of Certiorari To The United States

Court Of Appeals For The Sixth Circuit

-~@

BRIEF AMICUS CURIAE OF THE STATE

OF HAWAII IN SUPPORT OF PETITIONERS

°

RUSSELL A. SUZUKI

Attorney Genera] of Hawaii

GIRARD D. Lau*

Solicitor General vu: Hawaii

425 Queen Street

Honolulu, Hawaii 96813

e-mail: girard.d lau@hawaii.gov

(808) 586-1360

Counsel for Amicus Curiae State of Hawaii

“alee Cs.

VALERIA TANCO, et al.,

Petitioners,

v.

BILL HASLAM, Governor of Tennessee, et al.,

Respondents.

+

APRIL DEBOER, et al.,

Petit

Vv.

RICK SNYDER, Governor of Michigan, et al.,

STEVE BESHEAR, Governor of Kentucky, et al.,

Respondents.

i

TABLE OF CONTENTS

Page

INTERESTS OF THE AMICUS CURIAE ........... 1

SUMMARY OF THE ARGUMENT...................-.. 2

4

I. The Fundamental] Right to Marry Under

the Due Process Clause Includes Same

Sex Couples Because Such Marriages Are

Essential to the Orderly Pursuit of Hap-

piness and Fundamental! to our Existence

EE chihicitcinscenibiinedinninaneninininiiiiinabane

Il. History and Tradition Cannot Justify

Excluding Same Sex Couples from the

Fundamental Right to Marry.................... 12

a tcerersnscsseneresssssssenenenemneeneccanesusmecssene

‘:

TABLE OF AUTHORITIES

Page

CASES:

Bowers v. Hardwick, 478 U.S. 186 (1986)............ 13, 14

Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632

(neal acincecsisesninpudnbinineshemeinenpineinsinsieneniagmiinnmeinbenidientidia 5

Griswold v. Connecticut, 381 U.S. 479 (1965) ............. 7

Jackson v. Abercrombie, 9th Cir. Appeal Nos.

GEE HII inncitisainiinscananiadnidnnnieacedetieinsennsiiniined 4

Lawrence v. Texas, 539 U.S. 558 (2003)......... 12, 13, 14

Lehr v. Robertson, 463 U.S. 248 (1983)...................0004. 8

Loving v. Virginia, 388 U.S. 1 (1967)....... 5, 6, 7, 12, 15

Reno v. Flores, 507 U.S. 292 (1993) ................ceeeeeeees 14

Skinner v. State of Oklahoma ex rel. Williamson,

Se ee Ci cencentinntntaremncantanienititinannniianemedin 7

Turner v. Safley, 482 U.S. 78 (1987) .................00e000- 5,8

United States v. Windsor, 133 S. Ct. 2675 (2013)....3, 11

Zablocki v. Redhail, 434 U.S. 374 (1978)......5, 7, 9, 10,

sdppenashimngunenneumednesngimnnnpnmmanemnennmntiae 11, 12, 15

CONSTITUTION:

ill

TABLE OF AUTHORITIES — Continued

Page

OTHER AUTHORITIES:

G. Herek, et al., Demographic, Psychological,

and Social Characteristics of Self-Identified

Lesbian, Gay, and Bisexual Adults in a US

Probability Sample, 7 Sexuality Res. & Soc.

ED SIT scitnnecninidutciatiapedenniibiddncddidnsannenrindenns

M. Lamb, Mothers, Fathers, Families, and

Circumstances: Factors Affecting Children’s

Adjustment, Applied Developmental Science,

Sins TTT ccicncrnpniniemniitiinatainiantimupepediiaiiatdimniaadinescieniais

M. Lamb, Placing Children’s Interests First:

Developmentally Appropriate Parenting Plans,

10 Va. J. Soc. Pol’y & L. 98 (2002)...................000000-

1

INTERESTS OF THE AMICUS CURIAE

Amicus Curiae State of Hawaii has a strong

interest in the promotion and protection of the civil

rights of persons without regard to sexual orienta-

tion. In that vein, Hawaii has long had legislation

prohibiting discrimination in public accommodations

on the basis of sexual orientation. In 2013, Hawaii

legislatively eliminated its former restriction limiting

marriage to different sex couples, and extended the

right to marry to same sex couples.

Hawaii believes that the right of a same sex cou-

ple to marry should be extended to persons through-

out the United States, as a matter of fairness and

equality, and for the benefit of the couple and any

children raised by the couple. Hawaii believes that

if the “liberty” protected by the Due Process Clause

means anything, it is the liberty to love and commit

to the person one chooses (regardless of gender), with

the legal and social benefits and responsibilities at-

tendant to that commitment. Furthermore, Hawaii

has a strong interest in assuring that the marriages

of Hawaii same sex couples are recognized through-

out the United States were they to travel or move to

other states. Accordingly, Hawaii submits this amicus

brief urging this Court to hold that the fundamental

right to marry under the Due Process Clause includes

same sex couples.

2

SUMMARY OF THE ARGUMENT

This amicus brief presents a unique Due Process

argument, not made by the parties or their amici,

focused on the “existence and survival” element un-

derlying the fundamental right to marry.

The rationale and logic of existing Supreme

Court precedent require that the fundamental right

to marry under the Due Process Clause include same

sex couples. This Court has ruled many times that

marriage is a fundamental right because it is 1) es-

sential to the pursuit of happiness, and 2) important

to our “existence and survival.” Because same sex

marriage is also essential to the pursuit of happiness

and important to our “existence and survival,” the

fundamental right to marry must extend to same sex

couples as well.

Same sex marriage, of course, easily satisfies the

pursuit of happiness prong, as the vast majority of

same sex couples express a desire to marry their

partner if it were legal. Opponents, however, would

deny that same sex marriage is important to “exis-

tence and survival” because only different sex couples

naturally and biologically procreate. That theory is

fundamentally flawed because this Court’s determi-

nation that marriage is important to “existence and

survival” was not focusec on the biological capacity to

procreate. Indeed, biological procreation can, and

often does, occur outside of marriage, and this Court

stated that “marriage,” without mentioning “procrea-

tion,” was fundamental to existence and survival.

3

This Court’s reference to marriage being funda-

mental to “existence and survival” was referring not

to a couple’s biological ability to procreate, but rather

to the institution of marriage, which provides that a

couple undertake and fulfill legal and social responsi-

bilities: 1) to each other, for the couple’s mutual ben-

efit and survival, and 2) jointly to any children they

may have, for the children’s survival. Where children

are involved, marriage ensures that such children are

raised and nurtured by two parents, in a committed

legal relationship.

It is in this legal and social commitment sense

(not natural procreative capacity), which benefits

both the couple and their children, that marriage

promotes the “existence and survival” of human

beings in a modern society. Because same sex couples

are equally capable of taking on those legal and social

commitments to each other, and to any children they

may have — and they and their children benefit from

those responsibilities being fulfilled — same sex mar-

riages are just as fundamental to existence and

survival as marriages of different sex couples.

Indeed, because Windsor determined that deny-

ing full marriage status to same sex couples demeans

them, and humiliates and financially harms their

children, this Court already recognizes marriage’s

importance to their and their children’s “existence

and survival.”

In sum, because same sex marriage, like different

sex marriage, is important to both the pursuit of

4

happiness, and to the couple’s and their children’s

existence and survival, same sex marriage easily

satisfies the two foundational elements that caused

this Court to declare marriage to be a fundamental

right. Consequently, this Court’s existing precedents

command the inclusion of same sex couples within

the fundamental right to marry.

History and tradition cannot justify excluding

same sex couples from the fundamental right to

marry; this is especially true when the reasons

marriage is a fundamental right apply to same sex

couples. Accordingly, bans on same sex marriage

violate the Due Process Clause.

¢

ARGUMENT

Amicus Curiae State of Hawaii agrees with

arguments made in the multi-state Amicus brief to be

filed by Massachusetts, et al., but submits its own

brief in support of Petitioners to make the following

unique argument — focusing on “existence and sur-

vival” — explaining why the fundamental right to

marry under the Due Process Clause necessarily

includes same sex couples. Hawaii is not aware of

this particular argument having been made by any of

the parties in these cases, or their amici. Hawaii's

then-Governor initially made this argument in 2012

and throughout the Hawaii same sex marriage case of

Jackson v. Abercrombie, 9th Cir. Appeal Nos. 12-

16995 & 12-16998.

5

I. The Fundamental Right to Marry Under

the Due Process Clause Includes Same

Sex Couples Because Such Marriages Are

Essential to the Orderly Pursuit of Hap-

piness and Fundamental to our Existence

and Survival.

This Court has unanimously declared that:

The freedom to marry has long been recog-

nized as one of the vital personal rights es-

sential to the orderly pursuit of happiness

by free men.

Marriage is one of the “basic civil rights

of man,” fundamental to our very existence

and survival. To deny this fundamental

freedom on so unsupportable a basis as the

racial classifications embodied in these stat-

utes, classifications so directly subversive of

the principle of equality at the heart of the

Fourteenth Amendment, is surely to deprive

all the State’s citizens of liberty without due

process of law.

Loving v. Virginia, 388 U.S. 1, 12 (1967). See also

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

the same “orderly pursuit of happiness” and “existence

and survival” elements from Loving, and stating that

“the right to marry is of fundamental importance for

all individuals.”); Turner v. Safley, 482 U.S. 78, 95

(1987) (“[T]he decision to marry is a fundamental

right”); Cleveland Bd. of Educ. v. LaFleur, 414

U.S. 632, 639-40 (1974) (“freedom of personal choice

in matters of marriage ... is one of the liberties

6

protected by the Due Process Clause”). Although

Loving found a Due Process violation only as to

marriage restrictions on the basis of race, Loving

unambiguously found that marriage itself was a

fundamental right. And it did so because marriage

was “essential to the orderly pursuit of happiness,”

and “fundamental to our very existence and survival.”

Therefore, if same sex marriage, too, satisfies these

very same two underlying rationales that this Court

has used to justify marriage being a fundamental

right, then that right necessarily should extend

equally to same sex couples.

There is, of course, no reason to believe that

marriage for same sex couples is not “essential to the

orderly pursuit of [such couple’s] happiness.” See, e.g.,

G. Herek, et al., Demographic, Psychological, and

Social Characteristics of Self-Identified Lesbian, Gay,

and Bisexual Adults in a US Probability Sample, 7

Sexuality Res. & Soc. Policy 176, Table 8 (2010)

(88.4% of gay men and 88.6% of lesbians, currently in

a same sex relationship, would be somewhat, fairly, or

very likely to marry their current partner if it were

legal).

Thus, the remaining issue is whether same sex

marriage, like different sex marriage, is also “funda-

mental to our very existence and survival.” Although

some might argue that only different sex marriage is

“fundamental to our very existence and survival,”

because only different sex couples naturally and

biologically procreate, that theory is fundamentally

flawed. First, the underlying premise is no longer

7

true, because adoption, as well as now-common mod-

ern technologies, allow same sex couples to procreate

as well.

Most importantly, the Supreme Court’s reference

to marriage being fundamental to existence and

survival could not have been focused on the biological

ability to procreate. This is clear because mere biolog-

ical procreation can occur outside of marriage, and

often does. And the Court said that “marriage” —

not “procreation” — was fundamental to our very

existence and survival.’ Clearly then, it was some-

thing other than biological procreative capacity that

caused this Court to deem marriage fundamental to

existence and survival.

Instead, when the Supreme Court referred to

marriage as fundamental to “existence and survival,”

it was referring not to a couple’s biological ability to

procreate per se, but rather to the institution of

marriage, which provides that a couple undertake

legal and social responsibilities and obligations

1) to each other for the couple’s mutual benefit and

survival, see Griswold v. Connecticut, 381 U.S. 479,

' Although this Court has also ruled that “procreation,” too,

is fundamental to our “very existence and survival of the race,”

Skinner v. State of Oklahoma ex rel. Williamson, 316 U.S. 535,

541 (1942), what matters is that this Court has concluded that

“marriage” itself — separate and apart from procreation — is

fundamental to our very existence and survival. See Loving,

supra; Zablocki, 434 U.S. at 386 (“the decision to marry has been

placed on the same level of importance as decisions relating to

procreation [and] childbirth.”).

8

486 (1965) (marriage is a “bilateral loyalty”); Turner,

482 U.S. at 95 (marriage is an “expression[] of

emotional support and public commitment”), and

2) jointly to their children. Where children are

involved, the institution of marriage ensures that

such children are raised by fwo parents who, in a

committed legal and social relationship, will work

together to protect the health, safety, and welfare of

their children, and develop them into responsible

members of society. Cf. Lehr v. Robertson, 463 U.S.

248, 256-57 (1983) (“The institution of marriage has

played a critical role . . . in defining the legal entitle-

ments of family members. ... In recognition of that

role, and [to] servi[e] the best interests of children,

state laws almost universally express an appropriate

preference for the formal family.”).

It is in that legal and social commitment

sense (not natural procreative capacity), that the

institution of marriage promotes the “existence and

survival” of human beings in a modern society.’

Indeed, even opponents agree that children benefit

* “(Tjhe relationship of love and duty in a recognized family

unit is an interest in liberty entitled to constitutional protec-

tion.” Lehr, 463 U.S. at 258. “Parental rights do not spring full-

blown from the biological connection between parent and child.

They require relationships more enduring.” Id. at 260. “When an

unwed father demonstrates a full commitment to the responsi-

bilities of parenthood by ‘com[ing) forward to participate in the

rearing of his child,’ his interest in personal contact with his

child acquires substantial protection under the due process

clause.... But the mere existence of a biological link does not

merit equivalent constitutional protection.” Id. at 261.

9

from the stability marriage offers. Marriage pro-

vides the couple with mutual obligations, both legal

and social, of support for one another, and provides

significant support for the safety, welfare, and devel-

opment of any children the couple may have by

providing two parents — in a committed legal and

social relationship — to together protect, feed, clothe,

educate, and develop their children into decent and

productive members of society. See Zablocki, 434 U.S.

at 384 (focusing not on procreation but on marriage’s

importance as “the foundation of family and society,

without which there would be neither civilization nor

progress,” and on marriage’s tie to “establishling] a

home and bring/fing] up children,” as opposed to

merely giving birth to children). It is those legal and

social responsibilities and obligations to each other

and jointly to any children, not biological procreative

capacity, that make marriage “fundamental to our

very existence and survival.”

Because same sex couples are equally able to

undertake those same legal and social responsibilities

and obligations to each other, and to any children

they may have — and they and their children benefit

from those responsibilities being fulfilled — same sex

marriages are equally fundamental to our existence

and survival. Thus, same sex marriage satisfies both

prongs of this Court’s rationale for deeming marriage

a fundamental right: 1) it is essential to the pursuit of

happiness, and 2) it is fundamental to our existence

and survival.

10

Moreover, natural procreative capacity is clearly

not the essence of marriage, given that states gener-

ally grant couples who have no intent, or are physi-

cally unable, to have children the same legal ability

to enter into marriage. Furthermore, the U.S. Su-

preme Court has treated as separate and distinct, the

decision to marry, versus the decision to procreate.

See Zablocki, 434 U.S. at 386 (“the decision to marry

has been placed on the same level of importance as

decisions relating to procreation [and] childbirth.”).”

Once it is understood that it is those legal and

social obligations of a couple in a marriage to each

other and to their children that make marriage fun-

damental to “our very existence and survival,” it

becomes clear that there is no reason to exclude same

sex couples from the fundamental right to marry this

Court has long recognized. For same sex couples, like

heterosexual couples, benefit from the legal and social

responsibilities of mutual support for each other that

marriage provides. And, the children of same sex

couples, too, will benefit just as strongly (as children

of different sex couples) from the legal and social

responsibilities (resulting from marriage) that their

parents will jointly have to them to together protect

them, and develop them into responsible adults. See

Zablocki, 434 U.S. at 384 (marriage is fundamental

because it is the “foundation of family and society”;

* In any event, same sex couples can, and frequently do,

procreate (through adoption and new technologies).

11

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

children’ is a central part of the liberty protected by

the Due Process Clause”). See also M. Lamb, Placing

Children’s Interests First: Developmentally Appropriate

Parenting Plans, 10 Va. J. Soc. Pol’y & L. 98, 99

(2002) (“there is substantial consensus today that

children are better off psychologically and develop-

mentally in two rather than single-parent families”);

M. Lamb, Mothers, Fathers, Families, and Circum-

stances: Factors Affecting Children’s Adjustment,

Applied Developmental Science, 16:2, 98, 104 (2012)

(“children and adolescents with same-sex parents

probably would benefit if their parents could choose

to marry and solidify their family and parental ties”).

Indeed, preventing same sex couples from marry-

ing undermines “existence and survival” by lessening

those couples’ obligations (both legal and social) to

care for each other. And, where children are involved,

barring marriage undercuts the children’s “survival”

by weakening the bond between their parents who

ideally should together protect and nurture their

children. Moreover, as this Court determined recently,

denying full recognition of same sex marriages “de-

means the couple,” and “humiliates” and “financiall[ly]

harm(s)” their children. United States v. Windsor, 133

S. Ct. 2675, 2694, 2695 (2013). Thus, this Court has

already recognized that denying same sex couples full

marriage status undermines their and their chil-

dren’s existence and survival.

12

To argue that even though marriage is a funda-

mental right, same sex marriage is not, is thus incon-

sistent with existing Supreme Court precedent, and

otherwise highly problematic. Most importantly, as

explained above, the reasons marriage is a fundamen-

tal right — its importance to the pursuit of happiness

and to “our very existence and survival,” Loving,

Zablocki — apply equally to same sex couples. That,

by itself, requires including same sex couples within

the fundamental right to marry recognized by this

Court.

Il. History and Tradition Cannot Justify Ex-

cluding Same Sex Couples from the Fun-

damental Right to Marry.

Because this Court made clear in Lawrence uv.

Texas, 539 U.S. 558 (2003), that “neither history nor

tradition could save a law prohibiting miscegenation

from constitutional attack,” 539 U.S. at 577-78, the

history or tradition of excluding same sex couples

from marriage cannot justify that exclusion today. In

fact, interracial marriage was banned in 30 states as

of 1952, see Loving, 388 U.S. at 6 n.5, and 41 states at

some point in their history banned it. Yet despite that

clear history and tradition of excluding interracial

couples from marriage, the Supreme Court in Loving

had no trouble finding interracial marriage to be a

fundamental right. As Lawrence recognized, “(hjistory

and tradition are the starting point but not in all

13

cases the ending point of the substantive due process

inquiry.” 539 U.S. at 572.*

It is especially inappropriate to rely upon an

historical or traditional practice of excluding certain

groups from a right when the principal reasons for

recognizing the right as fundamental — which are

part of that tradition — would include the excluded

groups. As demonstrated earlier, the reasons this

Court recognizes marriage as a fundamental right —

marriage being essential to the “orderly pursuit of

happiness,” and fundamental to our very “existence

and survival,” as well as being the “foundation of

family and society,” and furthering the “establish-

ment of a home and bringing up of children” — apply

equally well to same sex couples.

Finally, to allow tradition and history to single-

handedly restrict the scope of a fundamental right

would mean that longstanding discriminatory prac-

tices, once widely accepted in the nation, would escape

Due Process scrutiny simply because those practices

were longstanding, and once widely accepted. Uphold-

ing such an interpretation would severely weaken the

* And by overruling Bowers v. Hardwick, 478 U.S. 186

(1986), Lawrence, in recognizing a Due Process right to same sex

intimate relations, made extending the fundamental right to

marry to same sex couples even more compelling. Cf. Lawrence,

539 U.S. at 604 (Scalia, and Thomas, JJ., dissenting) (“Today's

opinion dismantles the structure of constitutional law that has

permitted a distinction to be made between heterosexual and

homosexual unions, insofar as formal recognition in marriage is

concerned.”).

14

substantive protections enshrined in the Due Process

Clause. See Lawrence, 539 U.S. at 577-78 (adopting

Justice Stevens’ position in Bowers that “the fact that

the governing majority in a State has traditionally

viewed a particular practice as immoral is not a

sufficient reason for upholding a law prohibiting the

practice; neither history nor tradition could save a law

prohibiting miscegenation from constitutional attack.”).

Ultimately, because same sex marriages, like

different sex marriages, are “essential to the orderly

pursuit of happiness,” and “fundamental to our very

existence and survival,” this Court’s precedents vir-

tually dictate inclusion of same sex couples within the

fundamental right to marry this Court has long

recognized.

Opponents must therefore demonstrate that their

same sex marriage bans are narrowly tailored to

serve a compelling state interest. See Reno v. Flores,

507 U.S. 292, 301-02 (1993) (“‘due process of law’...

include[s] a substantive component, which forbids the

government to infringe certain ‘fundamental’ liberty

interests at all ... unless the infringement is nar-

rowly tailored to serve a compelling state interest.”).

Because they cannot do so, state same sex marriage

prohibitions violate the Due Process Clause.

¢

CONCLUSION

This Court has repeatedly recognized marriage to

be a fundamental right under the Due Process Clause

15

because it is important: 1) to the pursuit of happiness,

and 2) to human existence and survival. See Loving,

Zablocki, supra. Because the marriage of same sex

couples unequivocally furthers these two purposes,

existing precedent requires that same sex marriage,

too, fall within the fundamental right to marry. The

Due Process Clause thus invalidates prohibitions on

same sex marriage. Only by granting petitioners a

right to marry that fully respects petitioners’ promises

of loving, will the promise of Loving be truly fulfilled.

Dated: Honolulu, Hawaii, March 3, 2015.

Respectfully submitted,

RUSSELL A. SUZUKI

Attorney General of Hawaii

GIRARD D. Lau*

Solicitor General of Hawaii

*Counsel of Record

KIMBERLY T. GUIDRY

First Deputy Solicitor General

ROBERT T. NAKATSUJI

Deputy Solicitor General

425 Queen Street

Honolulu, Hawaii 96813

e-mail: girard.d.lau@hawaii.gov

(808) 586-1360

Counsel for Amicus Curiae

State of Hawaii