# Amicus Curiae Brief — Obergefell v. Hodges

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0306%3A070

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2015
- **Citation:** 576 U.S. 644

## Text

Nos. 14-556, 14-562, 14-571, 14-072
in Une
Supreme Court of the Gnited States

JAMES OBERGEFELL, ET AL., AND BRITTANI HENRY, ET AL.,
PETITIONERS,
Vv.
RICHARD HODGES, DIRECTOR, OHIO DEPARTMENT
OF HEALTH, ET AL., RESPONDENTS.

VALERIA TANCO, ET AL., PETITIONERS,
Vv.
WILLIAM EDWARD “BILL” HASLAM,
GOVERNOR OF TENNESSEE, ET AL., RESPONDENTS.

APRIL DEBOER, ET AL., PETITIONERS,
Vv.
RICK SNYDER, GOVERNOR OF MICHIGAN, ET AL., RESPONDENTS.

GREGORY BOURKE, ET AL., AND TIMOTHY LOVE, ET AL.,
PETITIONERS,
Vv.
STEVE BESHEAR, GOVERNOR OF KENTUCKY, ET AL.,
RESPONDENTS.

ON WRITS OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT
LTTE

AMICUS CURIAE BRIEF OF HOWARD UNIVERSITY
SCHOOL OF LAW CIVIL RIGHTS CLINIC
IN SUPPORT OF PETITIONERS

ADERSON B. FRANCOIS, HOWARD UNIVERSITY SCHOOL OF LAW
AND
BENJAMIN G. SHATZ, Counsel of Record
MANATT, PHELPS & PHILLIPS, LLP
11355 West Olympic Blvd., Los Angeles, CA 90064
(310) 312-4000 Fax: (310) 312-4224 BShatz@Manatt.com
Counsel for Amicus Curiae
Howard University School of Law Civil Rights Clinic

TABLE OF CONTENTS

STATEMENT OF INTEREST
SUMMARY OF ARGUMENT

I. MARRIAGE IS A SYMBOL OF CIVIL
FREEDOM, A MARKER OF SOCIAL
EQUALITY, AND A BADGE OF FULL

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II. LIKE MARRIAGE FOR SAME-SEX
COUPLES TODAY, INTERRACIAL,
MARRIAGE WAS ONCE WIDELY
CONSIDERED A THREAT TO SOCIAL
ORDER AND THE INSTITUTIONS OF

MARRIAGE AND FAMILY ................02000e0000008

III. LIKE SAME-SEX COUPLES TODAY,
INTERRACIAL COUPLES WERE ONCE
CONDEMIED AS UNNATURAL AND
EERSTE RAISE RS a

A. Interracial Relationships Were Once
Framed as Purely Sexual, Just as
Same-Sex Relationships Are Framed
TTITTET ‘ccsciesiiniidehinsiditebeenditipeariiaaiidideicibaaiahiddihiniinatls

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TABLE OF CONTENTS
(continued)

B. Pseudoscientific Arguments Were
Used to Support Anti-Miscegenation
Laws and Are Currently Being Used
to Deny Same-Sex Couples the Right

C. Judeo-Christian Theological
Interpretations Often Have Been
Invoked to Challenge Marriage for

Both Interracial and Same-Sex
Couples

IV. LIKE SAME-SEX PARENTING TODAY,
INTERRACIAL PARENTING WAS ONCE
CONSIDERED DAMAGING TO THE
DEVELOPMENT AND PSYCHOLOGICAL
HEALTH OF CHILDREN

A. Interracial Marriage Was Once
Considered Harmful to Child
Development, Just as Same-Sex

Marriage Is Considered to Be Today ...

B. Children of Interracial Marriages

Were Once Thought to Be in Danger of

Psychological Trauma, Just as

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27

Children of Same-Sex Couples Today... 29

CONCLUSION

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TABLE OF AUTHORITIES

CASES

Baehr v. Miike,
No. 91-1394, 1996 WL 694235
(Haw. Cir. Ct. Dec. 3, 1996),

aff'd, 950 P. 2d 1234 (Haw. 1997) ........ 31, 32
Bottoms v. Bottoms,

457 S.E. 2d 102 (Va. 1995) ......................... 27
Davis v. Walton,

276 P. 2d 921 (Utah 1929)..............00.0.0...... 20

Florida Dept. of Children and
Families v. Adoption of X.X.G.,

45 So. 3d 79 (Fla. Ct. App. 2010)................ 35
Green v. State,

I a ae 4,7
Hernandez v. Robles,

855 N.E. 2d 1 (N.Y. 2006)........................... 29
J.L.P. v. D.J.P.,

643 S.W. 2d 865 (Mo. Ct. App. 1982)......... 33

Lofton v. Sec’y of the Dep’t of
Children & Family Serv.’s.,

358 F. 3d 804 (CA11 2004) ............0.0.0000000.. 34
Loving v. Virginia,
RT Oe GIR esonssncesuvcdsouseuectuseseniences 8, 23

N.K.M. v. L.E.M.,
606 S.W. 2d 179 (Mo. Ct. App. 1980)......... 34

iv

TABLE OF AUTHORITIES

(continued)

People v. Hall,

4 Cal. 399 (1854) ...eccccccccccsececescesceceeceeteeeeeee 16
Perez v. Sharp,

198 P. 2d 17 (Cal. 1948) .......cccccccecceceseeceeeees 17
Roe v. Roe,

324 S.E. 2d 691 (Va. 1985) ......................... 33
S.v. S.,

608 S.W. 2d 64 (Ky. Ct. App. 1980)............ 33
Scott v. State,

Bs Ge CED snwevsicinnsicinstictapeniammatannmenaaial 28
State v. Gibson,

ee Es Ge CI OP dntiinccictitcicaetsctnceccemmecann 4, 23
Wolfe v. Georgia Ry. & Elec. Co.,

58 S.E. 899 (Ga. Ct. App. 1907).................. 23

OTHER AUTHORITIES

American Psychological Association,
Sexual Orientation, Parents &
CRE GE BI cccnvscovctncncscsmseensteniomaiin 35

Amicus Brief of the American Center for
Law & Justice Northeast,
In re Marriage Cases, A110651
te eee eee 12

TABLE OF AUTHORITIES
(continued)

Amicus Brief of Catholics for the
Common Good, Hollingsworth v.
Perry, 133 S. Ct. 786 (2012)..................0.022. 25

Amicus Brief of Coalition of African
American Pastors, Hollingsworth v.
Perry, 133 S. Ct. 786 (2012) ....-.cccccccecceeeeeee: 14

Ariel [Buckner H. Payne],
The Negro: What Is His
Ethnological Status? (1867).................0...4+. 22

Ball, Carlos A. & Janice Farrell
Pea, Warring with Wardle:
Morality, Social Science, and
Gay and Lesbian Parenting,
RS EE 13

Ball, Carlos A., The Blurring of the Lines:
Children and Bans on Interracial Unions
and Same-Sex Marriages,

76 Fordham L. Rev. 2733 (2008)................ 26

Becker, Many are Chilled, but Few are
Frozen: How Transformative Learning
in Popular Culture, Christianity, and
Science Will Lead to the Eventual Demise
of Legally Sanctioned Discrimination
Against Sexual Minorities in the United
States, 14 Am. U. J. Gender Soc.
POLY & Ls. 177 (BOOG)...cccecccccccccsccsccccceces 21, 25

vi

TABLE OF AUTHORITIES
(continued)

Bentley, Nancy, White Slaves:
The Mulatto Hero in Antebellum
Fiction Am. Literature (1993)..................... 31

Bonauto, Mary, Ending Marriage
Discrimination: A Work in Progress,
40 Suffolk U. L. Rev. 813 (2007) ................ 35

Bost, Suzanne, Fluidity Without
Postmodernism: Michelle Cliff and
the “Tragic Mulatta” Tradition,
32 Afr. Am. Rev. 673 (1998) ..........c-.c0000---- 30

Brown, Herbert, History Doesn't Repeat
Itself, but it Does Rayme—Same-Sex
Marriage: Is the African-American
Community the Oppressor This Time?
34 S.U. L. Rev. 169 (2007) .......................... 12

Cobb, Thomas, An Inquiry into the Law of
Negro Slavery in the United States of
America (1858) (Negro Univs. Press 1968)...4

Congregation for the Doctrine of the
Faith, Letter to the Bishops of the
Catholic Church on the Pastoral Care
of Homosexual Persons (Oct. 1, 1986)........ 25

Cook, James Graham,
The Segregationists (1962) ...................0000+- 22

vii

TABLE OF AUTHORITIES
(continued)

Davidson, Jeannette R., Theories about
Black-White Interracial Marriage:
A Clinical Perspective,20 J. Multicultural
Counseling & Dev. 150 (1992).................... 18

Dobson, James C., Eleven
Arguments Against Same-Sex
Marriage (Feb. 26, 2014) ....................2.22000. 32

Dworkin, Ronald, Three Questions
for America, N.Y. Rev. of Books,
I I a rte 3

Focus on the Family’s Position
Statement on Same-Sex
“Marriage” and Civil Unions
GE See eee 24

Fredrickson, George M., The Black Image
in the White Mind: The Debate on
Afro-American Character and Destiny,
(Wesleyan Univ. Press 1987)......................... 8

Graff, E.J., What is Marriage For?: The
Strange Social History of Our Most
Intimate Institution (1999) ................0.0.cccceee. 4

Grant, Madison, The Passing of the Great
Race: or, The Racial Basis of European
History (Charles Scribener’s Sons 1916) ... 17

viii

TABLE OF AUTHORITIES
(continued)

Harris, Angela P., Loving Before and
After the Law,
76 Fordham L. Rev. 2821 (2008)................... 4

Harrub, Brad et al, This Is the Way
God Made Me: A Scientific
Examination of Homosexuality
| See 18

Higgins, Chester, Mixed Marriage
Ruling Brings Mixed Reaction in
Dixieland, Jet, June 29, 1967.....................2-. 8

Hohengarten, William M., Note,
Same-Sex Marriage and the
Right of Privacy,
103 Yale L.J. 1495 (1994) ..................ceeseeeeees 3

Jefferson, Thomas, Notes on the State of
Virginia (1787), reprinted in The
Portable Thomas Jefferson
(Merrill D. Peterson ed., 1977)...................--- 5

Joslin, Courtney G., Searching for
Harm: Same-Sex Marriage and the
Well-Being of Children,
46 Harv. C.R.-C.L. L. Rev. 81 (2011) ... 26, 32

Kennedy, Randall, Interracial
Intimacies: Sex, Marriage, Identity,
and Adoption (20038)............cccccccccccsecccoceseees 30

ix

TABLE OF AUTHORITIES
(continued)

Kopytoff, Barbara & A. Leon
Higginbotham, Jr., Racial Purity and
Interracial Sex in the Law of Colonial
and Antebellum Virginia,
gh SS 28

Kurtz, Stanley, The Libertarian Question:

Incest, Homosexuality, and Adultery.
Nat. Rev. Online (Apr. 30, 2003)................... 9

Less Faith in Judicial Credit: Are Federal
and State Defense of Marriage Initiatives
Vulnerable to Judicial Activism ?:
Hearing Before the Subcomm. on the
Constitution, Civil Rights and Prop.
Rights of the S. Comm. on the Judiciary,
Eee 10

Marks, Jonathan, Human Biodiversity:
Genes, Race, and History
(Transaction Publishers 1995) ................... 18

Myrdal, Gunnar, An American Dilemma:
The Negro Problem and Modern
LE I ae 7

Novkov, Julie, Racial Constructions:
The Legal Regulation of Miscegenation
in Alabama, 1890-1934,
20 Law & Hist. Rev. 225 (2002) ................. 16

TABLE OF AUTHORITIES
(continued)

Norwood, Thomas M., Address on the
Negro (Braid & Hutton 1907)..................... 13

Ordover, Nancy, American Eugenics:
Race, Queer Anatomy, and the Science
Of Nationalism (BOOS) ......ccccccccccccccccccccescceee 19

Perrin, Ellen C., Technical Report:
Coparent or Second-Parent Adoption
by Same-Sex Parents,
109 Pediatrics 341 (Feb. 2002)................... 36

Pichot, André, The Pure Society: From
Darwin to Hitler (David Fernbach

trans., Verso 2009) (2001) ....................00005. 15
Pilgrim, David,
The Tragic Mulatto Myth (2000)................ 28

Plecker, W.A., Virginia’s Effort to
Preserve Racial Integrity, in A Decade
of Progress in Eugenics: Scientific
Papers of the Third International
Congress of Eugenics (1934) ................. 16, 17

Porterfield, Ernest, Black-American
Intermarriage in the United States,
5 Marriage & Fam. Rev. 17 (1982)............. 18

TABLE OF AUTHORITIES
(continued)

Preface to A Decade of Progress in
Eugenics: Scientific Papers of the
Third International Congress of
Eugenics (1934) ......... pachasasstiiceninibciadasdbdeiaeasiaiiaiiaiteels 15

Ramos, Manuel, McCollum: No appeal to
keep Fla. gay adoption ban,
Orlando Sentinel, 10/22/2010..................... 35

Robinson, Reginald Leamon, Race, Myth
and Narrative in the Social
Construction of the Black Self,
I BBP CE iccccntniccncnbindicticdedtaseess 13

Romano, Renee, Race Mixing: Black-
White Marriage in Postwar America
aioe haa 6, 8, 27, 29

Rosenthal, Debra J., The White
Blackbird: Miscegenation, Genre, and
the Tragic Mulatta in Howells,
Harper, and the “Babes of Romance,”
56 Nineteenth-Century Lit. 495 (2002) ..... 31

Ross, Josephine, Riddle for Our Times:
The Continued Refusal to Apply the
Miscegenation Analogy to Same-Sex
Marriage,
54 Rutgers L. Rev. 999 (2002).................... 21

xii

TABLE OF AUTHORITIES
(continued)

Ross, Josephine, The Sexualization of

Difference: A Comparison of Mixed-
Race and Same-Gender Marriage,

37 Harv. C.R.-C.L. Rev. 255 (2002)......
Schatschneider, Rebecca, On Shifting

Sand: The Perils of Grounding the
Case for Same-Sex Marriage in the

Context of Antimiscegenation,
14 Temp. Pol. & Civ. Rts. L. Rev. 285

RARER TRS eee OSU aaa eee
Sealing, Keith E., Blood Will Tell:

Scientific Racism and Legal
Prohibitions Against Miscegenation,

5 Mich. J. Race & L. 559 (2000) ............

Smith, Bridget K., Race as Fiction: How
Film and Literacy Fictions of ‘Mulatto’

Identity Have Both Fostered and
Challenged Social and Legal Fictions
of Race in America, 16 Seton Hall J.

Sports & Ent. L. 44 (2006).....................
Smith, John David, The “Ariel”

Controversy: Religion and

“The Negro Problem” (1993) ..................

xiii

TABLE OF AUTHORITIES

(continued)

Tenuta, Christina M., Can You Really Be
A Good Role Model To Your Child If
You Can't Braid Her Hair? The
Unconstitutionality Of Factoring
Gender And Sexuality Into Custody
Determinations,
14 N.Y. City L. Rev. 351 (2011)...........000.... 33

Trosino, James, American Wedding:
Same-Sex Marriage and the
Miscegenation Analogy,
ee es ee is Be i a icncincctccscansvcescsonionens 6

Wallenstein, Peter, Tell the Court I Love
My Wife: Race, Marriage, and Law—
An American History (2002) .................006- 5, 8

Wardle, Lynn D., The Potential Impact of
Homosexual Parenting on Children,
1997 U. Ill. L. Rev. 833............. 13, 20, 29, 31

Wolfson, Evan, Why Marriage Matters:
America, Equality, and Gay People’s
pL 3

STATEMENT OF INTEREST

As one of the oldest among historically black
colleges and universities, Howard University
School of Law has long placed the defense of
human rights, equality, and dignity at the
heart of its educational practice.! This Court
faces the question of whether marriage rights
should be available to same-sex couples on the
same terms as to opposite-sex couples.
In seeking to answer the question, the Court
likely will confront—directly or indirectly—the
argument that the struggle for equal rights for
same-sex couples does not constitutionally or
morally equate with the fight for racial
equality. This brief is a corrective to the flawed
distinction too often drawn between equal
rights for racial minorities and equal rights for
same-sex couples.

SUMMARY OF ARGUMENT

Marriage is a symbol of civil freedom,
a marker of social equality, a badge of full
citizenship, and a_ social resource. of
irreplaceable value. Yet this fundamental

1 No counsel for a party authored this brief
in whole or in part, and no counsel or party
made a monetary contribution intended to fund
the preparation of this brief. The parties have
consented to the filing of this amicus brief.

2

expression of human dignity has been misused
historically as a political sieve for separating
individuals into a preferred class, to which
society grants a broad complement of legal
rights and privileges, and a lesser class,
to which it accords less than a full measure of
equality.

Such was the case when slaves before
Reconstruction and interracial couples in the
days of segregation were denied full marriage
equality. Today, while there is no longer any
serious claim that marriage rights should be
denied on the basis of race, opponents of
marriage equality have attacked same-sex
couples, using precisely the same flawed
arguments that once were used to justify racial
slavery and apartheid.

American society has evolved beyond the
time when anyone would seriously claim that
race-based marriage equality threatens the
moral fabric of our civilization, is contrary to
nature, or is harmful to children. But just
because opponents of marriage equality
continue to use these arguments against
extending marriage rights to same-sex couples
does not make the arguments any more valid
when applied in this context. This Court should
reject these stale arguments and affirm that
the principles under which marriage became
blind to race apply equally to marriages
between two people of the same sex.

3

ARGUMENT

I.

MARRIAGE IS A SYMBOL OF CIVIL
FREEDOM, A MARKER OF SOCIAL
EQUALITY, AND A BADGE OF FULL
CITIZENSHIP

In the United States, as elsewhere, the
institution of marriage has evolved from an
expression of love and companionship, to a
“legal gateway [of] ea protections,
responsibilities, and benefits.” Evan Wolfson,
Why Marriage Matters: America, Equality, and
Gay People’s Right to Marry 4 (2004).2 Both
asa private commitment and as a_ public
declaration, marriage is “a social resource of
irreplaceable value to those to whom it is
offered: it enables two people together to create
value in their lives that they could not create if
that institution had never existed.” Ronald
Dworkin, Three Questions for America,
N.Y. Rev. Books, 9/21/06, at 24, 30. The social
status, public approval, and economic benefits
that marriage confers render the institution not
just a personal act that the law sanctions, but
also a symbol of civil freedom, a marker of
social equality, and a badge of full citizenship.

2 See also William Hohengarten, Same-Sex
Marriage and the Right of Privacy, 103 Yale
L.J. 1495, 1499, 1501—1505 (1994).

4

See Angela P. Harris, Loving Before and After
the Law, 76 Fordham L. Rev. 2821, 2823
(2008).

Apart from the present struggle to accord
marriage rights to same-sex couples, perhaps
no clearer evidence exists of the link between
marriage rights and social equality than the
denial of marriage rights to slaves before the
Civil War and to interracial couples during the
Jim Crow era.* In the antebellum period, no
Southern state granted legal recognition to a
marriage between two slaves, in part because
recognition of slave marriages would not have
conformed to the widely held view of slaves as
childlike, immoral, and incapable of love,
sexual fidelity, or even lasting affection. See
E.J. Graff, What Is Marriage For?: The Strange
Social History of Our Most Intimate Institution
17 (1999). In words that eerily echo those of
modern opponents of same-sex marriage,
Thomas Jefferson himself once maintained that
marriage equality should not be accorded to
slaves because “love seems with them to be
more an eager desire, than a tender delicate

3 See, e.g., Green v. State, 58 Ala. 190, 197
(1877); State v. Gibson, 36 Ind. 389, 403—405
(1871); Thomas Cobb, An Inquiry Into the Law
of Negro Slavery in the United States of
America 242—243 (1858) (Negro Univs. Press
1968).

D

mixture of sentiment and sensation.” Thomas
Jefferson, Notes on the State of Virginia (1787),
reprinted in The Portable Thomas Jefferson 187
(1977).

Later, in the Jim Crow era, the denial of
marriage rights to interracial couples served as
one of the most potent symbols of the less-than-
equal status of African-Americans. As recently
as 1967, sixteen states still had anti-
miscegenation statutes on their books; the last
such statute was not officially repealed until
2000. See Peter Wallenstein, Tell the Court I
Love My Wife: Race, Marriage, and Law—An
American History (2004). Notably, opponents of
interracial marriage justified criminal
prohibitions against such unions by pointing to
the purported detrimental effect of interracial
births and parentage, the supposed destruction
of society if people marry between the races,
and the so-called natural law rationale for
keeping the races separate.

While public debate and opposition over
interracial unions have become shameful relics
of this country’s history, these same arguments
unfortunately have been resurrected and are
now being cited by opponents of marriage
equality for same-sex couples. Without
acknowledging the racial provenance of these
discredited arguments, opponents of marriage
equality have attacked same-sex couples as a
threat to American society, American families,

—— (visited 2/19/13).

19 Despite the use of such _ invidiously
prejudiced rhetoric, the medical establishment
increasingly has modified its positions to be
more inclusive, and states are following suit in
changing laws governing family relations. For
example, in 2004, the American Psychological
Association adopted a policy statement that
lesbians and gay men are not per se less likely
to be good parents than parents who identify as
heterosexual. American Psychological
Association, Sexual Orientation, Parents &
Children (July 2004). Similarly, the American

36

Opponents of mixed-race marriages, like
opponents of same-sex marriages, appeal to the
public’s understandable concern for the welfare
of children. However, in doing so, both rely on
antiquated stereotypes. In the case of anti-
miscegenation, opponents sought to limit
marriage in order to prevent procreation among
the group in question. With respect to same-sex
marriage, opponents limit marriage in order to
promote the notion of procreation as the
exclusive privilege of the heterosexual
population.

CONCLUSION

There is nothing new in the arguments
against same-sex couples having the freedom to
marry. No matter how much opponents of
marriage for same-sex couples insist that “this
time it is different,” there remains an appalling
familiarity to the refrain that allowing same-
sex couples the same human dignity as
everyone else will threaten social order,
degrade individuals, and harm children. Just
as they do now, some marriage traditionalists

Academy of Pediatrics issued a_ policy
statement favoring second-parent adoption by
same-sex parents. Ellen C. Perrin, Technical
Report: Coparent or Second-Parent Adoption by
Same-Sex Parents, 109 Pediatrics 341-344
(Feb. 2002).

37

claimed with all sincerity and unwavering
conviction that if African-Americans were
accorded full human dignity, our society, our
morality, and our faith would come to grief and
lay in ruins. Quite obviously, that has not
happened. Nor will these premonitions come to
pass if this Court joins the growing national
consensus in declaring that same-sex couples
cannot be denied the right to marry.

Respectfully submitted,

Benjamin G. Shatz, Counsel of Record
MANATT, PHELPS & PHILLIPS, LLP
11355 W. Olympic Blvd.

Los Angeles, CA 90064
(310) 312-4000 Fax (310) 312-4224
BShatz@Manatt.com

Aderson Bellegarde Francois
HOWARD UNIVERSITY SCHOOL OF LAW
CIVIL RIGHTS CLINIC
2400 Sixth Street, N.W.
Washington, D.C. 20059
(202) 806-8082 Fax (202) 806-8436
AFrancois@law.Howard.edu

Attorneys for Amicus Curiae
Howard University School of Law
Civil Rights Clinic

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0306%3A070. Public record. Not legal advice.