Amicus Curiae Brief — Obergefell v. Hodges

14-571 & 14-574 | “Pom Coun US.

FEB 27 205

Supreme Court of the Gnited States a

JAMES OBERGEFELL, ET AL., AND BRITTANI HENRY, ET AL., ;

PETITIONERS,

Vv.

RICHARD HODGES, DIRECTOR, OHIO DEPARTMENT OF

HEALTH, ET AL., RESPONDENTS.

VALERIA TANCO, ET AL., PETITIONERS,

Vv.

WILLIAM EDWARD “BILL” HASLAM, GOVERNOR OF

TENNESSEE, ET AL., RESPONDENTS.

*

APRIL DEBOER, ET AL., PETITIONERS,

Vv. :

RICK SNYDER, GOVERNOR OF MICHIGAN, ET AL., RESPONDENTS.

GREGORY BOURKE, ET AL., AND TIMOTHY LOVE, ET AL.,

PETITIONERS,

Vv

STEVE BESHEAR, GOVERNOR OF KENTUCKY, ET AL.,

RESPONDENTS.

On Writs of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

BRIEF OF AMICI CURIAE MAE KUYKENDALL,

DAVID UPHAM AND MICHAEL WORLEY

IN SUPPORT OF NEITHER PARTY AND

URGING AFFIRMANCE ON QUESTION 1

MICHAEL T. WORLEY MAE KUYKENDALL

272 Wymount Terrace Counsel of Record

Provo, UT 84604 Michigan State University

(818) 636-8160 648 N. Shaw Lane Rm 366

Michael Worley@alcosta.com East Lansing, MI 48824

(517) 432-6894

kuykend1@law.msu.edu

VALSON-EPES PRINTING Co., INC. ~ (202) 788-0096 — WASHINGTON, D. C. 20002

1

QUESTION PRESENTED

This brief addresses the question: Does the Four-

teenth Amendment require a state to license a mar-

riage between two people of the same sex”?

This brief is filed in support of neither party be-

cause Amici disagree on the second question: Does

the Fourteenth Amendment require a state to recog-

nize a marriage between two people of the same sex

when their marriage was lawfully licensed and per-

formed out-of-state?

Amici note below their various positions on the

second question.

il

TABLE OF CONTENTS

Page

SPE RS Oe RIS 0 TEP cccesicscesesccccssscscceseccctsccsocucseest l

TABLE OF AUTHORITIES ........................... eal ears iv

SPE GE SRMIIRAD <scocesncsccosesccccsvecavececessanconnscseves ]

I lea lniem pinaalamcnaananiinmeanliniiaaaee 2

ee a a 6

I. This Court avoids expounding on the meaning

of marriage in relation to a broad and detailed

set of state-regulated laws and court rulings ....... 6

A. This case is about an institution as well

CS ETT ET ETE TS AOI DD TORTI ON AOD 7

B. States have historically—with few

exceptions—set the boundaries regarding

institutional effects of marriage in their

TIE disicitniadaiatieiedliacpidianmiipdidaaninietedmsibidambeneteantoen 9

C. This Court’s precedent lacks a foundation

to speak to marriage as an institution

Il. For the Fourteenth Amendment to require

states to license same-sex marriage, many

state family law cases would have to become

ERTIES AN ELI TOOT DRED LOTS Oe OE TET 15

A. Numerous federal court cases would

result from a licensing decision...................... 16

B. As Judge Sutton noted, a licensing

decision would dramatically expand

Section Five of the Fourteenth

TTS TNS ET coe OI RT aD a 20

iil

C. Loving v. Virginia and other right-to-

marry cases did not require wholesale

CRATING BO GRRGD BRITE. occccccecccccccevcscccccccesesccccseses: 23

Ill. Past experience exemplifies potential issues... 24

A. Experience in states that grant marriage

licenses to same-sex couples through

state courts or the democratic process. ........... 25

B. Experience in states that license same-

sex couples because of federal court

Eee nat Seibae a me ee ea oe 26

IV. Amici take no position on the second

I canasdneboctannnasnnteneesiensnaneae 28

I sac iich dia eaters iicinasiaarueceininlocireta 30

APPENDIX: AMICI STATEMENTS OF

IIIT ecisnnk:coeasuicdelessniniabaghaquetenasannesuiaitaciituideidanebiannviiiils la

1V

TABLE OF AUTHORITIES

Cases

Adar v. Smith,

639 F.3d 146 (5th Cir. 2011)

Adoptive Couple v. Baby Girl,

133 S.Ct 2552 (2013)

Ankenbrandat v. Richards,

504 U.S. 689 (1992)

Boddie v. Connecticut,

401 U.S. 371 (1971)

Bostic v. Schaefer,

760 F.3d 352 (2014)

Brown v. Buhman,

947 F.Supp.2d 1170 (D. Utah 2013)

Carnes v. Sheldon,

311 N.W.2d 747 (Mich. 1981)

City of Boerne v. Flores,

521 U.S. 507 (1997)

Collins v. Harker Heights,

§ te Be) fee

Craig v. Boren,

429 U.S. 190 (1976)

oe ee eee eee eee eee ee eee eee ee eee ee

eee eC CPPCC eee ee eee eee eee

eee Cee eee eee eee eee

Page(s)

eaisiaibiitidaaioan oa

DeBoer v. Snyder,

772 F.3d 388 (6th Cir. 2014) ......00000.00.... 4, 6, 21, 28

District Attorney's Office v. Osborne,

HE IED cccncsccccccccssecesosassccoosoecss ....3, 16

Eisenstadt v. Baird,

i re ssucsuannocssosonosee 11

Gartner v. lowa Department of Public Health,

830 N.W.2d 235 (Iowa 2013) ..................ccceececeeeees 25

Griswold v. Connecticut,

i i cssnsbsecseceseseoccces 11

Haddock v. Haddock,

a i rr ee a ccssucsensesesosoososcocceseses fs)

Kendrick v. Shoemake, 90 S.W.3d 566

0 SE, I a &

Lawrence v. Texas,

ae 11

Lofton v. Sec’y of Dept. of Children & Family,

358 F.3d 804 (11th Cir. 2004) .......0............c cee. 27

Loving v. Virginia,

a ccceuupennonnenes 2, 23

Marvin v. Marvin,

Be Bee ID GE, BOP TOD ccccccccccccccccccccccccccoccececceccces 8

Meyer v. Nebraska,

i i cnccmasomenetens 12

vl

Michael H. v. Gerald D..,

gk PRE eee, Sees Ra 27

Murphy v. Ramsey,

I ina al ll al 29

Nat. Fedn. of Indep. Business v. Sebelius,

BR ASS ERE SRE a ee 9

Planned Parenthood v. Casey,

605 U.S. 833 (1992) ............................. paiteacae 11, 15

Planned Parenthood v. Danforth,

I I a a ae 11

Q.M v. B.C. and J.S., No. 13761-13

(N.Y. Fam. Ct. Monroe Cty. 2014)............00.0000002.. 25

Roe v. Wade,

rere eee eee On Le ee 15

Skinner v. State of Okl. ex rel. Williamson,

LE 8 ee ae Ae RR a es 13

Tennessee v. Lane,

541 U.S. 509 (2004) 2200 ccoocccccccccc cece 20

Troxel v. Granville,

530 U.S. 57 (2000) 0.0... ececceccececeeceececeseveveeeeees 12, 27

Turner v. Safley,

gg Le” ER Seen nena re met 13, 24

United States v. Windsor,

BBS B.CE BETS COVED cccccccccccccccccccccccccccccccecec: passim

vil

Whole Women’s Health v. Lackey,

574 U.S.__ (Dkt. 14A365) (Oct. 14, 2014)......... 16

Williams v. North Carolina,

gi? § dll ananidieaiehiadiin 2,7

Zablocki v. Redhail,

434 U.S. 574 (1978)............ saeeaeenduednaeianndiniids 11, 24

Statutes

Ky. Rev. Stat. Ann. § 403.044 ...................ceceeeececeeeeeees 8

Ky. Rev. Stat. Ann. § 403.212 (6) .......................2..2-- 17

Ky. Rev. Stat. Ann. §§ 401.010-507.5902.................... 7

Mich. Comp. Law Ann. § 700.2114(1) (a)............ 17, 18

Mich. Comp. Law Ann. §§ 551.1-552.1901.................. 7

Mich. Comp. Law Ann. §§ 552.1 et seq........................ 8

Ohio Rev. Code §§ 3101.01-3127.58 ............. 0... eee... 7

Ohio Rev. Code §§ 3107.01 et seq ................cccccccceeeeeees 8

Tenn. Code Ann. §§ 36-1-101- 36-7-503 ...................... 8

Constitutional Provisions

Ek Sees ance a eee 26

ERS ee ae ee: 9

RR SE nae ees ee ee 10

Federal and State Legislation

California Assembly Bill 849 (2005) ................. a 26

California Senate Bill 274 (2013)............0.00000.000000... 26

H.J. Res. 170, 61th Cong. (1910)............................... 22

H.J. Res. 279, 56th Cong. (1900).....................ccececeees 22

S.J. Res. 28, 80th Cong. (1947)...........................02200-- 22

Other Authorities

Associated Press, Gay marriage: North Carolina

official resigns (Oct. 16, 2014) ..................... ee

Beyond Same-Sex Marriage: A New Strategic Vision

For All Our Families and Relationships. ............... 14

Complaint, Henderson v. Tippecanoe County, No. 15-

220 Dkt. No. 1 (S.D. Ind. Feb. 13, 2015) ............... 27

David R. Upham, Interracial Marriage and the

Original Understanding of the Privileges or

Immunities Clause, 42 Hastings Const. L. Q. 213

STII cenecenensconsnesessmmenninensenssssmnnsmenenneeinmnncingenesetin 23

Lx

DECLARATION OF INDEPENDENCE (1776)..................-. 12

Edward Stein, Past and Present Proposed

Amendments to the United States Constitution

Regarding Marriage 5 Issues in Legal Scholarship

DG TE scsictncnshivnnandvinniieneneanindimeininantniianpebesennibebdeinal 22

Google Scholar searches, Best interests of the child..9

Google Scholar searches, Presumption of Paternity 27

Mae Kuykendall, A Way Out of the Same-Sex

Marriage Mess, The New York Times (May 24,

I I I si areas celchaeiisemniebacligelianagiaaabsiiiiaeal 4

Steven G. Calabresi and Genna Sinel. The Gay

Marriage Cases and Federal Jurisdiction: On Why

The Domestic Relations Exception to Federal

Jurisdiction is Archaic and Should be Overruled

(Northwestern Public Law Research Paper No. 14-

SUTTEIIIIIE carenseiticncsebdeipiadidibiieieadidendiaiabdacdesiasmaamadtiiladdaianbaanin 14

Transcript of Oral Argument, United States v.

Windsor, 133 S.Ct 2675 (2013) ..................cseceeeeeeee 21

l

INTERESTS OF AMICI!

Amici are legal scholars who believe that the

Fourteenth Amendment does not require states to li-

cense same-sex marriage. Amici disagree on the an-

swer to the second question regarding recognition of

out-of-state marriages and cite their various positions

below and in the appendix. They also disagree on

whether states, acting through any organ of the gov-

ernment structure, should legalize the licensing of

same-sex marriage. Amici file together to highlight

key issues that will occur should this Court rule that

the Fourteenth Amendment requires states to issue

licenses to two people of the same sex.

Amici? are

Mae Kuykendall, Michigan State University Col-

lege of Law.

David Upham, Associate Professor of Politics Uni-

versity of Dallas

Michael T. Worley, Family Policy Attorney, Provo,

Utah.

'‘ No one (including a party or its counsel) other than the Amici

curiae, their members and counsel authored this brief in whole

or in part, or made a monetary contribution intended to fund its

preparation or submission. No educational institution has en-

dorsed or financed this brief. All parties have consented to the

filing of this brief. The Petitioners in all four cases consented to

this bnef and a letter noting consent is on file with the Clerk.

Blanket consent from respondents in all four cases is noted in

communications on file with the Clerk.

2 Institutional affiliations of Amici are for identification only.

_——

2

STATEMENT

As this Court stated in United States v. Windsor,

“The definition of marriage is the foundation of the

State’s broader authority to regulate the subject of

domestic relations with respect to the ‘[p]rotection of

offspring, property interests, and the enforcement of

marital responsibilities.’ ” 133 S.Ct 2675, 2691 (2013)

(citing Williams v. North Carolina, 317 U.S. 287, 298

(1942)). This broad authority is at the heart of why

licensing marriages for same-sex couples is not a duty

imposed by the Fourteenth Amendment. Were such

licensing to include same-sex couples, these changes

to the conditions of marriage would dramatically im-

pact the “[p]rotection of offspring, property interests,

and the enforcement of marital responsibilities.” As

the opposite-sex nature of marriage was historically

“essential to the very definition of that term,” numer-

ous state laws were based on such a “role and func-

tion.” Windsor, 133 S.Ct. at 2689.

This does not mean that the domestic relations

exception to federal jurisdiction, which generally pre-

cludes federal courts from ruling on certain matters

in family law, precludes the Court from ruling here.

This Court previously has ruled unconstitutional

laws imposing certain restrictions on marriage. See,

e.g. Loving v. Virginia, 388 U.S. 1 (1967) (striking

down broad law forbidding inter-racial marriage).

Amici readily concede the domestic relations excep-

tion does not preclude reversing the Sixth Circuit.

Nevertheless, the domestic relations exception is

still pertinent—even crucial—to the outcome of this

case. The changes to state licensing requirements

suggested by Petitioners would necessitate increased

federal jurisdiction over traditionally state law ques-

3

tions. A ruling of this nature would overtime erode

the domestic relations exception. This domestic rela-

tions exception is a key example of letting state

courts and legislatures experiment with what is best

for them. Were it to be limited, the consequences on

state law would be detrimental to state sovereignty.

Why do deleterious consequences of a holding re-

quiring licensing of same-sex marriages affect the in-

terpretation of the content of the Fourteenth

Amendment? This Court realizes that the doctrines of

the Fourteenth Amendment, if not checked, would

upset the balance of federalism.

As Chief Justice Roberts has noted in a case re-

garding an invitation to find a new fundamental right

in the area of post-conviction relief, “As a general

matter, the Court has always been reluctant to ex-

pand the concept of substantive due process because

guideposts for responsible decisionmaking in this un-

chartered area are scarce and open-ended.” District

Attorney's Office v. Osborne, 129 S.Ct. 2308, 2322

(2009) (quoting Collins v. Harker Heights, 503 U.S.

115, 125 (1992)). Why is the Court so reluctant? As

Chief Justice Roberts explained:

"This approach would take the develop-

ment of rules and procedures in this area out

of the hands of legislatures and state courts

shaping policy in a focused manner and turn

it over to federal courts applying the broad

parameters of the Due Process Clause. There

is no reason to constitutionalize the issue in

this way.” Id. at 2312.

Such is the case here. Whether licensing were to

be mandated under the equal protection clause or the

due process clause, the needed institutional guide-

4

posts for responsible decisionmaking in this area are

“scarce and open-ended.” A licensing ruling would do

exactly what this Court was reluctant to do in Os-

borne and other cases—take family law prerogatives

“out of the hands of legislatures and state courts” and

“turn [them] over to federal courts.”

If the Fourteenth Amendment mandates marriage

licensing for same-sex couples, federal courts would

assume broad authority over state family law. Newly

federalhzed disputes would occur for an unpredictable

period of time. These unpredictable but probable ef-

fects show that it is difficult for broad, sweeping

mandates such as the proposed licensing ruling to co-

exist with a federalist system. States’ comprehensive

policies on marriage must be revised by the states

themselves if they choose to give licenses to same-sex

couples. The other option is this: what was formerly

based in state court rulings and state family law will

be drastically modified by federal constitutional and

statutory law. Mandated licensing would signify fed-

eral control of “differences across states in areas like

divorce, child custody and inheritance.” As Judge

Sutton noted, such a ruling would leave the states

with “little authority” to resolve “debates about how

to define marriage (and the benefits and burdens that

come with it).” DeBoer v. Snyder, 772 F.3d 388, 415

(6th Cir. 2014). Any logic requiring licensing would of

necessity expand the doctrines available for federal

courts to modify other aspects of state family law.

' See Mae Kuykendall, A Way Out of the Same-Sex Marriage

Mess, The New York Times (May 24, 2012), Page A31, available

at: http://www _.nytimes.com/2012/05/24/opinion/a-way-out-of-the-

same-sex-marriage-mess. html.

5

Experience in states that have legalized same-sex

marriage through state mechanisms compared with

analogous experiences in states where federal courts

have ruled on licensing exemplifies this point. At

least one lawsuit in Indiana is already in progress

seeking to modify other elements of the states’ broad

authority regarding marriage law. Federal courts

have no institutional framework for addressing such

cases. The Sixth Circuit should be affirmed with re-

spect to the licensing question.

The Amici are split on the recognition question.

Amicus Kuykendall believes that state courts will

creatively adapt as they face issues created by out-of-

state recognition and will respect constitutional

norms. Amicus Upham believes no constitutional

provision speaks to the issue of same-sex marriage.

Amicus Worley believes that interstate travel and

stare decisis would quickly blur the distinctions be-

tween licensing and recognition and broaden the

scope of the Fourteenth Amendment. Amici file to-

gether to emphasize the foreseeable problems if this

Court reverses the Sixth Circuit on question one.

They hope this Court rules in the spirit of respect for

differing points of view.

6

ARGUMENT

[. This Court avoids expounding on the

meaning of marriage in relation to a broad

and detailed set of state-regulated laws

and court rulings.

Thousands of families turn to state courts every

year to deal with many family life issues. Each state

court deals with complex issues essentially foreign to

federal courts. These state courts are not well versed

in federal courts' jurisprudence on equality and due

process. Instead, they focus on practical issues such

as equity, custody, and family finances. The rulings

by these courts are responsive to practical issues and

state codes. These families also turn to state legisla-

tors to correct flaws in the laws that state courts in-

terpret.

Federal laws and court rulings differ significantly

from state laws and court rulings with respect to fam-

ily law. These differences demonstrate that the Four-

teenth Amendment does not require the licensing of

marriages for same-sex couples. The complex effects

of a contrary holding on state law would be broad and

far-reaching. This is because a ruling mandating li-

censing could speak to the conditions for marriage,

but neither such a ruling nor any previous ruling by

this Court constructs the institutional framework of

marriage law. A condition speaks to who gets mar-

ried; the framework speaks to the benefits and bur-

dens that come with marriage. See DeBoer v. Snyder,

772 F.3d 388, 415 (6th Cir. 2014).

Regardless of the conditions on marriage this

Court sets, this Court cannot dictate that the states

must modify the subject of domestic relations with

7

respect to the ‘[pJrotection of offspring, property in-

terests, and the enforcement of marital responsibili-

ties.’ ” 133 S.Ct 2675, 2691 (2013) (citing Williams v.

North Carolina, 317 U.S. 287, 298 (1942)). This Court

has never said in any degree of specificity anything

about how states should administer marriage laws.

Were it to attempt such, this void in jurisprudence

would have to be filled by a significant volume of

work by federal courts. As couples present novel dis-

putes for courts to resolve under federal jurisdiction,

the domestic relations exception would become nar-

rower and narrower. The role of the states as archi-

tects of marriage structure must not be questioned.

The enforcement of same-sex licensing rules through

a constitutional mandate is inherently destabilizing

to the domestic relations exception.

A. This case is about an institution as well as

individuals.

Each state has many laws regarding marriage and

family life. These many complex requirements show

that state governments are intensely involved in

marriage as an institution. Historically, societies

have not viewed marriage as based on the love that is

shared by John and Sally, or Donald and Louise, or

Tyler and Annabelle. While culturally marriage has

become linked with romantic love, each state has

numerous restrictions on marriage that have little to

do with love. All states have extensive and complex

laws about the marriage relationship.‘ John and Sal-

4 For example, Kentucky's annotated code devotes 328 pages to

describing its family law; Michigan's 623; Ohio's 526; and Ten-

nessee’s 910. Ky. Rev. Stat. Ann. §§ 401.010-507.5902 (excluding

indexes and supplements); Mich. Comp. Law Ann. §§ 551.1-

552.1901 (same); Ohio Rev. Code §§ 3101.01-3127.53 (same):

8

ly will have a harder time in many states ending

their marriage than starting it—whether or not chil-

dren are involved.®

Each state regulates marriage both to preserve

the autonomy of the family and to provide safeguards

for when the family structure fails. The states have

developed structures foreign to this Court. These in-

clude: the “best interests of the child” standard,®

waiting periods to moderate passions,’ and adoption

and foster care procedures.®

Further, each state has strong policies either fa-

voring or disfavoring recognition of marital rights in

non-marital relationships.? These laws are based in

background assumptions about fairness derived from

the dependencies and expectations associated with

male-female partnerships. While some effects are

foreseeable, the details of how a licensing ruling

would affect each of the policies administered by the

Tenn. Code Ann. §§ 36-1-101- 36-7-503 (same). Given the com-

plexity of both these codes and the cases interpreting them,

Amici can only foretell a small sampling of future federal issues

raised by a licensing decision.

5

See, e.g., Mich. Comp. Law Ann. §§ 552.1 et seq. (criteria for

divorce).

® See, e.g... Kendrick v. Shoemake, 90 S.W.3d 566, 567

(Tenn. 2002) (evaluating what is in the “child's best interests’).

? See, e.g., Ky. Rev. Stat. Ann. § 403.044 (thirty day waiting pe-

riod for divorce when children are involved).

® See, e.g., Ohio Rev. Code §§ 3107.01 et seq.

* Compare Marvin v. Marvin, 557 P.2d 106 (Cal. 1976) (favoring

recognition of non-marital relationships) with Carnes v. Shel-

don, 311 N.W.2d 747 (Mich. 1981) (disfavoring recognition of

non-marital relationships).

g

states cannot be known. However, it is certain that

parties will seek federal guidance on the reach of the

equality and due process principles in family law.

States do and will see marriage as far more com-

plicated than mutual compassion, affection and ro-

mantic love. States routinely address aspects of mar-

riage no less important than the romantic ideal, as-

pects traditionally kept away from federal court by

adherence to the domestic relations exception. !°

B. States have historically—with few excep-

tions—set the boundaries regarding insti-

tutional effects of marriage in their state.

Windsor and numerous other cases have ex-

plained that “the States, at the time of the adoption

of the Constitution, possessed full power over the

subject of marriage and divorce.” Haddock v. Had-

dock, 201 U.S. 562, 575 (1906). Indeed, the “whole

subject” of marriage law has been historically a mat-

ter for states. In re Burrus 136 U.S. 586, 593-594

(1890). Congress is excluded from control over domes-

tic relations via the Constitution.!! Further, federal

10 For example, phrases such as “[b]est interests of the child” are

central phrases in resolving custody disputes. The phrase

“[blest interests of the child” appears over twenty seven thou-

sand times in a database of State court opinions and under eight

hundred in a parallel database of federal court opinions. See

Google Scholar searches, Best interests of the child,

http://bit.ly/BIChil te and http://bit.ly/BIChildFedera!l (Last

visited Feb. 23, 2015).

1! See U.S. Const. Amend. X (“The powers not delegated to the

United States by the Constitution, nor prohibited by it to the

States, are reserved to the States respectively, or to the peo-

ple.”); Nat. Fedn. of Indep. Business v. Sebelius, 132 S.Ct. 2566,

2577 (2012) (Roberts, J.) (“In our federal system, the National

10

courts are prevented from ruling on domestic matters

through the domestic relations exception. Anken-

brandt v. Richards, 504 U.S. 689, 697-704 (1992) (his-

torical background of the exception).

As Windsor explained, “state laws defining and

regulating marriage, of course, must respect the con-

stitutional rights of persons.” 133 U.S. at 2691.

Laws “defining” and “regulating” marriage must re-

spect core constitutional rights of equality and proce-

dure. See U.S. Const. Amend. XIV (Equal Protection

and Due Process Clauses).

Due to the historical nature of marriage, this

Court is being asked to apply previously established

standards for equal protection and due process to a

whole branch of law. The Petitioners thus ask that

the Court act without a theory—a telos—explaining

the purposes for marriage. These purposes are found

in state law and cases rather than federal law and

cases.

Marriage law is a poor fit for a new application of

tiers of review to suspect classifications. These classi-

fications would have to address the variations among

traditional couples, same-sex female couples, and

same-sex male couples. If one size does not fit all, the

primary control over adjusting for differences among

different types of couples must remain with states.

Otherwise, what works for Massachusetts may be

forced upon California or vice versa. State family

law involves a complex interaction between state

overnment possesses only limited powers; the States and the

people retain the remainder’).

11

courts’ adjudication of new problems and responsive

lawmaking by state legislatures.

C. This Court’s precedent lacks a foundation

to speak to marriage as an institution.

As Petitioners claim, this Court has previously de-

fined marriage in a way that emphasizes individual

rights. See, e.g., Griswold v. Connecticut, 381 U.S.

479 (1965) (right of married couples to use contra-

ception), Lawrence v. Texas, 539 U.S. 558 (2003)

(right of adult couples to a sexual relationship); Bod-

die v. Connecticut, 401 U.S. 371 (1971) (right to di-

vorce as critical element of marriage); Eisenstadt v.

Baird, 405 U.S. 438 (1972) (right of unmarried cou-

ples to the benefits of marital privacy); Planned

Parenthood v. Danforth, 428 U.S. 52 (1976) (state

may not require consent of a husband for a wife's

abortion); Planned Parenthood v. Casey, 505 U.S. 833

(1992) (state may not require a wife to notify her

husband of planned abortion); Zablocki v. Redhail,

434 U.S. 574 (1978) (holding unconstitutional a law

conditioning the marriage of a noncustodial parent on

his payment of child support). These cases all concern

individual rights.

For example, in a case involving the right of mar-

ried couples to use contraception, the Court viewed

marriage in associational terms, as “a bilateral loyal-

ty.” Griswold, 381 U.S. at 486. Likewise, in Lawrence

v. Texas, the Court said, “our laws and tradition af-

ford constitutional protection to personal decisions

relating to marriage, procreation, contraception, fam-

ily relationships, child rearing, and education.” 539

U.S. at 574. These rulings do not articulate any insti-

tutional theory of marriage law and do not contain an

12

affirmative jurisprudence of marriage. They speak

instead to the roles of equality and due process.

It is common sense that due process and equal

protection cases would contain language based in

dignity and equality. All Americans of all ages surely

deserve the rights promised to them since our found-

ing, including those of life, liberty and the pursuit of

happiness. Those rights, though, can only be secured

upon a “foundation on such principles and organizing

its powers in such form, as to them shall seem most

likely to effect their Safety and Happiness.”

DECLARATION OF INDEPENDENCE (1776).

The principles underlying the “foundation” of fam-

ily law—protection of men, women and children—

have been exclusively in state hands since the found-

ing. The link between rights and their foundational

“principles” and organizing “powers” is essential. In

family law, these principles and powers are closely

linked to the state’s broad authority to regulate mar-

riage. See Windsor, 133 U.S. at 2691. To manipulate

the foundation without addressing the institutional

principles and powers involved is inviting dissonance.

In contrast, leaving states responsible to shape family

law in light of the flux in family forms is most likely

to promote sound policies responsive to the needs of

American families over time. See Troxel v. Granville,

530 U.S. 57 (2000) (plurality opinion) (recognizing

new complexities caused by “changing realities of the

American family”).

Some cases in this Court’s jurisprudence do argu-

ably speak to the institutional aspects of marriage.

See, e.g., Meyer v. Nebraska, 262 U.S. 390, 399 (1923)

(due process includes right “to marry, establish a

home and bring up children”). To the extent they do,

13

those institutional aspects are largely in conflict with

reversing the Sixth Circuit. See Skinner v. State of

Okl. ex rel. Williamson, 316 U.S. 535, 541 (1942)

(linking “marriage” to the “very existence and sur-

vival of the race” and “procreation.”).'2 While state-

granted obligations and benefits of marriage are

mentioned in opinions, there are typically no instruc-

tions on the boundaries or rationale for those func-

tional elements. See, e.g. Turner v. Safley 482 U.S. 78,

95-96 (1987) (mentioning both equality and function-

al elements). The functional elements mentioned re-

flect, rather than direct, state law.

The occasional invocation by this court of the pur-

poses states have for marriage as a legal status does

not imply this court has the framework to uphold

these purposes. The Court as an institution lacks the

tools, precedent, or expertise needed to speak to mar-

riage as changing demographics alter its form and

address or adjust the foundation laid by the states in

past generations. Because of this lack of precedent,

'2 One reading is that Skinner's linking of marriage to procrea-

tion, taken at face value, would weigh heavily towards reaffirm-

ing the State's right to control whether same-sex couples receive

marriage licenses. This reading is disputed. Some lower courts

have found Skinner not to be based in this linking. See, e.g.. Bos-

tic v. Schaefer, 760 F.3d 352, 374 (2014) but see id. at 391 (Nie-

meyer, J., dissenting) (referencing link between marriage and

procreation). The precedent existing in this Court's jurispru-

dence is lacking with respect to the variety of state purposes for

marriage. A decision reversing the Sixth Circuit calls upon this

court to supply a purposive theory of marriage. This theory

would have to be one sufficiently articulated to support the sub-

sequent efforts of state legislatures and state court judges. Inev-

itably, federal courts would be asked to solve issues created by

an altered conception of the institution

14

the Court must affirm the Sixth Circuit with respect

to licensing. A ruling to the contrary would upset

principles found in numerous state laws. Each of

these principles is based on “a statewide deliberative

process that enabled its citizens to discuss and weigh

arguments.” United States v. Windsor 133 S.Ct at

2689. '4

Some have called on this court to eliminate the

domestic relations exception.'!4 This argument creates

far more problems than it solves. The dearth of prec-

edent in the federal courts would not magically fill

with needed structure and rules. Further, the tools

needed to shape institutional marriage law are not

found in this court’s precedent. Amici respectfully

submit that an erosion of the domestic relations ex-

ception would open a Pandora’s Box: Federal courts,

charged to enforce same-sex marriage, would inter-

fere with the states’ capacity to infuse normative

structural ideals into marriage law.

It is becoming a common question among both le-

gal and public circles to question why the state is in-

volved in marriage at all.'® The answers to the ques-

‘8 Amici explain below why the Court's previous decisions did

not require foundational changes in state family and marriage

law. See part IIL.C, infra.

4 See, e.g., Steven G. Calabresi and Genna Sinel. The Gay Mar-

riage Cases and Federal Jurisdiction: On Why The Domestic Re-

lations Exception to Federal Jurisdiction is Archaic and Should

be Overruled (Northwestern Public Law Research Paper No. 14-

50 2014), available at: http://papers.ssrn.com/sol3/papers.cfm

?abstract_id=2505514.

‘5 See, e.g.. Beyond Same-Sex Marriage: A New Strategic Vision

For All Our Families and Relationships, http://beyondmarriage

org.

15

tion of why states are involved in marriage come from

state law. The complex level of benefits given each

opposite-sex couple demonstrates that rather than

moving beyond marriage, society should urge states

to strengthen it. A ruling by this Court emphasizing

state rights will help strengthen the institution of

marriage in the states.

Il. For the Fourteenth Amendment to require

states to license same-sex marriage, many

state family law cases would have to be-

come federal issues.

What is the importance to this case of the fact that

this Court’s precedent does not speak to the institu-

tional aspects of marriage? A ruling reversing the

Sixth Circuit would force the eventual creation of in-

stitutional precedent. If the Fourteenth Amendment

speaks to the rights of states to license same-sex

marriage, the same logic speaks to a variety of insti-

tution-based topics within family law. These topics

wili inevitably become federal questions and require

new precedent. These questions are wide-ranging and

involve topics such as divorce, the best interests of

children and defining the meaning of the word “par-

ent.”

An analogy explains this well. In Roe v. Wade, this

court concluded “that the right of personal privacy

includes the abortion decision, but ... must be consid-

ered against important state interests in regulation.”

410 U.S. 113, 154 (1973). As Planned Parenthood v.

Casey further explained, a legislature cannot impose

a substantial obstacle to a woman’s choice to get an

abortion. 505 U.S. 833, 846 (1992).

The ideals of due process require translation into

practical terms. For example, earlier this term this

16

Court granted part of a request to lift a stay of a low-

er court's decision. Whole Women’s Health v. Lackey,

574 U.S. ____ (Dkt. 14A365) (Oct. 14, 2014) (in cham-

bers). This Court vacated a stay order with respect to

clinics in two Texas cities, but maintained the stay

with respect to other parts of Texas. Jd. This Court

has had to determine the scope of Roe and Casey for

one state, and the determination was nuanced.

Applied to the case at hand, this kind of nuanced

ruling would fit with detailed rulings in family law in

state court, but not this Court’s equal protection doc-

trine. If the Fourteenth Amendment's breadth in-

cludes licensing of same-sex marriage, it assuredly

includes other complex issues with no clear solution.

The Equal Protection clause or Due Process Clause

would have a much-expanded scope.

To apply the words of Chief Justice Roberts in Os-

borne to this case, “[e]stablishing a freestanding right

to [obtain a same-sex marriage license] would force

[the Court] to act as policymakers, and our substan-

tive-due-process [and equal protection] rulemaking

authority would ... have to cover ...a myriad of other

issues.” District Attorney's Office v. Osborne, 129 S.Ct.

at 2323 (2009).

A. Numerous federal court cases would re-

sult from a licensing decision.

What are the consequences to state law of a deci-

sion mandating licensing? If the language of due pro-

cess and equality compels licensing same-sex couples,

the language also calls into question numerous gen-

der-based family laws. Many questions of family law

would be difficult to decide without direct state legis-

lative involvement. In each case, however, a party

failing to gain a favorable outcome in state courts or

17

the democratic process could file in federal court al-

leging a violation of his or her equal protection or due

process rights.

These questions are many. They include:

e Is a child support ruling to be the same af-

ter a same-sex divorce whether or not the

non-custodial parent is a biological parent?

See Ky. Rev. Stat. Ann. § 403.212 (6) (refer-

ring to children “born of the relationship’).

e Is the presumption of paternity still valid if

a child is born to a woman married to an-

other woman or does a_ biological fa-

ther/spouse have more rights since the

same-sex wife cannot be a biological rela-

tion? See Mich. Comp. Law Ann. §

700.2114(1) (a). 16

e Do two fathers have a constitutional right

to exclude the birth mother from being on a

birth certificate?

‘6 To treat non-biological and biological parents equally under

the Equal Protection Clause would be dissonant with this

Court's precedent. As Justice Sotomayor has noted in a recent

adoption case, Supreme Court precedent has typically favored

biological parents in custody disputes. “These protections are

consonant with the principle, recognized in [this Court's] cases,

that the biological bond between parent and child is meaning-

ful.” Adoptive Couple v. Baby Girl, 133 S.Ct 2552, 2575 (2013)

(Sotomayor J., dissenting). Taken on its face, this precedent

conflicts with some rulings discussed in Part III, infra. This

Court may need to overrule the biological bond favoritism found

in its precedent if equal protection or due process rights extend

licensing to same-sex couples.

18

e After a divorce, is it in the best interest of a

child for a child to have visitation rights for

a non-biological same-sex parent? Are pa-

rental rights of the precise same weight for

former spouses irrespective of biological re-

lation?

In some cases not state law but other federal and

state courts may create these sorts of conflicts. For

example, at least one court has already interpreted

Lawrence to require a constitutional right to polyga-

mous cohabitation. See Brown v. Buhman, 947

F.Supp.2d 1170, 1194, 1198-1202, 1222-25 (D. Utah

2013) appeal docketed Sep. 25, 2014 (relying at length

on Lawrence). While the Tenth Circuit or this Court

may overrule that case at a future date, analogous

cases based on the constitutionalizing of licensing are

easy to foresee.!’

17 Amici assume any ruling by this Court requiring licensing for

Petitioners will be without any intent to signal that the Four-

teenth Amendment requires States to issue polyamorous mar-

riage licenses.

Nonetheless, the reason the Fourteenth Amendment doesn't re-

quire issuing polyamorous marriage licenses largely relies on

the components of marriage set in State law. Numerous State

laws rely on the two-person definition of marriage just as they

rely on the opposite-sex definition of marriage. For example,

how would the presumption of paternity work if a woman had

two husbands? See, e.g., Mich. Comp. Law Ann. § 700.2114(1)

(a).

Precedent set by this case must validate the State's role in de-

termining the purposes for laws about marriage. Otherwise, the

logic of equality or dignity will set the federal courts on a course

to hearing and deciding demands for an individual right to mul-

tiple marriage licenses (polygamy) and to licenses creating a

group of individuals who constitute one marriage (polyamory).

19

These predictable problems—some rooted in diffi-

cult public policy concerns—could all be solved by a

careful legislature or state court; none can be effi-

ciently or even fairly solved by the Fourteenth

Amendment’s call to equality. One could easily artic-

ulate possible solutions to these questions, but such

answers are likely to be subject to reasonable disa-

greement. Without supportive state law, persons le-

gitimately seeking vindication are likely to file under

federal jurisdiction to obtain relief instead of using

state courts and the democratic process.

These disputes may not solely be brought by

same-sex couples. As family law jurisprudence be-

gins to develop in federal courts, opposite-sex part-

ners may well file in the jurisdiction—state or feder-

al— most favorable to them. As “[t]here is only one

Equal Protection Clause,” the same principles that

federal courts apply to same-sex couples regarding

domestic matters would have to apply to opposite-sex

couples. Craig v. Boren, 429 U.S. 190, 211 (1976)

(Stevens, J., concurring).

These problems should be resolved in the states.

As this Court explained in Windsor regarding New

York’s experience legalizing same-sex marriage,

“[t]he dynamics of state government in the federal

system are to allow the formation of consensus re-

specting the way the members of a discrete communi-

Longstanding laws and persecution against adultery and polyg-

amy would make such challenges foreseeable under equal pro-

tection theories, including animus, as well as due process theo-

ries. This court would require a theory of marriage as an entity

and not a group of individuals exercising personal choices to ad-

vance their personal welfare in order to rule on such cases.

There is no precedent stating such a theory.

20

ty treat each other in their daily contact and constant

interaction with each other.” 133 U.S. at 2692 (2013).

B. As Judge Sutton noted, a licensing deci-

sion would dramatically expand Section

Five of the Fourteenth Amendment.

One way federal law would carry increased juris-

diction over family matters would be in the expansion

of Section Five Congressional powers under the Four-

teenth Amendment.

This Court has said: “Congress must have a wide

berth in devising appropriate remedial and preventa-

tive measures” to prevent violations of the Four-

teenth Amendment. Tennessee v. Lane, 541 U.S. 509,

520 (2004). While this scope is not unlimited, the

scope surely applies to protecting any right protected

by the Fourteenth Amendment. See City of Boerne v.

Flores, 521 U.S. 507, 519 (1997). Congress cannot

“changfe] what the right is,” /d., but it can enforce

preexisting rights found in the Fourteenth Amend-

ment. These rights must be congruent and propor-

tionate to the injury as determined by this Court.

Tennessee v. Lane, 541 U.S. at 520 (2004). If this

Court rules same-sex couples must be allowed to re-

ceive marriage licenses, Congress would have the

right to enforce (1) remedial measures, (2) preventa-

tive measures, and (3) preexisting rights relating to

such licensing.

No matter how narrow Congress’s Section Five

power is, a licensing ruling will expand that power.

To give just one example: Suppose a ruling were is-

sued mandating that states issue marriage licenses

under the Fourteenth Amendment. Suppose further

that a State chose to interpret traditional divorce

laws so that if a mother divorced another woman, the

21

mother would get less child support than if she di-

vorced the father of the child even if the female

spouse was present at the child’s birth. Could Con-

gress pass a law requiring states to treat a non-

biological same-sex parent the same as a biological

opposite-sex parent? Surely the answer would be yes:

if state action differentiating same-sex and opposite-

sex parents is invalid under the Fourteenth Amend-

ment, Congress’s action to prevent and remedy such

differentiation would be congruent and proportionate

to this Court’s determination of the Fourteenth

Amendment rights.

Such action would also reduce the scope of the

domestic relations exception. If Congress has the

power to create laws on divorce, custody, the pre-

sumption of paternity and other matters, federal

courts must interpret such laws regardless of the do-

mestic relations exception.

These consequences are largely indisputable. At

oral argument in United States v. Windsor, the Unit-

ed States took the position that federal actions ex-

tending rights to same-sex couples are appropriate as

a vindication of the Fourteenth Amendment but ac-

tions differentiating between opposite-sex and same-

sex couples are not. See Transcript of Oral Argument

at 81-82, United States v. Windsor, 133 S.Ct 2675

(2013) (No. 12-307) (responding to hypothetical about

law extending federal benefits to all same-sex cou-

ples). Based on these statements, the position Amici

take regarding the force of Section Five as a new ba-

sis for Congressional power appears unlikely to be

disputed by the parties or other Amici in this case.

This newfound Section Five power would be an

enormous historical anomaly. As Judge Sutton stat-

ed: “How odd that one branch of the National Gov-

ernment (Congress) would be reprimanded for enter-

22

ing the fray in 2013 and two branches of the same

Government (the Court and Congress) would take

control of the issue a short time later.” DeBoer uv.

Snyder, 772 F.3d at 415. More than “odd,” this

change would be radical—giving Congress “a wide

berth” to narrow or eliminate the domestic relations

exception, an exception central to family law since

our founding. The radical implications of a direct for-

ay into state marriage laws should be clear before the

Court takes such a fateful step.

In the twentieth century, the proposal to make

marriage law uniform as a federal function was re-

jected repeatedly. See Edward Stein, Past and Pre-

sent Proposed Amendments to the United States Con-

stitution Regarding Marriage 5 Issues in Legal

Scholarship 1 (2004) (cataloging rejections).'!8 Amici

urge the Court to consider the implications of award-

ing section 5 powers over marriage to Congress and

awarding family law jurisdiction, re-engineered as

Fourteenth Amendment equality or due process, to

the federal courts.

'* For example, see S.J. Res. 28, 80th Cong. (1947) (“The Con-

gress shall have power to make laws, which shall be uniform

throughout the United States, on marriage and divorce, the le-

gitimation of children, and the care and custody of children af-

fected by annulment of marriage or by divorce.”); H.J. Res. 170,

61th Cong. (1910) (“Congress is further empowered to make

laws respecting marriage, divorce, and alimony, which laws

shall be of a general nature and uniform in operation through-

out the United States”: H.J. Res. 279, 56th Cong. (1900) (“Con-

gress shall have power to enact uniform laws on the subject of

marriage and divorce.”).

23

C. Loving v. Virginia and other right-to-

marry cases did not require wholesale

changes to state law.

Why have previous right-to-marry cases not

caused dramatic changes to federalism? The answer

lies in the historical role gender has played in mar-

riage law.

As Windsor stated, historically “marriage between

a man and a woman no doubt had been thought of by

most people as essential to the very definition of that

term and to its role and function throughout the his-

tory of civilization.” Windsor v. United States 133

S.Ct. at 2689 (2013). This “essential” link between

gender and marriage extends into state law to this

day. This link shows why the effects of past cases

mandating licensing in other circumstances would be

minor compared with the impacts of mandating li-

censing for couples of the same sex.

For example, Petitioners and their Amici cite Lov-

ing v. Virginia, which struck down laws forbidding

interracial marriage, in support of their claim.-388

U.S. 1 (1967). Those laws were inconsistent with the

common law and probably adverse to the original

purpose of the Fourteenth Amendment.!® Further,

with respect to the domestic relations exception, Lov-

ing and this case are not analogous. While in some

parts of our country, racial homogeneity was a condi-

tion of marriage prior to Loving, nothing about inter-

racial marriage has any implication about the core

purposes for family law. By contrast, in many states

‘9 See David R. Upham, Interracial Marriage and the Original

Understanding of the Privileges or Immunities Clause, 42 Has-

tings Const. L. Q. 213 (2015).

24

the prerequisite of gender diversity speaks to the

very “role and function” of marriage in state law. See

Windsor, 133 S.Ct. at 2689.

For example, consider the potential conflicts listed

on pages 16-17, supra, (child support rulings, con-

flicts over paternity, conflicts over names appearing

on birth certificates and conflicts on visitation rights).

All of these issues rarely, and likely never, turn on

race alone under state law. They frequently turn,

however, on both gender and biological relationship—

two attributes fundamentally changed by an equality

or due process ruling mandating licensing. Likewise,

restrictions on conditions for marriage removed by

constitutional reasoning, such as being incarcerated

or not paying child support, typically do not raise

such complex problems. See, e.g. Turner v. Safley, 482

U.S. 78 (1987) (incarceration); Zablocki v. Redhail,

434 U.S. 574 (1978) (child support).

Ill. Past experience exemplifies potential is-

sues.

Experience in the past eleven years is instructive.

In states that have legalized same-sex marriage

through mechanisms in their own law, the implica-

tions Amict have indicated are being resolved

through those state mechanisms. In contrast, early

federal cases in states where federal courts have

mandated the licensing of same-sex marriage show

clearly the erosion of the federalism historically pre-

sent in state law.

25

A. Experience in states that grant marriage

licenses to same-sex couples through state

courts or the democratic process.

When state legislatures and courts are the sole

mechanism for modifying licensing requirements, im-

plementation of same-sex marriage happens on the

state level. When state laws or constitutions require

same-sex marriage, the relationship between the

states and the national government is untouched.

Such laws are consistent with “the foundation of the

State's broader authority to regulate the subject of

domestic relations.” See Windsor, 133 U.S. at 2691. A

state law never can dictate the scope of federal rights

of equality. States that enact same-sex marriage ex-

emplify, rather than harm, federalism.

In these states, the concerns mentioned in part I],

supra, are being played out in state jurisdictions, ra-

ther than federal. For example, in New York, a state

court has already ruled that the presumption of pa-

ternity does not apply to same-sex couples. See @.M v.

B.C. and J.S., No. 13761-13 (N.Y. Fam. Ct. Monroe

Cty. 2014).2° The lowa Supreme Court has ruled in a

conflicting way. See Gartner v. lowa Department of

Public Health, 830 N.W.2d 235 (lowa 2013). These

decisions match traditions of federalism in family pol-

icy considerations because they are taking place in

state court under state law, rather than being decid-

ed based on federal constitutional law. A national de-

cision mandating licensing would open up avenues for

federal courts to weigh in on these issues. Should a

20 «=—s-“ The text of the decision is available at:

http://nylawyer.nylj.com/adgifs/decisions 14/111214kohout.pdf.

26

family law question that is typically analyzed and

answered by state legislators, judges, and local law-

yers, become a federal question?

B. Experience in states that license same-sex

couples because of federal court deci-

sions.

Until very recently, the only state to have licensed

same-sex marriage as a result of a federal Court or-

der was California. California is unique among the

States in that the legislature of California was in fa-

vor of same-sex marriage while the people of Califor-

nia were opposed.?’ Because of this mindset, Califor-

nia’s legislature has made adjustments to its mar-

riage and family policies that other State legislatures

would not make. For example, California has passed

a law to remedy the problems of whether the biologi-

cal parent or the same-sex spouse has greater paren-

tal rights.?2

Other states will have differing views. Many

states see biology as “essential” to determining whose

name appears as a parent on a birth certificate. Cf.

Windsor, 133 S.Ct. at 2689. Many states will thus re-

sist any effort to change such requirements. For in-

stance, Indiana law reflects the institutional link be-

tween biological parenting and the names of the par-

ents on the birth certificate. Following the Seventh

2' Compare California Assembly Bill 849 (2005) (proposed bill to

legalize same-sex marriage), available at http://bit.ly/CAAB849

with Cal. Const., Art. I, §7.5. (“Proposition 8") (democratic pro-

cess yielding a contrary result three years later).

22 See California Senate Bill 274 (2013), available at

http://bit.ly/CASB274.

27

Circuit’s ruling mandating same-sex marriage licens-

ing, a case has been lodged alleging that Indiana's

definition of being “born in wedlock” and “presump-

tion of paternity” are unconstitutional. See Com-

plaint, Henderson v. Tippecanoe County, No. 15-220

Dkt. No. 1 (S.D. Ind. Feb. 13, 2015). The complaint

asks a federal court to solve an issue not just for that

couple, but for all couples and other parties without

the input of the Indiana legislature. See Id. (challeng-

ing statute facially and as-applied). This case has

arisen despite the fact that federal courts have al-

most never ruled on presumptions of paternity.2* It

seems clear that ruling on this case would narrow the

domestic relations exception, and may impact men

previously protected by the presumption of paternity.

In addition to these many novel questions, other

cases involving similar issues will need to be re-

litigated. See, e.g., Adar v. Smith, 639 F.3d 146 (5th

Cir. 2011) (upholding Louisiana’s adoption and birth

certificate laws); Lofton v. Sec’y of Dept. of Children &

Family, 358 F.3d 804 (11th Cir. 2004) (upholding

Florida’s adoption laws). Even some decisions of this

Court could arguably be overruled. See Troxel uv.

Granville, 530 U.S. at 68—69 (plurality opinion) (not-

23 In one database, only fifty federal court cases have used the

phrase “presumption of paternity” but over fourteen hundred

State courts have used that phrase. See Google Scholar search-

es, Presumption of paternity http://bit.ly/PoPFederal and

http://bit.ly/PoPState (last visited February 23, 2015). The two

most recent rulings by this Court addressing this issue yielded

limited precedent due to diverse viewpoints on a sensitive issue.

Troxel v. Granville, 530 U.S. at 68—69 (no majority opinion): Mi-

chael H. v. Gerald D., 491 U.S. 110 (1989) (no majority opinion).

28

ing presumption of paternity is based on the parent’s

“natural bonds’).

These effects are even more striking when the is-

sue of conscientious objections is considered. Some

state court judges have chosen to resign rather than

officiate over same-sex marriages.24 Similarly, many

legislators will simply feel that it violates their con-

science to vote for bills that would implicitly accept

same-sex marriage as the law of the land. Because of

their sincere beliefs, their state law will reflect the

institutional man-woman definition of marriage, even

as they issue same-sex marriage licenses. These con-

scientious objections only ensure that these conflicts

will arrive in Federal Court. A direct ruling stating

that state marriage law requires licensing of same-

sex marriage would cause federal supervision of state

marriage law.

IV. Amici take no position on the second ques-

tion presented.

Amici take no position on the interstate recogni-

tion question in this case.?5

Amicus Kuykendall feels that the recognition de-

cision would return family law principles to state

courts to apply the decision of recognition with mini-

mal or no oversight by federal courts. She believes

state courts will creatively maintain the current rela-

tionship between federal law and state family law in-

24 See Associated Press, Gay marriage: North Carolina official

resigns (Oct. 16, 2014), available at: http://bit.ly/NCJudges.

25 The Appendix provides more detail regarding how Amici disa-

gree in regards to the second question.

29

tact. In Amicus Upham’s view, nothing in the Four-

teenth Amendment or anywhere else in the Constitu-

tion requires the states to discard the understanding

of marriage once unanimously endorsed by this

Court.26 Amicus Worley feels the distinction between

licensing and recognition is too slight to prevent

many of the impacts listed here. He further feels that

the mandates of equal protection and due process

simply do not have a broad sweep to dictate how one

state addresses decisions of another state emanating

from its political framework.2’

All Amici acknowledge that people of good will can

disagree on both questions presented. Amici are unit-

ed, however, in stating that mandating licensing for

same-sex couples would entangle federal courts in

matters of state law. This entanglement compels af-

firming the Sixth Circuit with respect to question

one.

26 Murphy v. Ramsey, 114 U.S. 15, 45 (1885).

27 See Also DeBoer v. Snyder, 772 F.3d at 418-420 (“The Consti-

tution in general does not delineate when a State must apply its

own laws and when it must apply the laws of another State.

Neither any federal statute nor federal common law fills the

gap. Throughout our history, each State has decided for itself

how to resolve clashes between its laws and laws of other sover-

eigns—giving rise to the field of conflict of laws. The States en-

joy wide latitude in fashioning choice- of-law rules.”)

30

CONCLUSION

The decision below should be affirmed with re-

spect to Question 1. Amici collectively take no posi-

tion with respect to Question 2.

Respectfully submitted.

MICHAEL T. WORLEY MAE KUYKENDALL

272 Wymount Terrace Counsel of Record

Provo, UT 84604 Michigan State University

(818) 636-8160 648 N. Shaw Lane Rm 366

East Lansing, MI 48824

517-432-6894

kuykend 1@law.msu.edu

February 27, 2015

APPENDIX

la

APPENDIX: AMICI STATEMENTS OF

INTEREST

Mae Kuykendall, Professor of Law, Michigan

State University, has published extensively on both

the licensing and recognition issues.28 She suggested

in the 1990s that imposing a restricted meaning on

the word by inserting a legislative “defined term” in

state codes was artificial. The turn to a definitional

method constituted a concession that marriage has

taken on a more inclusive meaning than its tradi-

tional binary understanding. She has nonetheless

argued that a more dynamic federalism could benefit

the institution of marriage by encouraging states to

provide more convenient marriage access for all cou-

ples and, potentially, substantive variations that ad-

just to couple needs and public values. She suggests

that marriage authorization as an initial matter need

not be grounded in the coincidence of geography with

jurisdictional lines. That is, states may authorize

marriage for persons who do not reside in their juris-

diction and do not travel to it.

At the same time, as states accommodate distant

couples, each jurisdiction would retain lawmaking

authority over the normative shape of marriage law

pursuant to the values and ideas of the jurisdiction.

Kuykendall has thus concluded that marriage law

would benefit if it were modernized better to address

the needs of a mobile society. Each state could pro-

28 See, e.g., Mae Kuykendall, Equality Federalism: A Solution to

the Marriage Wars, 15 U. Penn. J. Const. L. 377: Adam Can-

deub and Mae Kuykendall, Modernizing Marriage, 44 U. Mich.

J. Law Reform 735 (2010).

2a

vide more or less flexible means of solemnizing mar-

riages for couples not resident in the state. Under the

position stated in the brief, states would retain the

primary control over the value statements that their

marriage licensing law is felt to contribute to mar-

riage law. The Court’s expertise as a referee of feder-

alism is a good match for the nature of the marriage

question.

Kuykendall has proposed that the right of states

to fashion their own marriage law, and to integrate a

shared norm of fairness into the law, be joined to an

obligation to recognize legal marriages of couples of

the same sex. Kuykendall has argued that states will

be able to fashion, through the common law work of

judges, state law respectful of equality, and consider-

ate of the legal status, rights, and interests of couples

whose relationship is enfolded into the obligations

and dignity of the marital association. Unlike some

on the left side of the political spectrum, and even

some on the right, who argue for the withdrawal of

the state from sponsoring marriage, Kuykendall re-

gards marriage as a critical institution of society that

state involvement supports. She regards the reten-

tion by individual states of the primary control over

building the legal framework and social role of mar-

riage as the most prudent path to strengthening mar-

riage on a basis of equal rights and respect for all

couples.

David R. Upham, Ph.D., J.D. is Associate Profes-

sor of Politics at the University of Dallas, where he

teaches graduate and undergraduate courses in con-

stitutional law and American political thought. He

has researched and published extensively in the his-

tory of the Fourteenth Amendment. His published

3a

work includes a recent study on interracial marriage

and the original understanding of that Amendment.?9

Michael Worley is an attorney. His work on this

Court’s religious freedom and family policy cases has

appeared in the Oxford Journal of Law and Religion

as well as more general publications. He opposes

same-sex marriage for a host of utilitarian and socio-

logical reasons. In his view, many of the arguments

in favor of laws defining marriage as between one

man and one woman have been unfairly pigeonholed

as irrelevant or irrational. This is largely because the

institutional aspects of marriage are easily ignored or

mischaracterized in the public square. Worley re-

gards marriage as a critical institution of society that

state involvement supports. While the environment

in some states has changed the institutional signifi-

cance of marriage, other states have been successful

in creating an environment supportive of marriage

between a man and a woman. Worley joins this brief

to help explain the institutional aspects of marriage

and the consequences of applying the Fourteenth

Amendment to state marriage law in environments

that support marriage between a man and a woman.

He is grateful for the fact that those who disagree

even on difficult issues such as this can still find

common ground, as the signers of this brief have

done.

28 David R. Upham, Interracial Marriage and the Original Un-

derstanding of the Fourteenth Amendment, 42 Hastings Const.

L. Q. 213 (2015).