Amicus Curiae Brief — Obergefell v. Hodges

Nos. 14-556, 14-562, 14-571, and 14-B74555--. > ~s::-

OBERGEFELL, JAMES, et al.,

Petitioners,

Vv.

HODGES, RICHARD, et al.,

Respondents.

TANCO, VALERIA, et al.,

Petitioners,

v.

HASLAM, GOV. OF TN, et al.,

Respondents.

DEBOER, APRIL, et al.,

Petitioners,

v.

SNYDER, GOV. OF MI, et al.,

Respondents.

BOURKE, GREGORY, et al.,

Petitioners,

v.

BESHEAR, GOV. OF KY, et al.,

Respondents.

«

On Writs Of Certiorari To The United States

Court Of Appeals For The Sixth Circuit

BRIEF OF LANGLEY HILL FRIENDS

MEETING; RICHMOND, VA FRIENDS MEETING;

AND ANN ARBOR FRIENDS MEETING,

ALL PART OF THE RELIGIOUS SOCIETY

OF FRIENDS AS AMICI CURIAE

SUPPORTING PETITIONERS AND REVERSAL

e

J.E. MCNEIL 4119 Garrison St., NW

Counsel of Record Washington, DC 20016

DANIEL P. O’CONNOR (202) 256-7441

MCNEIL & Ricks, PC jmenrick@gmail.com

QUESTION PRESENTED

Does the Constitution require a state to license a

marriage between two people of the same gender

when the prohibition thereof creates a burden on the

free exercise of the religious beliefs of the Religious

Society of Friends?

‘i

TABLE OF CONTENTS

Page

a cndndmousuceeecs i

EE ii

EE an iii

Statement of Interest ...................... seanesnnasiondondes 1

Ee eee 2

I ae ertrrnetnrene 7

ESE ESS 8

STATE LAWS WHICH PROHIBIT SAME

GENDER MARRIAGES UNDULY BURDEN

THE RELIGIOUS FREEDOM OF MEET-

INGS AND MEMBERS OF THE RELIGIOUS

SOCIETY OF FRIENDS ...................0cc0sceeeeeeees 8

a sessmmmesnnnens 11

Appendix

Ann Arbor Friends Meeting Minutes.................. App. 1

Langley Hill Monthly Meeting Minutes............. App. 2

Richmond Monthly Meeting Minutes................. App. 5

ill

TABLE OF AUTHORITIES

CASES

Bostic v. Shaefer, 760 F.3d 352 (4th Cir. 2014),

cert. denied, Rainey v. Bostic, 135 S.Ct. 308

i cccvcccunienteseninctusssmeumneientananiemeneniiinentis

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

pet. cert. granted, 83 USLW 3315.......................

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

Meyer v. Nebraska, 262 U.S. 390 (1923)...............

Turner v. Safley, 482 U.S. 78 (1987) .....................

U.S. v. Windsor, 133 S.Ct. 2675, 570 U.S. ___

a ata a ee ad a

CONSTITUTION

I I i

STATUTES

Defense of Marriage Act (“DOMA”), 1 U.S.C.

§ 7 and 28 U.S.C. § 1738C (1996).............0..00....

Hening, I, 532-533, March 13, 1660......................

OTHER AUTHORITIES

Friends for Lesbian, Gay, Bisexual, Transgender,

and Queer Concerns (FLGBTQC), Marriage

Minutes, http://filgbtqc.quaker.org/marriage

RETIN NIL RES pa ease

Page

iv

TABLE OF AUTHORITIES — Continued

Howard Brinton, Guide to Quaker Practice

Howard Brinton, Friends for 350 Years (1993).....

Langley Hill Friends Meeting, Quaker Values

and Testimonies, http:/Aangleyhillquakers.org/

quaker_values_and_testimonies.aspx...............

Lloyd Lee Wilson, Essays on the Quaker Vision

i irttrnccnctsnndinnienizninccininiines

Michael J. Sheeran, Beyond Majority Rule

See e hipenscssracsepincnnintpsnnnsiianidaninnenspetiiicmmmumanesenatan

Perry Dane, A Holy Secular Institution, 58

Be ne

Thomas Hamm, Quakers in America (2006) ........

1

STATEMENT OF INTEREST

Richmond Friends Meeting is a congregation of

the Religious Society of Friends of approximately 510

members and attenders located in Richmond, Va.,

founded in 1795.’

Langley Hill Friends Meeting is a congregation of

the Religious Society of Friends of approximately 249

members and attenders located in Langley Hill, Va.,

founded in 1961.

Ann Arbor Friends Meeting is a congregation of

the Religious Society of Friends of approximately 125

members and attenders located in Ann Arbor, Mi.,

founded in 1936.

As described more fully below, each of these

Meetings and their members have been struggling to

accommodate their religious beliefs regarding equali-

ty and integrity in deciding what actions they should

take with regard to members who wish to be married,

some of whom are mixed gender couples and others

who are same gender couples, in light of the bans in

some states on same gender marriages. They are

filing this brief to inform the Court that laws prohib-

iting same gender marriages severely impact the

' Pursuant to Rules 37.3 and 37.6, all parties have consent-

ed to the filing of this brief. Amici certify that no counsel for a

party authored this brief in whole or in part, no such counsel or

party made a monetary contribution intended to fund the

preparation or submission of the brief, and no person other than

the amici or their counsel made such a monetary contribution.

2

religious practices of Friends because they collide

with the fundamental beliefs held by Friends of

equality and integrity. If the state ban is reinstated or

upheld, these Meetings will not be able to marry their

members pursuant to their religious practices.

¢

PRELIMINARY STATEMENT

The Religious Society of Friends (Quakers) came

to the shores of America more than 400 years ago,

seeking freedom to practice their faith without ob-

struction by either the government or their neighbors.

Although they often met fierce resistance such as the

law banning Quakers in Virginia (enacted March 13,

1660, Hening, I, 532-533), ultimately Friends and

other religious groups found the Americas to be a

place of religious tolerance. Freedom of religion has

been fundamental to our land, as found in the First

Amendment of the U.S. Constitution.

For many Friends a foundational belief’ is that

there is “that of God in everyone.” Friends work

together to find God’s will, waiting for a Sense of the

* This summary of Friends’ beliefs is an oversimplification

of a complex web of beliefs among Friends. As with many faiths

there are differences and nuances among Friends. For the

purpose of this brief, however, this is an accurate, if abbreviated,

statement of the Friends represented here and of many thousands

more. A more detailed discussion of Friends’ beliefs can be found

in Howard Brinton, Guide to Quaker Practice (1993) and Lloyd

Lee Wilson, Essays on the Quaker Vision of Gospel Order (2002).

3

Meeting (something akin to, but not the same as, con-

sensus), many Meetings taking years to come to clear-

ness. Michael J. Sheeran, Beyond Majority Rule (1983).

Quakers have no written creed but have always

had “testimonies” shaped over the centuries by con-

tinuing revelation to guide them in a manner not

unlike the continuing unfolding of our understanding

of the U.S. Constitution in general and the Bill of

Rights in particular. See Langley Hill Friends Meet-

ing, Quaker Values and Testimonies, http://langleyhill

quakers.org/quaker_values_and_testimonies.aspx. Fol-

lowing of these testimonies has often resulted in

Friends being out of step with their neighbors. The

most well-known of the testimonies is the Peace

Testimony which is why most Friends refuse to

participate in war in any form and why many are

vegetarians. The testimony of simplicity resulted in

the plain dress that was common among Friends

until the early-twentieth century. The testimony of

integrity made Friends merchants with whom people

wanted to trade knowing that they would give a fair

price. It is also the reason Friends would not swear

oaths, a practice recognized by their affirmations of

truth as being legally equivalent to the otherwise

required oaths. The testimony of equality led Friends

in the United States to reject slavery completely by

1784. Thomas Hamm, Quakers in America (2006);

Howard Brinton, Friends for 350 Years (1993).

These latter two testimonies — integrity and

equality — are what lead Langley Hill; Richmond, Va.;

and Ann Arbor Friends Meetings to file this brief.

4

Based on their fundamental belief that there is

that of God in everyone, Friends have worked to be a

welcoming faith community that treats everyone

fairly and as equals. As part of that challenge, some

Quakers began to welcome openly gay and lesbian

Friends in the early 1970s. The welcoming of gay,

lesbian, bisexual, and transgender attenders and

members resulted in a struggle over the meaning of

marriage among Friends.

In the 1980’s some Meetings began holding

marriages of same gender couples under their care

and some other Meetings held same gender unions

in the manner of Friends’ weddings.* This may seem

like semantics, but it is this very word choice which

is why there is the struggle in the courts today. The

word “marriage” has both legal and religious ramifi-

cations. It is this difference that led more Friends to

conclude that even the practice of taking same gender

unions under their care rather than marriages was

unequal and therefore inadequate. On the other

hand, many Friends Meetings which took the mar-

riage of same gender couples under their care without

* Most Friends Meetings do not have ministers (all though

most Friends’ Churches do). Marriage “in the manner of

Friends” or “under the care of” these Meetings consist of the

principals exchanging vows “before God and these, our Friends”

and subsequently signing a copy of their vows with all of the

people who attended the wedding signing it as witnesses. These

Meetings usually work out a system with local civil authorities

whereby there are specific members of the Meeting who sign the

marriage license upon completion of the marriage.

5

legal recognition found that doing so was also an

inadequate solution to inequality, because unlike the

marriages of mixed gender couples, the marriage of

same gender couples could not be legally recognized.

Many Friends Meetings began to advocate for the

legal recognition of the right to marry all of their

members in the manner of Friends without regard to

gender of the participants. See Friends for Lesbian,

Gay, Bisexual, Transgender, and Queer Concerns

(FLGBTQC), Marriage Minutes, http://figbtac.

quaker.org/marriageminutes. html.

Richmond Friends Meeting, after years of consid-

eration, concluded that that they would refuse to

perform the civil aspect of marriages of any members

until they could legally perform civil marriages for all

in order to be true to their witnesses of integrity and

equality. Richmond Meeting continued to hold under

its care the marriages of its members as requested

but without civil officiants as an effort to be true to

its testimonies of integrity and equality. But this too,

was inadequate, because it burdened both the mixed

gender and same gender couples who are members of

Richmond Meeting, each of whom was deprived of

their right to have a marriage entered into within

their own faith community legally recognized. App. 5.

Members of Langley Hill Friends Meeting which took

marriages under its care regardless of the gender of

the couples felt the heavy weight on their hearts of

not being able to be true to their testimonies of integ-

rity and equally because of lack of legal recognition

for some of those marriages and minuted this burden

6

both in 1991 and 2014. App. 2. If the state ban on

same gender marriage is reinstated or upheld, these

Meetings once again will not be able to marry their

members pursuant to their religious practices.

In 2015, Ann Arbor Friends Meeting reaffirmed

its long time practice of taking the marriages of same

gender couples under its care the same as mixed

gender couples while being deeply troubled that the

marriage of the same gender couples were not legally

recognized, originally minuted in 1992. One mixed

gender couple married under the care of Ann Arbor

Friends Meeting declined to apply for a marriage

license because their religious beliefs did not permit

them to do so while same gender couples were denied

a marriage license by the civil authorities. App. 5.

Laws barring recognition of same gender mar-

riages create a real burden on the religious freedom

of same gender couples of the Religious Society of

Friends who are unable to celebrate their religious

and legal right to be married within their faith com-

munity if these laws were to stand. The laws create

an unintended but nevertheless real burden on the

religious freedom of mixed gender couples who are

members of Richmond Meeting who would be unable

to celebrate their religious and legal right to be

married within their faith community if these laws

were to be reinstated. These laws created an unin-

tended but nevertheless real burden on the religious

freedom of mixed couples who are members of Meet-

ings who found themselves individually as a matter of

integrity unwilling to celebrate their religious and

7

legal right to be married within their faith communi-

ty. The laws which prohibit such marriages create an

impermissible burden on the Friends Meetings that

must choose between some members’ right to be

legally married in their faith community or creating

disparate classes of members in violation of the clear

testimonies of integrity and equality. Finally, these

laws create an impermissible burden on all members

of the Meetings which are forced to choose between

these courses, both of which violate their faith.

¢

SUMMARY OF ARGUMENT

Marriage has long been recognized as a funda-

mental civil right. Meyer v. Nebraska, 262 U.S. 390,

399 (1923); Loving v. Virginia, 388 U.S. 1 (1967).

But marriage has also been recognized as a

central component of most faith communities. The

fundamental legal right to marriage and the centrali-

ty of marriage to faith communities overlap in the

statutory recognition of marriages solemnized in any

religious society in conformity with the rules of its

church. It is this fundamental right to recognition of

marriages solemnized in conformity with the rules of

their faith community that Friends seek to protect.

The Religious Society of Friends’ testimonies of

integrity and equality bring Friends to this Court

seeking protection for their religious freedom to

practice their faith in a manner consistent with their

beliefs. The ruling of the Sixth Circuit has made the

8

faithful practice of Friends’ beliefs impossible for

many as it pertains to marriages taken under their

care. These Friends’ belief in equality requires them

to treat same gender couples equally in taking their

marriages under the care of the meeting. These laws

forbid recognition of some marriages Friends’ faith

dictates they take under their care.

Many Friends throughout the country have

concluded that to be consistent with their religious

beliefs they must participate in obtaining legal recog-

nition for marriages for same gender couples as well

as for mixed gender couples. Other Friends have

concluded that they cannot be faithful and seek

marriage under the care of their Meeting until all

couples are entitled to legal recognition for their

marriages. In order to be true to their beliefs in

equality, Friends need the ability to obtain legal

recognition of the marriages under their care regard-

less of the gender of the members of the couples.

Therefore, Friends ask that this burden placed by the

states on their beliefs be removed.

+

ARGUMENT

STATE LAWS WHICH PROHIBIT SAME GENDER

MARRIAGES UNDULY BURDEN THE RELIGIOUS

FREEDOM OF MEETINGS AND MEMBERS OF

THE RELIGIOUS SOCIETY OF FRIENDS.

Beyond being a civil right, marriage is also part

of Religious Freedom. Every state in the union provides

9

for members of the clergy or religious communities to

act as officiants in marriage ceremonies. Perry Dane,

A Holy Secular Institution, 58 Emory L.J. 1123, 1137

(2008). The Court held in Turner v. Safley that one of

the reasons that “important attributes of marriage

remain,” even taking into account “the limitations

imposed by prison life” was that “many religions

recognize marriage as having spiritual significance;

for some inmates and their spouses, therefore, the

commitment of marriage may be an exercise of reli-

gious faith as well as an expression of personal dedi-

cation.” 482 U.S. 78, 95-96 (1987). It is this exercise of

religious faith that is being thwarted by laws banning

recognition of same gender marriages.

Marriage is a foundational right that implicates

many other constitutional protections. In U.S. v.

Windsor, 133 S.Ct. 2675, 570 U.S. ____ (2013), Wind-

sor, whose marriage was recognized by her home

state of New York, was denied recognition of that

marriage when she sought a federal tax exemption on

the estate of her deceased spouse. The Court struck

down the Defense of Marriage Act (“DOMA”), 1

U.S.C. §7 and 28 U.S.C. § 1738C (1996) in part on

due process and equal protection grounds. “By seek-

ing to injure the very class New York seeks to protect,

DOMA violates basic due process and equal protec-

tion principles applicable to the Federal Govern-

ment.” Jd. at 2693.

It is this conjunction of religious freedom and the

fundamental right of marriage with the multiple

rights and privileges afforded married couples that

10

require that the laws which prohibit same gender

marriages fail.

Richmond Friends Meeting concluded that rather

than perform the service of legal officiant for only

some marriages taken under their care while same

gender marriages were unrecognized in Virginia, they

would be a legal officiant for no one. Until the denial

of certiorari in Bostic v. Shaefer, 760 F.3d 352 (4th

Cir. 2014), cert. denied, Rainey v. Bostic, 135 S.Ct. 308

(2014), none of the members of the Richmond Friends

Meeting community — same gender couples or mixed

gender couples — were able to have legal recognition

of their marriage taken under the care of their reli-

gious community. Although, for the moment, Rich-

mond can take under its care any couple within its

community secure in the knowledge that the mar-

riage will be legally recognized, the upholding of the

Sixth Circuit opinion in DeBoer v. Snyder, 772 F.3d

388 (6th Cir. 2014), pet. cert. granted, 83 USLW 3315

would put Richmond Friends Meeting back in the

untenable position of once again having none of the

marriages held under its care being legally recog-

nized.

Some Meetings, which felt just as strongly about

the right to marry all of the members of their com-

munity in the manner of Friends, came to a different

and equally unhappy solution. Some Meetings have

taken same gender unions under their care as part of

their practice. Others have taken marriages of same

gender couples under their care without seeking legal

recognition of those marriages. Others have taken

11

marriages of same gender and mixed gender couples

under their care without seeking legal recognition of

any of those marriages. Each of these Meetings

recognizes that this was not a fully equal recognition

of the relationships established under God in the

Meeting. The refusal of state and federal govern-

ments to recognize all marriages taken under the

care of a Meeting requires Meetings and their mem-

bers to violate their own beliefs in equality and

integrity regardless of which decision they make

about marriages within their faith communities.

The burdens placed on the faith of Meetings and

individual members of those Meeting communities of

the Religious Society of Friends require that the laws

which prohibit same gender marriages fail.

sa

CONCLUSION

For the foregoing reasons, amici curiae respect-

fully request this Court to reverse the decision below.

Respectfully submitted,

J.E. MCNEIL, Counsel of Record for Amicus Curiae

DANIEL P. O’CONNOR

MCNEIL & Ricks, PC

4119 Garrison St., NW

Washington, DC 20016

(202) 256-7441

jmenrick@gmail.com

March 2, 2015

App. 1

Ann Arbor Friends Meeting Minutes

Ann Arbor, Michigan

Minute February 16, 1992

The Meeting recognizes in the unique traditional

manner of Friends that no official of the Meeting

marries a couple, but that the Meeting witnesses and

celebrates the vows of the couple to each other.

It is therefore the sense of the Meeting that Ann

Arbor Friends Meeting provides a clearness and

oversight process for couples in the Meeting, whether

of different sex or the same sex. If it is so recom-

mended by the clearness committee and approved by

the meeting for business, the Meeting witnesses and

celebrates the couple’s commitment to each other,

takes their relationship under its care, and gives its

ongoing support. Couples have some latitude in the

words they choose to use in their vows to each other;

they may use the word marriage if they choose to do

so. The Clerk or his/her representative signs appropri-

ate legal documents certifying that the commitment

has been witnessed after the manner of Friends.

Minute Feb. 15, 2015

A marriage under the care of Ann Arbor Friends

Meeting (““AAFM”) occurs during a called Meeting for

Worship, during which the couple declare their vows

to each other before God, witnessed by family and

friends. It has been and will continue to be the prac-

tice of AAFM to perform marriages for same-gender

couples.

App. 2

In such instances, at the present time, the marriage

would not be recognized by the State of Michigan.

This does not affect the validity of the marriage in

our eyes, but AAFM is deeply troubled that same-

gender couples married by AAFM do not currently

receive the legal rights conferred on heterosexual

couples married under the care of AAFM. The dispar-

ate treatment by the State of Michigan cannot be

reconciled with our core testimonies of integrity and

equality, derived from our belief as Friends (Quakers)

that there is that of God in every person. At least one

heterosexual couple married under the care of AAFM

has declined to apply for a marriage license because

their Quaker religious beliefs did not permit them to

do so while same-gender couples were denied a mar-

riage license by the civil authorities. Accordingly, we

support this Friend of the Court Brief.

Langley Hill Friends Meeting Minutes

Langley, Virginia

Minute 1991

We affirm that our belief in that of God in every

person embraces all human beings, so that we wel-

come to meetings for worship, to fellowship and to

consideration for membership all persons, without

consideration of sexual orientation. The Meeting

extends its loving care to all members and attenders.

Some forms of this care include counseling and clear-

ness committees for individuals, couples and families,

and providing for marriages and commitment cere-

monies in the manner of Friends.

App. 3

Excerpt from Letter from Clerk of Committee

on Oversight and Family Relations May 14, 2000

After reviewing the minute from Virginia Half-Years

Meeting, we (the committee) believe that our minute

is consistent with the first two clauses of their mi-

nute. During our deliberations at Langley Hill lead-

ing up to the adoption of the 1991 minute, we

considered language committing to political action;

this was not included in our final minute. (This letter

reported that the final clause of Virginia Half-Years

Minute was referred to Langley Hill Social Concerns

Committee to see whether there is interest in sup-

porting political efforts to make same-gender mar-

riage legal in the Commonwealth of Virginia.)

Response to Query on Quaker Marriages 2010

Last fall, Baltimore Yearly Meeting’s Ad Hoc Commit-

tee on Gender and Sexual Diversity Concerns asked

monthly meetings to consider the following query,

and invited responses (see query on p 24).

The Committee on Care and Clearness of Langley

Hill Meeting has considered the query and we sug-

gest the following response:

Langley Hill Meeting is sensitive to concerns of and

for those couples whose marriages are not recognized

by their civil jurisdiction. However we do not agree

with the suggestion — implied by the query — that

marriages under the care of the Meeting should have

App. 4

only a religious component, and not a civil compo-

nent.

A marriage under the care of Langley Hill Meeting

occurs during a called Meeting for Worship, during

which the couple declare their vows to each other

before God, witnessed by family and friends. Three

members of the Meeting are recognized by the Com-

monwealth of Virginia as Registered Celebrants; they

are authorized to sign the state marriage license

confirming that the marriage took place. Heterosexu-

al couples may request the services of one of our

Registered Celebrants.

Langley Hill Meeting has minuted our willingness to

perform marriages (or commitment ceremonies) for

same-gender couples. In such instances, at the pre-

sent time, the couple would not have a marriage

license from Virginia, and there would be no role for

the Registered Celebrant. This would not affect the

validity of the marriage in our eyes. We hope that the

Commonwealth of Virginia will also come to recognize

the validity of such a marriage for civil purposes.

Rather than restrict marriages under the care of

Langley Hill Meeting to a religious component only,

we prefer to continue to work to be able to also con-

firm the civil component for all couples.

App. 5

Richmond Friends Meeting Minutes

Minute February 19, 1989

Richmond Friends Meeting extends its loving care

and support to all individuals and couples in our

Meeting community. A committed, loving relationship

provides a framework within which spiritual growth

can occur. Therefore, we affirm our willingness to

hold a celebration of commitment under the care of

the Meeting for same-gender couples at least one of

whom is a member or active attender of Richmond

Friends Meeting. This is evidence of our spiritual

support of such a long-term relationship. The cus-

tomary process for marriage outlined in Faith and

Practice will be followed.

Excerpt from letter November 18, 1999

Richmond Monthly Meeting unites with Char-

lottesville Monthly Meeting regarding the minute

from Virginia Half-Years Meeting on the same subject

[to provide only spiritual support for marriage]. .. We

indicated our unity with a minute to that effect at our

monthly meeting for worship for business on the 18th

of Seventh Month, 1999.