Amicus Curiae Brief — Obergefell v. Hodges

Nos. 14-556, 14-562, 14-571 and 14457409" Cout. US.

IN THE MAR 6 - 2015

Supreme Court of the -_ Stated. cucxk

JAMES OBERGEFELL, et ail.

AND BRITTANI HENRY, e? al.,

Petitioners,

Vv.

RICHARD HODGES, DIRECTOR, OHIO

DEPARTMENT OF HEALTH, et al.,

Respondents.

On Writs OF CERTIORARI TO THE UNITED STATES

Court oF APPEALS FOR THE SIXTH CIRCUIT

——_-—

BRIEF AMICUS CURIAE OF LEGAL

SCHOLARS STEPHEN CLARK, ANDREW

KOPPELMAN, SANFORD LEVINSON, IRINA

MANTA, ERIN SHELEY AND ILYA SOMIN

ANDREW KopPELMAN JOSEPH P. LOMBARDO

NORTHWESTERN UNIVERSITY Counsel of Record

SCHOOL oF Law Eric S. SILVESTRI

375 East Chicago Avenue BRITTANY L. VIOLA

Chicago, Illinois 60611 Sara T. GHADIRI

(312) 503-8431 CHAPMAN AND CuTLER LLP

111 West Monroe Street

ItyA SOMIN Chicago, Illinois 60603

GEORGE Mason UNIVERSITY (312) 845-3000

SCHOOL or Law lombardo@chapman.com

3301 Fairfax Drive

Arlington, Virginia 22201

(703) 993-8069

a

QUESTION PRESENTED

Should state laws that restrict marriage rights based

on sex be subject to the same heightened scrutiny that is

imposed on all other sex-discriminatory legislation?

7]

TABLE OF CONTENTS

Page

SPR Ae PRU REEED cc ccvccccceccccsceceses i

Ee GE 63.6 ocespccepetscceenesess ii

TABLE OF CITED AUTHORITIES .............. iv

IDENTITY AND INTEREST OF AMICUS

Dit dik dhed bebe GbedaeKeraaadasduunsawes 1

SUMMARY OF ARGUMENT ................0005- 2

Pt cv acobetitvihdversnébeneiuaneeweueed 4

Laws That Deny Same-Sex Couples the

Right to Marry Classify on the Basis

of Sex and Are Therefore Subject to

Intermediate Serutimy ........ccccccsccccces 4

A. Laws that Forbid Same-Sex Marriage

Classify on the Basis of Sex. ............. 4

B. There Is No Lowered Level of Scrutiny

for Symmetrical Discrimination That

Imposes Burdens on Both Sexes. ......... 9

C. A Challenge to a Sex-Discriminatory

Statute Need Not Prove That the

Statute’s Purpose Is to Subordinate

Women or to Express Hostility

to Either Gender, as Such .............. 15

vit

Table of Contents

Page

Laws That Ban Same-Sex Marriage Are

Often Based on Impermissible Gender

EE vd 6eebcduenetdateneenescees ins 18

Marriage Laws That Discriminate on the

Basis of Gender Go Against the Original

Meaning of the Fourteenth Amendment ...... 23

Lower Courts Have Defied the Authority

of the Court Under the Guise of Deferring

Pitched da cedeneadehs bens eeeses sans eae 29

iv

TABLE OF CITED AUTHORITIES

Page

Cases

Andersen v. King Cnty.,

138 P. 3d 963 (Wash. 2006) ............ccceeee 9, 10

Baehr v. Lewin,

S52 P. 3d 44 (Haw. 1908) .. ww cc cccccccccccces 9, 10

Baker v. Nelson,

191 N.W. 2d 185 (Minn. 1971) ................... 10

Baker v. Nelson,

ee es ss 8% voendkenued eae 3, 10, 20

Baker v. State,

Pe es Eas Sa 6 o vcccdedaeeseceen 9, 10, 13

Bassett v. Snyder,

951 F. Supp. 2d 939 (E.D. Mich. 2013)............ 15

Bishop v. U.S. ex rel. Holder,

962 F. Supp. 2d 1252 (N.D. Okla. 2014)........... 15

Bradwell v. Illinois,

83 U.S. (16 Wall.) 180 (1872) ..............05. 27, 28

Brause v. Bureau of Vital Statistics,

No. 3AN-95-6562 CI, 1998 WL 88743

(Alaska Super. Ct. Feb. 27, 1998)................. 9

Vv

Cited Authorities

Page

Brown v. Bd. of Educ.,

i PPD sccccccccccescecccs 6, 12, 18, 25

Cleburne v. Cleburne Living Ctr.,

Ee 5

Conaway v. Deane,

Ds © occcecdceseccoccssccs 10

Conde-Vidal v. Garcia-Padilla,

No. 14-1253 (PG), 2014 WL 5361987

En onc cccnesceccteceseuseses 30

Craig v. Boren,

429 U.S. 190 (1976). ............. .2, 5, 16, 28, 29, 31

Dean v. Dist. of Columbia,

653 A. 2d 307 (D.C. App. 1995). ................. 10

DeBoer v. Snyder,

772 F. 3d 388 (6th Cir. 2014) ........... 15, 19, 24, 29

Frontiero v. Richardson,

cee veccndecessennesaed 6, 7, 20

Geiger v. Kitzhaber,

994 F. Supp. 2d 1128 (D. Or. 2014) ................ 10

Glossip v. Mo. Dep't. of Transp. & Highway

Patrol Emps.’s Ret. Sys.,

ED csadcececescescsesecs 11

vt

Cited Authorities

Page

Goesaert v. Cleary,

I i i a al 30

Goodridge v. Dep't of Pub. Health,

798 N.E. 2d 941 (Mass. 2008) ................005:- i)

Hernandez v. Robles,

| k . 4 ee 9, 10

Hollingsworth v. Perry,

ie ee eee mee 10

In re Kandu,

315 B.R. 123 (Bankr. W.D. Wash. 2004) .......... 10

In re Marriage Cases,

En ou pc cee ncsennseetees 10

J.E.B. v. Alabama ez rel. T:B.,

ee eg ec eeeennent 20, 28

Jackson v. Abercrombie,

884 F. Supp. 2d 1065 (D. Haw. 2012) ............. 10

Jones v. Commonwealth,

80 Va. 538 (Va. Ct. App. 1885)... ... 2.2... eee eees 6

Kitchen v. Herbert,

961 F. Supp. 2d 1181 (D. Utah 2013)............... 9

vit

Cited Authorities

Page

L.A. Dept. of Water & Power v. Manhart,

SE a dettdececsevcescessnces 7, 8, 14

Latta v. Otter,

19 F. Supp. 3d 1054 (D. Idaho 2014).............. 10

Latta v. Otter,

771 F. 3d 456 (9th Cir. 2014) ......... 9, 10, 13, 14, 21

Lawrence v. Texas,

ct. ersiccedéeseaanoseute 15, 23

Lawson v. Kelly,

14—-0622—CV-W-ODS, 2014 WL 5810215

SE SE Png nceesetdsenccensesccens 4,9

Loving v. Virginia,

Kb dccducnendeccetesaseess 17, 28

McLaughlin v. Florida,

EE 6, 11, 12, 13, 17

Miss. Univ. for Women v. Hogan,

Ge ee PE conscccesccceccoses 5, 16, 18, 20

Nev. Dep't. of Human Res. v. Hibbs,

CK ee 21

Newport News Shipbuilding & Dry Dock Co. v.

E.E.OC.,

co vcncd csecnganteshuesonenad 8

vii

Cited Authorities

Page

Pace v. Alabama,

i <.¢ ccagunseeeccecesen 11, 12, 13

Perez v. Lippold,

EE er ee 14

Perry v. Schwarzenegger,

704 F. Supp. 2d 921 (N.D. Cal. 2010) .............. 9

Phillips v. Wis. Pers. Comm’n,

482 N.W. 2d 121 (Wis. Ct. App. 1992) ............ 10

Plessy v. Ferguson,

SSR eee nT 18

Price Waterhouse v. Hopkins,

ee oe etic aneneweeoewe 8

Richmond v. J.A. Croson Co.,

ee id iced tensed eadseces 17

Rodriguez de Quijas v. Shearson/Am. Express, Inc.,

inc. ceca cegeeabaseuceunneene 30

Sevcik v. Sandoval,

911 F. Supp. 2d 996 (D. Nev. 2012)............... 10

Singer v. Hara,

522 P. 2d 1187 (Wash. App. 1974)................ 10

ix

Cited Authorities

Page

Smelt v. Cnty. of Orange,

374 F. Supp. 2d 861 (C.D. Cal. 2005) ............. 10

State v. Walsh,

713 S.W. 2d 508 (Mo. 1986) ............ 10, 11, 12, 13

Terveer v. Billington,

34 F. Supp. 3d 100 (D.D.C. 2014).................. 9

United States v. Virginia,

Se ee PE oc ccccccccccoscees 3, 5, 6, 20, 28

United States v. Windsor,

i te cir baddeeeanea eel 23

Weinberger v. Wiesenfeld,

vc ccdsvscecddctasndeecaues 7, 16

Wengler v. Druggists Mut. Ins. Co.,

Pc crceceseetebcdebeesoode 15-16

Wilson v. Ake,

354 F. Supp. 2d 1298 (M.D. Fla. 2005)............ 10

Wolf v. Walker,

986 F. Supp. 2d 982 (W.D. Wis. 2014)............. 22

CONSTITUTIONAL PROVISIONS

a ced csabedeeotKad 4

x

Cited Authorities

Page

STATUTES

Mo. Rev. Stat. § 566.090.1(3) (West 1986)......... 11,12

Ohio Const. art. XV, § 11 (West 2014)................ 7

OTHER AUTHORITIES

Amicus Br. of Catholic Conference of Ohio, Henry

v. Himes, No. 14-3464, 2014 WL 2916640

SP REEL oc once cadedaueenoanvees 20

Amicus Br. of Citizens for Comty. Values,

Obergefell v. Himes, No. 14-3057, 2014 WL

1653834 (6th Cir. Apr. 17, 2014) .............. 19-20

Balkin, Jack L., Framework Originalism and

the Living Constitution, 103 NW. U. L.

ects tbanesenegeeeeseuassenenes 24

Barnett, Randy E., Underlying Principles, 24

Const. Comment. 405 (2007). .............00005- 24

Black, Jr., Charles L., The Lawfulness

of the Segregation Decisions,

Se ee EE ES 6 666 bd neces neconcevnces 21

Bork, Robert H., The Tempting of America:

The Political Seduction of the Law (1990)......... 25

x

Cited Authorities

Calabresi Steven G. & Andrea Matthews,

Originalism and Loving v. Virginia, 2012

re es EE, «cc enesevsecsesceees 26

Calabresi, Steven G. & Livia Fine, Two Cheers

for Professor Balkin’s Originalism, 103

Sk ie is BS EEE ov cescocececncessceces 24

Calabresi, Steven G. & Julia Rickert,

Originalism and Sex Discrimination, 90

— Fe SR ere y 26

Clark, Stephen, Same-Sex but Equal:

Reformulating the Miscegenation Analogy,

34 Rutgers L.J. 107 (2002) ............... 13, 14, 15

Eskridge, Jr., William N. & Darren R. Spedale,

Gay Marriage: For Better or For Worse? What

We’ve Learned from the Evidence (2006). ..... 19, 27

Harrison, John, Reconstructing the Privileges or

Immunities Clause, 101 Yale L.J. 1385 (1992)..... 25

Koppelman, Andrew, Judging the Case Against

Same-Sex Marriage, 2014 Ill. L. Rev. 431 ........ 23

Koppelman, Andrew, More Intuition than

Argument (Review of Sherif Girgis, Ryan

T. Anderson, & Robert P. George, What is

Marriage? Man and Woman: A Defense (2012)),

140 Commonweal, May 3, 2013................4. 23

rit

Cited Authorities

Koppelman, Andrew, Why Discrimination

Against Lesbians and Gay Men Is Sex

Discrimination, 69 N.Y.U. L. Rev. 197 (1994) . .

Merriam-Webster’s Collegiate Dictionary 556

Ss SS oo occ cccesccccstiesceseviees

Rappaport, Mike, Between the Original

Decision and Abstract Originalism: An

Unbiased Approach to Original Meaning,

Libr. L. & Liberty (Dee. 8, 2014).............

Saunders, Melissa L., Equal Protection,

Class Legislation, and Colorblindness,

96 Mich. L. Rev. 245 (1997)... ...........00--

Skidmore, W. Christopher et al., Gender

Nonconformity and Psychological Distress

in Lesbians and Gay Men, 35 Archives

Sexual Behav. 685 (2006). ..................-

Slawson, W. David, Developments in the

Law, Employment Discrimination and

Title VII of the Civil Rights Act of 1964,

84 Harv. L. Rev. 1109 (1971) .................

Somin, Ilya, Howto Figure Out When Laws Banning

Same-Sex Marriage Became Unconstitutional,

and Why the Precise Date May Not Matter,

Volokh Conspiracy, (Mar. 26, 2013, 11:44 PM)..

coved

xrri2

Cited Authorities

Transcript of Oral Argument at 12-14,

Hollingsworth v. Perry, 133 S. Ct. 2652 (2013)

DP ndeecscdadheseasevesunencseensvesd

Upham, David R., Interracial Marriage

and the Original Understanding of the

Privileges or Immunities Clause, 42

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

Widiss, Deborah A. et al., Eaposing Sex Stereotypes

in Recent Same-Sex Marriage Jurisprudence,

30 Harv. J.L. & Gender 461 (2007) ..............

1

IDENTITY AND INTEREST OF AMICUS CURIAE

Amici are legal scholars who teach and write in the

field of constitutional law, and who each have studied,

written scholarly commentary on, or have a professional

interest in one of the issues presented in these cases:

Should state laws that restrict marriage rights based on

sex be subject to the same heightened scrutiny that is

imposed on all other sex-discriminatory legislation?

Amici are the following legal scholars:'

Stephen Clark, Professor of Law at Albany Law

School;

Andrew Koppelman, John Paul Stevens Professor of

Law at Northwestern University School of Law;

Sanford Levinson, W. St. John Garwood and W.

St. John Garwood, Jr. Centennial Chair in Law at the

University of Texas at Austin School of Law;

Irina Manta, Associate Professor of Law and

Director of the Center for Intellectual Property Law at

the Maurice A. Deane School of Law at Hofstra University;

1. Pursuant to this Court’s Rule 37.3(a), all parties have

consented to the filing of this brief. Letters evidencing such

consent have been filed with the Clerk of the Court.

Pursuant to Rule 37.6, amici affirm that no counsel for any

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

made a monetary contribution intended to fund the preparation or

submission of this brief. No person other than amici or their counsel

made a monetary contribution to its preparation or submission.

Amici appear in their individual capacities; institutional affiliations

are listed here for identification purposes only.

2

Erin Sheley, Adjunct Professor at George Washington

University.

Ilya Somin, Professor of Law at George Mason

University School of Law.

SUMMARY OF ARGUMENT

If April DeBoer were a man, or James Obergefell

a woman, or Valeria Tanco a man, or Greg Bourke a

woman, then state law would readily give them the relief

they seek. But because the state laws challenged in

these cases provide that only a man can marry a woman

and only a woman can marry a man - or that existing

marriages will be denied recognition if they do not fit this

description — April and James and Valeria and Greg are

being discriminated against on the basis of their sex. Such

gender-based classifications constitute sex discrimination.

Accordingly, they must be subjected to intermediate

scrutiny. See Craig v. Boren, 429 U.S. 190, 197 (1976).

Some lower courts have resisted the application of

heightened scrutiny to laws banning same-sex marriage

by importing into the equal protection analysis elements

that do not belong there: either a rule that “separate but

equal” does not violate equal protection, or a rule that

sex classifications are permissible unless the challenger

shows that it was adopted for the purpose of subordinating

women. Neither of these theories has ever been adopted

by the Court. Both would license dangerous results, and

both are inconsistent with well-settled precedent.

Moreover, laws banning same-sex marriage are

in part based on “overbroad generalizations about the

3

different talents, capacities, or preferences of males

and females” of a kind that the Equal Protection Clause

seeks to combat. United States v. Virginia, 518 U.S. 515,

533 (1996). These generalizations are in significant part

motivated by efforts to enforce stereotypical, traditional

gender roles, even if that motivation is not present on the

part of all supporters of these laws. Thus, laws banning

same-sex marriage must be invalidated not only to protect

against formal sex discrimination, but also to prevent

states from adopting laws based on overbroad stereotypes

about abilities and social roles of both men and women.

Marriage laws discriminating on the basis of

sex are also inconsistent with the original meaning

of the Fourteenth Amendment, which forbids such

discrimination unless it can be justified by a state interest

unrelated to class discrimination and justified by relevant

factual evidence. Today, our understanding of same-sex

relationships is far more advanced than in the nineteenth

century, and the application of the Amendment’s original

principles must take account of that increased knowledge.

Finally, some lower federal courts have purported to

defer to Baker v. Nelson, a 1972 decision that summarily

dismissed a same-sex marriage claim as raising no

substantial federal question. 409 U.S. 810 (1972). That

result, however, predated the rule that sex-based

classifications are subject to heightened scrutiny. Some

lower courts that reject Claims for same-sex marriage have

cited Baker as an excuse for ignoring the plainly applicable

rule established by the Court’s later decisions. This

“solution” is a creative, but abusive, version of deference.

Only this Court can overrule its own precedents. But

when it lays down a rule that is inconsistent with previous

4

decisions, that newer, more up-to-date rule must be

followed in preference to earlier decisions that might go

against it.

ARGUMENT

Laws That Deny Same-Sex Couples the Right

to Marry Classify on the Basis of Sex and Are

Therefore Subject to Intermediate Scrutiny.

A. Laws that Forbid Same-Sex Marriage Classify

on the Basis of Sex.

Each of the laws challenged in this case clearly

mandates that whether one can marry any specific person

depends on whether one is a man or a woman. As a recent

district court decision striking down a similar Missouri

law explains, “(t]he State’s ‘permission to marry’ depends

on the gender of the would-be participants. The State

would permit Jack and Jill to be married but not Jack

and John. Why? Because in the latter example, the person

Jack wishes to marry is male. The State’s permission to

marry depends on the genders of the participants, so

the restriction is a gender-based classification.” Lawson

v. Kelly, 14-0622—CV—W-—ODS, 2014 WL 5810215, at *8

(W.D. Mo. Nov. 7, 2014).

The Equal Protection Clause requires that “[nJo State

shall ... deny to any person within its jurisdiction the

equal protection of the laws.” U.S. Const. amend. XTV, § 1.

This Court has interpreted that provision as prohibiting

arbitrary discrimination, or treating similar things

dissimilarly. In ordinary cases, this analysis produces

a very deferential standard of judicial review. See, e.g.,

5

Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985)

(“The general rule is that legislation is presumed to be

valid and will be sustained if the classification drawn

by the statute is rationally related to a legitimate state

interest.”). But laws that classify based on “race, alienage,

or national origin ... are subjected to strict scrutiny and

will be sustained only if they are suitably tailored to

serve a compelling state interest.” Jd. While almost any

legislation can meet the deferential “minimal scrutiny”

test, which asks merely whether the statute is rationally

related to a legitimate state interest, very few laws have

been able to satisfy the heightened “strict scrutiny” test.

Classifications based on sex or illegitimacy are

subject to a third, intermediate level of scrutiny.

“(S]tatutory classifications that distinguish between

males and females” are presumptively invalid, and thus, to

overcome this barrier, must be “substantially related” to

the achievement of “important governmental objectives.”

See Craig, 429 U.S. at 197. “[T]he party seeking to uphold

a statute that classifies individuals on the basis of their

gender must carry the burden of showing an ‘exceedingly

persuasive justification’ for the classification.” Miss. Univ.

for Women v. Hogan, 458 U.S. 718, 724 (1982); see also U.S.

v. Virginia, 518 U.S. at 531. “The burden of justification

is demanding and it rests entirely on the State.” U.S. v.

Virginia, 518 U.S. at 533.

A classification is baSed on trait “T” if it requires state

officials, in allocating rights and burdens, to determine in

specific cases whether T is present. Legal consequences

turn on the presence or absence of T. That is what it means

to classify.

6

For example, in Brown v. Board of Education, the

state had to determine the race of students in order to

decide to which public schools to assign them. 347 U.S.

483 (1954); see also U_S. v. Virginia, 518 U.S. at 533. That

is how we know that the state was using a race-based

classification. The same rule determined the outcome in

McLaughlin v. Florida, in which the Court unanimously

invalidated a criminal statute prohibiting an unmarried

interracial couple from habitually living in and occupying

the same room at night. 379 U.S. 184 (1964); see also U.S.

v. Virginia, 518 U.S. at 533. “It is readily apparent,” wrote

Justice White for the Court, that the statute in question

“treats the interracial couple made up of a white person and

a Negro differently than it does any other couple.” /d. at 188.

In fact, the race of the defendant was an essential element of

the crime that the prosecution must prove. See id. at 184. Cf

Jones v. Commonwealth, 80 Va. 538, 542 (Va. Ct. App. 1885)

(“To be a negro is not a crime; to marry a white woman is

not a crime; but to be a negro, and being a negro, to marry a

white woman is a felony; therefore, it is essential to the crime

that the accused shall be a negro — unless he is a negro he is

guilty of no offense.”). Justice Stewart, concurring, declared

that “it is simply not possible for a state law to be valid

under our Constitution which makes the criminality of an

act depend upon the race of the actor.” McLaughlin, 379

U.S. at 198 (Stewart, J., concurring).

The same principle applies in cases involving sex

discrimination. The Equal Protection Clause requires

“skeptical scrutiny of official action denying rights or

opportunities based on sex.” U.S. v. Virginia, 518 U.S. at

531. The decision in Frontiero v. Richardson invalidated

a law that automatically allowed male members of the Air

Force to claim their wives as dependents and therefore

7

receive housing and medical benefits, but required

female members to prove that their husbands depended

on them for more than half their financial support. 411

U.S. 677, 680 (1973). If Sharron Frontiero had been male,

she would have received the benefits she claimed. Jd. at

678-79. In order to determine her rights, the Air Force

had to determine whether she was male or female. Thus,

the law denying her benefits was invalidated because it

discriminated on the basis of sex. Likewise, the Court, in

Weinberger v. Wiesenfeld, struck down a provision of the

Social Security Act that allowed a widowed mother — but

not a widowed father — to receive survivor’s benefits based

on the earnings of the deceased spouse. 420 U.S. 636, 653

(1975). If Stephen Wiesenfeld had been female, he would

have received the benefits he was denied. /d. at 640-41.

Once more, in order to determine a litigant’s legal rights

administrators had to determine whether he was male

or female. The Court later endorsed a “simple test” for

assessing whether sex discrimination is present: “whether

the evidence shows ‘treatment of a person in a manner which

but for that person’s sex would be different.” L.A. Dept. of

Water & Power v. Manhart, 435 U.S. 702, 711 (1978) (quoting

W. David Slawson, Developments in the Law, Employment

Discrimination and Title VII of the Civil Rights Act of 1964,

84 Harv. L. Rev. 1109, 1170 (1971)).

The discrimination at issue in the present case is

obviously sex discrimination in exactly the same way.

All of the challenged faws require that the state first

determine the sex of the persons wishing to marry before

determining whether they will be allowed to marry the

partner of their choice. See, e.g., Ohio Const. art. XV,

§ 11 (West 2014) (“Only a union between one man and one

woman may be a marriage valid in or recognized by this

8

state and its political subdivisions.”). Put simply, if Ann is

permitted to marry Bob, but Charles may not marry Bob,

then Charles is being discriminated against on the basis

of sex because he is being treated “in a manner which but

for [his] sex would be different.” Manhart, 435 U.S. at 711

(internal quotation marks omitted). Thus, the law that

mandates this different treatment discriminates by sex.”

Indeed, laws banning same-sex marriage classify on

the basis of sex more clearly than those laws discriminate

on the basis of sexual orientation, as such orientation has

no direct effect on the way the law operates. Ann is still

allowed to marry Bob, even if one of them happens to be

gay or lesbian; but Charles is specifically denied that right

regardless of his sexual orientation. As Justice Johnson

2. This Court has also had occasion to elaborate the concept

of an injury being “based” on gender under Title VII of the Civil

Rights Act of 1964. There, the most restrictive view of causation

among the Members of this Court has been the “but-for” test.

See Price Waterhouse v. Hopkins, 490 U.S. 228, 281-86, 262-63

(1989) (Kennedy, J., dissenting) (O’Connor, J., concurring in the

judgment). Such concepts as “because of,” “based on,” and “on

the basis of” were there regarded as “synonymous with but-

for causation.” Jd. at 282 (Kennedy, J., dissenting). “[S]ex is a

cause ... whenever, either by itself or in combination with other

factors, it made a difference to the decision.” Jd. at 284 (Kennedy,

J. dissenting). The question is whether a person has been treated

“in a manner which but-for that person’s sex would be different.”

Newport News Shipbuilding & Dry Dock Co. v. E.E.0.C., 462 U.S.

669, 683 (1983). Under this “but-for” test, Michigan’s refusal to

allow April DeBoer to marry Jayne Rowse constitutes a gender-

based state action. If DeBoer’s gender were male instead of female,

the outcome in applying Michigan’s marriage laws to her quest to

marry Rowse would be different. If DeBoer were a man, Michigan

would allow that very marriage.

9

of the Vermont Supreme Court has stated, “[a] woman is

denied the right to marry another woman because her

would-be partner is a woman, not because one or both

are lesbians .... [Sexual orientation does not appear as a

qualification for marriage” under laws banning same-sex

marriage; but sex does. Baker v. State, 744 A.2d 864, 905

(Vt. 1999) (Johnson, J., concurring in part and dissenting

in part). The laws at issue in this case plainly discriminate

based on sex. Thus, intermediate scrutiny should apply.

B. There Is No Lowered Level of Scrutiny for

Symmetrical Discrimination That Imposes

Burdens on Both Sexes.

Some judges have accepted the sex discrimination

rationale for striking down laws banning same-sex

marriage,* but many more have rejected it. The argument

is often advanced that there is no sex-based classification

3. Latta v. Otter, 771 F.3d 456, 480-96 (Sth Cir. 2014) (Berzon,

J., concurring); Perry v. Schwarzenegger, 704 F.Supp.2d 921, 996

(N.D. Cal. 2010); Lawson v. Kelly, 14-0622—CV-W-—ODS, 2014

WL 5810215, at *8 (W.D. Mo. Nov. 7, 2014); Kitchen v. Herbert,

961 F.Supp.2d 1181, 1206 (D. Utah 2013) (dictum); Brause v.

Bureau of Vital Statistics, No. 3AN-95-6562 CI, 1998 WL

88743, at *6 (Alaska Super. Ct. Feb. 27, 1998); Baehr v. Lewin,

852 P.2d 44, 64-67 (Haw. 1993) (plurality opinion); Goodridge

v. Dep’t of Pub. Health, 798 N.E.2d 941, 971-73 (Mass. 2003)

(Greaney, J., concurring); Hernandez v. Robles, 855 N.E.2d 1,

29-30 (N.Y. 2006) (Kaye, C*J., dissenting); Baker v. State, 744

A.2d 864, 905-07 (Vt. 1999) (Johnson, J., concurring in part and

dissenting in part); Andersen v. King Cnty., 138 P.3d 963, 1037-39

(Wash. 2006) (en banc) (Bridge, J., concurring in dissent); see

also Terveer v. Billington, 34 F.Supp.3d 100, 115 (D.D.C. 2014)

(holding that discrimination against gay employee may be based

on nonconformity with sex stereotypes).

10

in these cases, because persons of both sexes are equally

forbidden to marry a person of the same sex.‘ In other

words, since the gender-based burden is symmetrical,

it is supposedly not a form of sex discrimination. Sex

discrimination challenges to the Defense of Marriage Act

(later invalidated on other grounds by the Court) were

often rejected on the same basis.°®

The leading decision in which this fallacy was used to

uphold a law that discriminated on the basis of sex is State

v. Walsh. 713 S.W.2d 508 (Mo. 1986) (en banc), abrogated

4. Latta v. Otter, 19 F.Supp.3d 1054, 1074 (D. Idaho 2014),

rev d on other grounds by Latta, 771 F.3d 456; Geiger v. Kitzhaber,

994 F.Supp.2d 1128, 1139-40 (D. Or. 2014); Sevcik v. Sandoval,

911 F.Supp.2d 396, 1005 (D. Nev. 2012) rev'd on other grounds by

Latta, 771 F.3d 456; Jackson v. Abercrombie, 884 F.Supp.2d 1065,

1098 (D. Haw. 2012) vacated as moot by Jackson v. Abercrombie,

585 Fed. App’x 413 (9th Cir. 2014); In re Marriage Cases, 183

P.3d 384, 436 (Cal. 2008), affd on other grounds, sub nom by

Hollingsworth v. Perry, 133 S. Ct. 2652 (2013); Dean v. Dist. of

Columbia, 653 A.2d 307, 363 n.2 (D.C. App. 1995) (op. of Steadman,

J.); Baehr, 852 P.2d at 71 (Heen, J., dissenting); Conaway v. Deane,

932 A.2d 571, 597-98 (Md. 2007); Hernandez, 855 N.E.2d at 10-11;

Baker, 744 A.2d at 880 n.13; Andersen, 138 P.3d at 988 (en banc);

Phillips v. Wis. Pers. Comm’n, 482 N.W.2d 121, 127-28 (Wis. Ct.

App. 1992); see also Baker v. Nelson, 191 N.W.2d 185, 187 (Minn.

1971), appeal dismissed, 409 U.S. 810 (1971); Singer v. Hara, 522

P.2d 1187, 1191-92 (Wash. App. 1974).

5. See, e.g., Smelt v. Cnty. of Orange, 374 F.Supp.2d 861, 877

(C.D. Cal. 2005), aff'd in part, vacated in part and remanded with

directions to dismiss for lack of standing, 447 F.3d 673 (9th Cir.

2006) (“DOMA does not treat men and women differently.”);

Wilson v. Ake, 354 F.Supp.2d 1298, 1307-08 (M.D. Fla. 2005)

(same); Jn re Kandu, 315 B.R. 123, 143 (Bankr. W.D. Wash. 2004)

(same).

11

by Glossip v. Mo. Dep't. of Transp. & Highway Patrol

Emps.’s Ret. Sys., 411 S.W.3d 796 (Mo. 2013) (en banc). In

Walsh, the Supreme Court of Missouri reversed a lower

court’s declaration that a statute prohibiting “deviate

sexual intercourse with another person of the same sex,”

Mo. Rev. Stat. § 566.090.1(3) (West 1986), deprived the

defendant of equal protection because “the statute would

not be applicable to the defendant if he were a female.”

Walsh, 713 S.W.2d at 509 (quoting unpublished trial court

opinion). More specifically, the court stated:

The State concedes that the statute prohibits

men from doing what women may do, namely,

engage in sexual activity with men. However,

the State argues that it likewise prohibits

women from doing something which men can

do: engage in sexual activity with women. We

believe it applies equally to men and women

because it prohibits both classes from engaging

in sexual activity with members of their own

sex. Thus, there is no denial of equal protection

on that basis.

Id. at 510.

The Missouri court’s logic mimics that of Pace v.

Alabama, the notorious 1883 decision in which this Court

for the first time considered the constitutionality of anti-

miscegenation laws. 106 U.S. 583 (1883), overruled in part

by McLaughlin, 379 U.S. 184 (1964). The statute at issue

in Pace prescribed penalties for interracial sex that were

more severe than those imposed for adultery or fornication

between persons of the same race. The Court unanimously

rejected the equal protection challenge to the statute,

denying that it discriminated on the basis of race:

12

[The section prohibiting interracial sex]

prescribes a punishment for an offence which

can only be committed where the two sexes

are of different races. There is in neither

section any discrimination against either

race .... Whatever discrimination is made in

the punishment prescribed in the two sections

is directed against the offence designated and

not against the person of any particular color or

race. The punishment of each offending person,

whether white or black, is the same.

Id. at 585.

The reasoning in Walsh is identical to that of Pace.

Like Alabama’s anti-miscegenation law, the Missouri

statute “prescribe[d] a punishment for an offence which

can only be committed where the two [participants]

are of [the same sex],” and it too was directed “against

the [activity] designated and not against the person of

any particular [sex].” Compare id. with Mo. Rev. Stat.

§ 566.090.1(3) (West 1986)

But Pace is no longer good law. It was repudiated by

the Court in the next miscegenation case it considered,

McLaughlin v. Florida. See McLaughlin, 379 U.S. 184.

In the wake of the unanimous decision condemning

segregated public schools in Brown v. Board of Education,

the McLaughlin Court — also unanimously — invalidated

a criminal statute prohibiting an unmarried interracial

couple from habitually living in and occupying the same

room at night. In response to the state’s reliance on Pace,

the Court declared that Pace represented “a limited view

of the Equal Protection Clause which has not withstood

13

analysis in the subsequent decisions of this Court.”

McLaughlin, 379 U.S. at 188. Since the State had failed

to establish that the statute served “some overriding

statutory purpose requiring the proscription of the

specified conduct when engaged in by a white person and

a Negro, but not otherwise,” the statute necessarily fell

as “an invidious discrimination forbidden by the Equal

Protection Clause.” Jd. at 192-93.

Imagine a different, equally symmetrical statute,

forbidding persons of both sexes to perform a job

traditionally performed by the other sex. See Stephen Clark,

Same-Sex but Equal: Reformulating the Miscegenation

Analogy, 34 Rutgers L.J. 107, 143 (2002). Here is another:

“a statute that required courts to give custody of male

children to fathers and female children to mothers.” Baker,

744 A.2d at 906 n.10 (Johnson, J., concurring in part and

dissenting in part). Judge Berzon of the Ninth Circuit

has noted that “[sJurely, a law providing that women may

enter into business contracts only with other women

would classify on the basis of gender. And that would

be so whether or not men were similarly restricted to

entering into business relationships only with other men.”

Latta v. Otter, 771 F.3d 456, 481 (9th Cir. 2014) (Berzon,

J., concurring).

Under the logic of the symmetry argument of Pace and

Walsh, none of these laws impose sex-based classifications.

As Professor Stephen CTark has observed:

The semantic trick is simply to avoid talking

about the sex-based differential in concrete

terms of what opportunities women and men

are allowed and, instead, to embed that very

14

differential in the supposed single standard,

which is recast as a uniformly applicable formula

that allocates opportunities to “everyone” by

making everyone’s opportunities turn, in the

but-for sense, on what their sex happens to be.

Clark, supra p. 13, at 144.®

Even if the burdens imposed on both sexes as a

group are in some sense equal and symmetrical, this

does not render them nondiscriminatory or exempt

them from heightened scrutiny. Despite “the absence

of a discriminatory effect on women as a class” or on

men as a class, laws that classify on the basis of gender

are subject to heightened scrutiny if they “discriminate

against individual/s] ... because of their sex.” Manhart,

435 U.S. at 716 (emphasis added). And there can be no

doubt that laws banning same-sex marriage “limit[] the

affected individuals’ opportunities based on their sex.”

Latta, 771 F.3d at 481 (Berzon, J., concurring).

6. Clark concedes that “separate but equal” burdens have

implicitly been accepted in some sex discrimination cases, but only

where the burden is a trivial one, such as a requirement that men

and women use separate toilets. It will not work here unless it can

be shown that the partner you want is fungible with the partner

that the state wants you to have. See Clark, supra p. 13, at 174-84.

What the California Supreme Court has said about race is equally

applicable here: “A member of any of these races may find himself

barred by law from marrying the person of his choice and that person

to him may be irreplaceable. Human beings are bereft of worth and

dignity by a doctrine that would make them as interchangeable as

trains.” Perez v. Lippold, 198 P.2d 17, 25 (Cal. 1948) (en banc).

15

C. A Challenge to a Sex-Discriminatory Statute

Need Not Prove That the Statute’s Purpose Is

to Subordinate Women or to Express Hostility

to Either Gender, as Such.

The sex discrimination argument has also been

challenged by claims that sex-based classifications are

permissible unless the plaintiff shows that they were

adopted with the purpose of subordinating women or

expressing hostility to a particular gender. See, e.g.,

Bishop v. U.S. ex rel. Holder, 962 F. Supp.2d 1252, 1286

(N.D. Okla. 2014); Bassett v. Snyder, 951 F.Supp.2d 939, 961

(E.D. Mich. 2013), rev'd by DeBoer v. Snyder, 772 F.3d 388

(6th Cir. 2014); Cf Clark, supra p. 13, at 147-53 (discussing

this argument).’ This theory flatly misrepresents the law.

The Court has never required a litigant challenging a

sex-based classification to show that the statute promotes

the subordination of women, reinforces sexism, or is

somehow motivated by hostility to either men or women as

a class. Even if a law “discriminates against both men and

women” on the basis of their gender, it is still subject to

heightened scrutiny. Wengler v. Druggists Mut. Ins. Co.,

7. Justice Scalia advanced a similar argument in his response

to the sex discrimination argument in Lawrence v. Texas. 539

U.S. at 599-600 (Scalia, J., dissenting). Justice Scalia is right that

a discriminatory purpose is necessary to invalidate “a facially

neutral law that makes no mention of race.” Jd. at 600. But this

does not distinguish the miscegenation laws, which were not

facially neutral. Sex-based restrictions on the right to marry are

not facially neutral either.

If the challengers had this burden in the present case, they

would be able to satisfy it. See infra, Part II; see also Andrew

Koppelman, Why Discrimination Against Lesbians and Gay

Men Is Sex Discrimination, 69 N.Y.U. L. Rev. 197, 234-273 (1994).

16

446 U.S. 142, 147-49 (1980). Once a sex-based classification

is present, the law is presumed to be unconstitutional, and

the burden shifts to the state to rebut that presumption by

showing that the classification is substantially related to the

achievement of important government objectives. See Craig,

429 U.S. at 197-98.

In Craig v. Boren, the case that first announced that

sex-based classifications would be subject to heightened

scrutiny, the Court invalidated a law that prohibited

the sale of 3.2% beer to males under the age of 21 and

females under the age of 18. Jd. at 190-94. The Court

did not hold that the classification at issue tended to

subordinate either men or women, nor did it hold that male

18-to-20-year-old beer drinkers had been subjected to a

history of discrimination. Indeed, it is highly unlikely that

the Oklahoma state legislature of the 1970s was motivated

by hostility to males, or a desire to subordinate men. The

Court nonetheless held that the state had not met the

heavy burden of justification for the classification.

Indeed, both Craig and several other early decisions

in which the Court invalidated sex-discriminatory laws

involved policies that discriminate against men rather

than women — enacted at a time when men clearly had

greater political influence than women did, and it is highly

unlikely that the challenged policies were motivated

by animus against men as a class. See, e.g., Hogan, 458

U.S. at 724-29 (striking down state nursing school policy

restricting admission to women only); Weinberger, 420

U.S. at 640-53 (striking down law that treated female

widows more favorably than male widowers).

17

Similarly, the Court does not require a party

challenging a racially discriminatory statute to show

any connection between the statute and racism. A party

need not show that the statute’s enactment was motivated

by racism or that it has the effect of reinforcing racism.

See, e.g., Richmond v. J.A. Croson Co., 488 U.S. 469,

495-96 (1989) (rejecting arguments for the application of

“a less exacting standard [of scrutiny] to ‘benign’ racial

classifications”). Equal protection doctrine does not

require claimants to address such complex sociological

questions. Rather, the challenger only has to show

that there is a classification of a kind that is subject to

heightened scrutiny. If such a classification is present,

the burden then shifts to the state to show sufficient

justification for the law.*®

A rule like the one adopted by some lower courts in

same-sex marriage cases — that a sex-based classification

is valid so long as it does not reinforce sexism — would be

a drastic innovation. Were the Court to endorse it, the

consequences would reach far beyond this case. It would

8. The analogy between sex discrimination cases and

miscegenation cases has confused some commentators, because

they assume that the Court’s holding in Loving v. Virginia,

which invalidated laws against interracial marriage, depended

on its finding that such laws endorsed the doctrine of “White

Supremacy.” 388 U.S. 1, 12 (1967). But Loving was not the first

case in which the Court inValidated a miscegenation law. It was

preceded by McLaughlin, in which the Court did not say a word

about white supremacy; addressing the question of the law’s relation

to racism was not necessary to the decision. In fact, Loving is the

only Supreme Court decision that has ever directly relied on the idea

of white supremacy as a basis for invalidating a law that explicitly

discriminates on the basis of race.

18

work a dangerous revolution in sex discrimination law,

and in practice severely undermine the nondiscrimination

requirement. How often could a plaintiff challenging

a law possibly make such a contestable showing to the

satisfaction of a skeptical court? The rule would invite

judges to make their own judgments about the motives

behind gender classifications, and those inclined to uphold

such laws would tend to attribute benign purposes to

them.®

Laws That Ban Same-Sex Marriage Are Often Based

on Impermissible Gender Stereotypes.

Laws that ban same-sex marriage not only discriminate

on the basis of sex, but often do so in part for reasons

motivated by gender stereotypes of a kind the Court

has long rejected as a permissible basis for legislation.

“(TJhe test for determining the validity of a gender-based

classification ... must be applied free of fixed notions

concerning the roles and abilities of males and females.”

Hogan, 458 U.S. at 724-25. Unfortunately, many of the

justifications offered in defense of laws banning same-sex

marriage make extensive use of exactly the sorts of “fixed

notions” about appropriate gender roles that the Court

rejects. While not all opposition to same-sex marriage is

based on endorsement of rigid gender roles or other forms

of sexism, such assumptions do underpin many of the most

common justifications for laws banning it.

9. The classic example of such creative judicial reinterpretation

of a statute is Plessy v. Ferguson, 163 U.S. 537, 552 (1896), overruled

by Brown v. Bd. of Educ., 347 U.S. 483 (1954) (if “the enforced

separation of the two races stamps the colored race with a badge

of inferiority ... it is not by reason of anything found in the act,

but solely because the colored race chooses to put that construction

upon it”).

19

In the present case, at least one of the state defendants

has argued that marriage must be restricted to opposite-

sex couples because the presence of both male and female

parents is essential to providing an optimal environment

for raising children. See DeBoer v. Snyder, 973 F.Supp.2d

757, 770-73 (E.D. Mich. 2014), rev'd 772 F.3d 388 (6th Cir.

2014). This argument is a clear example “of fixed notions

concerning the roles and abilities of males and females”

with respect to raising children, especially since the

notions in question are not even well-supported by the

available empirical evidence. See William N. Eskridge,

Jr. & Darren R. Spedale, Gay Marriage: For Better or

For Worse? What We’ve Learned from the Evidence

(2006) (reviewing relevant social scientific evidence and

concluding it does not support claims that opposite-sex

couples are superior at child-raising).

Courts rejecting the sex discrimination arguments

have often relied on sex-based stereotypes to justify the

denial of marriage to same-sex couples: that men and

women provide distinct role models for children, that the

two sexes have complementary roles in marriage, and

that marriage is a remedy for male irresponsibility. See

Deborah A. Widiss, et al., Exposing Sex Stereotypes in

Recent Same-Sex Marriage Jurisprudence, 30 Harv. J.L.

& Gender 461 (2007) (providing extensive documentation

of these stereotypes). In fact, such claims were put forward

by some the states’ amici in the cases currently before the

Court. One contends thaf gender-discriminatory marriage

laws are necessary to “encouraging men to commit to the

mothers of their children and jointly raise the children

they beget,” which implies that men as a group are likely

to be irresponsible, whereas women are not.. Amicus Br. of

Citizens for Comty. Values, at 25, Obergefell v. Himes, No.

20

14-3057, 2014 WL 1653834, at *15 (6th Cir. Apr. 17, 2014).

Another claims that such laws are essential to ensure that

boys have a “proper male role model,” thereby assuming

that the “proper” role models for boys are male. Amicus

Br. of Catholic Conference of Ohio, at 15, Henry v. Himes,

No. 14-3464, 2014 WL 2916640, at *9 (6th Cir. June 17,

2014). Even in cases where such gender-based stereotypes

enjoy “some statistical support,” laws based on them are

still presumptively invalid and subject to heightened

n.11 (1994). Far from justifying a lower level of judicial

scrutiny, these are the very kind of illicit motives that

intermediate scrutiny tries to detect. See U.S. v. Virginia,

518 U.S. at 535-36 (noting that heightened scrutiny of

gender classifications is necessary to ensure that “benign

justifications proffered in defense of categorical exclusions

will not be accepted automatically,” but must instead

be scrutinized as part of an inquiry into “actual state

purposes”).

In determining whether a sex-based classification

serves important governmental objectives, “[c]jare must

be taken in ascertaining whether the statutory objective

itself reflects archaic and stereotypic notions.” Hogan,

458 U.S. at 725. The “archaic and stereotypic notions”

that the Court has forbidden are often identified as being

inaccurate empirical generalizations about women. See,

e.g., id. at 725-26; see also Frontiero v. Richardson,

411 U.S. 677, 686-87 (1973) (plurality opinion). But such

impermissible notions also include the normative notion

that men and women should not act in ways that are

believed to be unseemly for their sex. For this reason,

the Court has consistently struck down statutes whose

purpose was the imposition of traditional gender roles.

21

Laws based on “pervasive sex-role stereotype([s]”

about the social behavior of men and women violate the

Fourteenth Amendment. Nev. Dep't. of Human Res. v.

Hibbs, 538 U.S. 721, 731 (2003); cf Latta, 771 F.3d at 486

(Berzon, J., concurring) (noting that “hostility toward

nonconformance with gender stereotypes also constitutes

impermissible gender discrimination” and citing relevant

cases). The demand that women marry only men imposes

precisely such roles. It is based in part on longstanding

stereotypes about the relative roles and abilities of men

and women with respect to child-raising and the family —

stereotypes evident in some of the arguments advanced

in the very case currently before the Court.

To the extent that laws banning same-sex marriage

are motivated by rejection of homosexuality, that purpose

is also often closely tied to sex discrimination and the

subordination of women. This connection is a matter “not

so much for judicial notice as for the background knowledge

of educated men who live in the world.” Charles L. Black,

Jr., The Lawfulness of the Segregation Decisions, 69 Yale

L.J. 421, 426 (1960). Indeed, homosexuality is itself defined

by reference to gender. Merriam-Webster’s Collegiate

Dictionary 556 (10th ed. 1994) (defining homosexual as “of,

relating to, or characterized by a tendency to direct sexual

desire toward another of the same sex” and “of, relating

to, or involving sexual intercourse between persons of the

same sex” (emphases added)).

The link between prejudice against gays and lesbians

and sexism is common knowledge, if anything is. At least

until recently, most Americans learned no later than high

school that one of the nastier social sanctions that one

will suffer if one deviates from the behavior traditionally

22

deemed appropriate to one’s sex is the imputation of

homosexuality. It is an obvious cultural fact that the

stigmatization of homosexuality is closely linked to gays’

and lesbians’ supposed deviation from the roles traditionally

deemed appropriate to persons of their sex. While not all

hostility to homosexuality can be attributed to prejudice

against perceived gender-nonconformity, such motives are

often a major factor. See, e.g., W. Christopher Skidmore, et

al., Gender Nonconformity and Psychological Distress in

Lesbians and Gay Men, 35 Archives Sexual Behav. 685,

686-87 (2006) (noting evidence that prejudice against gays

and lesbians is often linked to hostility towards gender

nonconformity, and finding that lesbians and gay men who

exhibit more such nonconformity are subject to greater

stigma than those who exhibit it less).

Moreover, the stigmatization of both lesbians and

gay men often takes gender-specific forms that imply

that men ought to dominate women. While gay men are

stigmatized as “effeminate,” 7.e., insufficiently aggressive

and dominant, lesbians are stigmatized as too aggressive

and dominant, and are thereby seen as guilty of a kind

of gender insubordination. The two stigmas — sex-

inappropriateness and homosexuality — are often virtually

interchangeable. Each is readily used as a metaphor for

the other. Much of the resistance to same-sex marriage is

likewise parasitic on a gendered conception of marriage in

which men and women have distinct and complementary

roles, with male dominance a part of the model.

Some lower courts have portrayed the sex

discrimination argument as “counterintuitive and

legalistic.” Wolf v. Walker, 986 F.Supp.2d 982, 1008 (W.D.

Wis. 2014). Such claims are puzzling. Most laws that

23

discriminate against gay people inevitably classify on

the basis of sex. Until recently, some sodomy laws, such

as the one at issue in Lawrence v. Texas, criminalized

some conduct for one sex but not for the other. 539 U.S.

558 (2003). Moreover, many such laws — including laws

banning same-sex marriage — are based on gender-role

stereotypes. It is hard to understand how this aggressive

policing of gender boundaries can be portrayed as having

no connection with sex discrimination.”

Marriage Laws That Discriminate on the Basis of

Gender Go Against the Original Meaning of the

Fourteenth Amendment.

Laws restricting the right to marry on the basis

of gender go against not only this Court’s precedents

requiring intermediate scrutiny of laws that discriminate

on the basis of sex, but also the original meaning of the

10. In his dissenting opinion in United States v. Windsor,

Justice Alito wrote that supporters of same-sex marriage advocate

“a particular understanding of marriage under which the sex of

the partners makes no difference.” 133 S.Ct. 2675, 2711 (2013).

He thus acknowledged the sex-based character of the law, but

argued that a legislature could rationally hold that “marriage

is essentially the solemnizing of a comprehensive, exclusive,

permanent union that is intrinsically ordered to producing new life,

even if it does not always do so.” See id. at 2718. Even if a statute

based on that view of marriage can pass minimal rational basis

scrutiny, it is too doubtful and contested to satisfy intermediate

scrutiny. See Andrew Koppelman, More Intuition than Argument

(Review of Sherif Girgis, Ryan T. Anderson, & Robert P. George,

What is Marriage? Man and Woman: A Defense (2012)), 140

Commonweal, May 3, 2013 https://www.commonwealmagazine.

org/more-intuition-argument; Andrew Koppelman, Judging the

Case Against Same-Sex Marriage, 2014 Ill. L. Rev. 431.

24

Fourteenth Amendment. The Sixth Circuit decision

under review in the present case claims that such laws

are consistent with the original meaning, because few

if any observers in 1868 would have thought otherwise.

DeBoer, 772 F.3d at 403-04, cert. granted No. 14—571

2015 WL 213650 (Jan. 16, 2015). But, as most originalists

recognize today, the original expected applications of the

framers are distinct from the original understanding of

the meaning of the text." Only the latter is controlling law.

All legal decision-making necessarily involves the

application of general rules to specific facts. Even if the

rules are unchanging, facts are not. Many important

provisions of the Constitution establish broad, general

principles that must be applied to factual conditions that

can change over time. This is particularly true of the

Equal Protection Clause, the Privileges or Immunities

Clause, and other broadly worded provisions of the

Fourteenth Amendment.

Our understanding of the relevant facts inevitably

evolves, as new evidence accumulates. For example, the

leading originalist Judge Robert Bork famously argued

that the original meaning of the Fourteenth Amendment

11. See, e.g., Jack L. Balkin, Framework Originalism and the

Living Constitution, 103 NW. U. L. Rev. 549, 552 (2009); Randy

E. Barnett, Underlying Principles, 24 Const. Comment. 405

(2007); Steven G. Calabresi & Livia Fine, Two Cheers for Professor

Balkin’s Originalism, 103 Nw. U. L. Rev. 663, 668-71 (2009);

Mike Rappaport, Between the Original Decision and Abstract

Originalism: An Unbiased Approach to Original Meaning,

Liberty Law Blog (Dec. 8, 2014), http://www.libertylawsite.

org/liberty-forum/between-the-original-decision-and-abstract-

originalism-an-unbiased-approach-to-original-meaning/.

25

justified striking down racially segregated education in

1954, even if that result may not have been expected by most

of those who ratified the Amendment in 1868. Although

“(t]he ratifiers probably assumed that segregation was

consistent with equality” between the races, “[b]y 1954

... it had been apparent for some time that segregation

rarely if ever produced equality.” Robert H. Bork, The

Tempting of America: The Political Seduction of the Law

82 (1990). Thus, the Court was justified in concluding

in Brown v. Board of Education that invalidating laws

mandating racial segregation in education was the only

way to vindicate the original meaning, which required

racial equality under the law. Jd. Judge Bork recognized

that changes in factual understanding between 1868 and

1954 provided an originalist justification for striking down

laws that most Americans in 1868 might have believed to

be constitutional, based on the knowledge they had (or

thought they had) at the time.”

Similarly, the drafters and ratifiers of the Amendment

believed that many forms of sex discrimination were

compatible with the Amendment’s general ban on “class”

and “caste” discrimination. Senator Jacob Howard, one

of the leading drafters of the Amendment, avowed that

its purpose was to “abolish[] all class legislation in the

States.” John Harrison, Reconstructing the Privileges

or Immunities Clause, 101 Yale L.J. 1885, 1413 (1992)

12. Judge Bork’s argument is not cited here as the only

possible originalist rationale for Brown v. Board of Education,

or even the best possible one. Rather, it stands as a powerful

illustration of the principle that changing factual knowledge can

justify changing enforcement of the principles of the Fourteenth

Amendment, sometimes in ways unanticipated by the framers

and ratifiers in 1868.

26

(quoting Sen. Howard); cf Melissa L. Saunders, Equal

Protection, Class Legislation, and Colorblindness, 96

Mich. L. Rev. 245 (1997) (describing the nature and scope

of this general principle of the Amendment).'* Class-based

discrimination with respect to the right to marry was

considered particularly suspect, because that right was

viewed as a fundamental element of the rights of free

citizens. Recent scholarship shows that leading supporters

of the Amendment believed that it invalidated laws

banning interracial marriage for precisely this reason.

See Steven G. Calabresi & Andrea Matthews, Originalism

and Loving v. Virginia, 2012 BYU L. Rev. 1393 (2012)

(providing extensive evidence documenting this view

of marriage); David R. Upham, Interracial Marriage

and the Original Understanding of the Privileges or

Immunities Clause, 42 Hastings Const. L.Q. 213 (2015)

(same).

It was widely recognized that men and women, like

blacks and whites, were distinct “classes” covered by the

Amendment. Cf Calabresi & Rickert, supra p. 26, at 20-24

(citing many examples of such recognition). But it was also

generally believed in 1868 that most laws discriminating

on the basis of gender did not violate constitutional rights

against class legislation, because they were based on

genuine, “natural” differences between the abilities of

13. For present purposes, the Court need not address the

difficult issue of whether this principle is embedded in the Equal

Protection Clause, the Privileges or Immunities Clause, or some

combination of both. See Steven G. Calabresi & Julia Rickert,

Originalism and Sex Discrimination, 90 Tex. L. Rev. 1, 51-58 (2011)

(reviewing the possible options, and emphasizing that courts need

not choose between them to conclude that the Amendment bars

sex discrimination).

27

men and women, rather than arbitrary generalizations

unsupported by evidence. /d. In Bradwell v. Illinois, 83

U.S. (16 Wall.) 130 (1872), one of the earliest Suprerne

Court cases dealing with sex discrimination, none of the

justices denied that sex discrimination fell within the

scope of the Amendment. But Justice Bradley nonetheless

concluded that a law barring women from admission to the

legal profession was constitutional because it was based

on “nature, reason, and experience” and “the peculiar

characteristics, destiny, and mission of woman.” Jd. at 142

(Bradley, J., concurring). If the available evidence about

the “peculiar characteristics” and abilities of women had

been different, so too might the outcome of the case.

Just as most Americans in 1868 assumed that the

exclusion of women from many professions was justified

by “natural” differences between their abilities and those

of men, so they also assumed that inherent differences

between the sexes ensured that only opposite-sex

relationships could carry out the social functions of

marriage, such as child-raising, channeling sexual desire,

and strengthening social bonds. But just as we now

recognize that many nineteenth century beliefs about the

abilities of women in professional settings are unsound,

the same is true of nineteenth century assumptions about

gender roles within marriage. Today, overwhelming

evidence indicates that same-sex marriages are capable

of carrying out the major social purposes of opposite-sex

marriages, including raising children and strengthening

social ties. See, e.g., William N. Eskridge, Jr. & Darren R.

Spedale, Gay Marriage: For Better or For Worse? What

We’ve Learned from the Evidence (2006) (reviewing the

available social scientific evidence). In order to justify

striking down laws banning same-sex marriage, we need

28

not identify exactly when the accumulation of evidence

became great enough to be decisive, only that it reached

that point at some time before the present case came before

the court. See Ilya Somin, How to Figure Out When Laws

Banning Same-Sex Marriage Became Unconstitutional,

and Why the Precise Date May Not Maiter, Volokh

Conspiracy, (Mar. 26, 2013, 11:44 PM), http://volokh.

com/2013/03/26/how-to-figure-out-when-laws-banning-

same-sex-marriage-became-unconstitutional-and-why-

the-precise-date-may-not-matter/.

Even if same-sex relationships, on average, achieve

some state interests less effectively than opposite-sex

ones, that is still not equivalent to a categorical inability

to serve those purposes, of the sort most assumed to exist

in 1868. Similarly, even if it could be proven that women,

on average, make less capable lawyers than men or that

interracial marriages are on average less successful than

same-race ones, that would not be enough to establish

an originalist justification for resuscitating Bradwell

v. Illinois, or overruling Loving v. Virginia. Even

statistically accurate “estimates of what is appropriate

for most women, no longer justify denying opportunity

to women whose talent and capacity place them outside

the average description.” U_S. v. Virginia, 518 U.S. at 517.

Similarly, even statistically accurate generalizations about

“most” same-sex couples do not justify categorical sex

discrimination in marriage laws. “[G]Jender classifications

that rest on impermissible stereotypes violate the Equal

Protection Clause, even when some statistical support can

be conjured up for the generalization.” J.E.B. v. Alabama

ex. rel. T.B., 511 U.S. 127, 140 n.11 (1994). In Craig v.

Boren, the case that established heightened intermediate

scrutiny for sex classifications, the Court invalidated a

29

law that restricted beer purchases by 18-20 year old men

without imposing a similar restriction on women, despite

the fact that the state presented “a variety of statistical

surveys” indicating that men of that age were far more

likely to drink and drive than women. Craig, 429 U.S. at

200-02.

As long as they respect other relevant constitutional

rights, states may use gender-neutral mechanisms to

screen out couples deemed unsuitable for raising children

or for advancing other state interests. But they may not

use generalizations to categorically assume that one set of

couples defined by gender are inherently unfit, especially

if they simultaneously allow opposite-sex couples access to

marriage with little or no screening to determine whether

they are likely to do a good job of raising children or

carrying out other social functions. Michigan, Ohio, and

other states that forbid same-sex marriage on the basis

that it facilitates child-raising or channels potentially

reproductive sexual urges do not also deny marriage

rights to opposite-sex couples that are unlikely to be fit

parents, or unlikely to have children out of wedlock if

unable to marry.

Lower Courts Have Defied the Authority of the Court

Under the Guise of Deferring to It.

Some lower federal courts, including the Sixth

Circuit ruling under réview in the present case, have

purported to defer to Baker v. Nelson, a 1972 decision of

the Court summarily dismissing a same-sex marriage

claim as raising no substantial federal question. See,

e.g., DeBoer, 772 F.3d at 399-402. This is a creative, but

abusive, deployment of deference, clinging to an obviously

30

obsolete decision because the Court has not yet expressly

overruled it.

In Baker, the Court “dismissed for want of a

substantial federal question” an appeal from a state court

decision denying same-sex couples the right to marry. 409

U.S. 810 (1972). That decision, however, predated the rule

that sex-based classifications are subject to heightened

scrutiny. At that time, as Justice Ginsburg recently noted,

the Court had not yet decided that heightened scrutiny

was appropriate for sex-based classifications. Transcript

of Oral Argument at 12-14, Hollingsworth v. Perry, 133

S. Ct. 2652 (2013) (No. 12-144). Yet some recent lower

court decisions have ignored this later authority, citing

the Court’s declaration that when its precedent “has

direct application in a case, yet appears to rest on reasons

rejected in some other line of decisions, the Court of

Appeals should follow the case which directly controls,

leaving to this Court the prerogative of overruling its

own decisions.” Rodriguez de Quijas v. Shearson/Am.

Express, Inc., 490 U.S. 477, 484 (1989), cited with approval

in Conde-Vidal v. Garcia-Padilla, No. 14-1253 (PG), 2014

WL 5361987, at *5 (D.P.R. Oct. 21, 2014).

Such circumspection on the part of lower courts is

appropriate if the Supreme Court has only implicitly

embraced reasoning that appears to undermine a settled

rule. It is not defensible if the Court has explicitly

announced a new rule that supersedes the old one.

In Goesaert v. Cleary, the Court upheld a statute

that barred women from being bartenders unless their

husband or father owned the bar. 335 U.S. 464 (1948).

No statute of precisely that description has come before

31

the Court since it announced that sex discrimination is

presumptively unconstitutional. A footnote in Craig v.

Boren specifically disapproved of Goesaert. 429 U.S. at

210 n.23. Had that footnote been omitted, and a similar

statute were enacted today, should a federal court today

decline to apply heightened scrutiny? Obviously not.

Thus, lower courts’ reliance on Baker defies settled

Supreme Court precedent.

32

CONCLUSION

The laws banning same-sex marriage at issue in

this case explicitly discriminate on the basis of sex.

Further, many such bans are predicated on improper

gender stereotypes, and are also contrary to the original

meaning of the Fourteenth Amendment. Accordingly,

the Court should apply in this case the same heightened

scrutiny it has applied to every other sex-based or gender-

stereotyped classification that has come before it.

Respectfully submitted,

ANDREW KOPPELMAN JOSEPH P. LOMBARDO

NORTHWESTERN UNIVERSITY Counsel of Record

SCHOOL OF LAw Eric S. SILvEstr!i

375 East Chicago Avenue BRITTANY L. VIOLA

Chicago, Illinois 60611 SARA T. GHADIRI

(312) 503-8431 CHAPMAN AND CuTLER LLP

111 West Monroe Street

ILYA SOMIN Chicago, Illinois 60603

GEORGE Mason UNIVERSITY (312) 845-3000

SCHOOL OF LAw lombardo@chapman.com

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Arlington, Virginia 22201

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