Amicus Curiae Brief — Obergefell v. Hodges

JAMES OBERGEFELL, et al.,

Petitioners,

v.

RICHARD HODGES, et al.,

Respondents.

VALERIA TANCO, et al.,

Petitioners,

v.

WILLIAM EDWARD “BILL” HASLAM, et al.,

Respondents.

APRIL DEBOER, et al.,

Petitioners,

v.

RICHARD SNYDER, et al.,

Respondents.

GREGORY BOURKE, et al.,

Petitioners,

v.

STEVE BESHEAR, et al.,

Respondents.

On Writs Of Certiorari To The United States

Court Of Appeals For The Sixth Circuit

BRIEF OF MAJOR RELIGIOUS ORGANIZATIONS

AS AMICI CURIAE IN SUPPORT OF RESPONDENTS

CagL H. EsBpeck ALEXANDER DUSHKU

Professor of Law Counsel of Record

2098 Hulston Hal) R. SHAWN GUNNARSON

Canley and Missouri Avenues KIRTON MCCONKIE

Columbia, MO 65211 1800 World Trade Center

60 E. South Temple Street

Salt Lake City, UT 84111

(801) 328-3600

adushku@kmclaw.com

Counsel for Amici Curiae

Nee eee ee

COCKLE LEGAL BRIBFS (800) 735-4964

WWW COCKLELEGALBRIEFS.COM

QUESTIONS PRESENTED

Does the Fourteenth Amendment require a State

to license a marriage between two people of the

same sex?

Does the Fourteenth Amendment require a State

to recognize a marriage between two people of

the same sex when their marriage was lawfully

licensed and performed out of state?

li

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ......................ccseceeeeees i

pr) F Le PF iy, 6 55 | Fee EnEEIEE ili

INTEREST OF AMICI CURIAE ...0..........0....0000000

SUMMARY OF ARGUMENT ...........................2.22.

I. TRADITIONAL MARRIAGE IS CENTRAL

TO THE FAITH, PERSONAL IDENTITY,

AND WAY OF LIFE OF MILLIONS OF

RELIGIOUS AMERICANG....................2... 5

II. VOIDING MARRIAGE LAWS FOR REA-

SONS OF ANIMUS WOULD HARM RE-

LIGIOUS LIBERTY AND DISTORT

CONSTITUTIONAL LAW .............0...0c0eceeees 12

A. Attributing State Marriage Laws to

Animus Would Stigmatize and De-

mean Religious Organizations and

TN iccinsuntcndsbdnbanavendasanpoeniiiniddvennias 12

B. A Finding of Animus Would Deny the

Constitutional Rights of Religious Or-

ganizations and Conscientious Objec-

BED cncennctnensscenmenteesesemmnmanentneninctrennsanesenes 15

C. Applying Animus Would Contradict

Settled Equal Protection Doctrine ...... 22

Il]. MANDATING SAME-SEX MARRIAGE

ON OTHER GROUNDS WILL GENER-

ATE CONFLICTS WITH RELIGIOUS

ENED sptticinssddvdecnsnidenbiniiicieneniiningeaineinses 27

li

TABLE OF CONTENTS — Continued

Page

A. Heightened Scrutiny and Rational

Basis Review Would Undermine Reli-

SIE TEI iccinndegninpeteuizccuiinedeimieds 27

B. Mandating Same-Sex Marriage Un-

der Any Theory Would Generate Con-

flicts with Religious Freedom.............. 33

C. Creating a Right to Same-Sex Mar-

riage Would Deny Religious Believers

Equal Citizenship..................2.-.....0-.65 36

le alia 39

APPENDIX

Statements of Interest

lv

TABLE OF AUTHORITIES

Page

CASES:

Adarand Constructors, Inc. v. Petia, 515 U.S.

RES A ST Ee ars RC r 28

Andersen v. King Cnty., 138 P.3d 963 (Wash.

ERATE SS SEES irae oe A a 24

Baskin v. Bogan, 766 F.3d 648 (7th Cir. 2014) .......... 28

Bd. of Trustees of Univ. of Ala. v. Garrett, 531

Se ici snidecnnlthinaliceatimnitiinmiiinidila 14, 22, 23

Bishop v. Smith, 760 F.3d 1070 (10th Cir.

Ra EE 2s SP CN ck 14, 23

Bond v. United States, 564 U.S. __., 131 S. Ct.

EE RRR REIN ec ae Ne EN a 36

Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000)......... 30

Bray v. Alexandria Women’s Health Clinic, 506

ft &_ RRP AREA SEI oneen es eke eee ae 26

Burwell v. Hobby Lobby Stores, Inc., 573 U.S.

__., 184 S. Ct. 2751 (2014) ............... 5, 12, 13, 15, 16

Capitol Square Rev. and Advisory Bd. v.

Piette, G15 UB. TES (IGSS) ..ccccececccccsesccccesccsccscecees 16

Church of Lukumi Babalu Aye, Inc. v. City of

Hialeah, 508 U.S. 520 (1993)...............ccsccecccseceesees 16

Citizens for Equal Prot. v. Bruning, 455 F.3d

TREE eee nee 23, 28

Clark v. Jeter, 486 U.S. 456 (1988) ..................cccceeeeee 22

Cnty. of Allegheny v. ACLU, 492 U.S. 573

Vv

TABLE OF AUTHORITIES — Continued

Page

Conaway v. Deane, 932 A.2d 571 (Md. 2007)............. 23

Cook v. Gates, 528 F.3d 42 (1st Cir. 2008).................. 28

Dandridge v. Williams, 397 U.S. 471 (1970).............. 19

Davis v. Prison Health Servs. , 679 F.3d 433 (6th

GEISER EERE NERD Serres Ne mee eae ene Nea NTI 28

Employment Div. v. Smith, 494 U.S. 872 (1990)....30, 35

FCC v. Beach Comm’cns, 508 U.S. 307 (1993)........... 31

Gonzales v. O Centro Espirita Beneficente

Uniao Do Vegetal, 546 U.S. 418 (2006)................... 30

Gregg v. Georgia, 428 U.S. 153 (1976) ....................... 37

Griswold v. Connecticut, 381 U.S. 479 (1965).............. 5

Harris v. McRae, 448 U.S. 297 (1980)...................0008. 20

Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006)......... 24

Hill v. Colorado, 530 U.S. 703 (2000) ........................ 17

Hurley v. Irish-Am. Gay, Lesbian and Bisexual

Group of Boston, Inc., 515 U.S. 557 (1995)............ 30

Johnson v. Johnson, 385 F.3d 503 (5th Cir.

STITT cineca lait iad apace ennai 28

Larson v. Valente, 456 U.S. 228 (1982) ............0.....0... 20

Lawrence v. Texas, 539 U.S. 558 (2003)......... 18, 19, 24

Lee v. Weisman, 505 U.S. 577 (1992)..............ccccce eee 19

Lemon v. Kurtzman, 403 U.S. 602 (1971).................. 19

Lochner v. New York, 198 U.S. 45 (1905)................... 37

vi

TABLE OF AUTHORITIES — Continued

Page

Lofton v. Sec’y of Dep’t of Children & Family

Servs., 358 F.3d 804 (11th Cir. 2004)...................... 28

Maher v. Roe, 434 U.S. 464 (1977) ..........ccccc cece eee 37

McDaniel v. Paty, 435 U.S. 618 (1978).....................0 21

McGowan v. Marvland, 366 U.S. 420 (1961)............. 19

Miller v. California, 413 U.S. 15 (1973)..................... 37

Minnesota v. Clover Leaf Creamery Co., 449

TALC R a ee eRe 32

Miss. Univ. for Women v. Hogan, 458 U.S. 718

TEC SENNy pe enero nee ae Te OT 28

Murphy v. Ramsey, 114 U.S. 15 (1885) .......0.0000..0.00..... 7

NAACP v. Button, 371 U.S. 415 (1963)...................... 15

New Orleans v. Dukes, 427 U.S. 297 (1976)............... 32

Nordlinger v. Hahn, 505 U.S. 1 (1992) ...........0.0022..... 32

Padula v. Webster, 822 F.2d 97 (D.C. Cir. 1987)........ 28

Planned Parenthood of S.E. Penn. v. Casey, 505

i aaa 37

Price-Cornelisor v. Brooks, 524 F.3d 1103 (10th

anette lahat 28

Roberts v. U.S. Jaycees, 468 U.S. 609 (1984)............. 30

Romer v. Evans, 517 U.S. 620 (1996)....... 22, 24, 25, 26

Rosenberger v. Rector and Visitors of Univ. of

| ETS aan eee 16

San Antonio Indep. Sch. Dist. v. Rodriguez, 411

ee Be ee iacicntnsnreiniicneidatencmnnieaneiteireineiimniapil 25

vil

TABLE OF AUTHORITIES ~- Continued

Page

Sch. Dist. of Abington Twp. v. Schempp, 374

a 15, 20

Schuette v. Coal. to Defend Affirmative Action,

572 U.S. ___, 1384 S. Ct. 1623 (2014) .......... 16, 17, 36

SmithKline Beecham Corp. v. Abbott Labs., 740

Ly ene ee 28

State v. Arlene’s Flowers, Inc., No. 13-2-00871-5

a a a 35

Stenberg v. Carhart, 530 U.S. 914 (2000).................. 37

Thomasson v. Perry, 80 F.3d 915 (4th Cir. 1996)....... 28

Town of Greece v. Galloway, 572 U.S. ___, 134

Sik as eI UII canrcciateniiadiniaitidaidiauienitemneauainnmenamda’ 5,19

Turner v. Safley, 482 U.S. 78 (1987).................ccceeeeeeeee 5

United States v. O’Brien, 391 U.S. 367 (1968)........... 22

United States v. Windsor, 133 S. Ct. 2675

SUE issepisdsiesiineipnisinnigaeiuiniimeaaanitntiatineninnegiiiateions passim

Washington v. Glucksberg, 521 U.S. 702 (1997)........ 37

Windsor v. United States, 699 F.3d 169 (2d Cir.

RESTS TPCT ARS SPE eet ae eC a 28

Woodward v. United States, 871 F.2d 1068

I el 28

CONSTITUTIONAL PROVISIONS:

eR a eeee passim

ee, ee, Oe Te cuusmeemmeeenneee 2, 22

vill

TABLE OF AUTHORITIES ~ Continued

Page

8 Bs OO 37

Oe I i i ia ceil 18

STATUTORY PROVISIONS:

Defense of Marriage Act, § 3 ...................0.ceeec0eeees 24, 25

Religious Freedom Restoration Act ..................2.......- 30

OTHER AUTHORITIES:

Davip L. CHAPPELL, A STONE OF HOPE: PROPHETIC

RELIGION AND THE DEATH OF JIM Crow 100

Roy T. Englert, Jr., Unsustainable Arguments

Won't Advance Case for Marriage Equality,

es iets NE Bal TIE snsicnnetsimccmeseenensinteinemnseenens 19

ENGLISH STANDARD VERSION, STUDY BIBLE (2008) .......... 8

Evangelicals and Catholics Together, The Two

Shall Become One Flesh: Reclaiming Mar-

riage, FirsT THINGS (March 2015).....................0020e00004 )

President Henry B. Eyring, First Counselor in

the First Presidency of The Church of Jesus

Christ of Latter-day Saints, To Become as

I aac iemeeeeaiamnineen 10

SHERIF GIRGIS, ET AL., WHAT IS MARRIAGE? 9

SREP Se eee eae eee eens nen NESE 14

Holy Bible (King James Version) ....................ccc0eeee0000 7,8

ix

TABLE OF AUTHORITIES — Continued

Letter from Susan B. Anthony to Dr. George E.

Vincent (Aug. 1904), in 3 IDA HUSTED HAR-

PER, LIFE AND WORKS OF SUSAN B. ANTHONY

BES CID ceccvcservevncecercssncnssesusesnsessconepuenssonnmmncees

WILLIAM LEE MILLER, LINCOLN’S VIRTUES 50

Rev. Dr. Russell D. Moore, President of the Eth-

ics & Religious Liberty Commission of the

Southern Baptist Convention, Man, Woman,

and the Mystery of Christ: An Evangelical

Protestant Perspective (Nov. 18, 2014).............

Lord Rabbi Jonathan Sacks, Humanum Collo-

quium on Complementarity, Nov. 17, 2014.......

Steven D. Smith, Believing Persons, Personal

Believings: The Neglected Center of the First

Amendment, 2002 U. ILL. L. REv. 1233.............

The Church of Jesus Christ of Latter-day

Saints, The Divine Institution of Marriage,

NEWSROOM (Aug. 13, 2008)................cccceeeceeeeeeees

THE Frrst PRESIDENCY AND COUNCIL OF THE

TWELVE APOSTLES OF THE CHURCH OF JESUS

CHRIST OF LATTER-DAY SAINTS, THE FAMILY: A

PROCLAMATION TO THE WORLD (Sept. 23, 1995)..

Dr. Richard D. Warren, Senior Pastor of Sad-

dleback Church, Remarks, Biblical Meaning

of Marriage (Nov. 18, 2014) ..............cccecceeeeeeeeees

Page

x

TABLE OF AUTHORITIES — Continued

Page

Robin Fretwell Wilson, Marriage of Necessity:

Same-Sex Marriage and Religious Liberty

Protections, 64 Case W. Res. L. Rev. 1161

ESS LL ae 34

John Witte, Jr., The Goods and Goals of Mar-

riage, 76 NOTRE DAME L. REv. 1019 (2001)............ 11

Kenji Yoshino, The New Equal Protection, 124

eee 27

1

INTEREST OF AMICI CURIAE

Religious organizations and associations repre-

senting over 50 million Americans appear on this

brief as a diverse coalition of faith communities.’

Amici are the National Association of Evangelicals;

The Church of Jesus Christ of Latter-day Saints;

The Ethics & Religious Liberty Commission of the

Southern Baptist Convention; The Lutheran Church

— Missouri Synod; the Assemblies of God; the Chris-

tian Legal Society; The Brethren Church; The Chris-

tian and Missionary Alliance; the Church of God,

Cleveland, Tennessee; Converge Worldwide; the Evan-

gelical Congregational Church; the Evangelical Pres-

byterian Church; The Fellowship of Evangelical

Churches; the Free Methodist Church — USA; Grace

Communion International; the International Pente-

costal Holiness Church; The Missionary Church;

Open Bible Churches; and The Wesleyan Church.

Notwithstanding our theological differences, we

are united in declaring that the traditional institution

of marriage is indispensable to the welfare of the

American family and society. We are also united in

our belief that a decision requiring the States to li-

cense or recognize same-sex marriage would generate

' The parties have consented to the filing of this brief and

letters indicating their consent are on file with the Clerk. No

counsel for any party authored this brief in whole or in part, and

no person or entity other than amici and their counsel made any

monetary contribution intended to fund the preparation or sub-

mission of this brief.

2

church-state conflicts that will imperil vital religious

liberties. This brief is submitted out of our firm judg-

ment that the Constitution does not require States to

take that fateful step. Individual statements of inter-

est are in the appendix.

SUMMARY OF ARGUMENT

Recognizing a new right to same-sex marriage

would harm religious liberty. That harm is avoidable

because neither the Constitution nor this Court’s

precedents dictates a single definition of marriage for

the Nation. Preserving religious liberty is a compel-

ling reason not to give the Fourteenth Amendment a

novel reading that would require every State to li-

cense and recognize marriage between persons of the

same sex. At a minimum, the Court should carefully

consider how a ruling mandating same-sex marriage

would adversely affect religious liberty.

Our religious beliefs, reason, and practical expe-

rience with families lead us to support the man-

woman definition of marriage. Contrary to malicious

caricatures, we do so not out of animus or ignorance

but out of concern, conviction, and love. These beliefs

are rooted in our theologies and in centuries of one-to-

one counseling and personal experience with intact

and broken families, functionally fatherless children,

and single mothers. These beliefs and experiences are

also imbedded in our way of life and in the very

identities of our people and faith communities. They

form the basis of our families. They shape our judgments

3

about what constitutes a just society and how that

society is best ordered for the freedom and good of all.

And, because they are based on our understanding of

truths that do not change, we cannot abandon them

as vestiges of what some suppose to be a benighted

past.

A decision that traditional marriage laws are

grounded in animus would demean us and our beliefs.

It would stigmatize us as fools or bigots, akin to rac-

ists. In time it would impede full participation in

democratic life, as our beliefs concerning marriage,

family, and sexuality are placed beyond the constitu-

tional pale. It would nullify our votes on key public

policy issues — including on the laws before the Court

in this case. Because we cannot renounce our scrip-

tural beliefs, a finding of animus would consign us to

second-class status as citizens whose religious convic-

tions about vital aspects of society are deemed illegit-

imate. Assaults on our religious institutions and our

rights of free exercise, speech, and association would

intensify.

Likewise dangerous to religious liberty would be

a ruling that sexual orientation is a suspect class

entitled to heightened scrutiny. Judicial suspicion

would quickly follow, aiming not only at laws but also

at the beliefs and practices of religious organizations

and believers themselves. If this Court declares sex-

ual orientation a suspect class, it will soon be argued

that the government has a compelling interest in pro-

tecting against private religious conduct that burdens

4

homosexual conduct. Because scriptural beliefs re-

garding marriage, family, and sexuality are central to

our institutions and our way of life, suspect class

status will generate countless new conflicts between

church and state.

A constitutional right to same-sex marriage

under any theory would create severe tensions with

religious freedoms and related interests across a wide

array of religious, educational, social, and cultural

fronts. Directly or not, such a High Court ruling

would unavoidably convey “hostility toward religion

. inconsistent with our history and our precedents.”

Cnty. of Allegheny v. ACLU, 492 U.S. 573, 655 (1987)

(Kennedy, J., concurring in the judgment in part and

dissenting in part). The Constitution marks a wiser

course by leaving the people free to decide the great

marriage debate through their State democratic insti-

tutions. Allowing all citizens an equal voice in shap-

ing their common destiny is the only way the diverse

views of a free people can be respected on this matter

of profound political, social, and religious importance.

That is the only way this issue can be resolved with-

out inflicting grave harm on millions of religious

believers and their cherished beliefs and institutions.

ve

5

ARGUMENT

I. TRADITIONAL MARRIAGE IS CENTRAL

TO THE FAITH, PERSONAL IDENTITY,

AND WAY OF LIFE OF MILLIONS OF RE-

LIGIOUS AMERICANS.

1. We, along with many Americans, “recognize

marriage as having spiritual significance,” Turner v.

Safley, 482 U.S. 78, 96 (1987), indeed as being “sa-

cred.” Griswold v. Connecticut, 381 U.S. 479, 486

(1965). Our commitment to traditional, husband-wife

marriage reflects a “belie[f] in a divine creator and a

divine law,” Burwell v. Hobby Lobby Stores, Inc., 573

U.S. __, 184 S. Ct. 2751, 2785 (2014) (Kennedy, J.,

concurring), and “must be understood by precepts far

beyond the authority of government to alter or de-

fine.” Town of Greece v. Galloway, 572 U.S. ___, 134

S. Ct. 1811, 1827 (2014) (plurality op.) (Kennedy, J.).

Our religious doctrines hold that marriage be-

tween a man and a woman is sanctioned by God as

the proper setting for spousal relations and for con-

ceiving and rearing children. We believe that chil-

dren, families, society, and our Nation thrive best

when traditional marriage is sustained and strength-

ened as a primary social institution. Millions of Amer-

icans order their lives around husband-wife marriage

and derive meaning and stability from that institu-

tion. We make no apologies for these beliefs.

2. The value we place on husband-wife mar- |

riage is also influenced by rational judgments about |

the needs of men, women, children, and society, and |

eee

6

by our collective experience counseling and serving

millions of people over countless years. We know from

experience the tragedies associated with unwed par-

enting and marriage breakdown. We have seen boys,

bereft of their fathers or any positive male role model,

acting out in violence, joining gangs, and engaging in

destructive behavior. We have ministered to those

boys in prison where too many are consigned to live

out their ruined lives. We have cared for and wept

with victims left in their destructive wake. We have

seen girls, deprived of the love and affection of a

father, fall into insecurity and then promiscuity that

results in pregnancy and out-of-wedlock birth — there-

by repeating the cruel cycle.

It takes a woman and a man to create a child.

Children need their mothers and their fathers. And

society needs mothers and fathers to take up the

duty, and the high privilege, to rear their children.

These truths reflect our experience and credible social

science research. See generally Brief for Scholars of

Marriage as Amici Curiae Supporting Respondents,

Obergefell v. Hodges, Nos. 14-556, 14-562, 14-571, 14-

574 (marshalling extensive research showing how

traditional marriage benefits society). That is why so-

ciety needs the institution of traditional marriage and

why Michigan and the other respondent States are

within their authority to protect and support it.

3. As our faith communities work to sustain

and transmit the virtues of husband-wife marriage

and family life, our teachings seldom focus on sexual

orientation or homosexuality. Our support for the

7

historic meaning of marriage arises from a positive

vision of “the family, as consisting in and springing

from the union for life of one man and one woman in

the holy estate of matrimony,” Murphy v. Ramsey, 114

U.S. 15, 45 (1885), and not from animosity toward

gays and lesbians.

Hostility does not lie at the root of religious sup-

port for husband-wife marriage. Jesus expressed no

disapproval or hostility when he taught, “Have you

not read that he which made them at the beginning

made them male and female, [aJnd said, For this

cause shall a man leave father and mother, and shall

cleave to his wife: and they twain shall be one flesh?”

Matthew 19:4-5 (KJV). Nor are the Jewish scriptures

that Jesus referenced based on animosity toward

anyone. See Genesis 1:27, 2:23 (KJV).

Faith communities like amici have long histories

of upholding traditional marriage for reasons that

have nothing to do with homosexuality. Their support

predates by centuries the very notion of homosexuals

as a discrete group, much less same-sex marriage.

Many of this Nation’s prominent faith traditions, in-

cluding those represented by these amici, have rich

narratives that extol traditional marriage without

mention of homosexuality.

For five centuries the denominational voices of

Protestantism have taught marriage from a biblical

view focused on uniting a man and woman in divinely

sanctioned union for companionship, for the procrea-

tion and rearing of children, and for the benefit of

8

society. The natures of male and of female are best

elevated when the gift of sexuality is kept within a

lifetime, monogamous bond. One representative Bible

commentary teaches: “Marriage . was established

by God at creation, when God created the first human

beings as ‘male and female’ (Gen. 1:27) and then said

to them, ‘Be fruitful and multiply and fill the earth’

(Gen. 1:28). . Marriage begins with a commitment

before God and other people to be husband and wife

for life,” with “[sjome kind of public commitment”

during the ceremony so that society can hold them to

their vows and “know to treat a couple as married

and not as single.” Homosexuality is not central to

Evangelical Protestant teachings on marriage.

Catholicism likewise has a long and rich tradi-

tion that echoes many of these themes regarding

marriage and family. See Brief for U.S. Conference of

Catholic Bishops as Amicus Curiae Supporting Re-

spondents. Homosexuality is a peripheral issue in

Catholic marriage teachings.

Marriage is also fundamental to the doctrine of

The Church of Jesus Christ of Latter-day Saints. A

formal doctrinal proclamation on marriage declares

that “[mJarriage between a man and a woman is or-

dained of God,” that “[cJhildren are entitled to birth

within the bonds of matrimony, and to be reared by

a father and a mother who honor marital vows

with complete fidelity,” and that “[h]usband and wife

? ENGLISH STANDARD VERSION, STUDY BIBLE 2543-44 (2008).

9

have a solemn responsibility to love and care for each

other and for their children.” Strong families based

on husband-wife marriage “serve as the fundamental

institution for transmitting to future generations the

moral strengths, traditions, and values that sustain

civilization.“ Here again, homosexuality is remote

from core teachings about marriage and family.

To be sure, religious teachings address various

types of sexual conduct outside the traditional mar-

riage norm. But such issues are a secondary part of

our positive religious discourse on marriage. The con-

tention that religious support for husband-wife mar-

riage is founded on animus against gays and lesbians

is false.

4. Diverse religious views no doubt exist on

many topics, but the breadth of consensus over the

meaning and purposes of marriage among major faith

groups is remarkable. See, e.g., Evangelicals and

Catholics Together, The Two Shall Become One Flesh:

Reclaiming Marriage, First THINGS (March 2015). Last

November, for instance, the Vatican hosted a worldwide

interfaith colloquium entitled Humanum. It attracted

* Tue First PRESIDENCY AND COUNCIL oF THE TWELVE APos-

TLES OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS, THE

FAMILY: A PROCLAMATION TO TLE WORLD (Sept. 23, 1995), availa-

ble at http://www.lds.org/topics/family-proclamation.

* The Church of Jesus Christ of Latter-day Saints, The

Divine Institution of Marriage, NEWSROOM (Aug. 13, 2008), http://

newsroom.|ds.org/idsnewsroom/eng/commentary/the-divine-institution-

of-marriage.

10

major religious leaders from many faiths — Catholic

and Protestant, Jewish and Latter-day Saint, Muslim

and Hindu and Sikh. Among them were representa-

tives of amici’s faith traditions, who reiterated their

commitment to traditional marriage and extolled its

virtues.”

In a widely acclaimed address from the Jewish

perspective that spoke for many faith groups, Lord

Jonathan Sacks, until recently the Chief Rabbi of the

United Kingdom, stated:

What made the traditional family remark-

able, a work of high religious art, is what it

brought together: sexual drive, physical de-

sire, friendship, companionship, emotional

kinship and love, the begetting of children

and their protection and care, their early ed-

ucation and induction into an identity and a

history. Seldom has any institution woven

together so many different drives and de-

sires, roles and responsibilities. It made

* Dr. Richard D. Warren, Senior Pastor of Saddleback Church,

Remarks, Biblical Meaning of Marriage (Nov. 18, 2014); Rev. Dr.

Russell D. Moore, President of the Ethics & Religious Liberty

Commission of the Southern Baptist Convention, Man, Woman,

and the Mystery of Christ: An Evangelical Protestant Perspec-

tive (Nov. 18, 2014); President Henry B. Eyring, First Counselor

in the First Presidency of The Church of Jesus Christ of Latter-

day Saints, To Become as One (Nov. 18, 2014).

11

sense of the world and gave it a human face,

the face of love.®

While urging “compassion for those who choose to

live differently,”” Rabbi Sacks denied that such com-

passion should “inhibit [people of faith] from being

advocates for the single most humanizing institution

in history.” A family consisting of a man, a woman,

and their children is “not only one lifestyle choice

among many,” he insisted. “It is the best means we

have yet discovered for nurturing future generations

and enabling children to grow in a matrix of stability

and love.”

This ennobling conception of marriage reflects

not only a broad interfaith consensus, but “a long

and thick overlapping consensus” in the West. John

Witte, Jr., The Goods and Goals of Marriage, 76

*NOTRE DAME L. REV. 1019, 1069 (2001). That consen-

sus holds that traditional marriage “is good, does

good, and has goods both for the couple and for the

children.” Jd. This understanding is a pillar of West-

ern civilization. Religious communities like ours val-

ue and defend that ideal still — and we are bound to

continue doing so.

* See Lord Rabbi Jonathan Sacks, Humanum Colloquium

on Complementarity, Nov. 17. 2014 (transcript available at http://

cvcomment.org/2014/11/18/in-full-the-lord-sacks-speech-that-brought-

the-vatican-conference-to-its-feet/).

" Id.

* Id.

* Id.

12

Our religious beliefs about marriage are defining

elements of our personal identities. Marriage for us

creates a sacred relationship with our spouse and a

sacred duty to God. How we understand marriage

defines who we are, not just what we do. Cf. Burwell,

134 S. Ct. at 2785 (Kennedy, J., concurring) (“[F]ree

exercise is essential in preserving their own dignity

and in striving for a self-definition shaped by their

religious precepts.”). It governs our highest aspira-

tions, our way of life, our family and community in-

teractions. For us, marriage is among our “deepest

believings,” the central institution around which we

“orient[ ] our lives.” Steven D. Smith, Believing Per-

sons, Personal Believings: The Neglected Center of the

First Amendment, 2002 U. ILL. L. REv. 1233, 1320.

Il. VOIDING MARRIAGE LAWS FOR REASONS

OF ANIMUS WOULD HARM RELIGIOUS

LIBERTY AND DISTORT CONSTITUTIONAL

LAW.

A. Attributing State Marriage Laws to An-

imus Would Stigmatize and Demean Re-

ligious Organizations and Believers.

Petitioners contend that State marriage laws of-

fend the Equal Protection Clause because they reflect

animus. See Br. Pets., Obergefell v. Hodges, No. 14-

556, at 23-24; Br. Pets., Bourke v. Beshear, No. 14-574

(Br. Bourke Pets.), at 30-31. Of course, they soft-pedal

the accusation: “Animosity — that is, outright hostility

or bigotry — is not a prerequisite to enhanced judicial

scrutiny.” Jd. at 30. Petitioners’ amici are not as

13

temperate. They contend that the laws at issue here

“had the specific — and improper — purpose of codify-

ing a particular religious understanding of marriage

into civil law and expressing moral disapproval of

same-sex couples.” Brief for Anti-Defamation League

et al. as Amici Curiae Supporting Petitioners at 1. Or,

others assert, laws codifying traditional marriage

reflect “ancient religious bigotry against gay persons.”

Brief for Am. Humanist Assoc. and Ctr. for Inquiry as

Amicus Curiae Supporting Petitioners at 33. Misus-

ing animus doctrine in this way to void State mar-

riage laws will gravely harm religious organizations

and Americans of faith.

We emphatically reject the accusation that we

and millions of our fellow believers seek to protect

traditional marriage out of “ancient religious bigotry

against gay persons.” Jd. That slander aims to intim-

idate and suppress public conversation on a complex

issue by equating disagreement with hatred. Laws re-

serving marriage for the union of a man and a woman

were the universal rule in this country until a decade

ago. They are not tokens of ignorance and bigotry

now.

Our faiths teach love and respect, not hatred, and

we are neither ignorant nor bigoted. Laws protecting

marriage between a man and a woman are rooted in

the good that marriage ts and the good it does — not in

antipathy, spite, or ignorance. Our commitment to

traditional marriage reflects both experience with the

sober realities of family life and a “belie[i] in a divine

creator and a divine law.” Burwell, 134 S. Ct. at 2785

14

(Kennedy, J., concurring). For us, traditional mar-

riage remains a cherished social and religious institu-

tion vital to the welfare of children, families, and

society.

For this Court to declare laws affirming tradi-

tional marriage to be the products of prejudice, igno-

rance, or bigotry would have dire consequences for

religious believers and faith communities. It would

“demean| }” those who hold such beliefs, with “the

resulting injury and indignity” of having their per-

sonal convictions condemned by the Nation’s highest

court and the laws they voted for declared constitu-

tional anathema. United States v. Windsor, 133 S. Ct.

2675, 2694, 2692 (2013). A finding of animus is “fear-

some,” Bishop v. Smith, 760 F.3d 1070, 1103 (10th Cir.

2014) (Holmes, J., concurring), not only because it is

practically a death knell for a challenged law, but also

because it stigmatizes the opinions and beliefs behind

that law. This is especially true when the finding of

animus comes from this Court, with its juridical and

moral authority. It is a small step from declaring

beliefs constitutionally illegitimate to treating those

who hold such beliefs as morally and intellectually

deficient. Because “the law can be a teacher,” Bd. of

Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 375

(2001) (Kennedy, J., concurring), a finding of animus

or a ruling comparing opposition to same-sex mar-

riage with racism would over time reduce those who

believe in traditional marriage to the status of social

and political outcasts. See SHERIF GIRGIS, ET AL., WHAT

Is MARRIAGE? 9 (2012).

15

B. A Finding of Animus Would Deny the

Constitutional Rights of Religious Or-

ganizations and Conscientious Objectors.

Relying on animus to nullify State marriage laws

would have devastating consequences for religious

liberty. Unlike Petitioners’ amici, we do not under-

stand religious liberty to consist only of the freedom

“to decide which marriage ceremonies to perform and

which marriages to recognize as sanctified by [our]

faith.” Brief for Americans United for the Separation

of Church and State as Amicus Curiae Supporting

Respondents (Am. United Br.) at 14. Confining reli-

gious freedom so narrowly would remove the “breath-

ing space,” NAACP v. Button, 371 U.S. 415, 433 (1963),

guaranteed by the First Amendment. The Constitu-

tion “assure[s) the fullest scope of religious liberty.”

Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203,

212 (1963) (Goldberg, J., concurring). Properly under-

stood, religious liberty would be diminished or denied

by overturning State marriage laws for animus.

1. A finding of animus would irreparably damage

the free-exercise rights of voters and organizations

like ours that supported laws affirming traditional

marriage. That right is “essential in preserving

[our] own dignity and in striving for a self-definition

shaped by [our] religious precepts.” Burwell, 134

S.Ct. at 2785 (Kennedy, J., concurring) (citation

omitted). But it would be hollow if millions of reli-

gious persons were made second-class citizens because

their basic beliefs and motivations — and thus any

laws they support — are deemed tainted by animus.

16

Mischaracterizing State marriage laws as rooted

in animus would act as a “religious gerrymander.”

Church of Lukumi Babalu Aye, Inc. v. City of Hialeah,

508 U.S. 520, 532 (1993). Believers and churches do

not lose their right to the free exercise of religion by

bringing their concerns and convictions into the pub-

lic square. See Burwell, 134 S. Ct. at 2785 (Kennedy,

J., concurring) (Free exercise “means, too, the right to

express those beliefs and to establish one’s religious

(or non-religious) self-definition in the political, civic,

and economic life of our larger community.”).

2. Relying on animus to overturn traditional

marriage laws would raise other “serious First

Amendment implications.” Schuette v. Coal. to Defend

Affirmative Action, 572 U.S. __., 134 S.Ct. 1623,

1637 (2014) (plurality op.). It would insinuate that

“the past 15 years of [national] public debate on this

issue have been improper.” Jd. at 1636. A ruling that

laws reaffirming traditional marriage are void for

animus while laws allowing same-sex marriage are

valid extensions of equality would be a form of view-

point discrimination. See Rosenberger v. Rector and

Visitors of Univ. of Va., 515 U.S. 819, 829 (1995).

Private religious speech would be penalized if speech

favoring traditional marriage laws were the justifica-

tion for voiding them. See Capitol Square Rev. and

Advisory Bd. v. Pinette, 515 U.S. 753, 760 (1995).

Branding State marriage laws with a scarlet “A” for

animus and overturning them on that basis would

irreparably diminish the liberty “measured in part by

what .. . citizens are free to discuss among themselves,”

17

especially as they deliberate controversial matters of

social policy. Hill v. Colorado, 530 U.S. 703, 768

(2000) (Kennedy, J., dissenting).

3. Attributing animus to laws approved by

millions of voters in dozens of States would also

demean the fundamental right to participate in self-

government. Last term the Court rebuffed a similar

argument when sustaining a Michigan ballot initia-

tive thet addressed affirmative action in higher ed-

ucation admissions. “The process of public discourse

and political debate should not be foreclosed even if

there is a risk that during a public campaign there

will be those, on both sides, who seek to use racial

division and discord to their own political advantage.”

Schuette, 134 S. Ct. at 1637 (emphasis added). The

Constitution’s answer to factional politics and heated

tensions over social issues is frank, robust debates

and decision-making through legitimate democratic

institutions, not judicial censorship. Jd. Striking down

State marriage laws for animus would be “an unprec-

edented restriction on the exercise of a fundamental

right . to speak and debate and learn and then, as

a matter of political will, to act through a lawful

electoral process.” Jd.; accord id. at 1649 (Breyer, J.,

concurring in the judgment) (“[TJhe Constitution fore-

sees the ballot box, not the courts, as the normal

instrument for resolving differences and debates

about the merits of [affirmative action] programs.”).

Schuette “applies with equal vigor” here, as the court

of appeals held. Pet. App. 43a.

18

For religious voters, a misdirected application of

animus would impose a post-election burden on their

right to vote by measuring the validity of laws by the

opinions expressed in favor of them. Nullifying State

marriage laws because of the religious or moral views

of those who proposed or voted for them would disen-

franchise citizens from participating in the processes

of self-government as believers. A Constitution forbid-

ding religious tests for office-holders, see U.S. CoNsT.

art. I, § 8, would come to impose a religious test for

voters.

4. Religious voters and voices would also be

denied democratic participation if Lawrence is over-

read to mean that laws expressing contested moral

judgments are per se invalid. Cf. Brief for Massachu-

setts et al. as Amici Curiae Supporting Petitioners at

19. Lawrence held that a criminal law punishing pri-

vate homosexual conduct between consenting adults

was unconstitutional because it was based solely

on the majority's moral condemnation. Lawrence v.

Texas, 539 U.S. 558, 571, 578 (2003). But Lawrence

has no bearing on the validity of civil laws enshrining

the people’s moral, religious, and prudential judg-

ments that retaining the definition of marriage is

best for society. Indeed, Lawrence twice disclaimed

that its reasoning involved “formal recognition” for

gay relationships. Jd. at 567, 578.

Misreading Lawrence to preclude legislation

based on religious (but not secular) understandings of

morality would also deny religious believers equal

citizenship by unfairly deeming the laws and policies

19

they favor presumptively illegitimate. It would sug-

gest that advocacy for same-sex marriage is somehow

less moralistic than opposition, when the entire con-

troversy is saturated with mora! discourse. See Dan-

dridge v. Williams, 397 U.S. 471, 487 (1970) (noting

that almost all legislation entails conflicting moral

claims). Laws responding to the demand for same-sex

marriage deserve impartial consideration by the ju-

diciary, regardless of the moral viewpoints they re-

flect. Lawrence does not hold otherwise.

5. Still others argue that religious support for

laws reaffirming traditional marriage renders them

inconsistent with the Establishment Clause. See Brief

for President House of Deputies of Episcopal Church

et al. as Amici Curiae Supporting Petitioners at 34-

35. That argument is so flawed that a prominent ad-

vocate for same-sex marriage deemed it “outside the

space for legitimate disagreement.” Roy T. Englert,

Jr., Unsustainable Arguments Won't Advance Case for

Marriage Equality, NaT’L L.J., Apr. 21, 2014, at 35. As

numerous briefs by respondents and other amici dem-

onstrate, laws reaffirming traditional marriage have

secular purposes and effects and do not excessively

entangle church and state, see Lemon v. Kurtzman,

403 U.S. 602 (1971); they do not involve psychological

compulsion, Lee v. Weisman, 505 U.S. 577 (1992); and

they are consistent with “historical practices and

understandings,” Town of Greece, 134 S. Ct. at 1819.

Such laws do not cross the constitutional line because

they “merely happen[ ] to coincide or harmonize with

the tenets of some or all religions.” McGowan v.

20

Maryland, 366 U.S. 420, 442 (1961); accord Harris

v. McRae, 448 U.S. 297, 319 (1980). No law that

meets these tests remotely offends the Establishment

Clause. To the contrary, its “clearest command”

against interfaith favoritism would be offended by

preferring the votes of religious believers that support

same-sex marriage over religious believers that do

not. Larson v. Valente, 456 U.S. 228, 244 (1982). Like

animus, the Establishment Clause attack on the man-

woman definition of marriage is a cover for disen-

franchising tens of millions of religious voters with

traditional beliefs about marriage. And it “reflects an

unjustified hostility toward religion . inconsistent

with our history and precedents.” Cnty. of Allegheny,

492 U.S. at 655 (Kennedy, J., concurring in the judg-

ment in part and dissenting in part).

Any hint that religious voices and voters, draw-

ing upon rich religious traditions, cannot legitimately

participate in the great democratic debate over mar-

riage is historically preposterous. Religious institu-

tions and believers have contributed to every major

political and social movement in this Nation’s history

— from the founding” to the abolition of slavery,” the

’ “(T]he Founding Fathers believed devotedly that there

was a God and that the unalienable rights of man were rooted in

Him.” Schempp, 374 U.S. at 212.

" Lincoln’s presidential speeches were “suffused with” bib-

lical references that inspired and sustained the fight to end slav-

ery. WILLIAM LEE MILLER, LINCOLN’S VIRTUES 50 (2002).

21

fight for women’s suffrage,” and the civil rights move-

ment.” See McDaniel v. Paty, 435 U.S. 618, 641 n.25

(1978) (Brennan, J., concurring in the judgment)

(“[Cjhurch and religious groups in the United States

have long exerted powerful political pressures on

state and national legislatures, on subjects as diverse

as slavery, war, gambling, drinking, prostitution,

marriage, and education.”). Striking down State mar-

riage laws because their passage was shaped by pri-

vate religious influence would be a dramatic rupture

with the Court’s teaching that the Constitution “may

not be used as a sword to justify repression of religion

or its adherents from any aspect of public life.” Id. at

640-41 (citations omitted). Religious believers and

churches do not become trespassers when they enter

the public square to debate same-sex marriage. Any

argument to the contrary — whether couched as

animus, non-establishment, or any other theory —

misconceives the rightful place of religion in Ameri-

can life.

* Susan B. Anthony argued that women’s suffrage would

bring moral and religious issues “into the political arena” be-

cause such issues held special importance for women. Letter

from Susan B. Anthony to Dr. George E. Vincent (Aug. 1904), in

3 IpA HustepD HARPER, LIFE AND WORKS OF SUSAN B. ANTHONY

1294 (1908).

“ See Davip L. CHAPPELL, A STONE OF HOPE: PROPHETIC

RELIGION AND THE DEATH OF JIM CROW 100 (2004) (“The civil

rights movement brought religious concerns to bear upon local

and national law.”).

22

C. Applying Animus Would Contradict Set-

tled Equal Protection Doctrine.

1. Animus is applicable only in those rare cir-

cumstances when a law contains “discriminations of

an unusual character” intimating that a classification

was “motived by an improper animus or purpose.”

Windsor, 133 S. Ct. at 2693 (emphasis added) (quota-

tions and citations omitted). A finding of animus au-

thorizes “careful consideration” rather than rational

basis review. It therefore provides an avenue for ap-

plying heightened scrutiny without designating the

asserted interest a fundamental right or treating all

laws affecting a particular class as presumptively

suspect. See Clark v. Jeter, 486 U.S. 456, 461 (1988)

(describing the three standards of review under equal

protection).

Animus is exceptional because it departs from

the rule that a law will not be declared unconstitu-

tional “on the basis of an alleged illicit legislative

motive.” United States v. O’Brien, 391 U.S. 367, 383

(1968). Inquiring into animus when adjudicating an

equal protection claim serves to “ensure that classifi-

cations are not drawn for the purpose of disadvantag-

ing the group burdened by the law.” Romer v. Evans,

517 U.S. 620, 633 (1996) (emphasis added). But the

Court has rejected “the broad proposition that state

decision-making reflecting negative attitudes or fear

necessarily runs afoul of the Fourteenth Amend-

ment.” Garrett, 531 U.S. at 367 (quotations omitted).

It has stressed that “[a]lthough such biases may often

accompany irrational (and therefore unconstitutional)

23

discrimination, their presence alone does not a consti-

tutional violation make.” Id. (emphasis added). Only

proof of hostility toward the affected group, unmixed

with any legitimate purpose for the challenged classi-

fication, justifies striking down a law for animus.

The decision below rebuffed the charge of ani-

mus. It reasoned that statewide marriage initiatives

were motivated by “the fear that the courts would

seize control over an issue that people of good faith

care deeply about.” Pet. App. 42a. Keeping a firm grip

on popular sovereignty hardly justifies heightened

judicial scrutiny: “If that is animus, the term has no

useful meaning.” Jd. And the court denied that State

laws reaffirming the traditional definition of mar-

riage warranted a finding of animus “due to the

novelty of the law and the targeting of a single group

for disfavored treatment under it.” Jd. at 41a. Rather,

the ballot measures “codified a long-existing widely

held social norm already reflected in state law.” Jd. at

42a. Putting that norm in state constitutions did not

make the law “unusual, nor did it otherwise convey

the kind of malice or unthinking prejudice the Consti-

tution prohibits.” Jd. Accordingly, the court declined

to “indict” voters for “favoring the amendment(s] for

prejudicial reasons and prejudicial reasons alone.” Jd.

at 44a (punctuation altered).”

“ Repudiating animus places the decision below in line

with other courts and members of this Court. See, e.g., Smith,

760 F.3d at 1104-09 (Holmes, J., concurring); Citizens for Equal

Prot. v. Bruning, 455 F.3d 859, 868 (8th Cir. 2006); Conaway v.

(Continued on following page)

24

2. The Sixth Circuit was right to reject animus.

Neither Windsor nor Romer — the leading decisions in

the area of sexual orientation — warrants resorting to

animus here.

Windsor struck down § 3 of the Defense of Mar-

riage Act (“DOMA”) as an “unusual deviation from

the usual tradition of recognizing and accepting state

definitions of marriage.” Windsor, 133 S. Ct. at 2693.

Only after finding DOMA unusual — it was essentially

unprecedented — did the Court delve into “the design,

purpose, and effect of DOMA” to determine whether

it was “motived by an improper animus or purpose.”

Id. at 2689, 2693. Its illicit purpose, the Court held,

was to “impose restrictions and disabilities” on rights

granted by those States that adopted same-sex mar-

riage. Id. at 2692.

By contrast, State laws defining marriage in con-

ventional terms are anything but “unusual.” Windsor

itself acknowledged that “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 history of

civilization” and that “[t]he limitation of lawful mar-

riage to heterosexual couples ... for centuries had

been deemed both necessary and fundamental.” /d. at

Deane, 932 A.2d 571, 635 (Md. 2007); Hernandez v. Robles, 855

N.E.2d 1, 8 (N.Y. 2006); Andersen v. King Cnty., 138 P.3d 963, 981

(Wash. 2006) (en banc); see also Lawrence, 539 U.S. at 585

(O’Connor, J., concurring in the judgment).

25

2689. Unlike DOMA, State laws regulating marriage

are the norm — as the Windsor opinion spent pages

emphasizing. See id. at 2691-92. Windsor rejects any

reason for inquiring into animus because, as the court

below explained, State marriage laws reflect “exactly

what every State has been doing for hundreds of

years: defining marriage as they see it.” Pet. App.

55a.

Windsor did not create an independent right to

same-sex marriage. DOMA was held to be a “federal

intrusion” on State authority, Windsor, 133 S. Ct. at

2692, but Windsor nowhere suggested that State tra-

ditional marriage laws intrude on federal rights. It

would have been unprecedented for the Court to

fashion a new right out of its limited inquiry into

animus, given the longstanding injunction against

“creat[ing] substantive constitutional rights in the

name of guaranteeing equal protection of the laws.”

San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S.

1, 33 (1973).

Romer fits this case even less. There the State

measure was “unusual” — indeed “unprecedented.”

517 U.S. at 633. Its “sheer breadth” made the law “so

discontinuous with the reasons offered for it that the

amendment seem[ed] inexplicable by anything but

animus toward the class it affect[ed].” Jd. at 632. By

contrast, the State marriage laws at issue here “codi-

fied a long-existing, widely held social norm already

reflected in state law.” Pet. App. 42a. As the court of

appeals held, rejecting same-sex marriage did not by

26

itself “convey the kind of malice or unthinking preju-

dice the Constitution prohibits.” Jd.

3. Petitioners’ amici contend that the doctrine

of animus authorizes the Court to “set aside laws the

very purpose of which is to discriminate against a

group of citizens simply because of who they are.”

Brief for Human Rights Campaign as Amici Curiae

Supporting Petitioners at 6 (citations omitted). This

strained reading of precedent rests on the false prem-

ise that the fact of differential treatment is evidence

of invidious intent. But “most legislation classifies for

one purpose or another, with resulting disadvantage

to various groups or persons.” Romer, 517 U.S. at 631.

The millennia-old marriage norm was not enacted to

discriminate against gays and lesbians — or anyone —

“because of who they are.” The intent to maximize

child welfare through an institution that ties children

to their biological fathers and mothers is not animus.

“Whether one agrees or disagrees with the goal of

[securing traditional marriage], that goal in itself...

does not remotely qualify for such harsh description,

and for such derogatory association with racism.”

Bray v. Alexandria Women’s Health Clinic, 506 U.S.

263, 274 (1993).

27

Il. MANDATING SAME-SEX MARRIAGE ON

OTHER GROUNDS WILL GENERATE CON-

FLICTS WITH RELIGIOUS LIBERTY.

A. Heightened Scrutiny and Rational Ba-

sis Review Would Undermine Religious

Liberty.

Animus would be the most harmful way to justify

a right to same-sex marriage because it would stig-

matize traditional marriage supporters as ignorant

and bigoted. But other doctrinal paths to same-sex

marriage also would present serious conflicts with

religious liberty.

1. Petitioners and the United States insist that

State laws reaffirming the historic definition of mar-

riage are subject to heightened scrutiny because they

discriminate based on sexual orientation. See Br.

Bourke Pets. at 32; accord Brief for United States as

Amicus Curiae Supporting Petitioners at 15. Respon-

dents have addressed in greater detail why sexual

orientation does not qualify as a suspect class under

this Court’s established standards. Suffice it to say

that Petitioners’ plea for heightened scrutiny calls for

the first new suspect class in 40 years — a seismic

shift in equal protection jurisprudence.” It would

elevate a new rule preferred by three circuits over the

** See Kenji Yoshino, The New Equal Protection, 124 Harv.

L. Rev. 747, 756-57 (2011).

28

rational basis standard maintained over decades by

nine others.”

Whether characterized as strict scrutiny, Adarand

Constructors, Inc. v. Pefia, 515 U.S. 200, 227 (1995),

or intermediate scrutiny, Miss. Univ. for Women v.

Hogan, 458 U.S. 718, 724 (1982), adopting suspect-

class status for sexual orientation would ignite an

array of conflicts with the freedoms of religious in-

stitutions and individual believers.

Most importantly, as with an animus finding,

heightened scrutiny would place the moral authority

of the Constitution behind the idea that any distinc-

tion based on sexual orientation is presumptively

invidious. Our faith traditions, and those of millions

more Americans, include beliefs about the meaning of

sexuality and powerful injunctions against sexual

conduct outside traditional marriage. Elevating sex-

ual orientation to a suspect class would place the

“ Compare Windsor v. United States, 699 F.3d 169, 180-85

(2d Cir 2012), aff'd, Windsor, 133 S.Ct. at 2675; Baskin v.

Bogan, 766 F.3d 648, 657-59 (7th Cir. 2014); and SmithKline

Beecham Corp. v. Abbott Labs., 740 F.3d 471, 480-84 (9th Cir.

2014) with Cook v. Gates, 528 F.3d 42, 61 (1st Cir. 2008);

Thomasson v. Perry, 80 F.3d 915, 928 (4th Cir. 1996); Johnson v.

Johnson, 385 F.3d 503, 532 (5th Cir. 2004); Davis v. Prison

Health Servs., 679 F.3d 433, 438 (6th Cir. 2012); Bruning, 455

F.3d at 866-67; Price-Cornelison v. Brooks, 524 F.3d 1103, 1113

n.9 (10th Cir. 2008); Lofton v. Sec’y of Dep't of Children & Family

Servs., 358 F.3d 804, 818 (11th Cir. 2004); Padula v. Webster, 822

F.2d 97, 103-04 (D.C. Cir. 1987); and Woodward v. United States,

871 F.2d 1068, 1076 (Fed. Cir. 1989).

29

Constitution on a collision course with our beliefs.

It would unleash powerful forces, including litigation,

that would progressively equate religious distinctions

based on sexual orientation with discrimination bsred

on race. Religious beliefs in traditional sexual mo: al-

ity would in time be equated with racism: believers

and religious institutions would be legally free to hold

and express their beliefs (at least on their private

properties and in public forums) but they would

suffer the same opprobrium that we (rightly) heap on

racist beliefs and speech. Social marginalization

would inevitably follow. This suppression of beliefs

would diminish the freedom of millions of Americans

to live their faith openly and with dignity.

Those injuries to religious liberty are evident in

this case. Laws reaffirming traditional marriage re-

flect longstanding beliefs, judgments, and ways of

life, as we have explained. Placing those laws under

the microscope of heightened scrutiny would render

them — and the religious beliefs, judgments, and ways

of life that have long animated them — constitution-

ally suspect. Demeaning our religious convictions

about marriage in this manner would unfairly cast us

“in the role of bigots or superstitious fools.” Windsor,

133 S. Ct. at 2718 (Alito, J., dissenting).

Denigrating traditional beliefs about marriage

would be only the first of such conflicts. Civil rights

laws covering sexual orientation, which can adversely

affect religious interests in numerous ways, might be

construed to advance a compelling governmental in-

terest if sexual orientation becomes a suspect class.

30

See Roberts v. U.S. Jaycees, 468 U.S. 609, 623 (1984).

If such an interest were deemed compelling, religious

institutions would be powerless to lean on the Free

Exercise Clause as a basis for demanding reasonable

accommodations. In rejecting strict scrutiny as the

reigning standard for free exercise claims, Employ-

ment Division v. Smith held that “equality of treat-

ment” ranks as a “constitutional norm ],” while free

exercise exemptions from “generally applicable laws”

are “a constitutional anomaly.” 494 U.S. 872, 886

(1990). Bolstered by a further holding that sexual

orientation is a suspect class, courts would be more

inclined to construe the government’s interest in pre-

venting sexua!] orientation discrimination as suffi-

ciently compelling to override the free exercise rights

even of churches."

Freedom of speech, Hurley v. Irish-Am. Gay,

Lesbian and Bisexual Group of Boston, Inc., 515 U.S.

557 (1995), and expressive association, Boy Scouts of

Am. v. Dale, 530 U.S. 640 (2000), likewise would be

threatened if the government has a compelling inter-

est in protecting sexual orientation as a suspect class.

Religious believers could find their speech, associa-

tion, and free-exercise rights diminished or denied in

" Designating sexual orientation as a suspect class also

would tilt the Religious Freedom Restoration Act’s compelling

interest test away from religious accommodation and toward

eliminating a new kind of invidious discrimination. See Gonzales

v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418,

436-37 (2006) (discussing governmental interests strong enough

to defeat a RFRA claim).

31

a variety of contexts, such as public education, em-

ployment, public accommodations, and professional

certification. Recognizing sexual orientation as a sus-

pect class might enhance the equal treatment of gays

and lesbians, but only by subtracting from the First

Amendment liberties of religious institutions and

believers.

Marriage, family, and sexuality have always been

the subject of profound religious beliefs and practices.

Those beliefs and practices are in turn reflected in

innumerable religious, social, cultural, and educa-

tional institutions. Recognizing sexual orientation as

a suspect class would practically create a constitu-

tional mandate to suppress and marginalize tradi-

tional religious views on sexuality and those who hold

them, generating legal, bureaucratic, and social con-

flicts with a wide and unpredictable range of religious

interests and threatening the religious freedom of

religious institutions and believers. Four decades of

experience have taught that equality can be vindi-

cated and legitimate concerns addressed without the

addition of new suspect classes. Petitioners offer no

convincing reason to discard that lesson now.

2. Nor should an animus ruling be cloaked as a

finding of “irrationality” under rational basis review.

Under that “paradigm of judicial restraint,” FCC

v. Beach Comm’cns, 508 U.S. 307, 314 (1993), the

Court has sustained laws that advance the flimsiest

ef governmental interests by the most tenuous of

32

means.” Traditional marriage serves many legitimate

governmental interests, as respondents and their

amici have shown. Turning a blind eye to that evi-

dence would distort the constitutional standard. It

cannot be said that the only definition of marriage

known to this country until a decade ago — one held

sacred and profoundly important to tens of millions of

religious Americans — is irrational. For faith commu-

nities, a ruling that the traditional definition of mar-

riage fails rational basis review would signify judicial

disrespect for their beliefs.

A right to same-sex marriage cannot avoid trig-

gering and exacerbating conflicts with religious

liberty. But the scale of the harm to religious institu-

tions and believers depends to an extent on the legal

ground the Court selects. Adverse decisions based

on animus or heightened scrutiny would inflict the

gravest injuries. A decision resting on rational basis

review would do less damage initially, but equating

traditional marriage with irrationality would still

have corrosive effects on religious liberty. Any of these

rationales for reversing the decision below would

injure churches and religious believers.

‘* Rational! basis review has sustained laws distinguishing

paperboard milk containers from nonreturnable plastic milk

containers, Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456,

468 (1981); new from existing homeowners, Nordlinger v. Hahn,

505 U.S. 1, 13-14 (1992); and new from established street

vendors, New Orleans v. Dukes, 427 U.S. 297, 305 (1976).

33

B. Mandating Same-Sex Marriage Under

Any Theory Would Generate Conflicts

with Religious Freedom.

1. While some theories may be more harmful to

religious interests than others, reversal under any

theory would pose serious risks for religious liberty.

As a group of respected amici has noted, “a scholarly

consensus has emerged that giving legal recognition

to same-sex marriage may result in widespread and

foreseeable church-state conflict.” Brief for Gen. Con-

ference Seventh-day Adventists and The Becket Fund

for Religious Liberty as Amici Curiae Supporting

Neither Party at 12. In addition to the nondiscrimi-

nation areas noted above, potential conflicts are ex-

pected to arise in the context of access to government

facilities, id. at 21; government licensing for church-

related adoption agencies and accreditation for reli-

gious colleges and their professional training programs,

id. at 22-23; participation in government social ser-

vices contracts, id. at 24-25; and the tax-exempt

status of religious organizations, id. at 25.

Substantial church-state conflicts and invasions

of religious liberty are certain because a right to

same-sex marriage would contradict the religious

texts of the major Abrahamic faiths. Christianity,

Judaism, and Islam all have rich religious narratives

extolling the husband-wife, child-centric meaning of

marriage. Many Americans who accept these tradi-

tions understand marriage as a gift from God, in-

tended to establish an optimal setting for bearing and

rearing children rather than as a means of endorsing

34

adult relationship choices. These beliefs about mar-

riage are not going away. Cherished by billions of

believers worldwide and tens of millions in the U.S.,

these doctrines will not change based on federal court

decisions, much less the shifting tides of public opin-

ion. They are tied to theology, religious and family

practices, and entire ways of life. They are no less

essential to the dignity and identity of millions of

Americans than petitioners’ sexual orientation is to

them.

Even advocates of same-sex marriage who have

long been concerned about religious liberty concede

that “[slignificant religious liberty issues will indeed

follow in the wake of same-sex civil marriage.” Brief

of Douglas Laycock et al. as Amici Curiae Supporting

Petitioners (Laycock Br.) at 11. They insist that “[wJe

must protect religious liberty and the right to marry.”

Id. at 12. Their sensitivity to religious liberty is cer-

tainly welcome. But there is no way for the Court to

adequately mitigate the harms that a right to same-

sex marriage will admittedly inflict.

2. Beyond the other injuries we have described,

a judicially-imposed right to same-sex marriage would

halt any reasonable opportunity for religious organi-

zations to bargain for religious-liberty accommoda-

tions to be included in State laws adopting same-

sex marriage. See Robin Fretwell Wilson, Marriage

of Necessity: Same-Sex Marriage and Religious Liber-

ty Protections, 64 CasE W. Res. L. Rev. 1161, 1173

(2014). Dicta affirming religious liberty principles

certainly would be welcome, but it would not have

35

much practical effect as long as Smith remains the

free exercise standard. To be sure, reconsideration of

Smith and its abandonment of strict scrutiny for most

free-exercise claims, see Laycock Br. at 35-37, would

no doubt aid religious organizations and individuals —

if Smith were ultimately rejected. But that possibility

is too remote to offer real security against the reli-

gious liberty conflicts a right to same-sex marriage

would create.

3. Petitioners’ amici are wrong in asserting that

“recognition of the right to marry will not exacerbate

any actual or potential conflicts between religious

objectors and the prohibitions against discrimination,

which will continue to exist regardless of marriage

rights.” Am. United Br. at 6. Adopting same-sex

marriage creates tensions and conflicts with religious

liberty that nondiscrimination statutes alone do not

raise. Take the troubling case of Barronelle Stutzman.

She was sued by the State of Washington for refusing

to provide flowers for a gay wedding. Her consti-

tutional defenses, including federal claims of free

speech and free exercise, were rejected precisely be-

cause Washington voters approved same-sex mar-

riage. The trial court reasoned that passage of the

voter initiative created “a direct and insoluble conflict

between Stutzman’s religiously motivated conduct

and the laws of the State of Washington.” State v.

Arlene’s Flowers, Inc., No. 13-2-00871-5, at *58 (Feb.

18, 2015). Recognizing a federal right to same-sex

marriage would spawn many similar conflicts, espe-

cially for conscientious objectors who own flower

36

shops, photography studios, wedding venues, and

other businesses associated with weddings.

C. Creating a Right to Same-Sex Marriage

Would Deny Religious Believers Equal

Citizenship.

A right to same-sex marriage also would supplant

the States’ “historic and essential authority to define

the marital] relation” with an exertion of federal ju-

dicial power beyond the democratic process. Windsor,

133 S. Ct. at 2692. In so doing it would deprive citi-

zens of the liberty to join with others in shaping “local

policies ‘more sensitive to the diverse needs of a

heterogeneous society,” Bond v. United States, 564

U.S. __, 131 S. Ct. 2355, 2364 (2011) (Kennedy, J.)

(quotations omitted). On the great issue of how to de-

fine marriage to secure its vital purposes, ordinary

Americans no longer could “‘seek a voice in shaping

the destiny of their own times.’” Schuette, 134 S. Ct.

at 1636 (quoting Bond, 131 S.Ct. at 2364). Lost

would be their “fundamental right to speak and

debate and learn and then, as a matter of political

will, to act through a lawful electoral process.” Id. at

1637.

Representative democracy matters to religious

organizations and people of faith. Their capacity to

build communities where their values are respected

and their ways of life protected depends on the plu-

ralism that our democratic institutions foster and

secure. The fundamental liberty of religious believers

to participate with other free citizens in deliberating

37

about and shaping the character of their common

destiny has been protected by this Court’s determina-

tion to read the Constitution as a charter for “people

of fundamentally differing views.” Lochner v. New

York, 198 U.S. 45, 76 (1905) (Holmes, J., dissenting).

Despite repeated pleas for judicial intervention, this

Court has left nearly all major social controversies of

the past century to be resolved by the people, con-

sistent with their values as expressed and refined

through State and local democratic institutions. See,

e.g., Gregg v. Georgia, 428 U.S. 153, 175-76 (1976)

(opinion of Stewart, Powell, and Stevens, JJ.) (capital

punishment); Washington v. Glucksberg, 521 U.S.

702, 735 (1997) (assisted suicide); Miller v. California,

413 U.S. 15, 33-34 (1973) (obscenity); Maher v. Roe,

434 U.S. 464, 479 (1977) (abortion funding); cf. U.S.

CoNnsT. amend. XXI, § 2 (authorizing States to regu-

late the transportation and importation of alcoholic

beverages). Abortion is the exception. See Planned

Parenthood of S.E. Penn. v. Casev, 505 U.S. 833, 846

(1992). And even on that divisive question the fun-

damental right is not absolute: “States may take

sides in the abortion debate and come down on the

side of life, even life in the unborn.” Stenberg v.

Carhart, 530 U.S. 914, 961 (2000) (Kennedy, J., dis-

senting). Erecting a categorical rule compelling the

people of every State to accept same-sex marriage

would contradict this long line of liberty-enhancing

decisions.

The liberty to deliberate and act with other free

citizens in defining the laws and institutions of one’s

38

own State or community benefits people of diverse

beliefs and values. A number of States have demo-

cratically embraced the arguments advanced here for

same-sex marriage, and no doubt others will follow.

In those States, the views of religious supporters of

traditional marriage were respectfully heard but did

not prevail in the democratic process. But in other

States, religious views have had a more favorable

reception, leading to the democratic decision not to

redefine marriage. Mixed results at the polls are a

natural outcome in a pluralistic democracy that

respects the diverse opinions and values of all its

citizens and resolves fundamental conflicts through

debate, compromise, and democratic process. To de-

clare an unprecedented constitutional right to same-

sex marriage would deny people of faith who support

traditional marriage the liberty to participate as

equal citizens in deciding which values and policies

will govern their communities.

We urge the Court to trust the people and their

democratic institutions to resolve the marriage issue,

as it has on other divisive issues so many times

before.

39

CONCLUSION

For each of the foregoing reasons, the judgment

of the court of appeals should be affirmed.

Respectfully submitted,

CARL H. ESBECK ALEXANDER DUSHKU

Professor of Law Counsel of Record

209 Hulston Hall R. SHAWN GUNNARSON

Conley and Missouri Avenues KIRTON MCCONKIE

Columbia, MO 65211 1800 World Trade Center

60 E. South Temple Street

Salt Lake City, UT 84111

(801) 328-3600

adushku@kmclaw.com

Counsel for Amici Curiae

April 2, 2015

la

APPENDIX - STATEMENTS OF INTEREST

The National Association of Evangelicals is

the largest network of evangelical churches, denomi-

nations, colleges, and independent ministries in the

United States. It serves 40 inember denominations,

representing 45,000 local churches, as well as numer-

ous evangelical associations, organizations, universi-

ties, seminaries, and millions of Christians. The NAE

believes that marriage is part of God’s plan for hu-

manity. As first described in the early chapters of

Genesis and affirmed by Jesus in Matthew 19, mar-

riage is a God-ordained, covenant relationship be-

tween a man and a woman through which the human

race is propagated and by which stewardship of this

earth is maintained.

The Church of Jesus Christ of Latter-day

Saints is a Christian denomination with 15 million

members worldwide. Marriage and the family are

central to the Church and its members. The Church

teaches that marriage between a man and a woman

is ordained of God, that the traditional family is the

foundation of society, and that marriage and family

supply the crucial relationships through which par-

ents and children acquire private and public virtue.

Out of support for these fundamental beliefs, the

Church appears in this case to defend the traditional,

husband-wife definition of marriage.

The Ethics and Religious Liberty Commis-

sion (ERLC) is the moral concerns and public policy

entity of the Southern Baptist Convention (SBC), the

2a

nation’s largest Protestant denomination, with over

46,000 churches and nearly 15.8 million members.

The ERLC is charged by the SBC with addressing

public policy affecting such issues as marriage and

family, the sanctity of human life, ethics, and reli-

gious liberty. Marriage is a crucial social institution.

As such, we seek to strengthen and protect it for the

benefit of all.

The Lutheran Church - Missouri Synod is

the second largest Lutheran denomination in North

America, with approximately 6,200 member congre-

gations and 2.3 million baptized members. The Synod

believes that marriage is a sacred union of one man

and one woman, Genesis 2:24-25, and that God gave

marriage as a picture of the relationship between

Christ and His bride the Church, Ephesians 5:32. As

a Christian body in this country, the Synod believes it

has the duty and responsibility to speak publicly in

support of traditional marriage and to protect mar-

riage as a divinely created relationship between one

man and one woman.

The Assemblies of God was founded in 1914 and

is headquartered in Springfield, Missouri. It has 3.1

million adherents in more than 12,800 churches in al!

50 states and Puerto Rico, and 67.5 million adherents

worldwide in more than 360,000 churches. The As-

semblies of God believes that the Bible, which was

given by inspiration of God, teaches that marriage

was instituted by God and is between one man and

one woman. Any Assemblies of God minister who

3a

performs a so-called same-sex marriage has their

ministerial credential revoked.

The Christian Legal Society (“CLS”) is an asso-

ciation of Christian attorneys, law students, and law

professors, with student chapters at approximately

110 law schools. CLS believes that a free society

prospers only when the First Amendment rights of all

Americans are protected, regardless of the current

popularity of their beliefs and speech. For example,

CLS was instrumental in passage of the Equal Access

Act of 1984, which protects the right of all students,

including both religious and LGBT students, to meet

for “religious, political, philosophical or other” speech

on public secondary school campuses. 20 U.S.C. 4071-

74 (2013); see 128 Cong. Rec. 11784-85 (1982) (Sen.

Hatfield statement).

CLS believes that these States’ interest in defin-

ing marriage as extant only between one woman and

one man surv.ves any level of judicial scrutiny. But as

a result of its own experience as a religious organiza-

tion that has been excluded from the public square

for expressing its Christian beliefs regarding mar-

riage, CLS is deeply concerned about the ability of

religious citizens to follow their religious consciences

if the Court were to rely upon “animus” as a basis for

finding that these States’ laws lacked a rational basis

or if the Court were to adopt a standard of “inter-

mediate scrutiny” or “strict scrutiny” to review these

laws. Unless this Court expressly preserves the re-

ligious freedoms of people of faith, the adoption of

any of these standards would be a grave threat to

4a

religious liberty and the ability of persons of faith to

express their beliefs and associate with others who

share their beliefs.

The Brethren Church was founded in 1883 and

is headquartered in Ashland, Ohio. It has a constitu-

ency of more than 10,000 in 115 congregations in 18

States. The church believes that marriage is a cove-

nant between one woman and one man, as set forth in

the Scriptures and affirmed throughout.

The Christian and Missionary Alliance was

founded in 1887 and is headquartered in Colorado

Springs, Colorado. It has 500,000 attendees in ap-

proximately 2,000 churches. The Christian and Mis-

sionary Alliance believes that God intended marriage

to be a monogamous, lifelong union between a man

and a woman.

The Church of God, Cleveland, Tennessee,

was founded in 1886 and is headquartered in Cleve-

land, Tennessee. The Church of God has 1,150,487

members and 6,597 churches in the U.S. and Canada,

and 5,893,675 members in 181 other countries world-

wide. Tte Church of God affirms the definition of

marriage, based on the Holy Bible, as being between

one man and one woman.

Converge Worldwide, also known as the Baptist

General Conference, was founded in 1852 and is

headquartered in Orlando, Florida. There are 1,200

churches with more than 300,000 constituents in 43

states. Converge Worldwide believes that Christian

marriage is a spiritual and physical union into which

5a

one man and one woman may enter for the glory of

God and the propagation of the race.

The Evangelical Congregational Church was

founded in 1922 and is headquartered in Myerstown,

Pennsylvania. It has 123 churches in 6 states. The

Evangelical Congregational Church believes the Bible

conceives of marriage as a lifelong, monogamous com-

mitment between a man and a woman and that the

institution of marriage, ordained of God (Genesis

2:24), has been reaffirmed by Jesus (Matthew 19:5)

and Paul (Ephesians 5:31).

The Evangelical Presbyterian Church was

founded in 1981 and is headquartered in Livonia,

Michigan. It has 560 churches throughout the U.S.

with 150,000 members. The EPC Position Paper on

Marriage affirms the clear testimony of God’s Word

that marriage is between one man and one woman.

The Fellowship of Evangelical Churches was

founded in 1865 and is headquartered in Fort Wayne,

Indiana. It has approximately 16,000 congregants in

11 states. The Fellowship of Evangelical Churches

believes marriage is a sacred institution ordained of

God as a permanent and totally intimate relationship

between one man and one woman.

The Free Methodist Church —- USA was founded

in 1860 and is headquartered in Indianapolis, Indi-

ana. It has churches in all 50 states, and has one mil-

lion members worldwide. The Free Methodist Church

— USA believes that sexual intimacy is a gift from God

for marital union, and that the sanctity of marriage

6a

between one man and one woman is to be protected

against all manner of immoral conduct.

Grace Communion International was founded

in 1934 and is headquartered in Glendora, California.

It has over 50,000 members formed into 900 churches

spread across 100 countries. Grace Communion Inter-

national believes God loves all his children, establish-

ing marriage as an exclusive sacred union between

one man and one woman that honors God’s covenant

relationship.

The International Pentecostal Holiness Church

was founded in 1898 and is headquartered in Okla-

homa City, Oklahoma. It has 2,100 congregations

with 275,000 members in 48 states, and 1.8 million

members worldwide in more than 100 countries. The

IPHC believes that marriage was established by God

and only truly exists between a man and a woman

and as such is in the best interest of any society. Our

ministers and facilities can only be used for such

marriages and associated celebrations.

The Missionary Church was founded in 1969

and is headquartered in Fort Wayne, Indiana. It has a

current worship attendance of approximately 69,000

in the United States. The Missionary Church is com-

mitted to the truth that God created marriage to be

the union between one man (born male) and one

woman (born female) as both the basic unit of society

and the symbolic representation of the relationship

between Jesus Christ and His bride, the Church.

7a

Open Bible Churches was founded in 1935 and

is headquartered in Des Moines, Iowa. It has a mem-

bership of 30,000 constituents. Open Bible Churches

believes that it was God who created human beings,

distinctively crafted as male and female, and who

defined and provided marriage as a relational gift ex-

clusively for one man/one woman application.

The Wesleyan Church was founded in 1843 and

is headquartered in Indianapolis, Indiana. There are

139,426 members and 1,550 churches in 49 states,

and 422,000 members and 5,800 churches globally.

The Wesleyan Church believes that God’s plan for

human sexuality is that it is to be expressed only in a

monogamous lifelong relationship between one man

and one woman within the framework of marriage.