Amicus Curiae Brief — Obergefell v. Hodges

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Nos. 14-556, 14-562, 14-571 and 14-57

IN THE

Supreme Court of the United States

JAMES OBERGEF ELL, et al.

AND BRITTANI HENRY, ef al.,

Petitioners,

RICHARD HODGES, DIRECTOR, OHIO

DEPARTMENT OF HEALTH, et al,

Respondents.

On Writs or CERTIORARI TO THE UNITED STATES

Court OF APPEALS FOR THE Sr&tH Circuit

BRIEF OF NINETY-TWO PLAINTIFFS

IN MARRIAGE CASES IN ALABAMA,

ALASKA, ARKANSAS, INDIANA, KANSAS,

LOUISIANA, MISSISSIPPI, MISSOURI,

MONTANA, NEBRASKA, NORTH CAROLINA,

NORTH DAKOTA, SOUTH CAROLINA,

SOUTH DAKOTA AND TEXAS AS AMICI

CURIAE IN SUPPORT OF PETITIONERS

WESLEY R. PowELu RICHARD D. BERNSTEIN

Mary J. Eaton Counsel of Record

SAMEER ADVANI WILLKIE F'ARR

WILLKIE FARR & GALLAGHER LLP

& GALLAGHER LLP 1875 K Street, NW

787 Seventh Avenue Washington, DC 20006

New York, New York 10019 (202) 303-1000

(212) 728-8000 rbernstein@willkie.com

Counsel for Amici Curiae

COUNSEL PRESS

(800) 274-3321 + (800) 359-6859

= 2015

TABLE OF CONTENTS

Page

es) PGs gos 5, 5», Freer i

TABLE OF CITED AUTHORITIES .............. ii

ee ee Ge SE 6 0 6.6.00 0:60:60340%04505 000 1

STATEMENT AND SUMMARY OF ARGUMENT. .2

REE 6 6c cevececcsnsnesdvonewaneens pevcees 4

I. THE LANGUAGE AND HISTORY

OF THE EQUAL PROTECTION

CLAUSE SUPPORTS MARRIAGE FOR

SAME-SEX COUPLES..................... 4

A. “Tradition” Is Not A Substitute For

“Rs FOO cc cccvecéuecouesesess 5

B. It is The Court, Not State Legislatures,

That Ultimately Decides Whether States

Are Denying “Equal Protection.”........ 12

II. THE COURT SHOULD EXERCISE

ITS AUTHORITY TO EXPLICATE

“EQUAL PROTECTION” TO BAR

STATES FROM DENYING SAME-SEX

COUPLES THE PROTECTIONS OF

PEATE MED EVE. oo cc ccccccvcteesenceet 23

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TABLE OF CITED AUTHORITIES

Page

Cases

Bowers v. Hardwick,

ee ccc cece ceeeeseees 24

Browder v. United States,

a 11

Brown v. Board of Education,

ee cece cadcecececeeed 8,9

Bus. Elecs. Corp. v. Sharp Elecs. Corp.,

is ea eee censeseeeceses 11

Civil Rights Cases,

re cc encenecceteecccesss 7

City of Cleburne v. Cleburne Living Ctr.,

ee Reese eeeecrcceeoscse 15

DeBoer v. Snyder,

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

Ex parte Alabama ex rel. Alabama Policy Institute,

No. 1140460, 2015 WL 892752 (Ala. Mar. 3, 2015). .19

FCC v. Beach Comme’ns, Inc.,

Neen ee cc eteet 23

Fletcher v. Peck,

EE ES ee 13

212

Cited Authorities

Page

Frontiero v. Richardson,

Ge Ws Pe a ccceccccccesenecesas . 10,18

Fuentes v. Shevin,

et ee i occcccucscsoeseeeceeescensas 10

Harper v. Virginia State Bd. of Elections,

ee dodencoedeesecesevececessunt 8

Heller v. Doe,

Se a ED 6 sn cccdecoeusatessdeaskuus 16

Lawrence v. Texas,

og eee 16, 20, 24

Levy v. Louisiana,

8 8 Se eee 16

Loving v. Virginia,

Se ee 9, 16, 17, 25

Lucas v. Forty-Fourth Gen. Assembly of Colo.,

ee Ge MS coe ncheceusuescceenacsesses 15

Maynard v. Hil,

gl ek ed geod 25

Marbury v. Madison,

i PT cidvece dtjdscieosaanneaeaen 12-13

Citea Authorities

Page

McCullough v. Maryland,

es Deine ed eeeeeueddedwane 13

Pierson v. Ray,

4k eee 23

Plessy v. Ferguson,

8 ee ere 9, 33

Romer v. Evans,

ee Ns oo 0ncccasonceseoéeuséed passim

Roper v. Simmons,

ee ED bc cogcedeéunguuséunesueueous 10

Tanco v. Haslam,

No. 3:13-cv-01159, 2014 WL 997525 (M.D. Tenn.

Dt tehenéeeecesaensnteeeeussentoad 29

Tanco v. Haslam,

7 F. Supp. 3d 759 (M.D. Tenn. 2014).............. 30

Texas v. Johnson,

at i eed 24

Towne v. Eisner,

Ne ee ee eles 11

Trop v. Dulles,

DP cb nvaeawdeeeetbaevedecenedes 10

Cited Authorities

Trustees of Dartmouth College v. Woodward,

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Turner v. Safley,

Ge We CGE oc cccccccccsesccescees

United States v. Virginia,

ee PEE ce ccccccceccecconccsees

United States v. Windsor,

133 S. Ct. 2675 (2013)... ........--. 2-2 eee

Watson v. City of Memphis,

Bee Cis GE GEE co ccccccccccccccccces

Weber v. Aetna Cas. & Sur. Co.,

GES ULB. BG Geen oc ccc cccccccccccsccces

West v. Gibson,

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W. Virginia Bd. of Educ. v. Barnette,

SIO U.S. G24 (IDES)... ewe cccccccceee

Zablocki v. Redhaul,

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Constitutions & Statutes

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Cited Authorities

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Gy Is Shc ocendcccdccséceecsodecee 27

Ala. Code § 22-8A-11 peckedsudbesseeeséeuceuadeeen 26

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ee, CR EA, GH Pe bo ve svedccdcccssccsoced 26

Ark. Code Ann. § 16-62-102(@). ............ececeees 27

Ark. Code Ann. § 20-9-GO2. ... 2... cc cccccccccccecs 26

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Ark. Code Amn. § 30-17-214 .....cccccccccccccccees 26

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Ark. Code Ann. § 24-6-216...........2cccsecececes 27

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Ase. COGS AMM. § BEBE . 0 oc ccccccccccccccccece 27

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Ark. Code Ann. § 28-11-102 ..............cceeeeees 27

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Ark. Code Ann. § 28-39-301...............0eeeeees 26

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Cited Authorities

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Ind. Code § 16-BO-B-10 .. wc cc cccccccccccccccccccs 26

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Ind. Code § 34-46-3-1(4) .... 2... 2. ce ee ee eee eee 27

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Miss. Code Ann. § 21-29-329 ................2 eee 27

Miss. Code Ann. § 25-11-114....................05. 27

Miss. Code Ann. § 25-13-13 ............. 0c cece: 27

Miss. Code Ann. § 25-1813 ...............2..0005- 27

Miss. Code Ann. § 41-41-2731 ...................06. 26

Miss. Code Ann. § 71-3-Z26 .. 2. cc ccccccccccccccecs 27

Miss. Code Ann. § 73-11-58 .................2 cee 26

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Miss. Code Ann. § 91-5-25 ... 1.0... cece cece cence 26

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Miss. Code Ann. § 93-65-23... 1... ccc ccc cccccccces 26

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Mont. Code Ann. § 2-18-704.................... 27-28

Mont. Code Ann. § 27-1-513 ...............02 eee eee 27

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Mont. Code Ann. § 40-2-108.................... 26, 27

Mont. Code Ann. § 40-4-104.................4.5. 26-27

Mont. Code Ann. § 40-4-121............ 0. ce eee eee 27

Mont. Code Ann. § 46-16-212...................... 27

Mont. Code Ann. § 50-9-106...................026. 26

Mont. Code Ann. § 50-16-804...................... 26

Mont. Code Ann. § 72-2-112..............-.e eens 26

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PE EE OED ces ncccecessesecsseveeseeces 27

N.C. Gen. Stat. § 28A-4-1...... Sameeseenateseuseus 27

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N.D. Cent. Code § 14-05-24 ..................00...- 27

N.D. Cent. Code § 23-06-02... ............ee ee euee 26

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N.D. Cent. Code § 30.1-04-02...............200eee- 26

N.D. Cent. Code § 30.1-07-02. .............2ceeeees 26

N.D. Cent. Code § 30.1-28-11 ..................44.- 26

N.D. Cent. Code § SB-21-08 .. 0... cc ccccccccccccess 27

N.D. Cent. Code § 54-52.1-03. .............202 eee 28

N.D. Cent. Code § 54-52.1-07. .............2000000- 28

N.D. Cent. Code § 57-38-30.3. ...........2200 eens 28

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N.D. Cent. Code § 65-05-12.2. ...................-- 27

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en, 2 ED So covedeuscenssacscecees 27

Ss GR EEE oo Sec ccconcecccceccececs 27

S.C. Code Ann. § 20-3-130 ..................20005- 27

ee I 6 oc cecccwnscccessseesend 27

les PE a vc csc ccccceccesscncnsen 26

S.C. Code Ann. § 42-9-110 ...................-.65- 27

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Cited Authorities

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Pee 26

S.D. Codified Laws § 3-6E-7 .............00eeeeeee 28

S.D. Codified Laws § 3-12-95.6 .................... 27

S.D. Codified Laws § 3-13A-15..................... 27

S.D. Codified Laws § 19-13-12... ............-5005- 27

S.D. Codified Laws § 19-18-13 ..................... 27

S.D. Codified Laws § 21-5-5.................-0-00- 27

S.D. Codified Laws § 25-4-38-41...............065. 27

S.D. Codified Laws § 25-4-38-44. .............2005. 27

S.D. Codified Laws § 29A-2-102................255- 26

S.D. Codified Laws § 29A-2-301 ................... 26

S.D. Codified Laws § 29A-5-305 ................... 26

S.D. Codified Laws § 34-26-2.............ceeeeees 26

S.D. Codified Laws § 34-26-4. ................5008- 26

S.D. Codified Laws § 34-26-14.................506. 26

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Cited Authorities

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S.D. Codified Laws § 34-26-16..................... 26

Tex. Civ. Prac. & Rem. Code Ann. § 71.004.......... 27

em Ge ee 27

Tex. Fam. Code Ann. § 3.008.............-...--08- 27

Bae. Fame. GES Ga. BT oc oc vecvecsesdéeutevess 27

‘wa, Pam, Come Bam. OTe occ cnsscosecsestesess 27

Tex. Fam. Code Ann. § 8.051. ...............0eeee- 27

Tex. Gov’t Code Ann. § 615.073. ................45. 28

Tex. Health & Safety Code Ann. § 85.007 ........... 20

Tex. Health & Safety Code Ann. § 166.039 .......... 26

Tex. Health & Safety Code Ann. § 85.007........... 20

Tex. Health & Safety Code Ann. § 711.004........... 26

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Tex. Prob. Code Ann. § 201.003.................... 26

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About Constitutional Assumptions, 103

i ED « cccecceeesoeecosoeoss 12

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Bowerstein, Ohio, as quoted in Kurt T. Lash, The

Fourteenth Amendment and the Privileges and

Immunities of American Citizenship (2014) .... - . 13

Mark Binker and Laura Leslie, Fact Check:

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Marriage Ban?, WRAL.com (Oct. 9, 2014),

http://www-wral.com/fact-check-did-60-percent-

of-nc-s-population-back-gay-marriage-ban-/

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and Same-Sex Marriage, Nw. U. Sch. Of

Law, Northwestern Public Law Research

Paper No. 14-51 (2014), available at http://

ssrn.com/abstract=2509443............ 6, 8, 25, 33

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eee Ee SE SES ocncccccecencscces

Mike Carson, Alabama GOP Chairman Bill

Armistead Says Same-sex Marriage Could Incur

God’s Wrath, AL.com (Feb. 11, 2015), http://

www.al.com/news/index.ssf/2015/02/

alabama_gop chairman bill armi.htm] ......

Kim Chandler, Couple in Ala. gay marriage case still

not allowed to adopt, Sun Herald (Feb. 24, 2015),

http://www.sunherald.com/2015/02/24/6088726/

couple-in-alabama-gay-marriage.html ........

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Fort Worth Star-Telegram, June 10, 2005 .....

Ashlea Ebeling, The Same Sex State Death Tax Trap

Post DOMA, Forbes (Jul. 1, 2013), http://www.

forbes.com/sites/ashleaebeling/2013/07/01/the-

same-sex-state-death-tax-trap-post-doma. ....

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Globe, 39th Congr., Ist Sess. ................

Jeff Guo, Arkansas Wants to Attract Businesses by

Allowing them to Discriminate Against Gay

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washingtonpost.com/blogs/govbeat/wp/2015/

02/17/arkansas-wants-to-attract-businesses-

by-allowing-them-to-discriminate-against-

EEE ecccsoccccceeeescenneseseeesess

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Globe, 39th Congr., Ist Sess. at 2286 (1866)... .

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Debates of 1858 (New York: Oxford University

Rachael Krause & Tim Seaman, After Being

Denied Certain V.A. Benefits, Norfolk Couple

Joins Fight Over Same Sex Marriage, www.

Siouxlandmatters.com (Jan. 21, 2015), http://

www.siouxlandmatters.com/story/d/story/

after-being-denied-certain-va-benefits-norfolk-

cou/84474/W JpgGDmaqak6sKoDaT YfxGw ....

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the Privileges and Immunities of American

Citizenship, 193 (2014). ..... 2.2.22... cece eens

Paige Lavender, Paul Stam, North Carolina

GOP Representative: Gay Marriage Leads to

Polygamy, Incest, Huffington Post (Aug. 31,2011),

http://www.huffingtonpost.com/2011/08/31/gay-

marriage-north-carolina_n_943336.html......

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16, 1854), available at http://www.nps.gov/liho/

historyculture/peoriaspeech.htm. ............

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soon

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politics/article9694028.html .................

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to marry is law in Alabama, Freedom to Marry

(Feb. 12, 2015), http-//www-.freedomtomarry.org/

blog/entry/federal-judge-rules-the-freedom-

to-marry-is-law-in-alabama .................

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27 J. Fam. Psychol. 194 (2013) ...............

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(Sept. 9, 2011), http://pulse.ncpolicywatch.org/

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alabama.gov/incometax/Tax-Guidance.pdf. ....... 28

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INTEREST OF AMICI

Amici are ninety-two plaintiffs who have challenged

the constitutionality of bans on marriage of same-sex

couples imposed by their home states of Alabama, Alaska,

Arkansas, Indiana, Kansas, Louisiana, Mississippi,

Missouri, Montana, Nebraska, North Carolina, North

Dakota, South Carolina, South Dakota and Texas.' This

brief addresses the Sixth Circuit’s question of “who

decides” whether the laws denying marriage to same-sex

couples unjustifiably treat amici and other gay men and

lesbians as second-class citizens. This brief shows that

using the customary tools of constitutional analysis — the

words and historical context of the Equa) Protection

Clause and this Court’s precedents — it is the federal

judiciary and ultimately this Court, not the states, that

decides that issue.

Who decides is critical to amici. This is because, under

the Sixth Circuit’s “leave it to the states” approach, the

political] reality in amicz’s home states offers no credible

prospect of achieving marriage for same-sex couples

through the legislative or electoral process for many years,

if ever. That reality inflicts real and tangible harms every

day on amici, their families, and countless other gay men

and lesbians who would — if they could — marry in their

home states.

1. Pursuant to Rules 37.3 and 37.6 of the Rules of the

Supreme Court, all parties have consented to the filing of this

amici curiae brief. No counsel for a party authored this brief in

whole or in part, and no counsel for a party made any monetary

contribution to fund the preparation or submission of this brief. In

addition, no persons or entities other than amici or their counsel

made a monetary contribution to the preparation or submission

of the brief.

Amici are a cross-section of Americans, and include

among them teachers, military and law enforcement

personnel, veterans, lawyers, medical professionals, small

business owners, and stay-at-home parents.? Some amici

have sought to marry in their home states, but have been

denied marriage licenses. Others have obtained marriage

licenses in jurisdictions that permit marriage of same-sex

couples, but their home states have denied recognition of

their marriages. All have filed lawsuits challenging their

home states’ denial of equal marriage rights as a violation

of due process and equal protection.*

STATEMENT AND SUMMARY OF ARGUMENT

Petitioners and their amici show many independent

grounds for holding that the Equal Protection and Due

Process Clauses of the Fourteenth Amendment prohibit

states from excluding same-sex couples from their

marriage laws. Although we support all of them, this

brief focuses on one issue in particular. The broad words

of the Equal Protection Clause provide that “[nJo State

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

protection of the laws.” As we show in Part I, the Clause’s

plain language, its historical background, and this Court’s

precedents all demonstrate that it is this Court that

2. The amici are identified individually in the Appendix.

3. Some amici reside in states where federal court decisions

that are no longer subject to appellate review invalidated state

bans against marriage for same-sex couples. Those amici do not

concede that an affirmance by this Court of the decision below

would affect the finality of those decisions or the invalidity of the

marriage bans they struck down. Amici who are awaiting a district

court or appellate decision do not suggest that those proceedings

should be delayed pending this Court’s decision, nor do they speak

for other plaintiffs in their cases.

decides whether a state’s denial to gay men and lesbians

of the protection of marriage unjustifiably singles them

out for treatment as second-class citizens in violation of

the Equal Protection Clause. The Sixth Circuit erred in

concluding that because denying those protections is a

“tradition” — recognized when the Clause was enacted and

extant in a number of states today — it is state legislatures

or electorates that have the final say.

Although under federalism the Court exercises its

constitutional role as the arbiter of the scope of the Equal

Protection Clause with restraint, we show in Part II that

the four factors most pertinent to the Equal Protection

Clause warrant ruling that states may not deny same-sex

couples the protections of marriage laws.‘ First, equal

protection is most necessary when there is discrimination

solely against an unpopular group. Gay men and lesbians

are such a historically-disadvantaged group. Second, the

Court has found that marriage between two consenting

adults is an important personal right. Third, denial of

the protection of marriage laws to same-sex couples

causes myriad real and deep harms to those couples and

their children. Fourth, especially when the first three

factors apply, the defenders of the law must at least show

a justification that the Court finds rational after careful

consideration. In these circumstances, pointing to a

so-called “tradition” of denying marriage for same-sex

couples, or the fact thai a number of states continue to

ban marriage of same-sex couples, neither constitutes nor

substitutes for the necessary showing.

4. Amici agree with Petitioners’ briefs that the Court should

apply heightened scrutiny here. This amicus brief demonstrates

that denial of same-sex couples’ right to marry fails under any

standard.

This Court’s enforcement of the Equal Protection

Clause is vital to amici because, although the Sixth Circuit

identifies legislative progress in some states in favor of

marriage for same-sex couples, amici reside in states with

long and continuing legislative records of hostility to the

rights of gay men and lesbians and of marriage for same-

sex couples in particular. Deferring to state legislatures

or electorates on this issue would mean upholding for

some considerable time legislation that specifically targets

gay and lesbian Americans for treatment as second-class

citizens. This Court should not grant its imprimatur

to the stigmatization and marginalization of same-sex

couples and their children resulting from the denial of the

many legal protections attendant to legally-recognized

marriage.

ARGUMENT

I. THE LANGUAGE AND HISTORY OF THE

EQUAL PROTECTION CLAUSE SUPPORTS

MARRIAGE FOR SAME-SEX COUPLES.

The decision below is based on a foundational

analytical flaw: It concluded that the Equal Protection

Clause allows states to deny marriage to same-sex couples

because states in 1868 did not recognize marriage of

same-sex couples. DeBoer v. Snyder, 772 F.3d 388, 403

(6th Cir. 2014). Because of this, the court reasoned, the

Equal Protection Clause could not have been intended

to apply to marriage of same-sex couples. Jd. at 403-04.

“Tradition,” said the Sixth Circuit, “reinforces the point”

because the idea that marriage only “exists” between a

man and a woman is still shared by “a significant number

of the States” today. Jd. This approach assumes its own

answer: that “equal” is a static codification of existing

practices in 1868 rather than a dynamic concept to be

explicated by the courts over time. As we demonstrate,

the Sixth Circuit’s assumption is wrong.

A. “Tradition” Is Not A Substitute For “Equal

Protection.”

The broad words of the Equal Protection Clause

strongly support Petitioners. Those words say: “No

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

the equal protection of the laws.” U.S. Const. amend.

XIV, § 1 (emphasis added). Everyone agrees that gay

men and lesbians are “persons” and that being legally

married provides myriad protections under state law.

(See infra Part II.) Nor does anyone dispute that states

that reject marriage for same-sex couples deny gay men

and lesbians those protections. This is critical because the

Equal Protection Clause guarantees “equal” protection,

not “traditional” protection. The framers of the Equal

Protection Clause chose language that is more demanding

than “tradition.” “The guaranty of equal protection of the

laws is a pledge of the protection of equal laws.” Romer

v. Evans, 517 U.S. 620, 633-34 (1998) (emphasis added;

quotations and citations omitted). Because laws that

reject marriage between same-sex couples single out

those couples for “disfavored legal status” and thereby

deprive them “in genera!” of government protections and

benefits, see Part II, infra, they constitute “a denial of

equal protection of the laws in the most literal sense,” and

therefore require judicial scrutiny. Romer, 517 U.S. at 633.

The Sixth Circuit erred in interpreting the Clause

such that “traditional” protection given by state laws in

1868 constitutes “equal protection” for all times. Such

a judicial gloss contradicts the history of the Equal

Protection Clause and the promise of equality it enshrines.

The framers of the 1787 Constitution undoubtedly had

believed in equality, as the Declaration of Independence

expressly stated that “all men are created equal.” This

itself was an understanding of equality that would have

been foreign in prior centuries dominated by monarchies

and feudalism. Yet, many believed in 1787 that equality was

compatible with government-enforced slavery of African

Americans, as the 1787 Constitution itself recognized

slavery. See, e.g., U.S. Const. art. I, § 2, cl. 3.

By 1868, the framers of the Fourteenth Amendment

unquestionably understood that recognition of what

government practices violated the dynamic concept of

equality had changed in the 81 years that had passed since

the 1787 Constitution. Indeed, that recognition had been

changing for thousands of years. It would make no sense

to use the word “equal” if those framers intended to stop

that dynamic process and thereby limit the guarantee of

“equal protection” to codifying practices in 1868.

The framers of the Equal Protection Clause rejected

narrower versions barring only unequal treatment

“because of race, color or previous servitude.” Steven G.

Calabresi & Hannah Begley, Originalism and Same-

Sex Marriage, Nw. U. Sch. Of Law, Northwestern Public

Law Research Paper No. 14-51 (2014), at 19 (“Calabresi

& Begley”) (citations omitted). Rather, the final, far more

expansive definition of equal protection “abolishe[d] all

class legislation in the States and d[id] away with the

injustice of subjecting one caste of persons to a code not

applicable to another.” Speech of Sen. Howard, April 30,

1866, Cong. Globe, 39th Congr., Ist Sess. at 2286 (1866)

(emphasis added). The Clause left it to the courts over

time to determine which laws impermissibly subjected a

caste or class of citizens to unjustifiable discrimination.

See Speech of Sen. Eliot, April 30, 1866, Cong. Globe, 39th

Congr., Ist Sess. at 2511 (describing Equal Protection as a

“doctrine” that bars all “State legislation discriminating

against classes of citizens”) (emphasis added).

This Court thus has the authority to decide when laws

constitute unconstitutional class legislation. See Romer,

517 U.S. at 650 (“Class legislation . . . [is] obnoxious to the

prohibitions of the Fourteenth Amendment .. ..”) (quoting

Civil Rights Cases, 109 U.S. 3, 24 (1883)). That is because

the “commitment to the law’s neutrality where the rights

of persons are at stake” is the dynamic “principle” that

“the Equal Protection Clause enforces.” Jd. at 623.

In contrast to the Equal Protection Clause, many

constitutional provisions are static. To use an obvious

example, when the Constitution says the President must

be 35 years old, the Constitution left no room for judicial

explication of what 35 means. U.S. Const. art. II, § 1.

However, this Court’s precedents correctly establish that

the Equal Protection Clause is dynamic.’ As Justice Black

5. Because of the concept of “equal,” this is a case where the

dynamic approach in this Court’s precedents and original meaning

produce the same result. Professor Calabresi, a co-founder of

the Federalist Society, is one of the foremost scholars on original

meaning. His article with Ms. Begley offers “an originalist

argument for the right of same-sex marriage” based on the

broad words in the Fourteenth Amendment. Briefly summarized,

under original meaning, what counts are the words used in the

Fourteenth Amendment, not the “intent” of the framers as to

how it would apply to existing practices. Jd. at 1. See also, Steven

G. Calabresi & Andrea Matthews, Originalism and Loving v.

Virginia, 2012 B.Y.U. L. Rev. 1393, 1462 (2012) (“Calabresi &

wrote for the Court in striking down Virginia’s poll tax:

the Equal Protection Clause is not shackled

to the political theory of a particular era. In

determining what lines are unconstitutionally

discriminatory, we have never been confined to

historic notions of equality . ... Notions of what

constitutes equal treatment for purposes of the

Equal Protection Clause do change.

Harper v. Virginia State Bd. of Elections, 383 U.S. 663,

669 (1966) (emphasis added).

The most famous illustration of this approach is

Brown v. Board of Education, 347 U.S. 483 (1954). This

Court expressly rejected the notion that what is “equal”

today is limited by the traditions existing in 1868. “[WJe

Matthews”) (“it is not the original expected applications of the

legal text that bind us, but it is instead the original public meaning”

of the words themselves). Professor Calabresi and Ms. Begiey show

that because “[t]he original public meaning of the [Fourteenth]

Amendment” is that it “bars all systems of caste and class-based

laws,” Calabresi & Begiey at 18-22 (citing numerous contemporary

sources), the Fourteenth Amendment “bars the creation of anti-

LGBT@Q legislation that aims to limit the rights of gay and lesbian

couples from marrying one another.” /d. at 24-27; see id. at 25 (“A

mark of caste is limits on intermarriage”); id. at 26 (denying gay

and lesbian couples, specifically, the tax, property, economic, and

health benefits of marriage “forces them into a form of second-

class citizenship”); id. (same-sex couples are “stigmatized and

socially relegated to a lesser, second-class form of citizenship as

a direct result of the bans against same-sex marriage”). See also

Calabresi & Matthews at 1427-29 (demonstrating that in 1868,

“equal” was a “synonym for the word ‘same’ and that ‘equal rights’

therefore are ‘the same rights.’”)

cannot turn the clock back to 1868 when the [Fourteenth]

Amendment was adopted, or even to 1896 when Plessy

v. Ferguson was written.” Jd. at 492. To the contrary,

this Court “consider[ed] public education in light of its

full development and its present place in American

life,” including certain “[in}tangible” factors that were

not fully appreciated when Plessy was decided. Jd. at

492-93 (emphasis added). Viewed through that lens,

contemporary analyses of the psychological effects of

segregation demonstrated that separate was not “equal”

at all. Jd. at 494-95. “Whatever may have been the extent

of psychological knowledge at the time of Plessy v.

Ferguson,” the Court held, “modern authority” amply

supported the determination that racial segregation in

schools violated the Equal Protection Clause. Jd. at 494

(emphasis added). Thus the Court did not overrule Plessy

as wrongly decided, but instead concluded that a dynamic

understanding of equal protection required a different

decision in 1954. Id. at 495.

That same understanding underlay Loving v.

Virginia, 388 U.S. 1 (1967). In seeking to defend

Virginia's “miscegenation” statute, the state argued “that

the Framers did not intend the Amendment to make

unconstitutional state miscegenation laws,” pointing to

statements made in the Thirty-ninth Congress “about

the time” of its passage. Jd. at 9. Notwithstanding

the contemporaneous, broad disapproval of marriage

of persons of different races when the Fourteenth

Amendment was enacted, id. at 6, and legislation barring

the practice in 16 states at the time of the Court’s decision,

id. at 6 n.5, Loving nonetheless held that no state could

deny the right of a person to choose his or her marriage

partner, regardless of race, id. at 12.

“History” and “tradition” have likewise been rejected

by this Court as a constitutionally-sufficient justification

for the treatment of women as second-class citizens. See,

e.g., Frontiero v. Richardson, 411 U.S. 677, 684 (1973)

(noting the Nation’s “long and unfortunate history of sex

discrimination” in invalidating unequal requirements in

federal benefits statute); United States v. Virginia, 518

U.S. 515, 531 (1996) (applying “skeptical scrutiny” under

the Equal Protection Clause to state’s traditional exclusion

of women from its military academy).

There is simply no basis for a one-size-fits-all approach

under which provisions of the Constitution — no matter

their language or historical context — are all static or all

dynamic. For example, Trop v. Dulles, 356 U.S. 86, 100

(1958), held that the “scope” of what constitutes “cruel

and unusual punishment” is “not static” and could not

be cabined by prior practices. Jd. at 100-01. The Eighth

Amendment, the Court observed, “must draw its meaning

from the evolving standards of decency that mark the

progress of a maturing society.” Jd. (emphasis added).

Applying those standards, the Court later relied on

modern “scientific and sociological studies” to explicate

what constituted “cruel and unusual” punishment. Roper

v. Simmons, 543 U.S. 551, 562, 568-69 (2005). The Due

Process Clause has also been used to invalidate long-

standing practices that a majority of states still followed.

See, e.g., Fuentes v. Shevin, 407 U.S. 67, 96-97 (1972)

(prejudgment replevin statutes violated Due Process

Clause notwithstanding their existence in “almost all the

States”) (White J., dissenting).

Indeed, it would hardly make sense that all

constitutional provisions are static, when that is not

even true for all statutory provisions. In construing the

Sherman Act, for example, this Court held that the term

“restraint of trade” had inherently “dynamic potential”

which enabled the courts to change what practices the

statute barred and permitted based on “varying times

and circumstances.” Bus. Elecs. Corp. v. Sharp Elecs.

Corp., 485 U.S. 717, 731-32 (1988) (Scalia, J., for the Court)

(emphasis added); see also Towne v. Eisner, 245 U.S. 418,

425 (1918) (Holmes, J., for the Court) (in both statutory

and constitutiunal provisions, sometimes “[a] word is not

a crystal, transparent and unchanged, it is the skin of a

living thought and may vary greatly in color and content

according to the circumstances and time in which it is

used”); Browder v. United States, 312 U.S. 335, 339—40

(1941) (new, unforeseen “use” of passport). In short, some

“fwjords in statutes can enlarge or contract their scope

as other changes, in law or in the world, require their

application to new instances or make old applications

anachronistic.” West v. Gibson, 527 U.S. 212, 218 (1999).

The Sixth Circuit’s analogy to principles of contract

interpretation is misplaced. The Sixth Circuit reasoned

that, when “two individuals sign a contract to sell a house,

no one thinks that, years down the road, one party to the

contract may change the terms of the deal. That is why

the parties put the agreement in writing and signed it

publicly — to prevent changed perceptions and needs from

changing the guarantees in the agreement.” DeBoer,

772 F.3d at 403. The analogy fails because the terms

of a contract to sell a house are static: the house, price,

and date of delivery do not change with time. Instead,

imagine an 1868 contract that required the promisor to

use “reasonable practices” to deliver goods for 150 years.

A horse-drawn delivery wagon would suffice in 1868, but it

would not in 2015. Moreover, the Constitution is not akin to

a private contract, not least because it governs people who

never signed it. See Randy E. Barnett, The Misconceived

Assumption About Constitutional Assumptions, 103

Nw. U. L. Rev. 615, 617-18 (2009) (“Constitutions are not

contracts. With a contract, all parties must consent to be

bound. With a constitution, this is impossible. Constitutions

must necessarily lack the unanimous consent of all persons

upon whom they are imposed.”) (footnote omitted).

In sum, whether government practices existed in

1868 is not the touchstone of “equal protection.” Thus, the

lack of legislative or public acceptance at the time of the

Fourteenth Amendment’s enactment does not preclude the

Court from deciding that state laws banning marriage of

same-sex couples unjustifiably treat gay men and lesbians

as second-class citizens and thus deny them “the equal

protection of the laws.”

B. It Is The Court, Not State Legislatures,

That Ultimately Decides Whether States Are

Denying “Equal Protection.”

Just as some constitutional provisions are dynamic,

some constitutional provisions permit less deference than

others to current majorities in some states. In particular,

the federal] judiciary and ultimately this Court, not state

legislatures or voters, decide the scope of the Equal

Protection Clause.

The framers of the Clause surely understood this

in 1868. That was 65 years after Chief Justice John

Marshall famously declared it “the province and duty of

the Judicial Department to say what the law is.” Marbury

v. Madison, 5 U.S. 137, 177 (1803). In the intervening

years, the Court had repeatedly struck down state laws

as violating various constitutional limits on state laws.

See, e.g., McCullough v. Maryland, 17 U.S. 316 (1819)

(Supremacy Clause); Trustees of Dartmouth College v.

Woodward, 17 U.S. 518 (1819) (Contract Clause); Fletcher

v. Peck, 10 U.S. 87 (1810) (same). It was against this

background of judicial enforcement that the Fourteenth

Amendment was adopted as “a limitation upon the States

to correct their abuses of power.” John Bingham, Aug. 24,

1866, Speech at Bowerstein, Ohio, as quoted in Kurt T.

Lash, The Fourteenth Amendment and the Privileges and

Immunities of American Citizenship, 193 (2014).

“Leave it to the States” is inconsistent with the

circumstances that led to adoption of the Equal Protection

Clause and its language. To start, before the Civil War,

many Northern (and some Southern) Democrats who

opposed abolition relied heavily on an argument called

“Popular Sovereignty.” James M. McPherson, Battle Cry

of Freedom: The Civil War Era, 58, 62 (1988). Proponents

of “Popular Sovereignty” argued that on divisive issues,

such as slavery, decisions should be left to the majority of

voters in each state as part of their “sacred right of self-

government.” Jd. at 128 (quoting Stephen A. Douglas);

see also Michael Morrison, The Republic in Peril:

Expansion, the Politics of Slavery, and the Crisis of the

1850s, 440-41 (Andrew Shankman ed., 2014) (“Moderate

democrats such as presidential hopeful Lewis Cass then

advanced the position of non-interference or, as it became

known, popular sovereignty . . . Most important, limited

government and non-interference in the local affairs of

citizens resonated with the longstanding principles of the

Democratic party . . .”).

“Popular Sovereignty” as a means of determining

equality was thoroughly rejected by the generation

that produced the Fourteenth Amendment. Abraham

Lincoln called “Popular Sovereignty” a “living, creeping

lie from the time of its introduction to today.” Robert

W. Johannsen, ed., The Lincoln-Douglas Debates of

1858 (New York: Oxford University Press, 1965), 309-10.

Lincoln specifically explained why “Popular Sovereignty”

could not be the arbiter of equality: “Near eighty years

ago we began by declaring that all men are created equal;

but now from that beginning we have run down to the

other declaration, that for some men to enslave others

is a ‘sacred right of self-government.’ These principles

can not stand together. They are as opposite as God and

mammon; and whoever holds to the one, must despise

the other.” Abraham Lincoln, Speech at Peoria, Illinois

(Oct. 16, 1854), available at http://www.nps.gov/liho/

historyculture/peoriaspeech.htm. “This eloquent speech

expressed the platform of the new Republican party.”

James M. McPherson, supra, at 129.

The Equal Protection Clause was part of the triumph

of the party that opposed “Popular Sovereignty.” It

therefore makes no sense to view the Equal Protection

Clause as enshrining a central argument of the proponents

of “Popular Sovereignty.” To do so would not be to

embrace judicial restraint, but rather to abdicate this

Court’s intended and historic role to determine whether

a law treats a group as second-class citizens and thereby

violates the Equal Protection Clause.

As history reveals, the argument that a political

majority in numerous states provides the final resolution

of what constitutes “equality,” through legislative act or

public referendum, has no limits. It was invoked against

abolition in the 1850s just as it is invoked today against

marriage for same-sex couples. And if the response today

is that the denial of freedom to slaves is less justifiable

than the denial of any protection of the marriage laws

to same-sex couples, the need to make that comparison

proves our point: support by a majority in multiple states

for a type of law has never been a dispositive criterion for

whether a law denies equal protection. Thus, the directive

of the Equal Protection Clause that “No state” shall deny

any person the equal protection of the laws applies when

any state violates that guarantee and when many states

do.

This Court’s jurisprudence correctly holds that

appeals to “popular sovereignty” do not suffice to

immunize laws — even if passed by political majorities

— from equal protection review. See City of Cleburne v.

Cleburne Living Ctr., 473 U.S. 432, 448 (1985) (“It is plain

that the electorate as a whole, whether by referendum or

otherwise, could not order [government] action violative

of the Equal Protection Clause, and the [government] may

not avoid the strictures of that Clause by deferring to the

wishes or objections of some fraction of the body politic.”)

(internal citation omitted); Lucas v. Forty-Fourth Gen.

Assembly of Colo., 377 U.S. 713, 736-37 (1964) (“A citizen’s

constitutional rights can hardly be infringed simply

because a majority of the people choose that it be.”); W.

Virginia Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943)

(“[F Jundamental rights may not be submitted to a vote;

they depend on the outcome of no elections.”).

That is so even when the “popular” support for

particular discrimination is long-standing and traditional.

This Court has not “hesitated to strike down an invidious

classification even though it had history and tradition on its

side.” Levy v. Louisiana, 391 U.S. 68, 71 (1968); see also

Heller v. Doe, 509 U.S. 312, 326 (1993) (“Ancient lineage

of a legal concept does not give it immunity from attack

for lacking rational basis.”).

This Court has specifically rejected the continuing

adherence by many states to a “tradition” as a rationale

for denying equal access to marriage. In Loving, the

Court rejected Virginia’s argument that the tradition of

denying “interracial” marriage, which remained the law

of 16 states at the time, was a justification for denying

marriage rights to “interracial” couples. Loving, 388

U.S. at 6, 12; Loving v. Virginia, Br. and App. on Behalf

of Appellee, No. 395, 1967 WL 93641, *6 (Mar. 20, 1967).

Loving held instead that, even though “marriage is a

social relation subject to the State’s police power,” a

state’s powers to regulate marriage remains subject to

the commands of the Fourteenth Amendment. Loving, 388

U.S. at 7. Windsor reaffirmed that principle, noting that

“(s]tate laws defining and regulating marriage, of course,

must respect the constitutional rights of persons.” United

States v. Windsor, 133 S. Ct. 2675, 2691 (2013); see also zd.

at 2692 (“The States’ interest in defining and regulating

the marital relation, subject to constitutional guarantees,

stems from the understanding that marriage is more than

a routine classification for purposes of certain statutory

benefits.”) (emphasis added).

Tradition has likewise been rejected as a rational basis

for discrimination by multiple states against same-sex

sexual relationships. See Lawrence v. Texas, 539 U.S. 558,

567 (2003) (that “many States” had made same-sex sexual

relationships illegal “for a very long time” was not sufficient

to justify discrimination against those relationships). For

this Court to endorse ongoing “tradition” as a basis for

discrimination against gay and lesbian Americans could

open the door to attempts to justify discrimination against

them in many areas of state law.

Nor may a court evade its obligation to enforce the

Equal Protection Clause by relying, as the Sixth Circuit

appears to have done, on progress in state recognition of

marriage equality and the “assumption that the future

holds more promise than the past.” DeBoer, 772 F.3d

388 at 415. Of the 37 states where marriage of same-sex

couples is currently permitted, only 11 states reached that

point through voter referenda or legislative enactment.°

While that progress is welcome, it provides no basis for

the Court to pass on the constitutional challenge raised by

Petitioners. Indeed, by the time the Court decided Loving

in 1967, the trend toward repeal of states’ “miscegenation”

laws was well under way, with 34 states having repealed

such laws. See Loving, 388 U.S. at 6. Yet, that did not stop

this Court from deciding the constitutional issue before it.

6. Those states are Delaware, Hawaii, Illinois, Maine,

Maryland, Minnesota, New Hampshire, New York, Rhode Island,

Vermont and Washington. In five other states (Connecticut, Iowa,

Massachusetts, New Mexico and New Jersey), state court decisions

led to the recognition of marriage equality, and efforts to amend

those states’ constitutions to ban such recognition have been

unsuccessful. See generally States, Freedom to Marry (Feb. 28,

2015), http://www.freedomtomarry.org /states/.

As this Court held over 50 years ago, “the basic

guarantees of our Constitution are warrants for the

here and now and, unless there is an overwhelmingly

compelling reason, they are to be promptly fulfilled.”

Watson v. City of Memphis, 373 U.S. 526, 533 (1963).

This Court, for example, has refused to delay enforcing

the Equal Protection rights of women on account of

political progress. See, e.g., Frontiero 411 U.S. at 688,

692 (rejecting dissent’s argument to defer applying

heightened scrutiny to gender discrimination because the

Equal Rights Amendment might be “in [the] process” of

resolving the issue).

The Sixth Circuit’s “wait-and-see” approach provides

little, if any, comfort to amici and other same-sex couples

who live in states where the likelihood of marriage

equality being achieved in the foreseeable future through

the legislative or electoral process is dubious. One need

look no further than the reaction in Alabama to a federal

court decision finding the state’s ban on marriage of

Same-sex couples unconstitutional. When efforts to stay

that ruling failed, thereby opening the door for Alabama’s

probate judges to begin issuing marriage licenses to

same-sex couples immediately, the elected Chief Justice

of the Alabama Supreme Court, Roy S. Moore, issued an

order, sua sponte, directing the state probate judges not

to comply with the federal court decision. Administrative

Order of the Chief Justice of the Supreme Court (Feb.

8, 2015), http://media.al.com/news_impact/other/Moore-

order-to-judges.pdf.

Chief Justice Moore’s intervention was heeded by

many elected county probate judges, some of whom went

so far as to stop issuing licenses to any couples seeking to

get married. See Lily Hiott-Millis, Federal judge rules:

the freedom to marry is law in Alabama, Freedom to

Marry (Feb. 12, 2015), http://www.freedomtomarry. org/

blog/entry/federal-judge-rules-the-freedom-to-marry-

is-law-in-alabama (reporting that only “23 counties were

issuing marriage licenses to same-sex couples, with

many of the counties that were not issuing marriage

licenses to same-sex couples also not issuing to different-

sex couples.”) Chief Justice Moore was also praised by

senior political figures in Alabama, including William

Armistead, the former state senator who sponsored the

1998 bill that became the Alabama Marriage Protection

Act, who said: “I definitely support Judge Moore and the

way he’s approaching this” issue. Mike Carson, Alabama

GOP Chairman Bill Armistead Says Same-sex Marriage

Could Incur God’s Wrath, AL.com (Feb. 11, 2015), http://

www.al.com/news/index.ssf/2015/02/alabama_gop _

chairman_bill armi.html. The Chief Justice’s instruction

to Alabama probate judges prohibiting the issuance of

marriage licenses to same-sex couples has since been

confirmed by a 6-1 decision of the Alabama Supreme

Court. See Ex parte Alabama ez rel. Alabama Policy

Institute, No. 1140460, 2015 WL 892752, at *43 (Ala. Mar.

3, 2015); id. at *40 (finding that Windsor’s “equal dignity’

rationale . . . appears to be a legal proxy for invalidating

laws federal judges don’t like.”).

Likewise, when tjere was a recent attempt

in Fayetteville, Arkansas to enact a law barring

discrimination against several classes of individuals,

including “homosexuals,” the Arkansas state legislature

passed a bill prohibiting cities and counties from enacting

such anti-discrimination laws. Jeff Guo, Arkansas Wants

to Attract Businesses by Allowing them to Discriminate

Against Gay People, Wash. Post (Feb. 17, 2015), http://

www.washingtonpost.com/ blogs/govbeat/wp/2015/02/17/

arkansas-wants-to-attract-businesses-by-allowing-them-

to-discriminate-against-gay-people/. The law passed with

wide majorities in both houses, despite one representative

reminding his colleagues during floor debate that a similar

Colorado ordinance was struck down as unconstitutional

in Romer. Id.

The continuing hostile climate in some states has

revealed many state officials’ unapologetic animus

toward gay men and lesbians. In Texas, notwithstanding

Lawrence, section 85.007 of the Texas Health and Safety

Code provides that state education programs for minors

concerning HIV prevention “must state that homosexual

conduct is not an acceptable lifestyle and is a criminal

offense under Section 21.06, Penal Code.” Tex. Health

& Safety Code Ann. § 85.007. And when asked what he

would tell gay and lesbian veterans returning to Texas

from the Iraq war, then-Governor Rick Perry responded:

“Texas has made a decision on marriage, and if there’s

a state with more lenient views than Texas, then maybe

that’s where they should live.” R.A. Dyer, Gay-rights

group demands apology, Fort Worth Star-Telegram,

June 10, 2005, at B5; see also Rachel Stone, Same-Sex

Marriage Ban Goes to Perry; Governor Expected to Sign

Bill that Got Only 9 ‘No’ Votes in House, San Antonio

Express-News, May 1, 2003, at 6A (quoting former state

representative Warren Chisum, proponent of the Texas

statute banning recognition for out-of-state marriages of

same-sex couples: “This bill does discriminate. It allows

only for a man and a woman to be married in this state

and to be recognized as married in this state. This bill

does discriminate against any other kind of marriage.”)

(emphasis added).

More recently, North Carolina’s legislature put forth a

successful ballot initiative to amend the state constitution

to prohibit recognition of marriages of same-sex couples.

See Mark Binker and Laura Leslie, Fact Check: Did

60 percent of NC’s Population Back Gay Marriage

Ban?, WRAL.com (Oct. 9, 2014), http://www.wral.com/

fact-check-did-60-percent-of-nc-s-population-back-gay-

marriage-ban-/14063284/. In proposing the ban, numerous

legislators expressed animus against gay and lesbian

Americans. See, e.g., Rob Schofield, Anti-gay lawmakers

speak their (very troubled) minds, The Progressive Pulse

(Sept. 9, 2011), http://pulse.ncpolicywatch.org/2011/09/09/

anti-gay-lawmakers-speak-their-very-troubled-minds

(quoting State Senator James Forrester: “We need to

reach out to them and get them to change their lifestyle

back to the one we accept”; “[The City of Asheville,

North Carolina is) a cesspool of sin.”); Paige Lavender

& Paul Stam, North Carolina GOP Representative: Gay

Marriage Leads to Polygamy, Incest, HUFFINGTON

POST (Aug. 31, 2011), http://www.huffingtonpost.

com/2011/08/31/gay-marriage-north-carolina_n_943336.

html (quoting House Majority Leader Pau! “Skip” Stam:

“[YJou cannot construct an argument for same sex-

marriage that would not also justify philosophically the

legalization of polygamy and adult incest,” and that “[iJn

countries around the world where they legitimized same-

sex marriage, marriage itself is delegitimized.”)

Recent developments in Kansas serve as a reminder

that, when the rights of gay and lesbian citizens are

subject to the vagaries of state politics, progress is not

irrevocable. In February 2015, Governor Sam Brownback

rescinded an executive order prohibiting harassment and

discrimination against gay and lesbian state workers

that had been signed into law in 2007 by then-Governor

Kathleen Sebelius. Bryan Lowry, Gov. Sam Brownback

Rescinds protected-class status for LGBT state workers

in Kansas, Kan. City Star (Feb. 10, 2015), http://www.

kansascity.com/news/ government-politics/article9694028.

html.

The question of marriage for same-sex couples is not

a partisan issue and amici oppose making it a partisan

issue. To the contrary, amici appreciate that there are

many Republicans, including state legislators, who

support marriage equality. See Brief of Amici Curiae

Kenneth B. Mehlman et al. Supporting Pet’rs, Obergefell

v. Hodges, No. 14-556 (Mar. 2015). But the unavoidable

reality is that ours is a two-party system, where most

genera! election voters have no choice except between

each of two candidates who reflect their views on some

issues but not others. One of our two parties officially

remains opposed to marriage of same-sex couples. See,

e.g.. Republican Platform: Renewing American Values,

Preserving and Protecting Traditional Marriage, https://

www.gop.com/platform/renewing-american-values/ (Mar.

4, 2015) (“{[T]Jhe union of one man and one woman must

be upheld as the national standard. . .”). Voting based on

a wide variety of issues, voters have elected that party to

control the legislature of every state in which amici live

and the governorship of all but three of those states. For a

governor or majority state legislator in those states to go

against his or her party on this issue takes extraordinary

political courage, as it virtually guarantees a primary

fight for reelection.

As we show infra in Part II, with each passing day,

there are real people who suffer real harms from the

denial of equal marriage. It is simply no answer to say

that the wheels of the political process are, or may one

day be, in motion. Rather, “[i]t is a judge’s duty to decide

all cases within his jurisdiction that are brought before

him, including controversial cases that arouse the most

intense feelings in the litigants.” Pierson v. Ray, 386 U.S.

547, 554 (1967).

Il. THE COURT SHOULD EXERCISE ITS

AUTHORITY TO EXPLICATE “EQUAL

PROTECTION” TO BAR STATES FROM

DENYING SAME-SEX COUPLES THE

PROTECTIONS OF MARRIAGE LAWS.

Although this Court is constitutionally charged with

deciding the contours of the dynamic concept of “equa!”

in the Equal Protection Clause, respect for federalism

has led this Court to show restraint in its exercise of

that power. In this case, however, all four factors that

customarily warrant exercising that authority plainly

apply.

First, the most deferential form of rational basis

review applies only where the challenged law “neither

proceeds along suspect lines nor infringes fundamental

constitutional rights.” FCC v. Beach Comme’'ns, Inc., 508

U.S. 307, 313 (1993); see also Pet’rs’ Br. at 30, DeBoer v.

Snyder, No. 14-571 (Feb. 27, 2015); Pet’rs’ Br. at 49-50,

Obergefell v. Hodges, No.14-556 (Feb. 27, 2015); Pet’rs’ Br.

at 46, Bourke v. Beshear, No. 14-574 (Feb. 27, 2015); Pet’rs’

Br. at 46, Tanco v. Haslam, No. 14-562 (Feb. 27, 2015).

“When a law exhibits . . . a desire to harm a politically

unpopular group,” by contrast, the Court has “applied a

more searching form of rational basis review to strike

down such laws under the Equal Protection Clause.”

Lawrence, 539 U.S. at 580 (O’Connor, J., concurring). In

particular, Windsor applied “careful consideration” to

DOMA because, like the state laws here, it imposed “a

disadvantage, a separate status, and so a stigma upon all

who enter into same-sex marriages.” Windsor, 133 S. Ct.

at 2693. Just as the First Amendment is most needed for

laws against unpopular speech, see, e.g., Texas v. Johnson,

491 U.S. 397, 421 (1989) (Kennedy, J., concurring), the

Equal Protection Clause is most needed for laws applying

only to an unpopular group. Romer, 517 U.S. at 634

(“[I}f the constitutional conception of ‘equal protection of

the laws’ means anything, it must at the very least mean

that a bare . .. desire to harm a politically unpopular group

cannot constitute a legitimate governmental interest”)

(citation omitted).

This Court has specifically recognized gay men and

lesbians as a politically unpopular group, warranting

careful consideration of laws that impose disparate

treatment of them. See Windsor, 133 S. Ct. at 2693-94

(describing same-sex couples as being part of “a politically

unpopular group”) (quotation omitted). Based in part on

this historic status, the Court has rejected “tradition”

as an alleged rational basis for laws targeting them.

See Windsor, 133 S. Ct. at 2693, 2696. In striking down

Texas’s sodomy law, this Court held: “(T]he fact that the

governing majority in a State has traditionally viewed a

particular practice as immoral is not a sufficient reason

for upholding a law prohibiting the practice; [just as}

neither history nor tradition could save a law prohibiting

miscegenation from constitutional attack.” Lawrence, 539

U.S. at 577-78 (quoting Bowers v. Hardwick, 478 U.S. 186,

216 (1986) (Stevens, J., dissenting)).

Second, the Court has recognized marriage between

two consenting adults as an important personal right and

that federal and state laws impacting access to marriage

merit closer scrutiny. Loving, 388 U.S. at 12 (marriage is

a “vital personal right[{] essential to the orderly pursuit

of happiness by free men”); see also Turner v. Safley,

482 U.S. 78, 94-96 (1987) (prisoners entitled to the

fundamental! right to marry); Zablocki v. Redhail, 434

U.S. 374, 384 (1978) (debtors owing child support have a

fundamental right to marry); Maynard v. Hill, 125 U.S.

190, 205 (1888) (marriage is “the most important relation

in life”).

Third, the denial to same-sex couples of the protection

of the marriage laws causes “immediate, continuing, and

real injuries.” Romer, 517 U.S. at 635. To start, this denial

stigmatizes gay and lesbian couples and classifies them

as second-class citizens. See Windsor, 133 S. Ct. at 2692

(denying marriage to same-sex couples is an “injury and

indignity [that] is a deprivation of an essential part of the

liberty protected by the Fifth Amendment.”). They may

co-habit, but they are denied the dignity of standing before

friends, family, and their communities and entering into

a legally recognized marriage. See Calabresi & Begley at

25 (“A mark of caste is a limit on intermarriage.”)

Moreover, states that deny same-sex couples the

protection of the marriage laws consign gay and lesbian

Americans repeatedly to second-class status under a

variety of intertwined state laws. They are thus denied:

¢ The right to make caretaking decisions and

exercise other rights in times of death and

disaster.’

¢ The right to make end of life and burial decisions.*

¢ The right to inherit the property of a spouse who

dies intestate.°

¢ The right to obtain spousal support and divide

communal assets if their union dissolves.”

7. Ala. Code §§ 22-8A-11, 26-2A-104; Alaska Stat. § 13.26.095;

Ark. Code Ann. § 20-9-602; Ind. Code §§ 16-36-4-13, 16-39-2-10,

4-2; Miss. Code Ann. § 41-41-211; Mo. Rev. Stat § 475.050; Mont.

Code Ann. §§ 40-2-108, 50-9-106; N.D. Cent. Code § 30.1-28-11;

S.C. Code Ann. § 44-66-30; S.D. Codified laws § 29A-5-305; Tex.

Health & Safety Code Ann. § 166.039.

8. Ala. Code §§ 22-8A-11(d), 34-13-11(a); Alaska Stat. §§

13.52.010, 197; Ark. Code Ann. § 20-17-214; Ind. Code §§ 16-36-1-5,

2-3, 16-39-1-3, 7.1-5; Miss. Code Ann. § 73-11-58; Mo. Rev. Stat. §

194.119; N.C. Gen. Stat. § 90-322; N.C. Gen. Stat. § 130A-420(b);

Mont. Code Ann. §§ 40-2-108, 50-16-804; N.D. Cent. Code §§ 23-

06-02, 03; S.C. Code Ann. §§ 32-8-320; 44-66-30; S.D. Codified laws

§§ 34-26-2, 4, 14, 16; Tex. Health & Safety Code Ann. § 711.004.

9. Ala. Code §§ 43-8-41, 70, 74, 110-112; Alaska Stat. §

13.12.102; Ark. Code Ann. § 28-11-102, 28-39-101, 301; Ind. Code

§§ 29-1-2-1, 29-1-3-1(a), 29-1-4-1; Miss. Code Ann. §§ 91-1-7, 91-5-

25, 91-5-27; Mo. Rev. Stat. § 474.010; Mont. Code Ann. § 72-2-112;

N.C. Gen. Stat. § 29-14; N.D. Cent. Code §§ 30.1-04-02, 07-02; S.C.

Code Ann. §§ 62-2-102, 201, 301; S.D. Codified laws §§ 29A-2-102,

301; Tex. Prob. Code Ann. § 201.003.

10. Ala. Code §§ 30-2-50-52; Alaska Stat. § 25.24.160; Ark.

Code Ann. §§ 9-12-309, 312; Ind. Code § 31-15-2-17; Miss. Code

Ann. §§ 93-5-2, 23; Mo. Rev. Stat. §§ 452.305, 315; Mont. Code §§

¢ Theright to bring an action for wrongful death of

a spouse."

¢ The evidentiary protection of their personal,

marital communications in the courts.”

¢ The rights afforded to a surviving spouse for

worker’s compensation, disability or pensions."

¢ The benefits that married state employees enjoy,

such as the right to coverage under their spouse’s

health insurance."

40-4-104, 121; N.C. Gen. Stat. §§ 50-16.3A, 51; N.D. Cent. Code §§

14-05-23, 24; S.C. Code Ann. §§ 20-3-120, 130, 610; S.D. Codified

Laws §§ 25-4-38-41, 44; Tex. Fam. Code Ann. §§ 7.001, 7.003, 8.051.

11. Ala. Code §§ 25-5-31, 34-23-1-1; Alaska Stat. § 09.55.580;

Ark. Code Ann. § 16-62-102(d); Miss. Code Ann. § 11-7-13; Mo.

Rev. Stat. § 537.080; Mont. Code Ann. §§ 40-2-108, 27-1-513; N.C.

Gen. Stat. §§ 28A-4-1, 18-2; N.D. Cent. Code § 32-21-03; S.C. Code

Ann. § 15-51-20; S.D. Codified laws § 21-5-5; Tex. Civ. Prac. &

Rem. Code Ann. § 71.004.

12. Ala. R. Evid. 504; Alaska R. Evid. 505; Ark. R. Evid. 504;

Ind. Code § 34-46-3-1(4); Miss. R. Evid. 504, 601(a); Mo. Rev. Stat.

§ 546.260; Mont. Code Ann. § 46-16-212; N.C. Gen. Stat. $§ 8-56,

57; N.D. R. Evid. 504; S.C. Code Ann. § 19-11-30; S.D. Codified

laws §§ 19-13-12, 13; Tex. R. Evid. 504.

13. Ala. Code §§ 11-40-17, 18, 18.1, 25-5-57; Ark. Code Ann.

§§ 24-11-425, 24-6-216, 24-4-608, 24-7-710; Ind. Code § 22-3-3-19;

Miss. Code Ann. §§ 21-29-329, 25-11-114, 25-13-13, 71-3-25; Mo.

Rev. Stat. §§ 103.005, 104.012; Mont. Code Ann. § 39-71-723; N.C.

Gen. Stat. § 97-39; N.D. Cent. Code § 65-05-12.2; S.C. Code Ann.

§§ 42-9-110, 280, 290; S.D. Codified Laws §$§ 3-12-95.6, 3-13A-15;

Tex. Labor Code § 408.182; Tex. Fam. Code Ann. §§ 3.007, 3.008.

14. Ala. Code § 36-29-7; Ark. Code Ann. §§ 24-10-617, 24-12-

117; Miss. Code Ann. § 25-15-13; Mo. Rev. Stat. § 103.005; Mont.

¢ The right to file joint tax returns."

Children of same-sex parent couples likewise suffer

real and substantial harm from states’ denial of equal

recognition of their parents’ marriages. Equal Protection

ensures that children of same-sex couples are not subject

to the stigma of second-class treatment and discrimination

based on factors outside of their control." See, e.g.,

Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164, 175-76

(1972) (worker’s compensation giving “unacknowledged

illegitimate children” lower priority than “legitimate

children” in benefits violated equal protection). “Obviously,

no child is responsible for his birth and penalizing the

[] child is an ineffectual — as well as an unjust — way of

deterring the parent.” Jd. at 175.

Code Ann. § 2-18-704; N.C. Gen. Stat. § 135-48.40; N.D. Cent.

Code §§ 54-52.1-03, 07; S.C. Code Ann. § 1-11-730; S.D. Codified

laws § 3-6E-7; Tex. Gov’t Code Ann. § 615.073.

15. See, e.g., Ala. Code § 40-18-5; Employee Benefits Legal

Resource Site, Tax Guidance: Alabama Income Taz Filing

Status for Same-Sex Couples (Feb. 28, 2015), https://web.archive.

org/web/20140909194610/http://revenue.alabama.gov/incometax/

Tax-Guidance.pdf (archiving a tax guidance originally published

on the State’s Department of Revenue website); N.D. Cent. Code

§ 57-38-30.3, 68; S.C. Code Ann. § 12-6-5000; S.C. Dep’t of Rev.,

Dir. William M. Blume, Jr., SC Revenue Ruling #14-1 (Feb. 3, 2014)

(same-sex couples must “prepare their South Carolina returns as

though they are single”).

16. Amici respectfully direct the Court to the Brief of Amici

Curiae Scholars of the Constitutional Rights of Children in Support

of Petitioners, which details (1) this Court’s precedent establishing

that the equal protection rights of children are violated by laws

that punish children for matters beyond their control (such as

illegitimacy), and (2) the unjustifiable legal, economic and social

harm to children of same-sex couples caused by state marriage bans.

Prohibitions on marriage for same-sex couples

function to stigmatize children based on the sexual

orientation of their parents, and in certain states also

deprive the children among amici of adoptions that would

otherwise be in their best interests. Some states have

refused to issue birth certificates for children adopted by

same-sex couples bearing both parents’ names, and other

state laws bar the second-parent adoption of a child unless

its parents are legally married. See Elena Schnieder,

Seeking the State’s Legal Recognition of Two Same-Sex

Parents, N.Y. Times (Jan. 26, 2013), http://www.nytimes.

com/2013/01/27/us/gay-couples-seek-texas-recognition-as-

legal-parents.html. Indeed, just last month in Alabama,

Cari Searcy was denied the right to adopt her wife’s

nine-year-old biological son, whom the couple has raised

together since his birth. Kim Chandler, Couple in Ala. gay

marriage case still not allowed to adopt, Sun Herald (Feb.

24, 2015), http://~www.sunherald.com/2015/02/24/6088726/

couple-in-alabama-gay-marriage.html.

Children of same-sex couples, moreover, suffer unique

harms when their parents’ marriage is deprived of legal

recognition. As the district court in one of the cases before

this Court explained, children of same-sex couples face

“an imminent risk of potential harm .. . during their

developing years from the stigmatization and denigration

of their family relationship.” Tanco v. Haslam, No. 3:13-

cev-01159, 2014 WL 997425, at *7 (M.D. Tenn. Mar. 14,

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

cert. granted 135 S. Ct. 1040 (2015). This Court similarly

recognized in Windsor that denying marriage rights to

same-sex couples “instructis] . . . all persons with whom

same-sex couples interact, including their own children,

that their marriage is less worthy than the marriages of

others.” 133 S Ct. at 2696. Laws discriminating against

marriage for same-sex couples make it “even more difficult

for the children to understand the integrity and closeness

of their own family and its concord with other families in

their community and in their daily lives.” Windsor, 133

S. Ct. at 2694; see also Mem. Op. & Order at 9, Searcy v.

Strange, 14-0208-CG-N, Dkt. 53 (S.D. Ala. Jan. 23, 2015)

(“Alabama’s prohibition of same-sex marriage detracts

from its goal of promoting optimal environments for

children.”).

Many children of same-sex parents are especially

vulnerable to the injury that comes from denigration of

their family relationship because they have been adopted,

through the foster system, from prior situations where

they suffered abuse or neglect. These children particularly

need the validation that comes from knowing that their

“forever family” -is stable and worthy in the eyes of the

state and their commiynities.

There are other tangible harms that arise from a

state’s refusal to recognize marriages of same-sex parents.

For instance, children of same-sex couples have been

denied health insurance benefits and other entitlements

that they would receive if their parents’ marriage were

recognized. See Tanco v. Haslam, 7 F. Supp. 3d 759, 764,

770 (M.D. Tenn. 2014). (noting, for example, that child

may not receive Security Benefits if non-legal parent dies,

and non-legal parent may not have access to child during

medical emergencies).

Moreover, both parent and child face great uncertainty

if the parent listed on the child’s birth certificate were to

die. Unlike different-sex couples, the surviving partner,

and any children of the couple, are shut out of the

inheritance process if, like many Americans, the partner

dies intestate, and any of the latter’s assets passes to his

or her next of kin. See, e.g. ALA. CoDE § 43-8-41. Such laws

jeopardize the future financial stability for the surviving

partner and children. Ashlea Ebeling, The Same Sex

State Death Tax Trap Post DOMA, Forbes (Jul. 1, 2013),

http://www.forbes.com/sites/ashleaebeling/2013/07/01/

the-same-sex-state-death-tax-trap-post-doma.

The denial of state level recognition for marriage also

denies amici and other same-sex couples the protections of

federal laws. Notwithstanding Windsor, important federal

rights remain out of reach for same-sex couples where the

federal government uses state law to determine marital

status. These important rights include the ability to share

Social Security Benefits, the right to take leave under the

Family Medical Leave Act to care for a same-sex spouse,

and the right to receive federal Medicaid benefits.

In particular, veterans who reside in states that do not

recognize marriage for same-sex couples, such as Texas

amicus and retired 22-year Air Force veteran Victor

Holmes, are denied myriad benefits conferred by the

Veterans Administration (“VA”) due to the VA’s policy of

determining a veteran’s marital status based on state law.

See Travis J. Tritten, New VA policy on same-sex marriage

benefits triggers lawsuit, Stars and Stripes (Aug. 20, 2014),

http://www.stripes.com/news/veterans/new-va-policy-on-

same-sex-marriage-benefits-triggers-lawsuit-1.299220."

Thus, under that policy, Holmes’s partner of over 17 years,

17. See also Brief of Amici Curiae Outserve-Servicemembers

Legal Defense Network & Am. Military Partner Ass’n in Supp.

of Pet’rs at 20-24, Obergefell v. Hodges, No. 14-556 (Mar. 3, 2015).

amicus Mark Phariss, would not be entitled to receive his

death pension benefits (as Holmes wants) even if they were

married in another state. Also, eight-year Navy veteran

Crystal Von Kampen and her spouse Carla were denied

VA benefits, including a VA home loan, because their home

state of Nebraska does not recognize their marriage.

Rachael Krause, Tim Seaman, After Being Denied

Certain V.A. Benefits, Norfolk Couple Joins Fight Over

Same Sex Marriage, www.Siouxlandmatters.com (Jan.

21, 2015), http:/Awww.siouxlandmatters.com/story/d/story/

after-being-denied-certain-va-benefits-norfolk-cou/84474/

WJpgGDmgqak6sKoDaT YfxGw.

More broadly, state marriage bans deny same-

sex couples the well-documented health and economic

benefits that marriage confers. See Christine M. Proulx &

Linley A. Snyder-Rivas, The Longitudinal Associations

between Marital Happiness, Problems, and Self-Rated

Health, 27 J. Fam. Psychol. 194 (2013) (married couples

have better mental and physical health than unmarried

couples); Richard G. Wight, PhD, MPH, Allen J. LeBlanc,

PhD, and M. V. Lee Badgett, PhD, Same-Sex Legal

Marriage and Psychological Well-Being: Findings From

the California Health Interview Survey, Am. J. Public

Health (Oct. 15, 2012) (reaching same conclusion for

same-sex couples); Andrew L. Yarrow, Falling Marriage

Rates Reveal Economic Fault Lines, N.Y. Times (Feb. 6,

2015), http://nytimes.com/2015/02/08/fashion /weddings/

falling-marriage-rates-reveal-economic-fault-lines. htm]

(“Studies have shown that married women and men

tend to be much better off financially than those who are

unmarried”).

The unavoidable effect of leaving the question of

marriage for same-sex couples to state legislatures would

be the creation of a balkanized nation of marriage “haves”

and “have nots,” where the protections and benefits under

state marriage laws are available to the former and denied

to the latter. Such a result cannot be countenanced under

a Constitution that “neither knows nor tolerates classes

among citizens.” Romer, 517 U.S. at 623 (quoting Plessy

v. Ferguson, 163 U.S. 537, 559 (1896) (dissenting opinion)).

See also Calab: esi & Begley, supra, at 18-27 (Fourteenth

Amendment “bars all systems of caste and class-based

laws” and therefore is violated by state laws denying

the protection of the marriage laws to gay and lesbian

Americans).

Fourth, and finally, when the first three factors

are present — that is, a discriminatory law that applies

only to an unpopular group, on a matter of fundamental

interest, that causes great harms - tradition and

popular sovereignty are not sufficient to prevent judicial

recognition that a law unjustifiably treats some Americans

as second-class citizens. See Part I, supra. The only other

purported rational justification to which the Sixth Circuit

gave near absolute deference is to foster responsible

procreation by different-sex couples. DeBoer, 772 F.3d

at 404-405. But it is this Court that decides after careful

consideration if a purported justification withstands

scrutiny, or rather merely masks legislation treating

some Americans as a disfavored class. Romer, 517 U.S. at

633 (“By requiring that the classification bear a rational

relationship to an independent and legitimate legislative

end, we ensure that classifications are not drawn for

the purpose of disadvantaging the group burdened by

the law.”) (emphasis added). The irrationality of the

“procreation” canard has been thoroughly demonstrated

by the Petitioners and other amici. We add only that many

of this brief’s amici are raising children, whose lives they

seek to improve by marrying. See Appendix A.

In sum, because all these four factors are present here,

this is not a case where enforcing the Equal Protection

Clause would somehow turn this Court into a super-

legislature. It is the confluence of all four factors that

both distinguishes this case and compels the conclusion

that the Equal Protection Clause secures for gay and

lesbian Americans the same respect, dignity, and other

protections of the marriage laws already enjoyed by the

vast majority of Americans.

CONCLUSION

The Sixth Circuit’s decision should be reversed.

Respectfully submitted,

WESLEY R. PowELL RICHARD D. BERNSTEIN

Mary J. EATON Counsel of Record

SAMEER ADVANI WILLKIE FARR

WILLKIE FARR & GALLAGHER LLP

& GALLAGHER LLP 1875 K Street, NW

787 Seventh Avenue Washington, DC 20006

New York, New York 10019 (202) 303-1000

(212) 728-8000 rbernstein@willkie.com

Counsel for Amici Curiae

APPENDIX

Alabama Amici

April Aaron-Brush and Ginger Aaron-Brush have

been in a loving, committed relationship for over seventeen

years and, together, are raising their seven-year-old

daughter. April is employed by the Social Security

Administration and Ginger is an elementary school

teacher. They were lawfully married in Massachusetts in

2012, but Alabama’s Constitution and related legislation

prohibit recognition of marriages of same-sex couples

performed in other states. April and Ginger have

challenged the denial of recognition of their marriage in

the United States District Court for the Southern District

of Alabama. Aaron-Brush v. Bentley, No. 14-cv-01091

(N.D. Ala. filed June 10, 2014).

Alaska Amici

Matthew Hamby and Christopher Shelden have

been in a loving, committed relationship for nearly a

decade. Matthew is employed by the State of Alaska and

Christopher is a pharmacist. They were legally married

in Canada in 2008 and remarried in Utah in December

2013, but the Alaska Constitution and related legislation

prohibit recognition of marriages of same-sex couples

performed in other states.. Matthew and Christopher have

challenged the denial of recognition of their marriage in

the United States District Court for the District of Alaska,

which ruled in Amici’s favor. Hamby v. Parnell, 14-CV-

00089, 2014 WL 5089339 (D. Alaska Oct. 12, 2014) (the

“Hamby Action”). The case is on appeal to the United

States Court of Appeals for the Ninth Circuit.

Appendix

Susan Tow and Christina Laborde have been in a

loving, committed relationship for nearly a decade and

together are raising two sons. Susan is a twenty-two-year,

retired veteran of the U.S. Air Force and Christina is a

former state and federal employee who now works in the

private sector in Anchorage. Susan and Christina entered

into a civil union in Hawaii in 2012 and were lawfully

married in Maryland in 2013, but the Alaska Constitution

and related legislation prohibit recognition of marriages

of same-sex couples performed in other states. They have

challenged the denial of recognition of their marriage in

the Hamby Action.

Stephanie Pearson and Courtney Lamb have been

in a loving, committed relationship since 2013. Stephanie

works as a technician, and Courtney works in the medical

field. The couple is engaged to be married, but the

Alaska Constitution and related legislation bar issuance

of marriage licenses to same-sex couples. They have

challenged the denial of a marriage license in the Hamby

Action.

Sean Egan and David Robinson have been in a

loving, committed relationship for seven years. Sean is

a Ph.D. student in Chemistry at the University of Alaska

and David is a Petty Officer Third Class in the United

States Navy. In 2011, Sean and David were lawfully

married in the New York, but the Alaska Constitution

and related legislation bar recognition of marriages of

same-sex couples performed in other states. They have

challenged the denial of recognition of their marriage in

the Hamby Action.

Appendix

Tracey Wiese and Katrina Cortez have been in a

loving, committed relationship since 2011 and together

are raising Tracey’s three-year-old daughter from a prior

marriage. Tracey is a forensic nurse at Providence Alaska

Medical Center in Anchorage and provides mental health

services to children in private practice. Katrina is a small

business owner. Tracey and Katrina were legally married

in Hawaii in March 2014, but the Alaska Constitution and

related legislation prohibit recognition of marriages of

same-sex couples performed in other states. They have

challenged the denial of recognition of their marriage in

the Hamby Action.

Arkansas Amici

Cody Renegar and Thomas Staed began a loving,

committed relationship in 2009 and, together, raised

Cody’s son from a prior relationship. Cody is a hair stylist,

and Thomas is a bank analyst. The couple wished to

marry in Arkansas but could not do so because Arkansas

law prohibits issuance of marriage licenses to same-sex

couples. Cody and Thomas challenged their inability to

obtain a marriage license in Arkansas state court, which

entered a final order in plaintiffs’ favor on May 15, 2014.

Smith v Wright, 60-CV-13-2662 (Ark. Cir. Ct., Pulaski Co.

filed July 2, 2013) (the “Syrith Action”). The case is now

on appeal to the Arkansas Supreme Court.

Appendiz

Indiana Amici

Michelle Bowling and Shannon Bowling have been

in a loving, committed relationship for more than five years

and together are raising their three children. Michelle is

employed as a clerk of the Marion County, Indiana Small

Claims Court, and Shannon is employed by the State of

Indiana Department of Corrections. In January 2011,

Michelle and Shannon were lawfully married in Iowa,

but Indiana law prohibits recognition of marriages of

same-sex couples performed in other states. Michelle

and Shannon have challenged the denial of recognition of

their marriage in the United States District Court for the

Southern District of Indiana, which ruled in Amici’s favor.

Bowling v. Pence, 14-cv-00405, 2014 WL 4104814 (S.D.

Ind. Aug. 19, 2014) (the “Bowling Action”). The appeal

of the decision was dismissed as moot based on Baskin

v. Bogan, 766 F.3d 648 (7th Cir. 2014) and the Supreme

Court’s subsequent denial of certiorari.

Linda Bruner was lawfully married to Lori Roberts

in Iowa on July 20, 2010. Linda is currently employed

as an EMT. On January 31, 2013, Linda filed a Petition

of Dissolution of Marriage in Marion County, Indiana

Superior Court, which was denied because Indiana

prohibits recognition of marriages of same-sex couples

performed in other states. Linda challenged the denial

of the recognition and dissolution of her marriage in the

Bowling Action.

Midori Fujii was lawfully married to Kristie Kay

Brittain in California in 2008. Following Kristie’s

Appendiz

death in October 2011, Midori was required to pay over

$300,000 in Indiana inheritance tax and is ineligible to

receive Kristie’s social security benefits, because Indiana

prohibits recognition of marriages of same-sex couples

performed in other states. Midori challenged the denial

of recognition of her marriage in the United States

District Court for the Southern District of Indiana, Fujii

v. Indiana, 14-cv-00404 (S.D. Ind. filed Mar. 14, 2014) (the

“Fujii Action”). On June 25, 2014 the court entered a

final judgment in plaintiffs’ favor, Fujii v. Indiana, 14-cv-

00404, (S.D. Ind. Jun. 25, 2014), and the Seventh Circuit

affirmed in a consolidated opinion, Baskin v. Bogan, 766

F.3d 648 (7th Cir. Sep. 4, 2014).

Melody Layne and Tara Betterman have been in a

loving, committed relationship for more than five years

and together are raising their five-year-old daughter.

Melody and Tara own a construction company in Central

Indiana. In 2012, the couple was lawfully married in New

York, but Indiana law prohibits recognition of marriages

of same-sex couples performed in other states. Melody

and Tara have challenged the denial of recognition of their

marriage in the F'ujiz Action.

Pamela Lee and Candace Batten-Lee have been

in a loving, committed relationship for almost twenty-

seven years. Pamela is a military veteran who serves on

the Indianapolis Metropolitan Police Department, and

Candace works as a real estate assistant and a nanny to

Pamela’s sister’s two young daughters. The couple was

lawfully married in California on October 25, 2013. On

or abou. January 27, 2014, Pamela applied to designate

Appendix

Candace as her spouse and primary beneficiary under

a state pension fund, but her application was denied

because Indiana law prohibits recognition of marriages

of same-sex couples performed in other states. Pamela

and Candace have challenged the denial of recognition

of their marriage in the United States District Court

for the Southern District of Indiana, Lee v. Pence, 14-cv-

00406 (S.D. Ind. filed Mar. 14, 2014) (the “Lee Action”).

The District Court entered a final judgment on June 25,

2015 in plaintiffs’ favor, Lee v. Pence, 14-cv-00406 (S.D.

Ind. Jun. 25, 2014), and the Seventh Circuit affirmed in a

consolidated opinion, Baskin v. Bogan, 766 F.3d 648 (7th

Cir. Sep. 4, 2014).

Teresa Welborn and Elizabeth Piette have been ina

loving, committed relationship for more than four years.

Teresa has served as an officer with the Indianapolis

Metropolitan Police Department for more than twenty-five

years and Elizabeth is a nurse practitioner in palliative

care at Indiana University Health Methodist Hospital. The

couple was lawfully married in Hawaii on December 13,

2013. On February 20, 2014, Teresa applied to designate

Elizabeth as her spouse and primary beneficiary under

a state pension fund but her application was denied

because Indiana law prohibits recognition of marriages

of same-sex couples performed in other states. Teresa

and Elizabeth have challenged the denial of recognition

of their marriage in the Lee Action.

Ruth Morrison and Martha Leverett have been

friends for over twenty years, and have been in a loving,

committed relationship over three years. Ruth served in

Appendix

the Indianapolis Fire Department as a Battalion Chief

for over twenty-seven years. Martha is a technician with

Amcor. The couple was lawfully married in Maryland on

September 11, 2013. On or about September 18, 2013, Ruth

applied to designate Martha as her spouse and primary

beneficiary under a state pension fund but her application

was denied because Indiana law prohibits recognition of

marriages of same-sex couples performed in other states.

Ruth and Martha have challenged the denial of recognition

of their marriage in the Lee Action.

Karen Vaughn-Kajmowicz and Tammy Vaughn-

Kajmowicz have been in a loving, committed relationship

for thirteen years and, together, are raising their three

children. Karen has served as a police officer in the

Evansville Police Department for eighteen years, and

Tammy cares for their children at home full-time The

couple was lawfully married in Iowa on October 25, 2013.

In or around October 2013, Karen applied to designate

Tammy as her spouse and primary beneficiary under a

state pension fund but her application was denied because

Indiana law prohibits recognition of marriages of same-

sex couples performed in other states. Karen and Tammy

have challenged the denial of recognition of their marriage

in the Lee Action.

Kansas Amici

Kail Marie and Michelle L. Brown have been in

a loving, committed relationship for over twenty years.

Kail is a home health worker who helps individuals with

developmental disabilities, and Michelle is an assistant

Appendiza

District Attorney who primarily works on child abuse

and neglect cases. On October 16, 2014, Kail and Michelle

were denied a marriage license by the office of the Clerk

of the Douglas County District Court because the Kansas

Constitution and related legislation prohibit marriage of

same-sex couples. Kail and Michelle have challenged the

denial] of marriage licenses to same-sex couples in Marie

v. Moser, 14-cv-02518 (D. Kan. filed Oct. 10, 2014) (the

“Marie Action”).

Kerry Wilks and Donna Ditrani have been in a

loving, committed relationship for five years. Kerry is

a Dean and professor of Spanish Literature at Wichita

State University. On October 6, 2014, Kerry and Donna

were denied a marriage license by the Clerk of the District

Court for the Eighteenth Judicial District in Wichita,

Kansas, because the Kansas Constitution and related

legislation bar issuance of marriage licenses to same-sex

couples. They attempted to obtain a marriage license on

three more occasions and each time were denied. Kerry

and Donna have challenged their denial of a marriage

license in the Marie Action.

James Peters and Gary Mohrman have been in

a loving, committed relationship for more than thirty

years. James is employed by the University of Kansas,

and Gary is a freelance illustrator of grade school-level

educational publications. The couple was lawfully married

in Iowa on July 31, 2010. On November 16, 2014, Peter

attempted to designate Gary as a dependent spouse on

his state health insurance plan but was denied because

Kansas law prohibits recognition of marriages of same-sex

Appendix

couples performed in other states. James and Gary have

challenged the denial of recognition of their marriage in

the Marie Action.

Carrie Fowler and Sarah Braun have been in a loving,

committed relationship for three years and are together

raising four children from Carrie’s previous marriage.

Sarah is an Instrumental Band Director at a public high

school, and Carrie is as a guidance counselor at a public

elementary school. They are both currently working on

their Ph.D.s. In June 2014, the couple lawfully married

in Illinois. In July 2014, they went to the Department of

Motor Vehicle for Carrie to obtain a new driver’s license

in her married name of Braun, but were denied because

Kansas law prohibits recognition of marriages of same-sex

couples performed in other states. Carrie and Sarah have

challenged the denial of recognition of their marriage in

the Marie Action.

Darci Bohnenblust and Joleen Hickman have been

in a loving, committed relationship for over nineteen years.

Darci works for the Kansas State University, and Joleen

works for a local respiratory company helping customers

install oxygen equipment in their homes. In November

2014, the couple was lawfully married in Kansas following

aruling by the Tenth Circuit of Appeals finding same-sex

marriage bans to be unconstitutional, however the State of

Kansas subsequently refused to recognize their marriage.

Darci and Sarah have challenged the denial of recognition

of their marriage in the Marie Action.

10a

Appendix

Louisiana Amici

Jon Robicheaux and Derek Robicheaux have been in

a loving, committed relationship for ten years. Derek is a

paramedic and Jon works as a bartender in New Orleans.

In September 2012, the couple lawfully married in Iowa,

but the Louisiana Constitution and related statutory

provisions prohibit recognition of marriages of same-sex

couples performed in other states. Jon and Derek have

challenged the denial of recognition of their marriage in

the United States District Court for the Eastern District

of Louisiana, which ruled against the Amici on September

3, 2014. Robicheausz v. Caldwell, 2 F. Supp.3d 910 (E.D.

La. 2014) (the “Robicheauzx Action”). The case is currently

on appeal to the United States Court of Appeal for the

Fifth Circuit.

Courtney Blanchard and Nadine Blanchard have

been in a loving, committed relationship for five years

and together are raising a two year old son. Courtney

is a provisioning analyst for a shipbuilding company,

and Nadine cares for their son at home full-time. In

August 2013, the couple lawfully married in Iowa, but the

Louisiana Constitution and related statutory provisions

prohibit recognition of marriages of same-sex couples

performed in other states. Courtney and Nadine have

challenged the denial of recognition of their marriage in

the Robicheauzx Action.

lla

Appendix

Mississippi Amici

Jocelyn Pritchett and Carla Webb have been in

a loving, committed relationship for eleven years and

together are raising two children. Jocelyn is a civil

engineer and Carla is an endodontist. In September 2013,

the couple lawfully married in Maine, but the Mississippi

Constitution and related statutory provisions prohibit

recognition of marriages of same-sex couples performed

in other states. Jocelyn and Carla have challenged the

denial of recognition of their marriage in the United States

District Court for the Southern District of Mississippi,

which ruled in Amici’s favor. Campaign for Southern

Equal. v. Bryant, 2014 WL 6680570 (S.D. Miss. Nov. 25,

2014). The case is on appeal to the United States Court

of Appeals for the Fifth Circuit.

Missouri Amici

Kyle Lawson and Evan Dahlgren have been in a

loving, committed relationship for nearly two years. Kyle

is a math teacher and Evan is a music teacher and private

voice coach. Kyle and Evan were denied a marriage license

by the office of the Jackson County, Missouri Recorder

of Deeds, because the Missouri Constitution and related

legislation bar issuance of,marriage licenses to same-sex

couples. Kyle and Evan have challenged their denial of a

marriage license in the United States District Court for

the Western District of Missouri, which ruled in Amici’s

favor. Lawson v. Kelly, 14-cv-0622, 2014 WL 5810215

(W.D. Mo. Nov. 7, 2014) (the “Lawson Action”). The case

is on appeal to the United States Court of agpems for the

Eighth Circuit.

12a

Appendix

Angela Curtis and Shannon McGinty have been

in a loving, committed relationship for eleven years and

together are raising their three children. Both Angela

and Shannon are professionals in the private financial

sector. On June 20, 2014, Angela and Shannon were

denied a marriage license by the office of the Jackson

County, Missouri Recorder of Deeds, because the

Missouri Constitution and related legislation bar issuance

of marriage licenses to same-sex couples. Angela and

Shannon have challenged their denial of a marriage license

in the Lawson Action.

Montana Amici

Angela Rolando and Tonya Rolando have been in

a loving, committed relationship for more than five years

and together are raising Angela’s sixteen-year-old son and

Tonya’s ten-year-old son from prior marriages. Angela

is a training and development specialist for the Montana

Department of Child and Family Services. Tonya is a

retired E-4 Senior Airman in the United States Air Force

who currently works as an EMT at the Pondera Medical

Center in Conrad, Montana. On May 19, 2014, Angela

and Tonya were denied a marriage license by the Cascade

County, Montana Clerk of Court, because the Montana

Constitution and related legislation prohibit marriage of

same-sex couples. Angela and Tonya challenged their

denial of a marriage license in the United States District

Court for the District of Montana, which ruled in Amici’s

favor. Rolando v. Fox, 23 F.Supp.3d 1227 (D. Mont. 2014)

(the “Rolando Action”). The case is on appeal to the

United States Court of Appeals for the Ninth Circuit.

l3a

Appendix

Chase Weinhandl and Benjamin Milano have been

in a loving, committed relationship for seven years. Chase

is a manager of the local Costco, and Benjamin is a senior

account manager for the Chicago-based brand marketing

firm, Brandmuscle. Chase and Benjamin entered into a

civil union in Illinois in 2011 and were lawfully married in

Hawaii in 2014, but the Montana Constitution and related

legislation prohibit recognition of marriages of same-sex

couples performed in other states. Chase and Benjamin

have challenged the denial of recognition of their marriage

in the Rolando Action.

Susan Hawthorne and Adei Johnson have been in

a loving, committed relationship for seventeen years.

Susan recently retired with the rank of Sergeant First

Class after serving twenty-eight years in the U.S. Army,

the Army Reserves, and Montana Army National Guard.

Adel is employed by the United States the Department of

Military Affairs, Environmental Office and has served in

the Army National Guard for fourteen years, currently

as Major. They were lawfully married in Washington

in 2014, but the Montana Constitution and related

legislation prohibit recognition of marriages of same-sex

couples performed in other states. Susan and Adel have

challenged the denial of recognition of their marriage in

the Rolando Action.

Shauna Goubeaux and Nicole Goubeaux have been

in a loving, committed relationship for eleven years and

together are raising their one-year-old son. Nicole is a

night shift nurse at Advanced Care Hospital in Billings.

Shauna is also a nurse and provides homecare work for

l4a

Appendix

Interim, a nurse staffing agency in Billings. The couple

lawfully married in Iowa in August 2011, but the Montana

Constitution and related legislation prohibit recognition

of marriages of same-sex couples performed in other

states. Shauna and Nicole have challenged the denial of

recognition of their marriage in the Rolando Action.

Nebraska Amici

Sally Waters and Susan Waters have been in a

loving, committed relationship for over fifteen years and

together are raising three children. Sally works as a

leadership development consultant at Mutual of Omaha.

Susan works at the University of Nebraska Omaha helping

faculty use technology in the classroom. The couple was

lawfully married in California in 2008, but the Nebraska

Constitution prohibits recognition of marriages of same-

sex couples performed in other states. Along with other

plaintiffs, Sally and Susan have challenged the denial of

recognition of their marriage in the United States District

Court for the District of Nebraska, which ruled in Amici’s

favor. Waters v. Ricketts, 8:14-CV-00356, 2015 WL

852603(D. Neb. Mar. 2, 2015) (the “Waters action”). The

case is on appeal to the United States Court of Appeals

for the Eight Circuit.

Nickolas Kramer and Jason Cadek have been in a

loving, committed relationship for over ten years and,

together, are raising their three-year-old daughter.

Nick works as a management consultant and Jason is

a compliance officer for a bank. Nick and Jason were

lawfully married in Iowa in 2013, but the Nebraska

Constitution prohibits recognition of marriages of same-

15a

Appendix

sex couples performed in other states. Nick and Jason

have challenged the denial of recognition of their marriage

in the Waters Action.

Crystal Von Kampen and Carla Morris-Von

Kampen have been in a loving, committed relationship for

five years. Carla works at a non-profit that helps families

with children who have emotional and mental! disabilities.

Crystal served in the United States Navy for eight years.

The couple was lawfully married in Iowa on November 1,

2013, but the Nebraska Constitution prohibits recognition

of marriages of same-sex couples performed in other

states. Crystal and Carla have challenged the denial of

recognition of their marriage in the Waters Action.

Gregory Tubach and William (“Bil”) Roby have

been in a loving, committed relationship for twenty-eight

years. Greg is an editor at a publishing company and Bil

works at a state agency. Greg and Bil desire to marry, but

the Nebraska Constitution prohibits same-sex marriage.

Greg and Bil have challenged Nebraska’s bar on same-sex

marriage in the Waters Action.

Jessica Kallstrom-Schreckengost and Kathleen

Kallstrom-Schreckengost have been in a loving,

committed relationship for over ten years and together

are raising their infant son. Jessica is an attorney and

Kathleen is a clinical psychologist. The couple was

lawfully married in Massachusetts in 2010, but the

Nebraska Constitution prohibits recognition of marriages

of same-sex couples performed in other states. Jessica

and Kathleen have challenged the denial of recognition

of their marriage in the Waters Action.

l6a

Appendix

Marjorie Plumb and Tracy Weitz have been in a loving,

committed relationship for over ten years. Marj runs her

own business, a firm providing management consulting

and executive coaching to non-profit organizations.

Tracy works at a local foundation. The couple was

lawfully married in California in 2008, but the Nebraska

Constitution prohibits recognition of marriages of same-

sex couples performed in other states. Marj and Tracy

have challenged the denial of recognition of their marriage

in the Waters Action.

Randall Clark and Thomas Maddox have been in

a loving, committed relationship for over thirty years.

Randy is a CPA and serves as the chief financial officer

for a Kansas City-based company and Tom is a family

physician and teaches at a family medicine residency

program. The couple was lawfully married in California in

2008, but the Nebraska Constitution prohibits recognition

of marriages of same-sex couples performed in other

states.. Randy and Tom have challenged the denial of

recognition of their marriage in the Waters Action.

North Carolina Amici

Cathy Fry and Joanne Marinaro have been in a

loving, committed relationship for eighteen years and,

together, have raised two children. Joanne is a Senior

Manager for a property casualty insurance company and

Cathy owns and operates a small furniture company. On

April 23, 2014, Joanne and Cathy were denied a marriage

license by the Register of Deeds in Mecklenburg County,

North Carolina because the North Carolina Constitution

17a

Appendiz

and related legislation bar issuance of marriage licenses

to same-sex cuuples. Along with other plaintiffs, Joanne

and Cathy challenged the denial of a marriage license in

the United States District Court for the Western District

of North Carolina, and were granted final judgment in

their favor on October 10, 2014, General Synod of the

United Church of Christ v. Resinger, 14-cv-00213, 2014

WL 5342939 (Oct. 10, 2014) (the “General Synod Action”),

which is now on appeal to the United States Court of

Appeals for the Fourth Circuit.

Betty Mack and Carol Taylor have been in a loving,

committed relationship for forty-two years. Betty and

Carol are both in their seventies and are retired. On

April 25, 2014, Betty and Carol were denied a marriage

license by the Register of Deeds in Buncombe County,

North Carolina because the North Carolina Constitution

and related legislation bar issuance of marriage licenses

to same-sex couples. They have challenged the denial of

a marriage license in the General Synod Action.

Kay Diane Ansley and Catherine McGaughey have

been in a loving, committed relationship for fourteen

years. Kay is a retired a law enforcement officer who is

currently employed as a patient scheduler and records

custodian and Catherine is an accounts receivable

specialist and bookkeeper for a local physician. On April

24, 2014, Kay and Catherine were denied a marriage

license by the Register of Deeds in McDowell County,

North Carolina, because the North Carolina Constitution

and related legislation bar issuance of marriage licenses

to same-sex couples. They have challenged the denial of

a marriage license in the General Synod Action.

18a

Appendix

Elizabeth Cloninger and Kathleen Smith have been

in a loving, committed relationship for fourteen years.

Elizabeth works as a unit supervisor with Mecklenburg

County Children’s Development Services and Kathleen

currently works at Duke Energy. On April 17, 2014,

Elizabeth and Kathleen were denied a marriage license

by the Register of Deeds in Mecklenberg County, North

Carolina because the North Carolina Constitution and

related legislation bar issuance of marriage licenses to

same-sex couples. They have challenged the denial of a

marriage license in the General Synod Action.

Shauna Bragan and Stacey Maloney have been ina

loving, committed relationship for more than seven years

and together they are raising Shauna’s two children from

a prior relationship. Shauna is a published environmental

scientist who currently works as a customer service agent

and Stacey is an adaptive physical education teacher. On

April 24, 2014, Shauna and Stacey were denied a marriage

license by the Register of Deeds in Cabarrus County,

North Carolina because the North Carolina Constitution

and related legislation bar issuance of marriage licenses

to same-sex couples. They have challenged the denial of

a marriage license in the General Synod Action.

Joel Blady and Jeffrey Addy have been in a loving,

committed relationship for approximately four years.

Joel is employed in the funeral industry and Jeffrey is

employed in the healthcare industry. Joel and Jeffrey

desire to marry but have not applied for a marriage license

because the North Carolina Constitution and related

legislation bar issuance of marriage licenses to same-sex

19a

Appendix

couples. They have challenged the denial of marriage

licenses to same-sex couples in the General Synod Action.

North Dakota Amici

Celeste Carlson-Allebach and Amber Carlson-

Allebach have been in a committed, loving relationship

for more than seven years and together are raising their

three young children. Celeste is a social worker who

works with homeless individuals and families and Amber

operates an in-home daycare. They were lawfully married

in Minnesota on August 1, 2013, but North Dakota’s

Constitution and related legislation prohibit recognition

of marriages of same-sex couples performed in other

states. Celeste and Amber have challenged the denial

of recognition of their marriage in the United States

District Court for the District of North Dakota. Ramsay

v. Dalrymple, No. 14-cv-00057 (D.N.D. filed Jun. 6, 2014)

(the “Ramsay Action”).

Brock Dahl and Austin Lang have been in a loving,

committed relationship for more than four years. Brock

is a training coach in the training department of U.S.

Bank, and Austin is an assistant manager at Holiday

Stationstores. On June 4, 2014, Brock and Austin were

denied a marriage license by the Cass County, North

Dakota Treasurer’s office, because North Dakota’s

Constitution and related legislation bar issuance of

marriage licenses to same-sex couples. They have

challenged the denial of a marriage license in the Ramsay

Action.

20a

Appendix

South Carolina Amici

Tracie Goodwin Bradacs and Katherine Bradacs

have been in a loving, committed relationship for five years

and, together, are raising their two-year-old twins and

Katherine’s teenage son from a prior relationship. Tracie

is a United States Air Force veteran and currently works

in IT for the State of South Carolina, and Katherine is a

Highway Patrol state trooper. The couple were married on

April 6, 2012 in Washington, D.C, but the South Carolina

Constitution and related legislation prohibit recognition

of marriages of same-sex couples performed in other

states. Tracie and Katherine have challenged the denial of

recognition of their marriage in the United States District

Court for the District of South Carolina, which ruled in

their favor. Bradacs v. Haley, 13-cv-02351, 2014 WL

6473727 (D.S.C. Nov. 18, 2014). The case is on appeal to

the United States Court of Appeals for the Fourth Circuit.

South Dakota Amici

Nancy Rosenbrahn and Jennie Rosenbrahn have

been in a loving, committed relationship for over thirty

years. Together, they own and manage a mobile home

park. They were lawfully married in Minnesota on April

26, 2014, but South Dakota’s Constitution and related

legislation prohibit recognition of marriages of same-sex

couples performed in other states. Nancy and Jenny have

challenged the denial of recognition of their marriage

in the United States District Court for the District of

South Dakota, which ruled in their favor. Rosenbrahn v.

Daugaard, 14-cv-04081, 2015 WL 144567 (D.S.D. Jan. 12,

Z2la

Appendix

2015). The case is on appeal to the United States Court

of Appeals for the Eighth Circuit.

Texas Amici

Victor (“Vic”) Holmes and Mark Phariss have been

in a loving, committed relationship for over seventeen

years. Vic is a retired twenty-two year veteran of the

United States Air Force and Mark is a practicing attorney

in Texas. On October 3, 2013, Vic and Mark were denied

a marriage license by the Bexar County, Texas Clerk’s

office, because the Texas Constitution and related

legislation bar issuance of marriage licenses to same-

sex couples. Along with other plaintiffs, Vic and Mark

challenged the denial of a marriage license in the United

States District Court for the Western District of Texas,

which entered a final order in their favor. DeLeon v. Perry

975 F.Supp.2d 632 (W.D. Tex. 2014). The case is on appeal

to the United States Court of Appeals for Fifth Circuit.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.