Amicus Curiae Brief — Obergefell v. Hodges

Supreme Court. US

FILED

MAR 3.0 2015

Lana

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

Bu the Supreme Court of the Anited States

JAMES OBERGEFELL, et al., Petitioners,

v.

RICHARD HODGES, DIRECTOR, OHIO DEPARTMENT

OF HEALTH, et al., Respondents.

VALERIA TANCO, et al., Petitioners,

v.

BILL HASLAM, GOVERNOR OF TENNESSEE, et al., Respondents.

APRIL DEBOER, et al., Petitioners,

v.

RICK SNYDER, GOVERNOR OF MICHIGAN, et al., Respondents.

GREGORY BOURKE, et al., Petitioners,

v.

STEVE BESHEAR, GOVERNOR OF KENTUCKY, et al., Respondents.

On Writs of Certiorari to the United States

Court of Appeals for the Sixth Circuit

Brief of Amici Curiae North Carolina Values Coalition;

Liberty, Life, and Law Foundation; The Chaplain Alliance

for Religious Liberty; Christian Family Coalition; and

Traditional Values Coalition in Support of Respondents

Deborah J. Dewart

Counsel of Record

Attorney at Law

620 E. Sabiston Drive

Swansboro, NC 28584-9674

(910) 326-4554

(910) 326-4585 (fax)

debcpalaw@earthlink.net

Counsel for Amici Curiae

Becker Gallagher - Cincinnati, OH - Washington, D.C. - 800.890.5001

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES .................. iii

IDENTITY AND INTEREST OF AMICI CURIAE .. 1

INTRODUCTION AND SUMMARY OF THE

DT c<cikevieeakacackebeaene een > 3

I. MARRIAGE REDEFINITION ADVOCATES

PRESUPPOSE THE DEFINITION THEY

SEEK TO ESTABLISH. ................. 3

A. Fundamental Rights Arguments

Presuppose Marriage Redefinition. ..... 5

B. Equal Protection Arguments Presuppose

Marriage Redefinition. ............... 6

II. FUNDAMENTAL RIGHTS ARGUMENTS

Nt Font bs thd ehh bb kh PARA CES KAGE See 8

A. Respondents’ Proposed Redefinition Of

Marriage Is Not Deeply Rooted In

American History Or Tradition. ....... 12

B. There Is No Fundamental Right To

Redefine Marriage. ................. 14

III. EQUAL PROTECTION ARGUMENTS FAIL. 15

A. Earlier Equal Protection Cases Did Not

Redefine Marriage. ................. 16

B. Respondents’ Approach Has No Limiting

DE ..5in40 beh bandssahanaeeus 19

ii

IV. COURT-ORDERED MARRIAGE

REDEFINITION THREATENS CORE

AMERICAN LIBERTIES. .............. 22

A. Court-Ordered Marriage Redefinition

Threatens Rights Of “The People” To

Dc clvsteaudivanseeaueeesune es 23

B. Court-Ordered Marriage Redefinition

Threatens Core First Amendment

Rights—Free Speech, Thought, And

Di tktécenrcineceenudeakesaes 26

V. ALL LAWS ARE GROUNDED IN MORAL

PE S46 ct oeeknvecne edd aeeean xe 30

VI. THE PRESERVATION OF MARRIAGE IS

BASED ON BIOLOGY—NOT BIGOTRY.

EVEN “THE PEOPLE” CANNOT REVISE

THE NATURE OF REALITY—INCLUDING

DEES. os ees eandwecsnctenneneess 33

De ssvoscebhdwee estaba necspeces es 34

iil

TABLE OF AUTHORITIES

CASES

Akridge v. Wilkinson,

178 Fed. Appx. 474 (6th Cir. 2006) ...

Andersen v. King Cnty.,

138 P.3d 963 (Wash. 2006) .........

Baehr v. Lewin,

852 P.2d 44 (Haw. 1993) ...........

Baker v. Nelson,

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

Baskin v. Bogan,

12 F. Supp. 3d 1144 (S.D. Ind. 2014) .

Baskin v. Bogan,

766 F.3d 648 (7th Cir. 2014) ........

Bishop v. United States ex rel. Holder,

962 F. Supp. 2d 1252 (N.D. Okla.

Rr eae

Bond v. United States,

131 S. Ct. 2966 (2011) .............

Bostic v. Rainey,

970 F. Supp. 2d 456 (E.D. Va. 2014) ..

Bostic v. Schaefer,

760 F.3d 352 (4th Cir. 2014)........

Bourke v. Beshear,

996 F. Supp. 2d 542 (W.D. Ky. 2014)

.. 22, 28, 31

iv

Brenner v. Scott,

999 F. Supp. 2d 1278 (N.D. Fla. Aug. 21,

EU ATCE ee ering ag Ss Raa oa oro 9, 19, 23, 30

Citizens for Equal Prot. v. Bruning,

455 F.3d 859 (8th Cir. 2006) ............... 18

Commonwealth v. Knowlton,

I, SPEED, chs cc ceceevevosececes 13

Conaway v. Deane,

MED ecisccccscceessese 13

Conde-Vidal v. Garcia-Padilla,

2014 U.S. Dist. LEXIS 150487 (D. P.R. 2014) . 25

DeBoer v. Snyder,

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

DeLeon v. Perry,

975 F. Supp. 2d 632 (W.D. Texas 2014) ....... 5

Elane Photography v. Willock,

309 P.3d 53 (N.M. 2013), cert. denied, 134 S. Ct.

See Sse, CRED ve wesc rescececcess 29

Geiger v. Kitzhaber,

994 F. Supp. 2d 1128 (D. Or. May 19,

DTT tcCchi noid eee cuea sees eens 6 4, 28, 32

Golinski v. Off. of Pers. Mgmt.,

824 F. Supp. 2d 968 (N.D. Cal. 2012) ......... 4

Goodridge v. Dep’t of Pub. Health,

798 N.E.2d 941 (Mass. 2003)............... 13

Gregory v. Ashcroft,

RS ee 24

Griego v. Oliver,

316 P.3d 865 (N.M. 2013) ............... 7, 32

Griswold v. Connecticut,

a i]

Haddock v. Haddock,

eo 26

Hernandez v. Robles,

855 N.E.2d 1 (N.Y. 2006) .................. 13

Jackson v. Abercrombie,

884 F. Supp. 2d 1065 (D. Haw. 2012) ........ 13

Jernigan v. Crane,

2014 U.S. Dist. LEXIS 165898 (E.D. Ark. Nov.

I ee ee Se eh ee eee 4 5

Jones v. Hallahan,

501 S.W.2d 588 (Ky. 1973) ................ 13

Katcoff v. Marsh,

755 F.2d 223 (2d Cir. 1985) ................ 29

Kerrigan v. Comm’r of Pub. Health,

957 A.2d 407 (Conn. 2008) ................. 4

Kitchen v. Herbert,

961 F. Supp. 2d 1181 (D. Utah 2013) ......... 5

Kitchen v. Herbert,

755 F.3d 1193 (10th Cir. 2014) ..... 6, 14, 24, 28

Latta v. Otter,

19 F. Supp. 3d (D. Id.), affd, 2014 U.S. App.

LEXIS 19620 (9th Cir. 2014) ............ 12, 28

vi

Lawrence v. Texas,

539 U.S. 558 (2003) ............. 11, 21, 31, 32

Loving v. Virginia,

ge BE rere passim

Maynard v. Hill,

Be Ss EGE oc ccvcoceckcctenensune 18

Milford v. Worcester,

OT ee, GG ov vcccuséseesseseceuacen 13

Moore v. City of East Cleveland,

Ge Was GOST nv b-e sec cbesawsvevesseea 11

Morrison v. Sadler,

821 N.E.2d 15 (Ind. Ct. App. 2005) .......... 13

Obergefell v. Wymyslo,

962 F. Supp. 2d 968 (S.D. Ohio 2013) ........ 13

Ohio ex rel. Popovici v. Agler,

ot eo ee rere ee 25

Planned Parenthood v. Casey,

ok Sl eee er eee 6, 31

Rosenbrahn v. Daugaard,

2015 U.S. Dist. LEXIS 4018 (D. S.D. Jan. 12,

Pc ive wa euw 4 eGnee ocean 8, 9, 19, 33

Schneiderman v. United States,

ot Bt Ll: || rrr 28

Schuette v. Coal. to Defend Affirmative Action,

he Se Se | rer re 23

Shelby v. Holder,

679 F.3d 848 (D.C. Cir. 2012) .............. 23

vil

Skinner v. Oklahoma,

ED ow ccc cc occcsccecscees 9

Sosna v. Iowa,

419 U.S. SOB (1G7B) .... ccc cece 25

Standhardt v. Superior Court ex rel. Cty. of

Maricopa,

77 P.3d 451 (Ariz. Ct. App. 2003) ........... 13

Teter v. Teter,

CE MD sccocccesscctcencees 9

Turner v. Safley,

482 U.S. 78 (1987) ................ 8, 9, 18, 19

United States v. Windsor,

133 S. Ct. 2675 (2013) ............ 5, 14, 25, 26

Ward v. Polite,

667 F.3d 727 (6th Cir. 2012) ............... 30

Washington v. Glucksberg,

621 U.S. 702 (1997) .............. 8,11, 12,13

West Virginia State Bd. of Educ. v. Barnette,

EE ccc ccescccccccetocss 23

Williams v. North Carolina,

IE oo ccc ccccccceccececes 25

Wilson v. Ake,

354 F. Supp. 2d 1298 (M.D. Fla. 2005) ....... 13

Wolf v. Walker,

986 F. Supp.2d 982 (W.D. Wisc. June 6,

A oe 4, 12, 24, 27

vill

Yick Wo v. Hopkins,

ED 6 00 0060460000060600608 26

Zablocki v. Redhail,

434 U.S. 374 (1978) ............... 8, 9, 18, 19

CONSTITUTIONAL PROVISIONS

rr rr i so ot ceed d ones Waese Ss 14

See Se MEL BE cceectécesenseen 2, 15, 26, 28

Se reer rs er 24

U.S. Const., amend. XIV ................. passim

FE ! SPPrer rr TTT TTT TTT rs 24

OTHER AUTHORITIES

Black’s Law Dictionary (7th ed. 1999) .......... 13

Daniel Dunson, A Right to a Word? The Interplay of

Equal Protection and Freedom of Thought in the

Move to Gender-Blind Marriage, 5 Alb. Govt. L.

Ps PE 0c bc cee coeeeetesesuees passim

Department of Defense Directive 1304.19.4.1 .... 28

https://www.libertyinstitute.org/modderfacts .... 29

http://www.telegraph.co.uk/news/newstopics/

howaboutthat/7662232/Grandmother-and-

grandson-to-have-child-together.html ....... 19

http://www.whitehouse.gov/the-press-office/2014/

06/13/presidential-proclamation-fathers-day-

Sn ; <2 odes sos sbn eb baueeeedeeEeneneecet 4

ix

James Madison, The Papers of James Madison,

(Henry Gilpin ed., Washington: Langtree and

O’Sullivan, 1840) (Vol. II, June 28, 1787) ..... 31

Making Gay OK: How Rationalizing Homosexual

Behavior is Changing (Robert R. Reilly, Ignatius

Dt” ceacadadsadenvasaeawdeuwesce 15, 19, 21

Reminiscences of Abraham _ Lincoln By

Distinguished Men of His Time (Allen Thorndike

Rice ed., New York: Harper & Brothers

Publishers, 1909) (Classic Reprint 2012) (1853-

Dt acaehesdédndaueuatede sseutewudeues 3

What is Marriage? Man and Woman: A Defense

(Girgis, Anderson, and George, New York:

Encounter Books, 2012) ................... 10

World Family Declaration, http://worldfamily

declaration.org/WFD ..................... 10

1

IDENTITY AND INTEREST OF AMICI CURIAE’

Amici Curiae respectfully urge this Court to affirm

the Sixth Circuit decision.

The North Carolina Values Coalition (“NCVC”) is a

North Carolina nonprofit corporation established to

preserve and promote faith, family, and freedom by

working in various arenas of public policy to protect

marriage and religious liberty. NCVC spearheaded the

ballot initiative in 2012 to amend North Carolina’s

Constitution to protect the time-honored definition of

marriage (one man and one woman). The Marriage

Amendment passed by a vote of 61% to 39% after a

total of 1,317,178 citizens voted for the Amendment.

NCVC’s Executive Director, Tami L. Fitzgerald, served

as Chairwoman of Vote FOR Marriage NC, the

referendum committee that worked to pass the

Amendment.

Liberty, Life, and Law Foundation (“LLLF”) is a

North Carolina nonprofit corporation established to

defend religious liberty, sanctity of human life,

conscience, family, and other moral principles. LLLF

founder and legal counsel, Deborah J. Dewart, is the

author of a book, Death of a Christian Nation, and

many amicus curiae briefs in this Court.

The Chaplain Alliance for Religious Liberty

(“CALL”) is an association of endorsing agencies that

‘ The parties have consented to the filing of this brief. Amici

curiae certify that no counsel for a party authored this brief in

whole or in part and no person or entity, other than amici, its

members, or its counsel, has made a monetary contribution to its

preparation or submission.

2

exists to ensure that chaplains and those they serve

can exercise their constitutionally protected freedoms

of religion and conscience without fear of reprisal.

CALL currently has 35 endorsing agency members and

speaks on behalf of over 2,700 chaplains, which

represents about half of the chaplains serving our

armed forces.

Christian Family Coalition (“CFC”) is a Florida

organization established to empower families at the

grassroots level and give them a voice in government.

CFC informs and educates citizens about candidates

and pending legislation, trains Christian leaders, and

defends the legal rights of Christians.

Traditional Values Coalition (“TVC”) is a grassroots

lobby organization that educates and speaks on behalf

of over 43,000 churches nationwide on issues of pro-

family concern. TVC has been a leading voice in the

halls of Congress for over thirty years, defending the

Judeo-Christian worldview that created and preserved

our nation and our prosperity for well over two

centuries. Those values include religious liberty and

protecting traditional marriage and family as the

cornerstone of society.

Amici have an interest in this case because the

issues are a matter of national urgency and the result

will impact the citizens of every state. Amici are

concerned about the rights of state voters and the First

Amendment liberties of citizens who do not support the

redefinition of marriage, including military chaplains

and the troops they serve.

3

INTRODUCTION AND

SUMMARY OF THE ARGUMENT

This case is not about the right to marry a person of

the same sex, or equal protection for a fundamental

right. It is not about who may marry, but what

marriage is.

When courts mandate marriage redefinition, they

disenfranchise the people, shatter the foundations of

government, and threaten liberties of speech, thought,

and religion. Moreover, no court, legislature, or voter

initiative can alter the nature of reality.

ARGUMENT

I. MARRIAGE REDEFINITION ADVOCATES

PRESUPPOSE THE DEFINITION THEY

SEEK TO ESTABLISH.

Words matter. Abraham Lincoln, discussing the

scope of his war powers, “liken[ed] the case to that of

the boy who, when asked how many legs his calf would

have if he called its tail a leg, replied, ‘Five,’ to which

the prompt response was made that calling the tail a

leg would not make it a leg.” Reminiscences of Abraham

Lincoln By Distinguished Men of His Time (Allen

Thorndike Rice ed., New York: Harper & Brothers

Publishers, 1909) (Classic Reprint 2012) (1853-1889),

62.

Calling a triangle a “circle” does not make it so.

Redefining “water” as a combination of hydrogen and

nitrogen does not alter its composition. Calling a same-

sex relationship “marriage” does not make it so. These

are word games. Respondents’ goal is not “marriage

equality” but marriage redefinition. One dissenting

4

Connecticut judge critiqued “the majority’s

unsupported assumptions that the essence of marriage

is a loving, committed relationship between two adults

and that the sole reason that marriage has been

limited to one man and one woman is society’s moral

disapproval of or irrational animus toward gay

persons.” Kerrigan v. Comm’r of Pub. Health, 957 A.2d

407, 515-516 (Conn. 2008) (Zarella, J., dissenting). This

simple observation lies buried under a heap of eloquent

sounding arguments resting on the same “unsupported

assumptions.”

The states that retain the time-honored definition

of marriage are not “excludling) a group from

exercising a right simply by manipulating a definition.”

Wolf v. Walker, 986 F. Supp.2d 982, 1004 (W.D. Wisc.

June 6, 2014). Amici do not argue that “the definition

of marriage should remain the same for the definition’s

sake.” Geiger v. Kitzhaber, 994 F. Supp. 2d 1128, 1142

(D. Or. May 19, 2014), quoting Golinski v. Off. of Pers.

Megmt., 824 F. Supp. 2d 968, 998 (N.D. Cal. 2012). It is

Respondents who “manipulate a definition” using

intrinsically illogical arguments.

Logic matters. Court rulings—especially those with

such major legal and social repercussions—should be

internally consistent. Recent marriage rulings

resemble the incongruity between President Obama’s

Father’s Day Proclamation (“there is no substitute for

a father’s presence, care, and support”) and his refusal

to defend the Defense of Marriage Act—ensuring the

permanent severance of many father-child

2 http://www.whitehouse.gov/the-press-office/2014/06/13/

presidential-proclamation-fathers-day-2014.

5

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

2675, 2684 (2013) (“the President . . . instructed the

Department [of Justice] not to defend the statute in

Windsor”).

A. Fundamental Rights Arguments

Presuppose Marriage Redefinition.

Federal courts often concede state authority to

define marriage. See, e.g., DeLeon v. Perry, 975

F. Supp. 2d 632, 657 (W.D. Texas 2014) (“Texas has the

‘unquestioned authority to regulate and define

marriage”) (emphasis added). But these courts

undertake the very role they decline. DeLeon casually

dismissed the contention that an injunction for

plaintiffs “would effectively change the legal definition

of marriage in Texas, rewriting over 150 years of Texas

law.” Id. at 665. That is exactly what it would do.

In order to determine whether a state has

impermissibly infringed a constitutional right, the

court must define that right. Courts have been skipping

this step, holding that state laws “unconstitutionally

deny consenting adult same-sex couples. their

fundamental right to marry in violation of the Due

Process Clause and the Equal Protection

Clause”—without first defining marriage. Jernigan v.

Crane, 2014 U.S. Dist. LEXIS 165898, *53-54 (E.D.

Ark. Nov. 25, 2014). Some courts adopt an emotional

definition to fit the desired result—“the right to make

a public commitment to form an exclusive relationship

and create a family with a partner with whom the

person shares an intimate and sustaining emotional

bond.” Bostic v. Rainey, 970 F. Supp. 2d 456, 472 (E.D.

Va. 2014); Kitchen v. Herbert, 961 F. Supp. 2d 1181,

1202 (D. Utah 2013). Kitchen, taking its cue from

6

Planned Parenthood v. Casey, 505 U.S. 833, 851 (1992),

asserted that “|a} person’s choices about marriage

implicate the heart of the right to liberty that is

protected by the Fourteenth Amendment.” Jd. at 1200.

These choices do implicate liberty, but Casey never

equates that liberty with a license to redefine marriage.

Recent federal rulings evade the crucial threshold

issue of whether marriage already encompasses same-

sex relationships, and if not, whether challengers may

compel a court to redefine it. The Tenth Circuit cited a

string of cases holding the right to marry does not

include same-sex unions—then discarded them like a

string of broken pearls and “nonetheless agree[d] with

Plaintiffs that in defining the liberty interest at stake,

it is impermissible to focus on the identity or class-

membership of the individual exercising the right.”

Kitchen v. Herbert, 755 F.3d 1193, 1215 (10th Cir.

2014).

B. Equal Protection Arguments

Presuppose Marriage Redefinition.

Bostic criticized Virginia’s marriage laws because

they “limit the fundamental right to marry to only

those Virginia citizens willing to choose a member of

the opposite gender for a spouse.” Bostic, 970 F. Supp.

2d at 472. Marriage laws in Indiana and Wisconsin

allegedly “discriminate” against same-sex couples.

Baskin v. Bogan, 766 F.3d 648, 658 (7th Cir. 2014).

These pronouncements conceal the underlying

presupposition that “marriage” has already been

redefined to mean something it has never meant.

Legal terms demand clear,’ consistent

definitions—not cleverly disguised alteration

7

midstream. The Sixth Circuit understood this basic

principle: “Many precedents gauging individual rights

and national power, leading to all manner of outcomes,

confirm the import of original meaning in legal

debates.” DeBoer v. Snyder, 772 F.3d 388, 403 (6th Cir.

2014) (collecting cases). No one contends that those

who adopted the Fourteenth Amendment understood it

to mandate marriage redefinition. Id.

Logical errors abound. One state supreme court

announced that “[djenying same-gender couples the

right to marry...violates the equality demanded by the

Equal Protection Clause of the New Mexico

Constitution,” then decreed marriage redefinition in

the remedies section: “[C]ivil marriage’ shall be

construed to mean the voluntary union of two persons

to the exclusion of all others.” Griego v. Oliver, 316 P.3d

865, 889 (N.M. 2013). The court essentially had to

redefine marriage in order to redefine marriage.

Similarly, to conclude that Oklahoma violated equal

protection through “an arbitrary exclusion based upon

the majority’s disapproval,” another court had to

bypass the argument that it was “rational for

Oklahoma voters to believe that fundamentally

redefining marriage could have a severe and negative

impact on the institution as a whole.” Bishop v. United

States ex rel. Holder, 962 F. Supp. 2d 1252, 1294 (N.D.

Okla. 2014) (emphasis added). The court implicitly

redefined marriage as a “loving, committed, enduring

relationship” between any two persons. Id. at 1295.

That newly minted definition has no roots in American

history or jurisprudence and cannot be presupposed in

these crucial rulings.

8

IT. FUNDAMENTAL RIGHTS ARGUMENTS

FAIL.

Many courts agree that the “right to marry” is

fundamental, but as the Sixth Circuit observes:

[Something can be fundamentally important

without being a fundamental right under the

Constitution. Otherwise, state regulations of

many deeply important subjects—from

education to healthcare to living conditions to

decisions about when to die—would be subject to

unforgiving review. They are not.

DeBoer, 772 F.3d at 411. The right Respondents assert

is a counterfeit that is neither “deeply rooted in this

Nation’s history and tradition” nor “implicit in the

concept of ordered liberty,” such that “neither liberty

nor justice would exist if they were sacrificed.”

Washington v. Glucksberg, 521 U.S. 702, 720-721

(1997).

“The institution of marriage . . . is more deeply

founded than the asserted contemporary concept

of marriage and societal interests for which

petitioners contend. The due process clause .. .

is not a charter for restructuring it by judicial

legislation.”

DeBoer, 772 F.3d at 400, quoting Baker v. Nelson, 191

N.W.2d 185, 186 (Minn. 1971).

Courts obscure this point, claiming that Loving,

Zablocki, and Turner do not define the right in terms

of “interracial marriage,” or the rights of persons owing

child support, or the right to marry while in prison.

See, e.g., Rosenbrahn v. Daugaard, 2015 U.S. Dist.

9

LEXIS 4018, *22-23 (D. S.D. Jan. 12, 2015); Brenner v.

Scott, 999 F. Supp. 2d 1278, 1287-88 (N.D. Fla.). Yet

case law consistently presupposes the union of male

and female:

® Griswold v. Connecticut, 381 U.S. 479, 485-486

(1965) (striking down law against

contraceptives)

¢ Zablocki v. Redhail, 434 U.S. 374, 383 (1978),

quoting Loving v. Virginia, 388 U.S. 1, 12 (1967)

(“Marriage is one of the basic civil rights of man,

fundamental to our very existence and

survival”)

° Skinner v. Oklahoma, 316 U.S. 535, 541 (1942)

(“Marriage and procreation are fundamental to

the very existence and survival of the race.”)

e Turner v. Safley, 482 U.S. 78, 96 (1987) (“[M]ost

inmate marriages are formed in the expectation

that they ultimately will be fully

consummated.”)

Same-sex couples have no use for contraceptives

(Griswold) and are unnecessary to human survival

(Zablocki, Loving, Skinner). Turner’s rationale lacks

coherence unless the Court presupposed the union of

male and female. The Indiana district court cited an

early state case holding that “the presumption in favor

of matrimony is one of the strongest known to law.”

Baskin v. Bogan, 12 F. Supp. 3d 1144, 1151 (S.D. Ind.

2014), quoting Teter v. Teter, 101 Ind. 129, 131-32 (Ind.

1885). Teter involved two half-brothers disputing the

validity of their mother’s second marriage—to a man.

No competing definition was on the horizon.

10

Nations around the world affirm the time-honored

definition of marriage:

We declare that the family, a _ universal

community based on the marital union of a man

and a woman, is the bedrock of society, the

strength of our nations, and the hope of

humanity. As the ultimate foundation of every

civilization known to history, the family is the

proven bulwark of liberty and the key to

development, prosperity, and peace.

World Family Declaration, endorsed by 120 countries

(ernphasis added).* Even a commentator who favors

extending legal benefits to same-sex couples (but not

the word “marriage”) acknowledges that:

The social institution of marriage predates our

legal system by millennia. Although !egal rights

conferred and obligations imposed by civil

marriage have changed over the centuries,

sexuality remains the vital core....

Daniel Dunson, A Right to a Word? The Interplay of

Equal Protection and Freedom of Thought in the Move

to Gender-Blind Marriage, 5 Alb. Govt. L. Rev. 552,578

(2012) (emphasis added). Marriage is a comprehensive

union of mind and body that transcends emotional

bonds and requires sexual complementarity.‘

* http://worldfamilydeclaration.org/WFD (last visited 07/09/14).

* For a full development of this argument, see What is Marriage?

Man and Woman: A Defense (Girgis, Anderson, and George, New

York: Encounter Books, 2012).

ll

Moreover, Lawrence did not involve formal

recognition of same-sex relationships. Lawrence uv.

Texas, 539 U.S. 558, 578 (2003). On the contrary:

Texas cannot assert any legitimate state interest

here, such as national security or preserving the

traditional institution of marriage. Unlike the

moral disapproval of same-sex relationg—the

asserted state interest in this case—other

reasons exist to promote the institution of

marriage beyond mere moral disapproval of an

excluded group.

Id. at 585 (emphasis added).

This Court has repeatedly signaled caution about

announcing new fundamental rights, thus placing

matters beyond the reach of public debate and

legislation. Courts must “exercise the utmost care...lest

the liberty protected by the Due Process Clause be

subtly transformed into the policy preferences of the

members of this Court.” Washington v. Glucksberg, 521

U.S. at 720, citing Moore v. City of East Cleveland, 431

U.S. 494, 502 (1977). The Sixth Circuit wisely exercised

judicial restraint:

A dose of humility makes us hesitant to

condemn as unconstitutionally irrational a view

of marriage shared not long ago by every society

in the world, shared by most, if not all, of our

ancestors, and shared still today by a significant

number of the States.

DeBoer, 772 F.3d at 404.

12

A. Respondents’ Proposed Redefinition Of

Marriage Is Not Deeply Rooted In

American History Or Tradition.

Courts must ditch decades of precedent to squeeze

Respondents’ claims into Glucksberg’s framework.

Respondents allegedly seek the “fundamental right to

marry’—but must first redefine marriage to launch

their arguments.

Glucksberg relied on tradition and moral

disapproval—factors courts now glibly cast aside. The

Idaho district court trips over itself discussing

Glucksberg, which “followed directly from the unbroken

pattern of state laws and legal traditions disapproving

suicide and assisted suicide.” Latta v. Otter, 19 F. Supp.

3d 1054, 1071 (D. Id.), affd, 2014 U.S. App. LEXIS

19620 (9th Cir. 2014). Latta short-circuits history,

stating it is “not aware of a similarly pervasive policy

against marriage” (id.) while ignoring the “pervasive

policy” upholding opposite-sex marriage and

condemning (even criminalizing) homosexual acts.

Latta discards Idaho’s marriage laws because “their

history demonstrates that moral disapproval of

homosexuality was an underlying, animating factor”

(id. ot 1080)—the same sort of moral disapproval

Glucksberg deemed relevant to uphold the law.

A Wisconsin court tossed Glucksberg because it

“involved the question whether a right to engage in

certain conduct (refuse medical treatment) should be

expanded to include a right to engage in different

conduct (commit suicide)” whereas “[i]n this case, the

conduct at issue is exactly the same as that already

protected: getting married.” Wolf v. Walker, 986

F. Supp.2d at 1002. No, it is not. Wolf presupposes

marriage redefinition and, with its dismissal of

Glucksberg, essentially erases the “deeply rooted”

criteria for fundamental! rights.

The marital union of male and female is “deeply

rooted” not only in American history but in world

history. But case law overwhelmingly confirms that

Respondents’ novel redefinition of marriage is a recent

development that does not share these roots:

The everyday meaning of “marriage” is “the legal

union of a man and woman as husband and

wife,” Black’s Law Dictionary 986 (7th ed. 1999),

and the plaintiffs do not argue that the term

“marriage” has ever had a different meaning

under Massachusetts law.

Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 952

(Mass. 2003), citing Milford v. Worcester, 7 Mass. 48, 52

(1810); Commonwealth v. Knowlton, 2 Mass. 530, 535

(1807) (Massachusetts common law derives from

English common law except as otherwise altered by

state statutes or Constitution). A multitude of courts

agree: Jones v. Hallahan, 501 S.W.2d 588, 589 (Ky.

1973); Baehr v. Lewin, 852 P.2d 44, 57 (Haw. 1993);

Standhardt v. Superior Court ex rel. Cty. of Maricopa,

77 P.3d 451, 460 (Ariz. Ct. App. 2003); Morrison v.

Sadler, 821 N.E.2d 15, 35 (Ind. Ct. App. 2005); Wilson

v. Ake, 354 F. Supp. 2d 1298, 1306 (M.D. Fla. 2005);

Hernandez v. Robles, 855 N.E.2d 1, 9 (N.Y. 2006):

Andersen v. King Cnty., 138 P.3d 963, 990 (Wash.

2006); Conaway v. Deane, 932 A.2d 571, 635 (Md.

2007); Jackson v. Abercrombie, 884 F. Supp. 2d 1065,

1094-98 (D. Haw. 2012); Obergefell v. Wymyslo, 962

F. Supp. 2d 968, 977 (S.D. Ohio 2013).

14

Most of these state cases predate Windsor, but

admittedly the “language in Windsor indicates that

same-sex marriage may be a ‘new’ right, rather than

one subsumed within the Court’s prior ‘right to marry

cases.” Bishop, 962 F. Supp. 2d at 1286 n. 33, quoting

Windsor:

For marriage between a man and a woman no

doubt had been thought of by most people as

essential to the very definition of that term and

to its role and function throughout the history of

civilization. . .

Windsor, 133 S. Ct. at 2689.

Words and definitions matter. “[W]hether or not the

right in question is deemed fundamental turns in large

part upon how the right is defined.” Bishop, 962

F. Supp. 2d at *1286 n. 33. Bishop declined to

determine whether Okla. Const. art. 2, § 35 burdened

the same-sex couple’s “fundamental right to marry a

person of their choice,” recognizing the potential impact

on other restrictions. Id. The Tenth Circuit glossed over

that glitch, arguing that Utah’s ban on plural marriage

is justified because monogamy is “inextricably woven

into the fabric of our society...the bedrock upon which

our cuiture is built”—neglecting to mention that the

monogamy historically woven into American fabric

presumes a union of male and female. Kitchen, 755

F.3d at 1219-20.

B. There Is No Fundamental Right To

Redefine Marriage.

Judicially imposed marriage redefinition has

cataclysmic implications, as even some advocates

admit:

15

A court’s insistence that the legal recognition of

same-sex couples be designated “marriage”

imposes an intellectual and social view that may

not be held by a majority of citizens within its

jurisdiction, and does so through the creation of

not simply “a brand-new ‘constitutional right”

but a disquieting new breed—a “right” to a word,

an unprecedented notion having inauspicious

potential for regulating speech and thought.

Dunson, A Right to a Word?, 5 Alb. Govt. L. Rev. at

599-600. The ominous First Amendment implications

“impact countervailing liberty interests, which have

been virtually ignored by proponents of court-ordered

gender-blind marriage.” Jd. at 555.

1. EQUAL PROTECTION ARGUMENTS FAIL.

Slavery was made plausible by redefining African-

American persons as property rather than human

beings. Similarly, courts manipulate reality when they

mandate marriage redefinition:

The purpose of language is no longer to

apprehend things as they are, but to transform

them into what we want them to be .. . just as

when a black man was called a piece of property

and used as an “article of merchandise” rather

than a human being. An injustice of similar

magnitude is perpetrated by naming same-sex

couplings “marriage.”

Making Gay OK: How Rationalizing Homosexual

Behavior is Changing (Robert R. Reilly, Ignatius

Press), 47. Such flights from reality destroy the human

equality marriage redefinition proponents claim to

defend.

16

Equal Protection arguments rely on_ the

presumption that “marriage” already subsumes same-

sex relationships. These verbal gymnastics defy law,

logic, and reality. The Sixth Circuit correctly reasoned

that:

No doubt, many people, many States, even some

dictionaries, now define marriage in a way that

is untethered to biology. But that does not

transform the fundamental-rights decision of

Loving under the old definition into a

constitutional right -under the new definition.

The question is whether the old reasoning

applies to the new setting, not whether we can

shoehorn new meanings into old words. Else,

evolving-norm lexicographers would have a

greater say over the meaning of the Constitution

than judges.

DeBoer, 772 F.3d at 412 (emphasis added).

There is no constitutional right to redefine

marriage. Nor is there a constitutional right to compel

social approval under the rubric of equal protection,

which “concerns equal rights and protections that allow

people to be who they are anid live as they choose, not

equal social stature, which requires other members of

the community to think of them in certain ways.”

Dunson, A Right to a Word?, 5 Alb. Govt. L. Rev. at

599.

A. Earlier Equal Protection Cases Did Not

Redefine Marriage.

In earlier cases, this Court considered issues

irrelevant to the essence of marriage—race,

incarceration, failure to pay child support. None

17

challenged the nature of the institution or did violence

to its existing definition. These cases uniformly

presuppose that marriage is, by definition, the union of

one man and one woman. Loving struck down racial

restrictions on marriage. Marriage has never been a

racial institution. Marriage is an inherently sexual

institution where hair color distinctions would be

arbitrary, but distinctions in gender composition—the

“vital core” of the institution—“are neither trivial nor

superficial.” Dunson, A Right to a Word?, 5 Alb. Govt.

L. Rev. at 597. Loving served the Fourteenth

Amendment’s central purpose—“to eliminate all official

state sources of invidious racial discrimination in the

States.” Loving, 388 U.S. at 10. “[RJestricting the

freedom to marry solely because of racial]! classifications

violates the central meaning of the Equal] Protection

Clause.” Jd. at 12. Marriage redefinition turns the clock

back to the days before the Fourteenth Amendment,

when the word “person” was redefined to exclude

African-Americans, thus rationalizing the politically

correct practice of the day—slavery.

No one argues that a gay African-American male

and gay Caucasian male could have obtained a

marriage license in 1968:

The denial of the license would have turned not

on the races of the applicants but on a request to

change the definition of marriage. Had Loving

meant something more when it pronounced

marriage a fundamental right, how could the

Court hold in Baker five years later that gay

marriage does not even raise a substantial

federal question? Loving addressed, and rightly

corrected, an unconstitutional eligibility

18

requirement for marriage; it did not create a

new definition of marriage.

DeBoer, 772 F.3d at 411 (emphasis added). As the Sixth

Circuit noted earlier:

In the nearly one hundred and fifty years since

the Fourteenth Amendment was adopted, to our

knowledge no Justice of the Supreme Court has

suggested that a state statute or constitutional

provision codifying the traditional definition of

marriage violates the Equal Protection Clause or

any other provision of the United States

Constitution.

Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 870

(8th Cir. 2006).

The same is true of Zablocki and Turner: “It strains

credulity to believe that a year after each decision a

gay indigent father could have required the State to

grant him a marriage license for his partnership or

that a gay prisoner could have required the State to

permit him to marry a gay partner.” DeBoer, 772 F.3d

at 412. Zablocki struck down a statute that denied

marriage to persons who owed delinquent child

support. Restrictions on inmate marriage did not serve

legitimate interests in rehabilitation and security.

Turner v. Safley, 482 U.S. at 97-98. This Court

described marriage as “the foundation of the family and

of society, without which there would be neither

civilization nor progress.” Zablockhi v. Redhail, 434 U.S.

at 384, quoting Maynard v. Hill, 125 U.S. 190, 211

(1888). Civilizations have progressed for millennia

without official recognition of same-sex relationships.

19

B. Respondents’ Approach Has No Limiting

Principle.

Recent marriage cases typically involve same-sex

couples who co-own property, live together, make

medical decisions for one another, and assume other

rights and responsibilities. See, e.g., Brenner v. Scott,

999 F. Supp. 2d at 1282. Courts often chastise state

defendants for “defining the right to marry too

narrowly” (Rosenbrahn, at *20) but then decree a

definition so broad as to empty the term “marriage” of

meaning. “To say that the only relationship that is

procreative is the same as one that never is, or ever can

be, is a leap into the void.” Making Gay OK, at 106.

Respondents’ approach “would create line-drawing

problems of its own.” DeBoer, 772 F.3d at 407. It is true

that “states have maintained laws on polygamy, incest,

age of consent” in the years following Loving, Zablocki,

and Turner. Rosenbrahn, at *23. But those cases

presupposed the union of male and female. Under

Respondents’ reconstruction, no restrictions can stand.

“Marriage” would disintegrate into the “loving,

committed” relationship of any two people with no

principled basis on which to find that any two people

are not “similarly situated” with respect to marriage.”

This nebulous definition destroys the foundation for

other restrictions. “If it is constitutionally irrational to

* In May 2010, a 72-year-old grandmother and her 26-year-old

grandson reportedly fell in love and hired a surrogate to enable

them to have a child together. This is an opposite sex union—but

Respondents’ redefinition leaves no foundation to deny this couple

the right to marry. http://www.telegraph.co.uk/news/newstopics/

howaboutthat/7662232/Grandmother-and-grandson-to-have-child-

together. html.

20

stand by the man-woman definition of marriage, it

must be constitutionally irrational to stand by the

monogamous definition of marriage. Plaintiffs have no

answer to the point.” DeBoer, 772 F.3d at 407. Other

factors—e.g., age, number, consanguinity—would be

equally insupportable. See id. at 412-413. Moreover, if

marriage is merely emotional attachment, it is difficult

to see why the state has any interest in defining it,

regulating it, or granting legal benefits.

Society values many loving relationships between

two persons of the same sex, e.g., father-son, sister-

sister, aunt-niece, grandfather-grandson, friend-friend.

There are comparable non-marital opposite-sex

relationships, e.g., father-daughter, mother-son,

brother-sister. These persons may live together, co-own

property, bequeath property to each other, and name

one another as agents under powers of attorney for

finances or health care. Two men, two women, or some

other combination of unmarried persons may share a

residence and appoint one another to act in

emergencies. They might share responsibility for

children—e.g., a grandmother may offer financial

assistance or babysitting to help her single-mom

daughter.

None of this renders these relationships equivalent

to marriage—but applying Respondents’ logic, any

“couple” would be eligible to marry. There is no limiting

principle to deny them that “right”—indeed, the

deconstruction extends even further:

Ironically, the logic behind this process of

legitimization of homosexual behavior undercuts

any objective standards by which we could judge

the moral legitimacy of anything. This is the

21

ultimate danger it poses—including to America’s

political foundations.

Making Gay OK, at 12. It might even be

“discrimination” for the state to deny benefits to a

couple (or group) merely because their relationship is

not romantic.

Recent rulings have found traditional marriage laws

irrational. Bostic v. Schaefer, 760 F.3d 352, 382 (4th

Cir. 2014). The Indiana district court could identify

only “one extremely limited difference” between same-

sex and opposite-sex couples. Baskin, 12 F. Supp. 3d at

1162. The lower court in Bostic asserted that “it would

demean a married couple were it to be said marriage is

simply about the right to have sexual intercourse.”

Bostic, 970 F. Supp. 2d at 480 n. 14, quoting Lawrence

v. Texas, 539 U.S. at 567. But it is hardly irrational to

reserve a unique word and legal status for the

complementary male-female union required for human

survival—even if some couples are childless. Marriage

is not simply about the right to have intercourse, but

the ability to do so is a rational distinction. Humanity

is a gendered species. The union of male and female

differs from other two-person relationships. Not every

marriage produces children, just as not every for-profit

corporation actually earns a profit. That does not mean

we must redefine what constitutes a corporation—or a

marriage. Moreover, two persons of the same sex

cannot “have” a child without involving a member of

the opposite sex—thus the “families” headed by same-

sex couples are broken by both definition and design.

The ensuing personal and legal entanglements are

what should cause grave concern for the welfare of

22

American’s children—not the failure to stretch the

definition of marriage.

IV. COURT-ORDERED MARRIAGE

REDEFINITION THREATENS CORE

AMERICAN LIBERTIES.

Many recent rulings impose policy judgments on the

people, contrary to admissions that the court’s role is

“not to impose its own political or policy judgments” on

the people. Bourke v. Beshear, 996 F. Supp. 2d 542, 543

(W.D. Ky. 2014). This ominous development jeopardizes

core freedoms of self-governance, thought, speech, and

religion, and obscures the inevitable damage to

Americans who cannot conscientiously endorse

marriage redefinition. This Court should affirm the

Sixth Circuit, which had the humility to acknowledge

its limits:

Of all the ways to resolve this question, one

option is not available: a poll of the three judges

on this panel, or for that matter all federal

judges, about whether gay marriage is a good

idea. Our judicial commissions did not come

with such a sweeping grant of authority, one

that would allow just three of us—just two of us

in truth—to make such a vital policy call for the

thirty-two million citizens who live within the

four States of the Sixth Circuit: Kentucky,

Michigan, Ohio, and Tennessee.

DeBoer, 772 F.3d at 396. The same is true for the

citizens of every state in this nation.

23

A. Court-Ordered Marriage Redefinition

Threatens Rights Of “The People” To

Govern Themselves And Set Public

Policy.

After the Civil War, the Reconstruction

Amendments carved out an exception to America’s

balance of powers because “states too could threaten

individual liberty.” Shelby v. Holder, 679 F.3d 848, 853

(D.C. Cir. 2012). These Amendments protect individual

liberties, including the right to vote. Jronically, the

Fourteenth Amendment is the very provision judges now

use to annul millions of votes on a matter of intense

public concern and debate.

“The [Fourteenth] [A]mendment was added to the

Constitution after the Civil War for the express

purpose of protecting rights against encroachment by

state governments.” Brenner v. Scott, 999 F. Supp. 2d

1278, 1286 (N.D. Fla. Aug. 21, 2014). Certain rights

may not be submitted to vote. West Virginia State Bd.

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

The Bill of Rights did not withdraw the right to set

marriage policy. Judges have no right to unilaterally

dictate public policy. Federal courts improperly

disenfranchise millions of voters when they mandate

marriage redefinition. “If a federal court denies the

people suffrage over an issue long thought to be within

their power, they deserve an explanation. We, for our

part, cannot find one....” DeBoer, 772 F.3d at 402. “It is

demeaning to the democratic process to presume that

the voters are not capable of deciding an issue of this

sensitivity on decent and rational grounds.” Jd. at 409,

quoting Schuette v. Coal. to Defend Affirmative Action,

134 S. Ct. 1623, 1637 (2014). The Tenth Circuit

24

admitted that “{a]s a matter of policy, it might well be

preferable to allow the national debate on same-sex

marriage to play out through legislative and democratic

channels”—then mandated marriage redefinition.

Kitchen, 755 F.3d at 1228.

Federalism is a critical component in the current

marriage crisis. Residual state sovereignty is implicit

in Art. I, § 8 and explicit in the Tenth Amendment.

Federalism safeguards individual liberty, allowing

states to “respond to the initiative of those who seek a

voice in shaping the destiny of their own times without

having to rely solely upon the political processes that

control a remote central power.” Bond v. United States,

1315S. Ct. 2355 (2011). The “federalist structure of joint

sovereigns...increases opportunity for citizen

involvement in democratic processes.” Gregory v.

Ashcroft, 501 U.S. 452, 458 (1991). Federally mandated

marriage redefinition suppresses those opportunities

and abridges the right of citizens to shape public policy.

It also threatens to expand the reach of Congress to

encroach even further on state authority over domestic

relations, using its Section 5 enforcement powers. That

would be a strange twist:

How odd that one branch of the National

Government (Congress) would be reprimanded

for entering the fray in 2013 and two branches of

the same Government (the Court and Congress)

would take control of the issue a short time

later.

DeBoer, 772 F.3d at 415. Such expansion of power

destroys basic principles of federalism.

25

Windsor is often trumpeted as a call to redefine

marriage. On the contrary, “[iJt takes inexplicable

contortions of the mind or perhaps even willful

ignorance .. . to interpret Windsor’s endorsement of

the state control of marriage as eliminating the state

control of marriage.” Conde-Vidal v. Garcia-Padilla,

2014 U.S. Dist. LEXIS 150487, *20 (D. P.R. 2014). As

the Sixth Circuit rightly concluded:

Windsor hinges on the Defense of Marriage Act’s

unprecedented intrusion into the States’

authority over domestic relations. Jd. at 2691-92.

Before the Act’s passage in 1996, the federal

government had traditionally relied on state

definitions of marriage instead of purporting to

define marriage itself. Jd. at 2691. That premise

does not work—it runs the other way—in a case

involving a challenge in federal court to state

laws defining marriage.

DeBoer, 772 F.3d at 400-401. Windsor cites earlier

cases supporting the states’ authority to regulate

marriage:

¢e Sosna v. lowa, 419 U.S. 393, 404 (1975)

(“virtually exclusive province of the States”);

e Williams v. North Carolina, 317 U.S. 287, 298

(1942) (the definition of marriage is the

foundation of the State’s broader authority to

regulate domestic relations);

© Ohio ex rel. Popovici v. Agler, 280 U.S. 379, 383-

384 (1930) (“when the Constitution was adopted

the common understanding was that the

domestic relations of husband and wife and

26

parent and child were matters reserved to the

States”);

© Haddock v. Haddock, 201 U.S. 562, 575 (1906)

(“the Constitution delegated no authority to the

[federal] Government .. . on the subject of

marriage and divorce”).

Windsor, 133 S. Ct. at 2691. “DOMA, because of its

reach and extent, departs from this history and

tradition of reliance on state law to define marriage.”

Id. at 2692.

Despite the pro-homosexual rhetoric that peppers

the opinion, Windsor did not mandate marriage

redefinition at the state level. As one lower court put it,

“DOMA’s federal intrusion into state domestic policy is

more ‘unusual’ than Oklahoma setting its own domestic

policy.” Bishop, 962 F. Supp. 2d at 1278.

Courts have created a massive judicial crisis by

overturning millions of votes. “[The right to vote] is

regarded as a fundamental political right, because

preservative of all rights.” Yick Wo v. Hopkins, 118 U.S.

356, 370 (1886). Judicially mandated marriage

redefinition endangers key elements of America

government—federalism, public policy, and core

liberties of the people.

B. Court-Ordered Marriage RKedefinition

Threatens Core First Amendment

Rights—Free Speech, Thought, And

Religion.

The Sixth Circuit wisely observes that: “For all of

the power that comes with the authority to interpret

the United States Constitution, the federal courts have

27

no long-lasting capacity to change what people think

and believe about new social questions.” DeBoer, 772

F.3d at 417. Moreover, it is “dangerous and demeaning

to the citizenry” to assume that only the judiciary can

understand the arguments. /d. at 418.

The many recent marriage cases are purportedly

about “liberty and equality, the two cornerstones of the

rights protected by the United States Constitution.”

Wolf v. Walker, 986 F.Supp.2d at 987. But “[wlhen

judges start telling people what words they must use,

beware.” Dunson, A Right to a Word?, 5 Alb. Govt. L.

Rev. at 588. Courts have “neither the constitutional

power nor the moral authority” to coerce the social

esteem and approval same-sex couples desire. Jd. at

594. Such a court order “misrepresents community

views and regulates speech so as to regulate thought in

an effort to change those views.” Id. at 591.

Marriage redefinition by judicial fiat “impacts

countervailing liberty interests, which have been

virtually ignored by proponents of court-ordered

gender-blind marriage.” Jd. at 555.° Same-sex couples

may “call themselves married,” but the question here

is “whether everyone else must do so as well.” Jd. at

556. The American system avoids government

regulation of speech and thought. Jd. at 586.

If any provisions of the Constitution can be

singled out as requiring unqualified attachment,

they are the guaranties of the Bill of Rights and

° This commentator supports legal rights and benefits for same-sex

couples but acknowledges that “official recognition” threatens the

liberties of others and should not be decreed by a court.

28

especially that of freedom of thought contained

in the First Amendment.

Schneiderman v. United States, 320 U.S. 118, 144

(1943).

Unlike the supposed right to redefine marriage,

religious freedom is “deeply rooted” in American

history and explicitly guaranteed by the Constitution.

Marriage has deep religious significance for many, and

religious traditions typically regulate sexual morality.

Yet federal courts brush aside the religious liberty

implications. The Tenth Circuit “note[d) that its

decision does not mandate any change for religious

institutions, which may continue to express their own

moral viewpoints and define their own traditions about

marriage.” Kitchen, 755 F.3d at 1227; see also Geiger,

994 F. Supp. 2d 1128 at 1143; Latta, 19 F. Supp. 3d at

1085; Bourke, 996 F. Supp. 2d at 555. Many courts

rebuff grave moral concerns and spurn the religious

values cherished by multitudes of Americans. Bishop,

962 F. Supp. 2d at 1289 (“moral disapproval often

stems from deeply held religious convictions” but such

convictions are “not a permissible justification for a

law”); Bourke, 996 F. Supp. 2d at 554 (“[The

government] cannot impose a traditional or faith-based

limitation upon a public right without a sufficient

justification for it.”).

If this Court mandates marriage redefinition, the

resulting conundrum is nowhere more apparent than

in the military. Military chaplaincies “provide for the

free exercise of religion in the context of military

service as guaranteed by the Constitution.”

Department of Defense Directive 1304.19.4.1. Congress

is constitutionally obligated to provide for the religious

29

needs of troops who are moved to remote areas of the

world where they risk sacrificing their lives and their

own denominations are unavailable. Katcoff v. Marsh,

755 F.2d 223, 228, 234 (2d Cir. 1985). When Congress

passed legislation to provide the armed forces with a

military chaplaincy, it continued a practice that began

even before the Constitution was ratified, and that has

continued ever since. Jd. at 225. Chaplains must be

able to faithfully serve the troops within the teachings

of their own faith traditions. A judicial mandate to

redefine marriage—a sacred institution for many

people of faith—would seriously undermine the liberty

to conduct weddings, counseling sessions, and even

worship services in accordance with the tenets held by

many chaplains and the troops they serve. See, e.z.,

1 Corinthians 6:9-11, Romans 1:24-32, Leviticus 18:22

(defining homosexual behavior as sin). A few intrusions

on religious liberty have already surfaced in past years.

Akridge v. Wilkinson, 178 Fed. Appx. 474 (6th Cir.

2006) (upholding a prison’s retaliatory action against a

volunteer chaplain who refused to allow an openly

homosexual inmate to take a leadership role in chapel

services). More recently, the Navy has retaliated

against a decorated chaplain (Wes Modder) with an

exemplary record because he expressed his biblical

views in private religious counseling sessions—the very

job he is there to do.’ In other contexts, anti-

discrimination mandates have spawned a multitude of

legal actions,” and the threat will escalate

’ https://www.libertyinstitute.org/modderfacts (last visited

03/19/15).

® See, e.g., Elane Photography v. Willock, 309 P.3d 53 (N.M. 2013),

cert. denied, 134 S. Ct. 1787 (U.S., Apr. 7, 2014) (Christian

30

exponentially unless the political process is allowed to

carve out exemptions to respect rights of conscience.

The uniquely close relationship between the

government and military chaplains will only intensify

this divisive trend and lead to other losses of liberty.

Chaplains will likely be limited in their ability to teach

and counsel according to their faith, marginalizing the

faith groups and service members they represent.

“Tolerance,” like respect and dignity, is best

traveled on a “two-way street.” DeBoer, 772 F.3d at

410, quoting Ward v. Polite, 667 F.3d 727, 735 (6th Cir.

2012). It is woefully inadequate to brush aside the

moral convictions and associated challenges faced by

religious organizations and citizens. Some of the recent

rulings barely mention the spiraling threats. But the

judicial intrusion on thought and speech encroaches

heavily on religion—a right that, unlike even

traditional marriage, the Constitution explicitly

guarantees.

V. ALL LAWS ARE GROUNDED IN MORAL

PRINCIPLES.

Echoing other recent pronouncements, a district

court in Florida proclaimed that “moral disapproval,

standing alone, cannot sustain a provision of this kind.”

Brenner v. Scott, 999 F. Supp. 2d at 1289. But

America’s founders spoke passionately about the moral

and religious underpinnings of our judicial system.

Benjamin Franklin forewarned:

photographer subjected to draconian financial penalties for

refusing to photograph a same-sex commitment ceremony).

31

If a sparrow cannot fall to the ground without

His notice, is it probable that an empire can rise

without His aid? We’ve been assured in the

sacred writing that, “Except the Lord build the

house, they labor in vain that build it.”

James Madison, The Papers of James Madison, (Henry

Gilpin ed., Washington: Langtree and O’Sullivan, 1840)

(Vol. II, June 28, 1787), 185.

Morality has a legitimate role in legislation:

In a democracy, the majority routinely enacts its

own moral judgments as laws. Kentucky’s

citizens have done so here.... It is true that the

citizens have wide latitude to codify their

traditional and moral values into law. In fact,

until after the Civil War, states had almost

complete power to do so, unless they encroached

on a specific federal power.

Bourke, 996 F. Supp. 2d at 550, 555. Lawrence and

Casey proclaim the judicial duty to define and protect

“the liberty of all, not to mandate our own moral code.”

Lawrence v. Texas, 539 U.S. at 571, quoting Casey, 505

U.S. at 850. But that is exactly what this Court would

be doing if it nullifies the moral judgment of the people.

As the Sixth Circuit highlights, it is an “evolution in

society’s values, not evolution in judges’ values,” that

justifies changes in the law. DeBoer, 772 F.3d at 416.

When Lawrence was decided, most states no longer

prohibited sodomy. /d.

Every law has a moral foundation and many are

based on “moral disapproval.” The question is whose

morality will prevail. As the Sixth Circuit noted, “a

rough sense of morality likely affected voters, with

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some thinking it immoral to exclude gay couples and

others thinking the opposite.” DeBoer, 772 F.3d at 409.

Even equality—a valid legal principle—is also a moral

principle. Advocates of so-called “marriage equality”

implicitly argue that it is wrong—i.e., immoral—to

retain the time-honored definition of marriage.

Ignoring that inescapable reality, courts embrace

Lawrence’s “moral code” language to cloak marriage

redefinition in the facade of morality neutrality. Griego,

at *886; Geiger, 994 F. Supp. 2d at 1142. Advocates of

marriage redefinition celebrate this as a victory for

their cause:

Preclusion of “moral disapproval” as a

permissible basis for laws aimed at homosexual

conduct or homosexuals represents a victory for

same-sex marriage advocates, and it forces

states to demonstrate that their laws rationally

further goals other than promotion of one moral

view of marriage.

Bishop, 962 F. Supp. 2d at 1290. Yet these advocates

promote “one moral view of marriage”—a view that

conflicts with a majority of the American people and a

tradition “measured in millennia, not centuries or

decades.” DeBoer, 772 F.3d at 396.

The American judicial system is becoming allergic

to religious expression or influence in the public

square, banishing moral concerns to the private

fringes. In Bostic, the district court gave short shrift to

the “faith-enriched heritage” of Virginia’s marriage

laws—laws admittedly “rooted in principles embodied

by men of Christian faith.” Bostic, 970 F. Supp. 2d at

464. The court shoved morality aside, contending that

marriage has “evolved into a civil and secular

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institution sanctioned by the Commonwealth of

Virginia.” Jd. This secularization poses new threats.

Over the last few decades, courts have ordered the

government to exit the bedroom and respect private

choices. The South Dakota district court proclaimed

that “[tlhe right to marriage is related to other

constitutionally protected rights, such as the right to

privacy.” Rosenbrahn, at *16. But activists thrust

private choices back into the public realm by

demanding massive government interference with the

conscience rights of those who cannot celebrate their

“private” decisions. Respondents’ redefinition of

marriage improperly mandates social approval,

imposing heavy burdens on those who disagree:

There is no constitutionally protected right to

moral or social approbation. Due process and

equal protection require according each person

a level of passive respect and dignity, but not

esteem or approbation.

Dunson, A Right to a Word?, 5 Alb. Govt. L. Rev. at

592-593.

VI. THE PRESERVATION OF MARRIAGE IS

BASED ON BIOLOGY—NOT BIGOTRY.

EVEN “THE PEOPLE” CANNOT REVISE

THE NATURE OF REALITY—INCLUDING

MARRIAGE.

The Sixth Circuit recognized its inability to

attribute animus to millions of voters: “If assessing the

motives of multimember legislatures is difficult,

assessing the motives of all voters in a statewide

initiative strains judicial competence.” DeBoer, 772

F.3d at 409.

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Certain realities are given and cannot be altered by

legal action. The immutable facts of biology distinguish

opposite-sex and same-sex couples in a way that no

legislature or court decree can alter—any more than

voters could overturn the law of gravity.

Courts protect the “inalienable rights” referenced in

America’s Declaration of Independence—rights that

precede the state and preempt human law, rights that

do not change over time. Respondents trample these

rights in order to manufacture new “rights” that defy

the nature of reality.

CONCLUSION

This Court should affirm the decision of the Sixth

Circuit.

Respectfully submitted,

Deborah J. Dewart

Counsel of Record

Attorney at Law

620 E. Sabiston Drive

Swansboro, NC 28584-9674

(910) 326-4554

(910) 326-4585 (fax)

debcpalaw@earthlink.net

Counsel for Amici Curiae

Dated: March 30, 2015