# Amicus Curiae Brief — Obergefell v. Hodges

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0306%3A112

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2015
- **Citation:** 576 U.S. 644

## Text

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 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

32

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

33

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.

34

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0306%3A112. Public record. Not legal advice.