# Amicus Curiae Brief — Obergefell v. Hodges

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0306%3A126

## Record

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

## Text

FILED —

APR -3 2015

OFFICE OF THE CLE!

No. 14-556, 14-562, 14-571, and 14-574

IN THE
Supreme Court of the Anited States

JAMES OBERGEFELL, ET AL., Petitioners,
Vv.

RICHARD HODGES, ET AL., Respondents.
VALERIE TANCO, ET AL., Petitioners,
Vv.

BILL HASLAM, ET AL., Respondents.
APRIL DEBOER, ET AL., Petitioners,
Vv.

RICHARD SNYDER, ET AL., Respondents.
GREGORY BOURKE, ET AL., Petitioners,
Vv.

STEVE BESHEAR, ET AL., Respondents.

On Writ of Certiorari to the United States Court of
Appeals for the Sixth Circuit

Brief Amicus Curiae of Public Advocate of the U.S.,
Joyce Meyer Ministries, U.S. Justice Foundation,
The Lincoln Institute, Abraham Lincoln Foundation,
Institute on the Constitution, Conservative Legal
Defense and Education Fund, and Pastor Chuck
Baldwin in Support of Respondents

MICHAEL CONNELLY WLLLIAM J. OLSON*
U.S. JUSTICE FOUNDATION HERBERT W. TITUS
932 D Street, Ste. 2 JEREMIAH L. MORGAN
Ramona, CA 92065 WILLIAM J. OLSON, P.C.
Attorney for Amicus Curiae 370 Maple Ave. W., Ste. 4
U.S. Justice Foundation Vienna, VA 22180-5615
(703) 356-5070
* Counsel of Record wjo@mindspring.com
April 3, 2015 Attorneys for Amici Curiae

(Additional counsel listed on inside cover)

ii
———

OF COUNSEL:

KERRY L. MORGAN
PENTTUK, COUVREUR &
KOBILJAK, P.C.
EDELSON BLDG.

STE. 200
2915 BIDDLE AVE.
Wyandotte, MI 48192

JAMES N. CLYMER
CLYMER CONRAD, P.C.
408 W. CHESTNUT ST.
Lancaster, PA 17603

2

J. MARK BREWER
BREWER & PRITCHARD,
P.C.,

3 Riverway, Ste. 1800
Houston, TX 77056

MARK J. FITZGIBBONS
9625 SURVEYOR CT.
SUITE 400
Manassas, VA 20110

TABLE OF CONTENTS

Page
TABLE OF AUTHORITIES iv
INTEREST OF THE AMICI CURIAE l
SUMMARY OF ARGUMENT . 2
ARGUMENT
I. THE FOURTEENTH AMENDMENT DOES NOT
MANDATE HOMOSEXUAL MARRIAGE ....... 5
A. Fabricating a False Foundation for a
Fundamental Right 6

B. An [Illegitimate Evolutionary “Right”

II. FEDERAL DECISIONS COMPELLING
HOMOSEXUAL MARRIAGE ARE DEEPLY FLAWED

A. Judge Martha Craig Daugherty
B. Judge Bernard Friedman

IIT. CATO’S “ORIGINALIST” CASE FOR SAME-SEX
MARRIAGE IS UNTENABLE

A. Cato’s “Original Meaning” Is Designed to
Reach a Result Contrary to the Intent of
the Framers

B. Cato Ignores the Nation’s Unique History
of Slavery, Inverting the Equal Protection
Clause to Apply to All Class Legislation

16

17

20

22

n

IV. FORCING HOMOSEXUAL MARRIAGE ON THE
STATES AND ON THE PEOPLE WOULD Do
GRAVE HARM TO THE NATION ; ; 26

A. Wholesale Revision of Every State’s Family
Law, and Related Matters f- ee

B. Closure of Christian and Other Religious
Adoption Agencies : - : . 2

C. Preaching Against Homosexuality and

Counseling of Homosexuals Likely Would
Be PROMBUEGOG 2 ow cc ccc eee vis 6 eee

D. Churches and Others Would Lose
Exemption from Federal Income Tax .. 30

E. Legalization of Multiple-Partner and
Incestuous Marriages... ... .... ... 81

F People of Biblical Faith Would be Driven
From Public Office a te Ue ; 32

G. A Coarsening of Civil Society Bs ae 32

H. Mandates on Businesses to Cater to
Homosexual Couples ._.. of 33

I. Professional Licensing Requirements to
Serve Homosexual Couples . 35

J. Undermining the Created Male-Female
Order .. : , as as , 22
Amendment XIV 2, passim
CASES
Baker v. Nelson, 409 U.S. 810 (1972) .... ..... 15

Bishop v. Smith, 760 F.3d 1070 (10" Cir. 2014) . 15
Bob Jones University v. United States, 461 U.S.

573 (1983) . &
Bolling v. Sharp, 347 U.S. 497 (1954) 22

Bostic v. Schaefer, 760 F.3d 352 (4° Cir. 2014) .. 15
Brown v. Buhman, 947 F.Supp.2d 1170 (D.Ut.

ee ka ee a er Sk ae nd tbe 31
D.C. v. Heller, 554 U. S. 570 (2008) i. =
Dred Scott v. Sandford, 60 U.S. (19 How.) 393

ie ata ete Lh, ae a a al 24

Elane Photography, LLC v. Willock, 309 P. 3d
53 (N.M. 2013) . 34

Vv

Employment Division v. Smith, 494 U.S. 872
a =" “4: 30

Ex parte State of Alabama ex rel. Alabama
Policy Institute, Alabama Sp. Ct., No.

1140460 (Mar. 3,2015) .. . ..... 15, 28, 29
King v. Governor of New Jersey, 767 F.3d 216
(3rd Cir. 2014) ...... . . 80

Kitchen v. Herbert, 755 F. 3d 1193 qo" Cir.
a a, ae ea ee a 15

Lawrence v. Texas, 539 U. S. 558 (2003) .. 4, 25, 26

Loving v. Virginia, 388 U.S. 1 (1967) ... 14
Marbury v. Madison, 5 U.S. (1 Cranch) 137
(1803) .... 3, 10, 12, 20
Maynard v. Hill, 125 U. S. 190 (1888) , 6, 7, 8
a *. ee es 390 (1923) .... 7,8
n’ ical Inc. v.

Superior Court, 44 Cal. 4th 1145 (Cal. 2008) 35
Osborn v. Bank of the United States, 22 U.S. (9

Wheat) 738 (1824) 19
Plessy v. Ferguson, 163 U.S. 537 (1896) - 23
Pickup v. Brown, 740 F.3d 1208 (9th Cir. 2014) . 30
Robicheaux v. Caldwell, 2 eee 3d 910

(E.D. La. 2014) .......... 15
Roe v. Wade, 410 U.S. 114 (1973) . 39
Romer v. Evans, 517 U.S. 620 (1996) 10
Slaughter-House Cases, 83 U.S. (16 Wall.) 36

(1873) er . 23
Strauder v. West Virginia 100 U. S. (10 Otto)

303 (1879) ; in

19

DeBoer plaintiffs commenced their litigation
challenging Michigan’s adoption law, but it was Judge
Friedman who counseled the challenge to the Michigan
Marriage Amendment (“MMA”). DeBoer, 973
F.Supp.2d at 759-60. In so doing, Judge Friedman
violated the bedrock principle of nemo iudex in causa
sua. Then, capping his judicial coup d’etat, he refused
to stay his order invalidating the MMA, which he
issued on a Friday afternoon at 5:00 p.m., and
prevented Michigan officials from obtaining an
immediate stay from the Sixth Circuit. Thus, Judge
Friedman freed his colleague, Judge Levy, to perform
marriages Saturday morning.'’ Abandoning the realm
of judicial judgment, Judge Friedman entered the
illegitimate realm of personal will, ignoring Chief
Justice Marshall’s admonition that:

Judicial power is never exercised for the
purpose of giving effect to the will of the
Judge; always for the purpose of giving effect
to the will of the Legislature; or, in other
words, to the will of the law. [Osborn v. Bank
of the United States, 22 U.S. (9 Wheat) 738,
866 (1824).]

Chief Justice Charles Evans Hughes once admitted
in private: “At the constitutional level where we work,
ninety percent of any decision is emotional. The
rational part of us supplies the reasons for supporting
our predilections.” W.O. Douglas, The Court Years

't See Associated Press, “Appeals Court Halts Gay Marriages in

Michigan” (Mar. 22, 2014), http://news.yahoo.com/appeals- court-
halts-gay-marriages-michigan-210343159 html.

20

(Random House 1980), p. 8. Cases involving so-called
“homosexual rights” demonstrate that this distinctly
unjudicial practice is not a relic of history, but a
present threat to the very survival of the rule of law
and the American constitutional republic.

ill. CATO’S “ORIGINALIST” CASE FOR SAME-
SEX MARRIAGE IS UNTENABLE.

A. Cato’s “Original Meaning” Is Designed to
Reach a Result Contrary to the Intent of
the Framers.

Amicus Cato Institute urges this Court to reject
the “original understanding” of those who wrote and
ratified the Fourteenth Amendment, in favor of what
Cato terms the “original meaning.” Brief of Amici
Curiae Cato Institute, et al. in Support of Petitioners
(“Cato Br.”) at 3. Of course, this begs the question —
whose meaning? Obviously this cannot be the
meaning given by the people who wrote and ratified
the Amendment, since that would be the same as
“original understanding.”

Readers of poetry may impute meaning to a text —
“what does this poem mean to me?” But such an
approach to constitutional law would lead to the end of
a written constitution, the very purpose of which is to
set “permanent” limits on the power of civil
governments. See Marbury v. Madison, 5 U.S. at 176.
Because “the people have an original right to
establish, for their future government, such principles
as, in their opinion, shall most conduce to their own
happiness,” it is their “original understanding,” as

21

revealed by the written words, that determines what
the law is. Id.

Cato’s search for the “original meaning,” rather
than the people’s “original understanding,” sanctions
a wide-open methodology of interpretation that
permits Cato to give the Fourteenth Amendment the
“meaning” which leads to a desired outcome.
Remarkably, Cato relies on D.C. v. Heller, 554 U.S.
570 (2008), as support for its novel proposition. Cato
argues that “[llaws can and must have consequences
beyond those understood or anticipated by the
generation of their promulgation.” Cato Br. at 4. Itis
one thing to understand, as a matter of original
“principle,” the word “arms” in the Second Amendment
to include modern rifles as well as colonial muskets, as
clearly the framers would have intended. It is quite
another to contend that the word “equal” in the
Fourteenth Amendment should be read, as a matter of
principle, to mandate homosexual marriage, a subject
that, on its face, the equal protection guarantee does
not address and that its framers would never have
intended. See DeBoer, 772 F.3d at 403-04. In short,
Cato’s “original meaning” argument is designed to
evade the “original understanding” of those who wrote
and ratified the Fourteenth Amendment, imputing a
meaning that they did not and would not have
intended when the Amendment was ratified in 1868.

22

B. Cato Ignores the Nation’s Unique History
of Slavery, Inverting the Equal Protection
Clause to Apply to All Class Legislation.

From the beginning, the Cato brief untethers its
argument from the Fourteenth Amendment text,
describing its interest as one “enforcing the age-old
principle of ‘equality under the law’ ... enshrined in the
Constitution through the Fifth and Fourteenth
Amendments.” Cato Br. at 1 (emphasis added). But
there is no “equal protection” guarantee written in the
Fifth Amendment. Instead, this Court grafted one
onto the due process guarantee, alleging that “it would
be unthinkable that the same Constitution would
impose a lesser duty on the Federal Government.”

Bolling v. Sharp, 347 U.S. 497, 500 (1954).

In like manner, Cato reads into the 1791 Fifth
Amendment due process guarantee an “age-old
principle of ‘equality under the law,” in order to lay a
foundation to reject what it deems to be a “narrow,
race-based view of the Fourteenth Amendment,” and
to adopt its preferred broad-based view which would
sweep away all “caste’ legislation,” not only of “race”
and “color” but also of “creed” and “orientation.” See
Cato Br. at 5-6. Indeed, in a rhetorical flourish
sweeping aside al] textual constraint, Cato opens its
Summary of Argument with the inventive claim that:

[tlhe Fourteenth Amendment’s Equal
Protection Clause establishes a _ broad
assurance of equality for all. It guarantees the
same rights and same protection under the
law for all men and women of any race,

23

whether rich or poor, citizen or alien, gay or
straight. [Cato Br. at 2 (emphasis added).]

Equally remarkably, Cato claims that this “broad”
reading is supported by Yick Wo v. Hopkins, 118 U.S.
356, 369 (1886). While Yick Wo may be best known for
its atextual proclamation that the right to vote is a
“fundamental political right,”’* that case decidedly
does not support Cato’s claim of a universal equality of
all people. To the contrary, the Yick Wo Court
reaffirmed the original narrow meaning of the equal
protection guarantee, limited to “race[,] color, ... [and]
nationality” (id. at 369), an interpretation that had

been previously embraced in the Slaughter-House
Cases, 83 U.S. (16 Wall.) 36, 71, 125 (1873).

Not only does Cato misuse Yick Wo, but also it
omits entirely the clarion call of Justice John Marshall
Harlan’s dissent in Plessy v. Ferguson, 163 U.S. 537
(1896), which captured the essence of the original
equality principle embodied in the Equal Protection
guarantee:

There is no caste here. Our Constitution is
color-blind.... The law regards man as man,
and takes no account of his surroundings or of
his color.... Jd. at 559 (Harlan, J., dissenting)
(emphasis added) .]

Indeed, the equal protection guarantee was designed
to rid the nation of the pernicious doctrine of

‘2 See id. at 370.

24

inequality sustained by this Court that undergirded
the American race-based slavery system,'* wherein a
human being could be “bought and sold, and treated as
an ordinary article of merchandise and traffic,” and
who therefore had “no rights which the white man was
bound to respect.” See Dred Scott v. Sandford, 60 U.S.
(19 How.) 393, 407 (1857). Cato instead would have
this Court ignore the specific equality principle ridding
the nation of race-based discrimination, absorbing it
into a broad-based “principle[{] of colonial and
Founding Era constitutional theory ... that the rule of
law carries with it a presumption of general and equal
application.”"* Cato Br. at 6. Ignoring this
unimpeachable history of dehumanization of the newly

'* See, e.g., Strauder v. West Virginia, 100 U.S. (10 Otto) 303
(1879) (“[The fourteenth amendment] is one of a series of
constitutional provisions having a common purpose; namely,
securing to a race recently emancipated, a race that through many
generations had been held in slavery, all the civil rights that the
superior race enjoy.”).

'* In support of its proposition that racial discrimination is only
one of a number of examples of unconstitutional class legislation,
Cato cites state constitutional provisions such as Article I, Section
20 of the 1857 Oregon Constitution, which reads: “No law shall be
passed granting to any citizen or class of citizens privileges, or
immunities, which, upon the same terms, shall not equally belong
to all citizens.” Or. Const., 1856, art. I, § 20. The Fourteenth
Amendment, of course, reads quite differently: “nor shall any
State ... deny to any person within its jurisdiction equal protection
of the laws.” “[T}he difference in the two constitutional texts,”
writes former Justice of the Oregon Supreme Court, Hans A.
Linde, “is not happenstance” explaining “[t]hey were placed in
different constitutions at different times by different men to enact
different historic concerns into constitutional policy.” H. Linde,
“Without ‘Due Process,” 49 ORE. L. REV. 125, 141 (1970).

25

freed slave class, Cato wrongfully attempts to meld
“race” and “gay people” into the same “caste” deserving
the same “equal protection” of the law. Cato Br. at 17-
24. But Cato utterly fails to make its case.

First, Cato has provided no historic parallel
between the experience of a homosexual and that of a
black person who was bought and sold as merchandise
with “no rights which the white man was bound to
respect.” Rather, while homosexual behavior
historically was punishable as a felony, it was rarely
prosecuted,’° not because the “concept of the
homosexual] as a distinct category of person’ emerged
only at the end of the 19™ century” (Cato Br. at 18), as
Cato would have the American people believe, but
because it was “an offense of so dark a nature, so
easily charged, and the negative so difficult to be
proved, that the accusation should be clearly made out:
for, if false, it deserves a punishment inferior only to
that of the crime itself.” 4 Blackstone’s Commentaries
at 215. In stark contrast, black people in America
were subject to lynching by lawless mobs, * which often
acted based upon little or no “proof” of any crime. To
the contrary, as Blackstone attests, prosecutions for
“the infamous crime against nature” demanded that it
be “strictly and impartially proved.” 4 Blackstone's
Commentaries at 215.

'© See Lawrence v. Texas, 539 U.S. 558, 569 (2003).

‘© See N. Johnson, Negroes and the Gun, Prometheus Books
(2014).

26

Second, however badly “homosexuals” have been
treated in America, Cato makes no effort to
demonstrate that “gay people,” like black persons,
have been historicaily treated as nonpersons, denied
by law the right to acquire property, to make and
enforce contracts, to sue, to give evidence, to vote, or to
serve on juries. Nor could such a case be made.

IV. Forcing Homosexual Marriage on the States
and on the People Would Do Grave Harm to
the Nation.

Just a dozen years ago, Justice Sandra Day
O’Connor, concurring specially in Lawrence, assured
the States that this Court’s decision striking down the
Texas sodomy law would not mean that Texas did not
have a “legitimate state interest [in] preserving the
traditional institution of marriage.” Jd. 539 U.S. at
585 (O’Connor, J., concurring). In his majority
opinion, Justice Kennedy likewise observed that
Lawrence “does not involve whether the government
must give formal recognition to any relationship that
homosexual persons seek to enter.” Jd. 539 U.S. at
578. In spite of that, courts across the nation, relying
primarily upon Lawrence,'’ have stumbled over each
other to be the first to overturn state laws and
constitutions affirming the law of the Creator that
marriage is limited to the lawful covenant union of one
man and one woman as it was from the beginning of
time immemorial. See Genesis 2:24; Matthew 19:4-6.

'’ Petitioners’ brief invokes Lawrence 26 times.

27

Today, the American people are being told that the
institution of marriage cannot constitutionally be
based upon a divinely revealed moral foundation, but
only according to the secular reasons of men. The
nation was not so founded. The Declaration of
Independence, the nation’s charter, grounded our
nation on the Biblical “Laws of Nature and of Nature’s
God,” embracing the principle that all men “are
endowed by their Creator with certain unalienable
Rights,” putting its case for liberty before “the
Supreme Judge of the world,” and acting in “firm
reliance on the protection of divine Providence....” See,
e.g., M. Novak, On Two Wings (Encounter: 2002), pp.
5-47. Today’s secular message would startle America’s
founders who drafted and ratified the Constitution.
Ben Franklin — perhaps the least religious leader of
the founding generation — called the constitutional
convention to prayer, because: “God Governs in the
affairs of men.” Documents Illustrative of the
Formation of the Union (Gov't Printing Office, 1927),
p. 295. Drawing on the “sacred writings,” Franklin
continued, “except the Lord build the House they
labour in vain that build it,” and he then counseled “I
firmly believe ... that without His concurring aid we
shall succeed in this political building no better, than
the Builders of Babel....” Jd. at 296.

This case before this Court is this nation’s tower of
Babel. At issue is whether we as a people are going to
continue to conform the institution of marriage to the
one created and established by God, or instead will
reform the most sacred of human institutions into
something else chosen by an elite set of jurists. Unlike
Lawreuce — the impact of which was limited to the

28

rarely enforced crime of sodomy — any decision to
require State recognition of “same-sex marriage” will
have repercussions of titanic proportions. To the end
that this Court be forewarned,’® these amici submit
the following:

A. Wholesale Revision of Every State’s
Family Law, and Related Matters.

The Alabama Supreme Court decision upholding
traditional marriage makes clear the far-ranging
implications of changing the meaning of the word:

“marriage” so as to make it mean [or apply to]
something antithetical to that which was
intended by the legislature and to the organic
purpose of [Alabama law] would appear to
require nothing short of striking down that
entire statutory scheme. [Ex parte State of

Alabama ex rel. Alabama Policy Institute, at
89.]

Indeed, the “entire edifice of family law [would be]
wipe|[d] away ... with a wave of the judicial wand.” Jd.
at 89-90. The laws that would be affected include:

inheritance ... distribution of estates, ... post-
marital support, custodial and other parental
rights as to children, adoption of children,
dissolution of marriages, testimonial privileges

certain defenses in the criminal law,

'* Ezekiel 33:1-7.

29

interests in land, the conveyance and
recording of such interests ... loss of
consortium. [/d. at 24.]

B. Closure of Christian and Other Religious
Adoption Agencies.

Already, Archbishop Sean P. O’Malley and leaders
of Catholic Charities of Boston announced that the
agency will end its adoption work, rather than comply
with state law requiring homosexual adoption of
children.’ The same has already happened in
Chicago.” If homosexual marriage were sanctioned,
parents would be precluded from using religious
agencies to place their children in families who share
their religion and values.

C. Preaching Against Homosexuality and
Counseling of Homosexuals Likely Would
Be Prohibited.

Pastors would be monitored by atheist and liberal
groups to ensure that there be no teaching that
homosexual behavior is sin. Even websites which offer
information about withdrawing from homosexual
behavior would be banned as “hate speech.” All
persons would be prohibited from the free exercise of

'® http://www.boston. w 3/11/catholic
charities stuns state ends adoptions/.

20

http://www.patheos.com/blogs/friendlyatheist/20 1 1/05/29/
catholic-adoption-agency-will-shut-down-instead-of-letting-gay-
couples-adopt/.

30

religion, including “proselytizing” others that their
behavior constitutes sin, but that the penalty for their
sins has already been paid through the death, burial,
and resurrection of Jesus Christ. I Cor. 15:1-4.

In California, it is already a crime to counsel
minors with respect to “sexual orientation change
efforts,” that is, any practices by mental health
providers “that seek to change an individual's sexual
orientation.”~ New Jersey passed a similar statute,
which was recently upheld by the U.S. Court of
Appeals for the Third Circuit. See King v. Governor of
New Jersey, 767 F.3d 216 (3rd Cir. 2014).

D. Churches and Others Would Lose
Exemption from Federal Income Tax.

The newly established constitutional mght to
homosexual marriage would be adjudged more
important than the “free exercise” right of para-church
ministries, Christian schools and colleges, and even
churches. These entities would be placed in jeopardy
of losing their federal tax-exempt status. See Bob
Jones University v. United States, 461 U.S. 573 (1983).
Loss of federal income tax-exempt status could lead to
loss of contribution income, and forfeiting of church
properties to pro-homosexual charities. In addition,

*! See Employment Division v. Smith, 494 U.S. 872, 877 (1990).

* The Ninth Circuit upheld the statute which prohibits the
“saying fof] certain words ... [b]y labeling such speech as
‘conduct’....”. See Pickup v. Brown, 740 F.3d 1208 (9th Cir. 2014)
(O’Scannlain, J., dissenting), cert. denied, 134 S.Ct. 2881 (2014).

a

351

criminal penalties might be imposed on church
leaders. In Idaho, two pastors recently were
threatened with fines and jail time unless they

performed homosexual marriages at their wedding
chapel.”*

E. Legalization of Multiple-Partner and
Incestuous Marriages.

Based on “privacy rights,” federal District Judge
Clark Waddoups has already invalidated a Utah
“cohabitation” law used against religious polygamists,
while leaving in place the ban on bigamy, thereby
permitting sister wives, with only one wife being the
state-recognized lawful wife. Brown v. Buhman, 947
F.Supp.2d 1170 (D.Ut. 2013). Currently, in Arizona
and Utah, there are a number of colonies of
polygamous families, where the first wife is legally
recognized, and the other wives are registered as
single mothers with the government as welfare
recipients, to the tune of millions of dollars at the
taxpayers’ expense.** Additionally, the door would be
wide open for three women” or three men” to marry

23

http:// fre. ashingtonupdate/natural-marriage-in-

#4 See J. Krakauer, Under the Banner of Heaven (Doubleday:
2003), pp. 12-13.

* See http://nypost.com/2014/04/23/married-lesbian-threesome-

26

See http://www.dai il.co. w icle- :
-like-new-boy- -8- -g- -WAY-sex- age-

32

and, if they can marry, then why not an uncle and a
niece as in New York,”’ or a step-brother and sister, as
illustrated by Direct TV’s new show, “Billy & Billie”?”®

F. People of Biblical Faith Would be Driven
from Public Office.

Requiring homosexual marriage would force state
officials to participate in wedding ceremonies which
would be sinful for Orthodox Jews, conservative
Catholics, and Evangelical Christians. In North
Carolina, numerous judges already have resigned to

avoid criminal prosecution for refusing to perform gay
marriages.””

G. A Coarsening of Civil Society.

Most persons have sufficient respect for others
that they regulate their sexual behavior to avoid
compelling others, especially those who are sensitive
or young , to observe their activities. Sadly, there is a
significant element among homosexuals who have
proven to be wholly insensitive to the sensibilities of
others. They refuse to allow Roman Catholics to
Celebrate Saint Patrick’s Day, without demanding the

i-men-tie-knot-fai le- mony.html.
*" See http://nypost.com/2014/10/29/new-york-state-blesses-incest-
marriage-between- uncle-niece/.

33

opportunity to celebrate their sexual difference from
Catholic doctrine. Gay Pride parades have included
nudity, sado-masochism, nuns in drag led by the
Sisters of Perpetual Indulgence, and other displays of
homosexual behavior designed to shock “straight”
people. Indeed, San Francisco’s 2012 ban on public
nudity is waived for the San Francisco Pride Parade.*
Television no doubt will become even more pro-
homosexual, making it more difficult for persons
adhering to traditional values to live their lives and
raise their children in an increasingly debased culture.

H. Mandates on Businesses to Cater to
Homosexual Couples.

Using statutes originally and primarily designed
to protect blacks from discrimination,*' activist
homosexuals have targeted bakers, photographers, and
florists, seeking to force all of them to promote a
marriage that they believe to be immoral. In
Washington state, a judge ruled that a florist violated
the state’s anti-discrimination laws when she referred
a longtime customer to another florist for the wedding
flowers for his homosexual marriage.*” In New York,
a husband and wife shut the doors to their business

*° See http://americansfortruth.com/2012/12/07/san-franciscos-

exual-events/.

* J. Gottry & G. Gottry, “Just Shoot Me: Public Accommodation
Anti-Discrimination Laws Take Aim at First Amendment
Freedom of Speech,” 64 VAND. L. REV. 961, 965 (2011).

2 http://www.cnn.com/2015/02/20/living/stutzman-florist-gay/.

34

hosting weddings on their family farm, after a court
fined them $13,000 for refusing to host gay marriages
in their home.* In Colorado, a baker faced jail time™
and stopped baking wedding cakes entirely, after a
court ruled that he discriminated against a gay couple
when he refused to bake them a cake for their
wedding.” In Oregon, a court found similarly against
another baker, and he may be forced to pay a
homosexual couple up to $150,000 as penalty.” The
New Mexico Supreme Court held that a photographer
violated the state’s anti-discrimination statutes by
refusing to photograph a gay wedding.*’ Newspapers
likely will be forced to publish homosexual wedding
announcements, in violation of their existing editorial
control over what they publish.

- http://news.ya / le-fined-refusing-host-gay-

wedding-shuts-down- 193206210.html.

- http://www.breitbart.com/big-government/2013/12/12/
. : q “"a° ? ee fi -d * ¢ . a d :

https://www.aclu.org/sites/default/files/assets/initial decision ca
se_no. cr 2013-0008. pdf.

* http://www. . story/news/2015/02/02/bakery-same-

*” Elane Photo h v. Willock, 309 P.3d 53 (N.M. 2013).

35

I. Professional Licensing Requirements to
Serve Homosexual Couples.

In this brave, new, homosexual-friendly world,
every licensed professional would be required to
embrace the new orthodoxy, to bow down to the idol of
“non-discrimination,” or be cast out of his profession.
People who “‘irst claimed only to only want tolerance of
their behavior will allow no toleration for other views.
Will a physician be forced to perform an artificial
insemination for a lesbian couple?” Will a lawyer be
forced to take a case defending gay marriage?
Lawyers are already losing their “traditional
prerogative to exercise absolute discretion in the
selection of clients....” R. Beg, “The Lawyer’s License
to Discriminate Revoked: How a Dentist Put Teeth In
New York’s Anti-Discrimination Disciplinary Rule,” 64
ALBANY L. REv. 154 (2000). Provisions designed to
advance the homosexual agenda have been
incorporated into many state ethics codes. In
California, for example, it is unethical to
“discriminat[e] on the basis of ... sexual orientation
[in] employment ... or [client] representation....” State
Bar of California, Rules of Professional Conduct: Rule
2-400B.*°

%* See North st Women’s Care Medical Group, Inc. v. Superior
Court, 44 Cal. 4th 1145 (Cal. 2008).

” At . . v/Rules/Rul fessionalConduct/
ntRul ul aspx.

36

J. Undermining the Created Male-Female
Order.

The Holy Scriptures reveal that God created
mankind, male and female, in the image of God.
Genesis 1:27; Matthew 19:4-6. Homosexual sex and
homosexual marriage are a repudiation of God’s
created order.“° Nature itself reveals that God
fashioned the male penis and the female vulva/vagina
as complementary sex organs. One homosexual
testified to this obvious truth when he reported that
homosexual sex is “a poor substitute for intercourse
with a woman....” *'

In stark contrast to the created order, today one’s
“sex” is defined as “a person’s biological status,”** while
“gender” is “a person’s private sense and subjective
experience,”** and “sexual orientation” a person's

“emotional and sexual attraction to a particular sex or

“ In Robert Bolt’s play “A Man for All Seasons” Sir Thomas More
asked “if [the world] is round, will the King’s command flatten it?”
Likewise here, if God created us male and female and marriage as
a covenant union between a husband and a wife, will an order by
this Court undo it?

*' K. Jay and A. Young, The Gay Report: Lesbians and Gay Men

Speak Out About Sexual Experiences & Lifestyles (Summit Books:
1979), p. 477

37

gender.”“* In short, “sex” is who you are, “gender” is
how you feel, and “sexual orientation” is who you like.
y y

Not too long ago, sexual orientation was delineated
into heterosexual (straight) and homosexual
(gay/lesbian or “queer”). To that was added “bisexual”
(attracted to both men and women), “pansexual” or
“omnisexual” (attraction to all genders), and “asexual”
(not attracted to anyone).*° In 2014, Facebook added
more than 50 gender options to its users’ profiles and
now allows custom options.“ In order to be considered
“tolerant” and “understanding,” one presumably must
have a Ph.D. in gender studies. In the mid-1980's, and
for a time, “LGB” was settled upon. Then, by the mid-
1990s, “LGBT” was used. But even that did not prove
inclusive enough, prompting group after group to be
“outraged” and to demand “full inclusion” of all. The
current accepted vernacular is said to be
“LGBPTTQQITAA+,” standing for “lesbian, gay,
bisexual, transgender, transsexual, queer, questioning,
intersex, intergender, asexual, ally and beyond.”*’
Indeed, some consider pedophilia to be a legitimate

** http://www.apa.org/topics/Igbt/orientation.aspx.

*© See https://lgbtq.unc.ed u oring-identities/bisex
ual-pansexual-identities.

© See hitp:// 283- : -C -choice/.
*’ See http://msmagazine.com/blog/2013/10/01/gbpttqgiiaa-how-

we- got-here- -pay/.

38

sexual orientation,“ returning us to the pagan
pederasty of ancient Greece.*” Requiring homosexual
marriage will contribute mightily to the sexual
confusion of the nation, sexualizing children and young
adults, encouraging them to experiment with sin.

K. Loss of Liberty.

John Adams warned “Our Constitution was made
only for a moral and religious people. It is wholly
inadequate to the government of any other.”” Today,
“the distinctive features of modern European political
thought, including ... its particular notion of individual
rights ... and its embrace of religious toleration,” are
attributed to the “process of secularization” — but that
view “puts things almost exactly backward.” E.

Nelson, The Hebrew Republic: Jewish Sources and the

Transformation of European Political Thought
(HARVARD UNIV. PRESS, 2010), pp. 1-2. In fact,

rejection of Judeo-Christian thought inevitably leads
to a neopagan world view. In support of striking down
laws against abortion, Justice Blackmun pointed out:

“” See, e.g., http://th l /120/
lbremmer.pdf.

* J. Adams, “Message to the Officers of the First Brigade of the
Third Division of the militia of Massachusetts” (Oct. 11, 1798).

: i ib/ s/
115/Message from John Adams to the Officers of the First_
Brigade _1.html.

39

abortion was practiced in Greek times as well
as in the Roman era, and ... “it was resorted to
without scruple”.... Greek and Roman law
afforded little protection to the unborn....
Ancient religion did not bar abortion. [Roe v.
Wade, 410 U.S. 114, 130 (1973).]

Like abortion, homosexuality constitutes:

a reversion to pagan ways of thinking. Most
obviously, homosexuality was accepted among
the ancient Greeks and supplies the premise of
Platonic discussions about the nature of love.

Similar views prevailed in Babylon, Egypt,
and imperial Rome. All of this was
unequivocally condemned by the religion of the
Bible. As cogently argued by Dennis Prager,”’
the current effort to relegitimize
homosexuality is thus an attempt to turn
Western culture back to pagan attitudes and
behaviors. [(M.S. Evans, The Theme is
Freedom: Religion, Politics, and the American
Tradition (Regnery Publishing, 1994), p. 128.)

Such pagan ways of thinking did not respect individual
rights, diversity, or tolerance, or envision government
to be limited in power, but rather were reflected in
acceptance of abortion, infanticide, “exposure”
(abandonment) of children, widespread slavery, and
governments with totalitarian powers, and even the

51

D. Prager, Homosexuality, the Bible, and Us — a Jewish
Perspective, THE PUBLIC INTEREST, Summer 1993.

40

divinity of political leaders. Jd. at 138. The choice for
the country is clear:

[t}he classical way of thinking led inexorably
to untrammeled power in the state, and to
subjugation of the individual. The biblical
model leads to limitations on that power, and
hence to freedom. [/d. at 135.]

L. God’s Judgment on the Nation.

Should the Court require the States and the People
to “ritualize” sodomite behavior” by government
issuance of a state marriage license, it could bring
God’s judgment on the Nation. Holy Scripture attests
that homosexual behavior and other sexual
perversions violate the law of the land, and when the
land is “defiled,” the people have been cast out of their
homes. See Leviticus 18:22, 24-30. Although some
would assert that these rules apply only to the
theocracy of ancient Israel, the Apostle Peter rejects
that view: “For if God ... turning the cities of Sodom
and Gomorrha into ashes condemned them with an
overthrow, making them an ensample unto those that
after should live ungodly.” 2 Peter 2:4-6. The
continuing application of this Levitical prohibition is
confirmed by the Book of Jude: “Even as Sodom and
Gomorrha, and the cities about them in like manner,
giving themselves over to fornication, and going after
strange flesh, are set forth for an example, suffering

°? 1 Kings 14:24.

41

the vengeance of eternal fire.” Jude 7 (emphasis
added).

CONCLUSION

Whatever justification any judge may believe
compels a State to define marriage to include same-sex
couples, it is not found in the Constitution, nor is it
based in any constitutional principle. For any judge to
require a State to define marriage to include same-sex
couples is an usurpation of authority that he does not
have under the laws of man or God, and is thus illegal.

Respectfully submitted,
MICHAEL CONNELLY WILLIAM J. OLSON*
U.S. JUSTICE HERBERT W. TITUS
FOUNDATION JEREMIAH L. MORGAN
932 D Street, Ste. 2 WILLIAM J. OLSON, P.C.
Ramona, CA 92065 370 Maple Avenue West
(760) 788-6624 Suite 4
Attorney for Amicus Vienna, VA 22180-5615
Curiae U.S. Justice (703) 356-5070
Foundction wjyo@mindspring.com
*Counsel of Record Attorneys for Amici

April 3, 2015 Curiae

42

OF COUNSEL: J. MARK BREWER
BREWER & PRITCHARD,
KERRY L. MORGAN P.C.
PENTIUK, COUVREUR & 3 Riverway, Ste. 1800
KOBILJAK, P.C. Houston, TX 77056
Edelson Bldg.
Ste. 200 MARK J. FITZGIBBONS
2915 Biddle Ave. 9625 Surveyor Ct.
Wyandotte, MI 48192 Suite 400

Manassas, VA 20110

JAMES N. CLYMER
CLYMER CONRAD, P.C.
408 W. Chestnut St.
Lancaster, PA 17603

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0306%3A126. Public record. Not legal advice.