Amicus Curiae Brief — Obergefell v. Hodges
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Sup rwniic \V-"4ty U.5.
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MAR - 4 2015
LQFFICE OF THE CLEA
Nos. 14-556, 14-562, 14-571, 14-574
Zn the Supreme Court of the Anited States
JAMES OBERGEFELL, ET AL., Petitioners,
v.
RICHARD HODGES, DIRECTOR, OHIO DEPARTMENT OF
HEALTH, ET AL., Respondents.
ON WRITS OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BRIEF OF AMICI CURIAE SERVICES AND
ADVOCACY FOR GAY, LESBIAN, BISEXUAL
AND TRANSGENDER ELDERS; AMERICAN
SOCIETY ON AGING; JUSTICE IN AGING;
NATIONAL COMMITTEE TO PRESERVE
SOCIAL SECURITY AND MEDICARE; AND
NATIONAL HISPANIC COUNCIL ON AGING
IN SUPPORT OF PETITIONERS
Jonathan Jacob Nadler
SQUIRE PATTON BoGGs (US) LLP
25560 M Street, N.W.
Washington, D.C. 20037
202-457-6016
jack.nadle uirepb.com
Counsel for Curiae
TABLE OF CONTENTS
SOCCER EEE EEE EERE EEE EERE EEE EEE HH HOH Re
I. Excluding Same-Sex Couples From
Marriage Deprives Them Of Access
To Federal, State, And Private
Benefits That Are Especially
Important For Older Adults
A.
Older Same-sex Couples Who
Live in States That Do Not
Allow Them to Marry, Or Do
Not Recognize Their Lawful
Out-of-State Marriages, Are
Denied Important State and
Private Benefits ........................
Older Same-sex Couples Who
Cannot Travel to a State in
Which They Can Marry
Continue To Be Denied
Important Federal Benefits.... 11
Lawfully Married Same-Sex
Couples Whose Marriage Is
Not Recognized in Their
“State of Domicile” Continue
To Be Denied Federal
Benefits Especially
Important to Older Adults......
1. Social Security
Spousal Benefits ...........
OOP Pee eee PPP eee Pee eee eee eee |
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TABLE OF CONTENTS
(continued)
Page
2 Medicaid Long
een 16
2. Veterans’ Spousal
| EERE renrnaren 17
II. Denial Of The Right To Marry
Deprives Older Same-Sex Couples
Of The Intangible Benefits That
Marriage Provides To Older
Heterosexual Couples........................ 19
A. Marriage Provides Older
Heterosexual Couples With
Significant Benefits ................ 19
B. Marriage Benefits Older
Same-Sex Couples As
Much — If Not More —
Than Older Heterosexual
Tc ccciinenteiceiisdniaemadinnes 24
Ill. Allowing Older Heterosexual
Couples To Marry Despite Being
Non-Procreative, While Forbidding
Older Same-Sex Couples From
Marrying Because They Are Non-
Procreative, Is Self-Evidently
STII iriccnntennnetennniniiniensionianeaianininen 29
IV. Older Same-Sex Couples Should
Not Have To Wait Any Longer To
Enjoy The Benefits Of Marriage ....... 33
ID cnnnnseccnscecustnceninsonesinessemnatsonneonenecninnet 35
i
TABLE OF AUTHORITIES
Cases Page(s)
Baskin v. Bogan,
766 F.3d 648 (7th Cir. 2014)...............00000000... 32, 33
Bishop v. United States ex rel. Holder,
962 F. Supp. 2d 1252 (N.D. Okla. 2014) ............. 32
Bostic v. Schaefer,
760 F.3d 352 (4th Cir. 2014)................................ 32
Bourke v. Beshear,
996 F. Supp. 2d 542 (W.D. Ky. Feb. 12, 2014)...... 7
Campaign for S. Equal. v. Bryant,
No. 3:14-cv-818, 2014 U.S. Dist. LEXIS
165913 (S.D. Miss. Nov. 25, 2014) .............0.......... 7
Caspar v. Snyder,
No. 14-cv-11499, 2015 U.S. Dist. LEXIS
4644 (E.D. Mich. Jan. 15, 2015) ..........00.00000000000.. 10
City of Cleburne v. Cleburne Living Ctr,
a el 30
DeBoer v. Snyder,
772 F.3d 388 (6th Cir. 2014)............ 5, 6, 29, 31, 33
Donaldson v. State,
292 P.3d 364 (Mont. Sup. Ct. 2012) .................... 10
In re Fonberg,
736 F.3d 901 (Sth Cir. 2013).............cc.ccreccoseceseee Il
i
Garden State Equal. v. Dow,
79 A.3d 1036 (N.J. Sup. Ct. 2013) .......0....000000000.. 13
Gray v. Orr,
Case No. 1:13-cv-08449 (N.D. IIL.)............0.0.000... 34
Griswold v. Connecticut,
Cg RN ee 30
Henry v. Himes,
14 F. Supp. 3d 1036 (S.D. Ohio 2014)................... 7
Jernigan v. Crane,
No. 4:13-cv-00410, 2014 U.S. Dist. LEXIS
165898 (E.D. Ark. Nov. 25, 2014).............000...00000.. 7
Lawrence v. Texas,
BBD UB. BEB CRODG)....nncccccccccccccccccecccccccccccceccccccsees 29
Murphy v. Colvin,
Case No. 14-cv-01764 (D.D.C. Oct. 22, 2014) ..... 16
Raum v. Restaurant Assocs., Inc.,
252 A.D.2d 369 (N.Y. App. Ct. 1998) .................. 10
Romer v. Evans,
517 U.S. G20 (199G)................0....ccececcecceccccceee 30, 33
Rosenbrahn v. Daugaard,
No. 4:14-cv-04081, 2015 U.S. Dist. LEXIS
4018 (D.S.D. Jan. 12, 2015)..................................- 9
Schwetker v. Gray Panthers,
ee 20
Tanco v. Haslam,
Fs ee Sy OI dedecesctccencccnsdintensiininniede 7
Turner v. Safely,
482 U.S. 78 (1987)................. scaieieeltibnaidiitdtnatalaaiaaiitadil 31
United States v. Windsor,
570 U.S. _, 133 S. Ct. 2675
Constitutions and Statutes
es GREE, GADD, Tis TB & cecccersenccnstivccscscsnsensoncesses 34
neers eee 14
ls SITE ssincnniiscdsnciasissinecniddiiatindssininaiain 13
TT RET TE 18
EA Tn IIIT isinietsicindiieesncsniilingiiiaiieniiatibinmbsiatadeadad 18
gE ee 15, 16
ee 34
BB ee 31
750 Ill. Comp. Stat. Ann. 5/212(f).......................00024- 31
RS 8 ae een EEE 31
Ohio Rev. Code Ann. § 2125.02(A)(1) ....................... 10
Tenn. Code Ann. § 31-2-104...2..00......... ccc ccccecceceeeceeee ees 8
iv
Tenn. Code Ann. § 34-3-103.........0.0..00. ccc ccc cece eee eee
Tenn. Code Ann. § 39-15-101................cc cece cceee eee
Tenn. Code Ann. § 68-11-1806............000...000..000eeee
Cee Cotie Ame. & BB- 1 BG .coccccccccccccccscccccscccccosece
SN II Or TTI TIT insnin seneriesnsictaiendineeseneninneniamenienanen
Other Authorities
Adam Shapiro & Corey Lee M. Keyes,
Marital Status and Social Well-Being: Are
the Married Always Better Off?, 88 Social
Indicators Research 329 (2008).......................
Adrianne Frech & Kristi Williams,
Depression and the Psychological Benefits
of Entering Marriage, 48 J Health &
Social Behavior 149 (2007) ..................2cccceceee0s
Am. Medical Ass’n, Policy Regarding Sexual
Orientation, Policy H-65.973, Health Care
Disparities in Same-Sex Partner
0 Ee
Amy M. Pienta et al., Health Consequences of
Marriage for the Retirement Years, 21 J
Family Issues 559 (2000)........................2-020000:
Barbara Steinberg Schone & Robin M.
Weinick, Health-Related Behaviors and
the Benefits of Marriage for Elderly
Persons, 38 The Gerontologist 618 (1998) ......
Vv
Braedyn Kromer & David Howard, U.S.
Census Bureau, Labor Force
Participation and Work Status of People
65 Years and Over (Jan. 2013) .............0.0cc.cccceeeee 12
Brody Levesque, Texas man, separated by
family from partner of 34 years, hopes for
reunion, LGBTQ Nation (May 1, 2013)................. 8
David Roelfs, et al., The Rising Relative Risk
of Mortality for Singles: Meta-Analysis
and Meta-Regression, Am. J.
ne Ee 23
D’Vera Cohn, et al., Pew Research Center,
New Marriages Down 5% from 2009 to
2010: Barely Half of U.S. Adults Are
Married — A Record Low (Dec. 14, 2011) ............ 19
Deborah A. Widiss, Leveling Up After
DOMA, 89 Ind. L.J. 43 (2014) ......................02000e. 11
Dep’t of Veteran Affairs, Summary of Precedent
Opinions of the General Counsel, 79 Fed.
Reg. 35414 (June 20, 2014) ............... cece eeeee ee ceee ees 18
Erin Fitzgerald, No Golden Years at the End of
the Rainbow, Nat'l Gay & Lesbian Task
ES ATER AP OTT 25, 28
Gary J. Gates & Frank Newport, Special
Report 3.4% of U.S. Adults Identify as
LGBT, GALLUP (Oct. 12, 2012) ................... 27, 30
vi
I-Fen Lin & Susan L. Brown, Unmarried Baby
Boomers Confront Old Age: A National
Portrait, The Gerontologist (2012) ...................... 21
James Poterba, et al., Nat'l Bureau of Econ.
Research, “Were They Prepared for
Retirement? Financial Status at
Advanced Ages in the HRS and AHEAD
Cohorts,” Working Paper 17824 (2012) .............. 24
Joan Raymond “Single people may die
younger, new study finds,” NBCNews.com ........ 23
Karen Fredriksen-Goldsen, et al., The Aging
GRE FOBT Tapert CRO) ......ccccescccccsccccoccccscccesces 28
Lee A. Lillard & Linda J. Waite, “Til Death Do
Us Part: Marital Disruption and Mortality,
100 Am. J. Sociology 1131 (1995)........................ 23
Linda J. Waite & Maggie Gallagher, The
Case for Marriage: Why Married People
are Happier, Healthier, and Better Off
| LTA Ae ea a RE 22
Linda J. Waite & Mary Elizabeth Hughes, Az
Risk on the Cusp of Old Age: Living
Arrangements and Functional Status
Among Black, White and Hispanic Adults,
54B J. Gerontology $136 (1999).......................... 21
M.V. Lee Badgett, et al., New Patterns of
Poverty in the Lesbian, Gay and Bisexual
Community, Williams Inst. (June 2013)............. 27
Vill
M.V. Lee Badgett & Jody L. Herman,
Patterns of Relationship Recognition by
Same-Sex Couples in the United States,
Williams Inst. (Nov. 2011).........0...0. ccc cece ee cece eee 25
Margaux Laskey, A Lifetime of Happiness,
Part 2, N.Y. Times (Jan. 27, 2013)................0..... 20
Medicare and Medicaid Programs: Changes
to the Hospital and Critical Access
Hospital Conditions of Participation to
Ensure Visitation Rights for All Patients,
42 CFR Parts 482 and 485, 75 Fed. Reg.
70831-70844 (Nov. 19, 2010) ..................0cc ccc eee eeeee 9
Movement Advancement Project, et al.,
Improving the Lives of Older Adults,
Es ce ee 29
Movement Advancement Project, et al.,
LGBT Older Adults And Health
Disparities (Sept. 2010) ..................cccccceeceeeeeeeeeees 25
Movement Advancement Project, et al., Paying
an Unfair Price: The Financial Penalty for
Being LGBT in America (Nov. 2014). ................. 29
Natl Alliance on Mental Illness, “Mental
Health Issues Among Gay, Lesbian,
Bisexual, and Transgender (GLBT)
gk ,_,_, REEL eee CENT 26
vill
Richard Wright, Same-Sex Legal Marriage
and Psychological Well-Being: Findings
From the California Health Interview
Survey, 103(2) Am. J. of Public Health,
I cartes atime mecmatnneminnaies 26, 28
Robert Lerman and W. Bradford Wilcox, Am.
Enterprise Institute, For Richer, For
Poorer: How Family Structures Economic
Success in America (2014). ...........2..c.cccecececeeeeeeees 24
Ron J. Hammond et al., Resource Variations
and Marital Status Among Later-Life
Elderly, 2 J. Applied Social Science 47 (2008)....23
Ron Lieber, After 58 Years in a Couple, a
Spouse Fights for Benefits, N.Y. Times
I ideal 34
SAGE, Out and Visible: The Experiences and
Attitudes of Lesbian, Gay, Bisexual, and
Transgender Older Adults Ages 45-75
Senior Veterans Service Alliance,
“Information about Veterans Benefits
Available to Senior Veterans and Their
IEE ccinccinenssimennbenncbenenneidinainiinneenii 18
Social Security Admin., Annual Statistical
Supplement to the Social Security
Bulletin, 2013 (Feb. 2014) .................ccccccccceeeeeeees 15
ix
Social Security Admin., GN 00210.002 Same-
Sex Marriage — Determining Marital
Status for Title IJ and Medicare Benefits
Susan von Herrmann, Estate-planning
lessons for LGBT families, S.F. Bus.
Times (Sept. 19, 2007)
Tracey A. Lapierre, Marital Status and
Depressive Symptoms over Time: Age and
Gender Variations, 58(4) Family
Relations 404 (2009)
U.S. Census Bureau, American Community
Survey Reports, Marital Events of
Americans: 2009 (Aug. 2011)
U.S. Dep’t of Health & Human Servs., Ctrs
for Medicare & Medicaid Servs., Medicare
and Medicaid Programs: Changes to the
Hospital and Critical Acess Hosptial
Conditions of Participation to Ensure
Visitation Rights for All Patients, 42 CFR
Parts 482 and 485, 75 Fed. Reg. 70831-
ee es ie CE cececncnncsntusincnsssnnnscsstnicnsees
U.S. Dep’t of Health & Human Servs., Ctrs
for Medicare & Medicaid Servs., Medicare
2. aS
SeeeeC eee eee eee eeee ee eeeeeee
wii 9
x
U.S. Dep’t of Health & Human Servs., Ctrs
for Medicare & Medicaid Servs. “Same
Sex Partners and Medicaid Liens,
Transfers of Assets, and Estate Recovery”
RETR a 17
U.S. Dep’t of Health & Human Servs., Ctrs
for Medicare & Medicaid Servs., Spouses
of Medicaid Long-Term Care Recipients
ARNE Be Re a ie oe SRE a Se 17
Services and Advocacy for Gay, Lesbian, Bisexual
and Transgender Elders (“SAGE”), the American
Society on Aging, Justice in Aging, the National
Committee to Preserve Social Security and
Medicare, and the National Hispanic Council on
Aging (“Amici”) respectfully submit this brief as
amici curiae in support of the Petitioners.
INTEREST OF AMICI CURIAE
SAGE is the countrys oldest and largest
organization dedicated to improving the lives of
lesbian, gay, bisexual, and transgender (“LGBT”)
older adults.' In conjunction with 27 affiliated
organizations in 20 states and the District of
Columbia, SAGE offers supportive services and
consumer resources to LGBT older adults and their
caregivers, advocates for public policy changes that
address the needs of LGBT older people, and
provides training for agencies and organizations that
serve LGBT older adults. As part of its mission,
SAGE provides services to LGBT older adults who
seek to marry, grow old with, care for, and
ultimately be recognized as the surviving spouse of
the person they most love. Given its extensive work
with LGBT elders, SAGE is uniquely positioned to
address the severe adverse effect that denial of
marriage rights has on older same-sex couples.
1 Pursuant to Rule 37.6, Amici hereby state no counsel for any
party authored the brief in whole or in part and no person or
entity, other than the Amici, their members, or their counsels,
made any monetary contribution to the preparation or
submission of this brief. This brief is filed with the written
consent of all parties pursuant to this Court’s Rule 37.2(a).
Copies of the requisite consent letters have been filed with the
Clerk of this Court.
Founded in 1954 as the Western Gerontological
Society, the American Society on Aging (“ASA”) is a
nonprofit association of diverse individuals bound by
a common goal: to support the commitment and
enhance the knowledge and skills of those who seek
to improve the quality of life of older adults and their
families. The membership of ASA is
multidisciplinary and inclusive of professionals who
are concerned with the physical, emotional, social,
economic, and spiritual aspects of aging. Because
ASA’s members wish to enhance the quality of life of
all older adults, and because discrimination of any
kind erodes quality of life, ASA has an interest in
opposing all forms of discrimination.
Justice in Aging is a non-profit organization
dedicated to protecting the rights of low-income older
adults. For the past 43 years, under its former
name, the National Senior Citizens Law Center,
Justice in Aging has engaged in advocacy, litigation,
and training of local advocates to promote the
independence and well-being of the low-income
elderly and persons with disabilities, especially
disadvantaged minorities, including the elderly
LGBT community. The organization’s name
changed, but its commitment to ensuring older
adults access to federal benefits programs has not
wavered. Justice in Aging has a vested interest in
challenging the constitutionality of laws that deprive
same-sex older adults of the right to marriage and
the accompanying benefits that help them to live
free from the worry and pain that the threat of
poverty can bring.
The National Committee to Preserve Social
Security and Medicare (“NCPSSM”) is a non-profit
membership organization with more than three
million members and supporters. For 33 years,
NCPSSM’s mission has been to preserve and protect
the financial security, health, and wellbeing of
current and future generations of maturing
Americans. Our legislative advocacy, policy
expertise, and educational outreach have focused on
the preservation, protection, and strengthening of
programs and benefits that ensure access to
adequate economic and health care security during
retirement or disability. As an organization whose
membership includes individuals from the LGBT
community who are currently being denied their
constitutional rights by several states, NCPSSM has
a vested interest in challenging this unconstitutional
discrimination which threatens the retirement
security of these members.
The National Hispanic Council on Aging
(“NHCOA”) is the leading national organization
working to improve the lives of Hispanic older
adults, their families, and their caregivers. For more
than 30 years, NHCOA has been a strong voice
dedicated to promoting, educating, and advocating
for Hispanic Americans in the areas of economic
security, health, and housing. In light of the rapid
growth of the Latino aging population, NHCOA
provides leadership development to empower
Hispanic older adults and families to age with
dignity and become their own best advocates. Given
its extensive work with Hispanic elders, including
those who are LGBT, NHCOA is uniquely positioned
to address the adverse impact that denial of
marriage rights has on older same-sex couples.
SUMMARY OF THE ARGUMENT
Every week, in every state in the union,
government officials issue marriage licenses to a
substantial number of older couples. Thirteen
states, however, refuse to issue marriage licenses to
a small minority of older couples: those couples in
which both members are of the same sex. These
states also refuse to recognize the marriages of
same-sex couples lawfully performed in other states.
The states’ refusal to license or recognize the
marriages of same-sex couples deprives these
couples of state and private benefits that are
especially important to older adults, such as the
right to make critical healthcare decisions for an
incapacitated spouse, to receive survivor's benefits
under a spouse’s corporate retirement plan, or to
inherit a marital home from a deceased spouse.
Because many older same-sex couples lack the
financial or physical ability to travel to another state
to be married, they also continue to be ineligible for
the panoply of federal benefits that are available
only to married couples. Moreover, even after
Windsor, many lawfully married older same-sex
couples continue to be denied important federal
benefits — including Social Security and Veterans’
Spousal Benefits — because the state in which they
live does not recognize their marriage
The states’ exclusion of same-sex couples from
marriage also deprives older same-sex couples of the
intangible benefits that marriage has long provided
to older heterosexual couples. As a result of the
recognition, security, and mutual support that
marriage provides, older married couples typically
live healthier, happier, longer, and more prosperous
lives than their unmarried peers. Because LGBT
elders often have greater health-related and
financial needs and weaker social support networks
than other elders, they could benefit from marriage
even more than other older adults.
The states’ primary justification for excluding
same-sex couples from marriage is that, because
same-sex couples cannot procreate, there is no
reason for a state to “solemnize” and “subsidize”
their unions. DeBoer v. Snyder, 772 F.3d 388, 407
(6th Cir. 2014). However, even if restricting the
benefits of marriage to couples who are capable of
procreation were a legitimate end, prohibiting same-
sex couples from marrying is not a rational means to
do so. To the contrary, allowing a substantial
number of older heterosexual couples to marry
despite being incapable of procreation, while denying
a far smaller number of older same-sex couples the
right to marry because they are incapable of
procreation, is self-evidently irrational.
The need for the Court to protect the
constitutional rights of older same-sex couples —
many of whom are advanced in years and in
declining health — is especially great. If the Court
does not do so, older same-sex couples will be forced
to continue to wait until the day, if ever, when the
states choose to rescind their unconstitutional
‘marriage restrictions. Even if that day arrives
eventually, it will have come too late for many of
them.
Amici therefore respectfully submit that the
Court should find that, even under the most
deferential standard of review, the states’ refusal to
license or recognize the marriages of same-sex
couples denies same-sex couples — and, in particular,
older same-sex couples — their right to equal
protection under the law.”
ARGUMENT
I. Excluding Same-Sex Couples From
Marriage Deprives Them Of Access To
Federal, State, And Private Benefits That
Are Especially Important For Older
Adults
A. Older Same-sex Couples Who Live
in States That Do Not Allow Them
to Marry, Or Do Not Recognize
Their Lawful Out-of-State
Marriages, Are Denied Important
State and Private Benefits
Same-sex couples who live in a state that does
not permit them to marry, or that does not recognize
their lawful out-of-state marriage, are deprived of a
multitude of state and private benefits available to
2 While Amici believes that the prohibition against marriage by
same-sex couples is not rationally related to any legitimate
government objective, Amici agree with Petitioners that the
Court should apply heightened scrutiny and that the
deprivation of the right to marry also deprives same-sex
couples of the liberty interest protected by the Fourteenth
Amendment. See DeBoer Petr’s Br., No. 14-571, at 50-57;
Obergefell Petr’s Br., No. 14-556, at 32-48.
married couples. This has created particular
hardships for older same-sex couples. While married
heterosexual couples can fulfil their vow to care for
each other “in sickness and in health . . . until death
do us part,” older same-sex couples may be unable to
care for each other in sickness or to provide for the
survivor after death has parted them.
In Tennessee, for example, a heterosexual spouse
has first priority to make decisions on behalf of an
incapacitated spouse.‘ Should temporary
incapacitation turn into permanent incapacity, the
spouse has first priority to be appointed
conservator.5 Same-sex couples — including same-
sex couples lawfully married in another state — do
not have these rights. As a result, a blood relative,
even one from whom the incapacitated spouse has
3 See Tanco v. Haslam, 7 F. Supp. 3d 759, 764, 770 (M.D. Tenn.
2014 (discussing rights available only to heterosexual married
couples and/or their children in Tennessee); see also, Henry v.
Himes, 14 F. Supp. 3d 1036, 1049-50 (S.D. Ohio 2014)
(discussing rights and benefits for married couples in Ohio);
Jernigan v. Crane, No. 4:13-cv-00410, 2014 U.S. Dist. LEXIS
165898, *4-7 (E.D. Ark. Nov. 25, 2014) (same, Arkansas);
Campaign for S. Equal. v. Bryant, No. 3:14-cv-818, 2014 U.S.
Dist. LEXIS 165913, *99-100 (S.D. Miss. Nov. 25, 2014) (same,
Mississippi); Bourke v. Beshear, 996 F. Supp. 2d 542, 546-47
(W.D. Ky. Feb. 12, 2014) (same, Kentucky).
* See Tenn. Code Ann. § 68-11-1806(c)(3)(A). The presumption
in favor of the spouse is so strong that one spouse can only
divest the other spouse of this right by making a written
declaration appointing another person as surrogate.
5 See id. § 34-3-103(2).
been long estranged, can be appointed conservator,
and can even physically separate the couple.®
The disparate treatment continues after death. If
a married heterosexual who has no children dies
without a will, his widow will automatically inherit
the entire estate.’ In addition, regardless of whether
the decedent left a will, a heterosexual widow does
not have to pay inheritance tax.* Here again, same-
sex couples — including same-sex couples lawfully
married in another state — do not enjoy these basic
rights. As a result, a deceased LGBT person’s estate
could pass to a distant relative, rather than to his
surviving spouse.’ At the same time, the surviving
spouse may be forced to sell the home that the couple
6 See, e.g., Brody Levesque, Texas man, separated by family
from partner of 34 years, hopes for reunion, LGBTQ Nation
(May 1, 2013) (http:/)www_.igbtqnation.com/2013/05/texas-man-
separated-by-family-from -partner-of-34-years-hopes-for-
reunion/) (after being awarded guardianship of her gay brother
who was suffering from Alzheimer’s, sister removed him from
the home he shared with his long-time partner, placed him in a
nursing facility, and barred his partner from having any
contact with him).
7 See Tenn. Code Ann. § 31-2-104(a).
8 See id. § 67-8-315(a)(6).
° For example, absent a will, if the deceased spouse’s parents
are not alive and he has no children — a common situation for
older LGBT people — the estate would pass to the deceased's
siblings. See Tenn. Code. Ann., § 31-2-104(b)(3). If the
deceased's siblings are not alive, the estate could pags to his
nieces, nephews, or even distant cousins rather than to his
lawfully wedded spouse. Se- id. § § 31-2-104(b)(3) & (4).
owned together, and where they had planned to live
until the end of their lives, in order to pay the taxes
due.!°
Similar situations exist in each of the states that
do not recognize the marriages of same-sex couples.
For example, Lynn and Monica Serling-Swank, a
married couple in their fifties, live in South Dakota,
but were legally wed in Connecticut. Because South
Dakota does not recognize their marriage, Lynn was
unable to visit Monica in the hospital because she
was not considered to be a family member. See
Rosenbrahn v. Daugaard, No. 4:14-cv-04081, 2015
U.S. Dist. LEXIS 4018, *3-4 (D.S.D. Jan. 12, 2015)."!
Similarly, Frank Colasonti, a retired school
teacher living in Michigan, was foreclosed from
providing for his spouse, James Ryder, through his
pension. Michigan allows newly married retirees to
reduce their monthly pension disbursements to
provide future pension payments and health benefits
10 See Susan von Herrmann, Estate-planning lessons for LGBT
families, S.F. Bus. Times (Sept. 19, 2007) (after the death of
her same-sex partner of thirty years, California resident
required to sell the couple’s home in order to pay the estate
tax).
11 This hospital imposed this restriction notwithstanding
federal regulations that give patients the right to be visited by
the person of their choice and expressly bar discrimination
based on sexual orientation. See U.S. Dep't of Health &
Human Servs., Ctrs for Medicare & Medicaid Servs., Medicare
and Medicaid Programs: Changes to the Hospital and Critical
Access Hospital Conditions of Participation to Ensure Visitation
Rights for Ali Patients, 42 CFR Parts 482 and 485, 75 Fed. Reg.
70831-70844 (Nov. 19, 2010).
10
for their surviving spouse. However, because
Michigan does not recognize the couple’s marriage,
Frank’s request to adjust his pension was denied.
Caspar v. Snyder, No. 14-cv-11499, 2015 U.S. Dist.
LEXIS 4644, *41-42 (E.D. Mich. Jan. 15, 2015).
A state’s refusal to license marriages by same-sex
couples also can affect private rights. For example, a
company may deny bereavement leave to an
employee whose same-sex partner died because the
couple was not legally married.!” Similarly,
corporate retirement plans may refuse to provide a
survivor's pension to a deceased employee’s same-sex
partner. At the same time, because a wrongful
death action generally can only be brought by the
“next of kin,” such as the spouse, children, or parents
of the deceased,'* a bereaved LGBT person may not
be able to obtain civil damages for the tortious death
of her same-sex partner. !4
12 See Donaldson v. State, 292 P.3d 364, 377-78 (Mont. Sup. Ct.
2012) (Nelson, J, dissenting) (plaintiff denied bereavement
leave by employer after her same-sex partner of eight years,
who was employed at the same company, was killed in a work-
related accident).
13 See, e.g., Ohio Rev Code Ann. § 2125.02(A)(1) (wrongful death
action may only be brought “for the exclusive benefit of the
surviving spouse, the children, .. . the parents . . . [and] the
next of kin of the decedent”).
“ See, e.g., Raum v. Restaurant Assocs., Inc., 252 A.D.2d 369,
370 (N.Y. App. Ct. 1998) (member of an unmarried same-sex
couple “lack[s] the right to bring a wrongful death action”
following the death of his partner).
11
B. Older Same-sex Couples Who
Cannot Travel to a State in Which
They Can Marry Continue To Be
Denied Important Federal Benefits
The states’ refusal to allow same-sex couples to
marry also prevents them from enjoying the federal
benefits that, following the Court’s decision in
United States v. Windsor, 570 U.S. _, 133 S. Ct.
2675 (2013), are provided to married same-sex
couples. As a result, some same-sex couples who live
in states that do not permit them to marry have
chosen to travel to other states to solemnize their
unions. Many have had to overcome great obstacles
to do so. For example, Petitioner James Obergefell
and his terminally ill partner, John Arthur,
chartered a medically equipped airplane to take
them to Maryland, where they were wed on the
airport tarmac. See Obergefell Petr’s Br. at 6-7.
Unlike James and John, many older same-sex
couples — especially those with serious health or
financial constraints — cannot travel to another state
to wed. For those couples, Windsor changed nothing:
They continue to be “denied benefits from the federal
government that are granted to married couples
(including same-sex couples).” Jn re Fonberg, 736
F.3d 901, 902 (9th Cir. 2013); see also Deborah A.
Widiss, Leveling Up After DOMA, 89 Ind. L.J. 43, 54
(2014) (“[Flor some same-sex couples, requiring
travel to a state where they can marry literally puts
federal benefits out of reach.”). The denial of these
benefits increases the costs that older same-sex
couples pay for health insurance, prevents them
from caring for each other when they are ill, and
12
reduces their ability to provide for the survivor after
one has died.
To start, older same-sex couples who are unable
to marry generally must pay more for federally
provided medical insurance. Married couples’
Medicare Part B premiums are based on their joint
income, as reported on their federal income tax
return. Because unmarried couples may not file
joint tax returns, they must each pay Medicare
premiums based on their separate individual
incomes, typically resulting in a higher cost. See U.S.
Dep’t of Health & Human Servs., Ctrs for Medicare
& Medicaid Servs., Medicare & You, at 32-33 (2015)
(http://www.medicare.gov/Pubs/pdf/10050.pdf).
The adverse consequences of being unable to
obtain federal benefits available only to married
couples are even greater if a member of a sex-same
couple takes ill or is injured. This is an especially
significant concern for older same-sex couples.
Given current economic conditions, many people
must work well beyond the traditional retirement
age,'5 often for very modest wages. At the same
15 In 2010, 35.8 percent of men age 65 to 69, 20.9 percent of
men age 70 to 74, and 8.6 percent of men 75 and over, were in
the workforce. For women, the figures were 26.4, 13.5, and 3.9
percent, respectively. See Braedyn Kromer & David Howard,
U.S. Census Bureau, Labor Force Participation and Work
Status of People 65 Years and Over, 2 (Jan. 2013), available at
http://www.census.gov/prod/2013pubs/acsbr11-09.pdf. Because
LGBT elders tend to have lower incomes than their peers, see
infra, Sec. I1.B, they are more likely to have to work past 65.
Indeed, in a recent survey conduct by the Harris Company, 44
percent of LGBT people stated they expected to have to work
well beyond ordinary retirement age. See SAGE, Out and
Visible: The Experiences and Attitudes of Lesbian, Gay,
13
time, as they age, older people face an ever-
increasing risk that they, or their loved one, will
suffer a serious illness or debilitating injury.
Married workers covered by the Family and
Medical Leave Act (“FMLA”) can take up to 12 weeks
of unpaid leave to care for a sick or seriously injured
spouse. 29 U.S.C. § 2612(a)(1)(C). By contrast,
unmarried couples — even if they have entered into a
state-sanctioned civil union — do not have this
right.'6 As a result, an unmarried LGBT elder can
be fired if he stays home from work to care for his
sick or injured partner.
The detrimental effects of being unable to obtain
federal benefits persist even after one of the partners
has died. For example, federal law provides that
when a married person inherits an Individual
Retirement Accounts (“IRA”) from her spouse, the
inherited amount can grow tax-free until the
surviving spouse reaches age 70.5. By contrast, an
unmarried person who inherits an IRA from her
same-sex partner must immediately begin to
Bisexual, and Transgender Older Adults Ages 45-75, at 8
(2014), available at http://www.sageusa.org/files/LGBT_OA
MarketResearch_Rpt.pdf.
16 See e.g., Garden State Equal. v. Dow, 79 A.3d 1036, 1043
(N.J. Sup. Ct. 2013) (“Partners in a civil union . . . cannot claim
leave under the Family and Medical Leave Act if a partner
becomes sick or is injured.”).
14
withdraw money and pay taxes, as if she had
received the money from a stranger.!’
C. Lawfully Married Same-Sex
Couples Whose Marriage Is Not
Recognized in Their “State of
Domicile” Continue To Be Denied
Federal Benefits Especially
Important to Older Adults
The states’ refusal to recognize the lawful
marriages of same-sex couples performed out-of-
state also means that, even after Windsor, many
older married same-sex couples continue to be
denied significant federal benefits -— including
important Social Security, Medicaid, and Veterans’
Benefits. This is because the Social Security
Administration and the Department of Veterans
Affairs (“VA”) base eligibility for these benefits on
whether, at the time of application or the time of one
of the spouse’s death, the couple’s marriage was
recognized in their “state of domicile.” '®
17 See 26 U.S.C. § 219(c) (discussing IRA deduction
requirements).
18 The potential loss of these federal benefits can prevent older
married same-sex couples who live in a state that recognizes
their marriage from relocating to a state to which they would
otherwise retire.
15
1. Social Security Spousal Benefits
Social Security is the primary source of support
for many older and disabled Americans.'? However,
because the Social Security Administration uses the
“state of domicile” rule, which imports. the
discriminatory marriage restriction contained in
some states’ laws, a married same-sex couple (or a
surviving spouse) living in a state that does not
recognize the couple’s marriage may be deemed
ineligible for four critical benefits: the Spousal
Disability Benefit, the Spousal Retirement Benefit,
the Survivor Retirement Benefit, and the Lump-sum
Death Benefit.2°
18 Social Security Admin., Annual Statistical Supplement to the
Social Security Bulletin, 2013, at tables 3.C4 and 3.C5 (Feb.
2014).
20 The Spousal Disability Benefit pays benefits to the spouse of
a disabled worker based on the earning record of the spouse
with the higher earnings record. 42 U.S.C. §§ 402(b)(1)(D) &
402(c)(1)(D). The Spousal Retirement Benefit allows a spouse
to receive the greater of: (a) half the benefit that his or her
spouse earned; or (b) the benefit due from the claimant's own
earnings. Id. §§ 402(b)(1)(D), (c)(1)(D). The Survivor
Retirement Benefit allows a surviving spouse to receive up to
100 percent of a deceased spouse's benefit amount. /d.
§ 402(e)(1)(A), ((1)(A). Finally, the Lump-Sum Death Benefit
proves a one-time payment of $255 to the surviving spouse. /d.
§ 402(i). See also Social Security Admin., GN 00210.002 Same-
Sex Marriage - Determining Marital Status for Title I] and
Medicare Benefits, available at https://secure.ssa.gov/
poms.nsf/lnx/02002 10002 (“[W]e look to the laws of the state of
the number holder’s (NH’s) domicile to determine whether we
can recognize the marriage.”).
16
This is exactly what happened when Texas
resident Kathy Murphy applied for Social Security
Survivor Benefits. For more than thirty years,
Kathy and Sara Baker lived together in a committed
relationship. Like many couples, they bought a
house, shared finances, cared for one another during
times of sickness, celebrated with one another in
times of health, and were committed to supporting
each other until the end of their lives. In 2010, they
were married in Massachusetts. That same year,
when Sara was 60, she was diagnosed with an
aggressive form of cancer. From that point until
Sara’s death in 2012, Kathy was Sara’s primary
caretaker. See Murphy v. Colvin, Case No. 14-cv-
01764 (D.D.C. Oct. 22, 2014), Compl. (DE 1).
Like most widows, Kathy applied for Social
Security Spousal Survivor Benefits. Because Texas
did not recognize Kathy's lawful marriage to Sara,
the Social Security Administration informed Kathy
it did not consider her a “widow” and, therefore,
denied her claim. Id. In addition to the significant
emotional distress caused by being told that she
would not be recognized as the surviving spouse of
her beloved wife, the denial of those benefits caused
Kathy significant financial harm. As a result, Kathy
was required to start taking Social Security at 62,
rather than waiting until 66 as she and her late wife
had planned, thereby significantly reducing the
amount of her monthly payments for the rest of her
life. Id.
2. Medicaid Long-Term Care
Older married same-sex couples who live in
states that do not recognize their marriage risk
17
being forced to sell the family home in order to pay
the cost of nursing home or other long-term care for
one of the spouses.?! This is because, before Medicaid
will pay these costs, a married couple must “spend
down” their assets. The Medicaid program, however,
has “spousal impoverishment rules” that permit a
healthy spouse to keep certain jointly owned
property, such as the home the couple live in or the
car they drive.22 Because states are permitted to
apply the “state of domicile” rule to determine
eligibility for certain Medicaid Benefits,25 a married
same-sex spouse living in a state that does not
recognize his marriage may not be able to keep these
assets.
3. Veterans’ Spousal Benefits
LGBT service members have made _ great
sacrifices for their country — even when their country
has rejected and discharged them because of their
sexual orientation or gender identity. Today, the VA
provides many benefits to our gay, lesbian, and
bisexual veterans. At the same time, however, the
VA determines eligibility for a number of spousal
21 See U.S. Dep't of Health & Human Servs., Spouses of
Medicaid Long-Term Care Recipients (Apr. 2005), available at
http://aspe hhs.gov/daltcp/reporta/spouses.htm#note5.
22 Id.
23 U.S. Dep’t of Health & Human Serv’s, Ctrs for Medicare &
Medicaid Serve., “Same Sex Partners and Medicaid Liens,
Transfers of Assets, and Estate Recovery” (June 10, 2011).
18
benefits that are critical for older couples based on
the “state of domicile” rule.**
Because the VA imports the discriminatory
marriage restriction contained in some states’ laws,
veterans and their same-sex spouses who live in a
state that does not recognize their marriage may be
denied critical veterans benefits,*5 including spousal
medical care.2 The adverse impact continues even
after the veteran has died. The surviving spouse
may be denied a spousal pension,”’ and may not be
allowed to be buried in a VA cemetery beside his
spouse.”8
24 See 38 U.S.C. § 103(c) (providing that the VA shall look to
“the law of the place where the parties resided at the time of
the marriage or the law of the place where the parties resided
when the right to benefits accrued”); Dep’t of Veteran Affairs,
Summary of Precedent Opinions of the General Counsel, 79 Fed.
Reg. 35414-35415 (June 20, 2014).
25 See generally Senior Veterans Service Alliance, “Information
about Veterans Benefits Available to Senior Veterans and
Their Surviving Spouses” (http://www _.veteransaidbenefit.org).
26 See 38 U.S.C. § 1781 (a).
27 See id. §1541(a).
28 See id. § 2402(a)(5).
19
II. Denial Of The Right To Marry Deprives
Older Same-Sex Couples Of The
Intangible Benefits That Marriage
Provides To Older Heterosexual Couples
In addition to denying older same-sex couples
significant federal, state, and private benefits and
protections, the states’ refusal to license and
recognize the marriages of same-sex couples also
deprives these couples of intangible benefits that
marriage has long provided to heterosexual couples.
A. Marriage Provides Older Hetero-
sexual Couples With Significant
Benefits
The marriage of an older man and an older
woman is a frequent and joyous occasion. Each year,
the states issue marriage licenses to about three-
quarters of a million older people.2? Such marriages
account for approximately fifteen percent of all
marriages.” As the population continues to age, the
29 [nm 9009, the most recent year for which relevant census data
has been published, approximately 4.5 million people were
married in the United States. Of these, approximately 418,000
men (18.3 percent of the men) and approximately 320,000
women (14.5 percent of the women) were aged 45 and over.
This includes approximately 196,000 people between 55 and 64
years old, and approximately 86,000 people aged 65 or older.
See U.S. Census Bureau, American Community Survey Reports,
Marital Events of Americans: 2009, at p. 8, Table 2 (Aug. 2011),
available at http://www.census.gov/prod/20 1 1 pubs/acs-13_pdf.
% Jd.; see also D’Vera Cohn, et al., Pew Research Center, New
Marriages Down 5% from 2009 to 2010: Barely Half of U.S.
Adults Are Married — A Record Low, at 12 (Dec. 14, 2011),
20
number of marriages celebrated by older couples,
and the percentage of all marriages involving older
couples, are certain to increase.?!
Marriage provides recognition, security, and
mutual support, which are especially important to
older people. As the Court has observed, marriage is
“a far-reaching legal acknowledgement of the
intimate relationship between two people.” Windsor,
570 U.S. at __, 133 S. Ct. at 2692. Having the state
recognize a marriage confers “a dignity and status of
immense import.” Jd. Marriage also creates legal
obligations, such as those that require one spouse to
contribute to the care and support of the other.32 As
available at http://media.al.com/bn/other/Marriage-report-Pew-
Research-Center-Dec-201 1 pdf (In 2009 and 2010,
approximately 16 percent of new marriages occurred in the 45+
age group.).
31 Based on raw data compiled by the Census Bureau, and
made available for public use, Amici have determined that,
while the total number of marriages declined between 2009 and
2013, the number of people aged 45 and over married in 2013
increased to approximately 767,000. About 20.2 percent of the
men and about 15.8 percent of the women married that year
were aged 45 and over. This includes some couples in their
eighties and nineties. See, e.g., Margaux Laskey, A Lifetime of
Happiness, Part 2, N.Y. Times (Jan. 27, 2013) (describing the
marriage of 86-year-old Robert Haire and 97-year-old Ada
Bryant).
32 See, e.g., Schweiker v. Gray Panthers, 453 U.S. 34, 47 (1981)
(‘Congress treated spouses differently from most other
relatives by explicitly authorizing state [Medicaid] plans to
‘take into account the financial responsibility’ of the spouse.”);
see also Tenn. Code Ann. § 39-15-101 (duty to support a spouse
incapable of being self-supporting).
21
couples age, and health and financial resources
wane, the recurity that marriage provides becomes
increasingly important.
Studies by psychiatrists, gerontologists, and
demographers have repeatedly confirmed the
significant benefits that marriage provides to older
heterosexual couples. Simply stated: Older married
couples typically live healthier, happier, longer, and
more prosperous lives than their unmarried peers.™*
Married people typically are healthier than single
people. “Married persons, on the whole, tend to have
lower rates of fatal and nonfatal diseases, physical
functioning problems, and disability compared to all
other marital status groups.”"** There are good
33 See Linda J. Waite & Mary Elizabeth Hughes, At Risk on the
Cusp of Old Age: Living Arrangements and Functional Status
Among Black, White and Hispanic Adults, 54B J. Gerontology
S136, S140 (1999) (“[MJarried couples [in their fifties and
sixties] with and without children show the highest levels of
functioning,” on physical, cognitive, and emotional dimensions,
when compared to their peers.). There does not appear to be
any equally effective substitute for legally recognized marriage.
“[Cjohabitation is associated with reports of lower social well-
being than marriage. ... One line of reasoning suggests that
cohabitation represents an ‘incomplete institution,’ whereby it
lacks formalized norms and its inhabitants are subject to social
stigma.” Adam Shapiro & Corey Lee M. Keyes, Marital Status
and Social Well-Being: Are the Married Always Better Off? , 88
Social Indicators Research 329, 341-42 (2008).
% Amy M. Pienta et al., Health Consequences of Marriage for
the Retirement Years, 21 J. Family Issues 559, 576 (2000); see
also id. at 570 (married retired people less likely to have
hypertension than unmarried retired people); I-Fen Lin &
Susan L. Brown, Unmarried Baby Boomers Confront Old Age:
A National Portrait, The Gerontologist, at 8 (2012) (unmarried
22
reasons for this. Whether out of commitment or in
response to spousal pressure, married people are
more likely to engage in “positive behaviors” such as
exercising and abstaining from smoking.*® Such
conduct generally continues as couples age.*¢
Married people also are generally happier than
single people. There is substantial evidence that, as
a group, they have lower rates of depression,
substance abuse, and alcoholism.*’ For example, one
study found that never having been married was
“associated with increased risk of major depression”
in people aged 40 and over, and that not currently
“baby boomers” twice as likely to report a disability as married
baby boomers); Linda J. Waite & Maggie Gallagher, The Case
for Marriage: Why Married People are Happier, Healthier, and
Better Off Financially 60-61 (2000) (“[E]lderly married women
— like their male counterparts — are much less likely than
unmarried elders are to enter a nursing home.”).
3% Barbara Steinberg Schone & Robin M. Weinick, Health-
Related Behaviors and the Benefits of Marriage for Elderly
Persons, 38 The Gerontologist 618, 625 (1998).
36 Id.
37 See Adrianne Frech & Kristi Williams, Depression and the
Psychological Benefits of Entering Marriage, 48 J. Health &
Social Behavior 149, 149 (2007); see also Waite & Gallagher,
The Case for Marriage, supra note 34, at 166-67 (‘Older
unmarried women, whether they lived alone, with their
children or with others, were significantly more depressed than
older married women .... Marriage held a similar advantage
for older men.”).
23
being married increased the risk of major depression
in people aged 65 and older.
Because married people are healthier and
happier, they tend to live longer than single people.*®
One recent study estimated that married men tend
to live eight to seventeen years longer than single
men, while married women tend to live seven to
fifteen years longer than single women.*°
Finally, married people tend to be more
prosperous than their unmarried peers.*! Married
men “work more hours and earn more individual
income than do their peers who are cohabitating or
% Tracey A. Lapierre, Marital Status and Depressive Symptoms
over Time: Age and Gender Variations, 58(4) Family Relations
404, 406 (2009).
*° See Lee A. Lillard & Linda J. Waite, ‘Til Death Do Us Part:
Marital Disruption and Mortality, 100 Am. J. Sociology 1131,
1131 & 1148 (1995). (“The relationship between marriage and
death rates has now reached the status of a truism.” There is
“a significant and sizeable mortality disadvantage for both men
and women who are not married compared to the married.”).
40 Joan Raymond, “Single people may die younger, new study
finds,” NBCNews.com (http://www.nbcnews.com/id/44122528/
ns/health-behavior/t/single-people-may-die-younger-new -study-
finds##.VPPoT3zF-Weg); see David Roelfs, et al., The Rising
Relative Risk of Mortality for Singles: Meta-Analysis and Meta-
Regression, Am. J. Epidemiology (2011).
41 See Ron J. Hammond et al., Resource Variations and Marital
Status Among Later-Life Elderly, 2 J. Applied Social Science
47, 58 (2008) (People who have never married “have fewer
resources than the married elderly.”).
24
single.”42 This contributes to the fact that married
couples in their late sixties typically have almost ten
times as much in financial assets as single people in
the same age group.** For couples who live well into
their eighties, median total household wealth is
nearly five times higher for married couples than for
their single peers.‘
B. Marriage Benefits Older Same-Sex
Couples As Much - If Not More -
Than Older Heterosexual Couples
Older LGBT people confront the same challenges
as other older people: declining health, loneliness,
and reduced income. And older LGBT people seek to
marry for the same reasons as other older people.
Indeed, because older LGBT people face especially
great physical, emotional, and financial challenges,
the recognition, security, and mutual support that
42 See Robert Lerman and W. Bradford Wilcox, Am. Enterprise
Institute, For Richer, For Poorer: How Family Structures
Economic Success in America, at 43 (2014), available at
http://www.aei.org/wp-content/uploads/2014/10/IFS-ForRicher
ForPoorer-Final_Web.pdf.
43 James Poterba, et al., Nat'l Bureau of Econ. Research, “Were
They Prepared for Retirement? Financial Status at Advanced
Ages in the HRS and AHEAD Cohorts,” Working Paper 17824,
at 6 (2012), available at http://www.nber.org/papers/w 17824.pdf
(for persons aged 65-69, median financial assets for two-person
households is $111,6000 co.nopared with $12,500 for single
person households).
44 Id. at 39 (median total household wealth $691,588 for oldest
married couples compared to $141,606 for singles of the same
age).
25
marriage provides may be even more beneficial for
them than for other older adults.*5
LGBT people tend to be in poorer physical health
than their peers. Studies have found that there are
“higher rates of diabetes, hypertension [and]
disability ... among aging gay men, lesbians, and
bisexual people than among older straight adults.”
Other “[s]tudies suggest higher levels of chronic and
other health problems among LGBT older adults,
including asthma, diabetes, HIV/AIDS, obesity,
rheumatoid arthritis, and certain illnesses such as
cancer.”47 While there are a number of reasons for
the disparity, the American Medical Association has
recognized that “exclusion from civil marriage
contributes to health care disparities affecting same-
sex households.”
45 Marriage equality is especially important for older same-sex
couples because same-sex couples tend to marry at an older age
than heterosexual couples. See M.V. Lee Badgett & Jody L.
Herman, Patterns of Relationship Recognition by Same-Sex
Couples in the United States, Williams Inst., at 9 (Nov. 2011).
46 Erin Fitzgerald, No Golden Years at the End of the Rainbow,
Nat'l] Gay & Lesbian Task Force, at 12 (Aug. 2013), available at
http://www.thetaskforce.org/static_htm]/downloads/reports/repo
rta/no_golden_years.pdf.
47 Movement Advancement Project, et al., LGBT Older Adults
And Health Disparities, at 2 (Sept. 2010), available at
http://www.lgbtmap.org/file/lgbt-older-adults-and-health-
disparities.pdf.
48 Am. Medical Ass'n, Policy Regarding Sexual Orientation,
Policy H-65.973, Health Care Disparities in Same-Sex Partner
Households (2009), available at https://www.ama-assn.org/ss13/
26
As a group, LGBT people also “have worse mental
health outcomes than their heterosexual
counterparts.”*9 Indeed, according to one study,
LGBT people are two-and-one-half times more likely
than other people to have a mental health problem
during their lifetime. There are at least two
reasons for this. First, LGBT people “endure sexual
minority-related stressors and challenges not
experienced by heterosexuals,” such as
discrimination, rejection, difficulty accepting their
sexual orientation, and the need to conceal their
orientation from others.5' Second, LGBT people
have long been “denied access to legal marriage,
which potentially could enhance their mental health
in the same ways it does for heterosexuals.”52
Finally, income disparities between LGBT and
heterosexual people are significant. Contrary to
popular belief, LGBT people are under-represented
ecomm/PolicyFinderForm.p]?site=www.ama-assn.org&uri=/
resources/htm/)/Policy Finder/policyfiles/HnE/H-65.973.HTM.
49 Richard Wright, Same-Sex Legal Marriage and Psychological
Well-Being: Findings From the California Health Interview
Survey, 103(2) Am. J. of Public Health, 339 (Feb. 2013).
52 Natl Alliance on Mental Illness, “Mental Health Issues
Among Gay, Lesbian, Bisexual, and Transgender (GLBT)
People”, at 1 (June 2007), available at http://www2.nami.org/
Content/ContentGroups/Multicultural_Support!/Fact_Sheets1/
GLBT_Mental_Health_07.pdf.
51 Wright, Same-Sex Legal Marriage and Psychological Well-
Being, Am. J. of Public Health, supra note 49, at 339.
52 Id.
27
at the top of the income pyramid and over-
represented at the bottom.** A recent study reported
that 15.9 percent of single gay men over 65 lived in
poverty, compared to just 9.7 percent of single
heterosexual men their age.* While older LGBT
couples are less likely to live in poverty than LGBT
singles, they are still more likely to be poor than
their heterosexual peers. For example, 6.0 percent
of lesbian couples 65 years of age and older have
incomes below the poverty line compared to 3.5
percent for heterosexual married couples in the same
age group.™
For older LGBT people, the problems of poor
health and lower income are compounded by the fact
that they often do not have as strong a social support
network as their peers. As people age, many come to
rely increasingly on family members, especially
spouses and children, for assistance with medical
and financial matters. LGBT elders, however, are
twice as likely to live alone, half as likely to have
53 Gary J. Gates & Frank Newport, Special Report 3.4% of U.S.
Adults Identify as LGBT, GALLUP, at 2 (Oct. 12, 2012),
available at http-//www.gallup.com/poll/158066/special-report-
adults-identify-lgbt.aspx (35 percent of LGBT adults had
annual incomes under $24,000, compared to 24 percent of the
total adult population; 16 percent of LGBT adults earned more
than $90,000 a year, compared to 21 percent of the general
population).
54 M.V. Lee Badgett, et al., New Patterns of Poverty in the
Lesbian, Gay and Bisexual Community, Williams Inst., at 9-10
(June 2013).
55 Jd. at 15.
28
close relatives to call for help, and four times less
likely to have children to assist them.* As a result,
“[w]hile family members related by blood or
marriage play a primary role in the support of older
adults in the general population, most LGBT older
adults end up caring for one _ another.”
Consequently, they are less able “to confront
statistically higher rates of . . . poor mental health
and physical disabilities.”58
Given the unique challenges facing many older
LGBT people, marriage could be even more
beneficial to them than it has been for heterosexual
couples. Indeed, there is evidence that marriage is
already having a beneficial effect om same-sex
couples.59 If same-sex couples continue to be denied
56 See Movement Advancement Project, et al., Improving the
Lives of Older Adults, at 6-7 (Mar. 2010), available at
http://www .lgbtmap.org/file/improving-the-lives-of-lgbt-older-
adults.pdf.
57 See Karen Fredriksen-Goldsen, et al., The Aging and Health
Report, at 51 (2011), available at http://caringandaging.org
/wordpress/wp-content/uploads/20 1 1/05/F ull-Report-FINAL-11-
16-11.pdf.
58 Fitzgerald, supra note 46, No Golden Years at the End of the
Rainbow, at 14.
°° One study has found that “psychological distress might be
lower among lesbian, gay, and bisexual persons in same-sex
marriages compared with those not in any type of legally
recognized same-sex union” and that “same-sex marriage might
be the more beneficial legal arrangement for lesbian, gay and
bisexual persons in terms of their mental health.” Wright,
Same-Sex Legal Marriage and Psychological Well-Being, Am. J.
of Public Health, supra note 49, at 343-44. Another study
found that same-sex couples living in states that recognize
29
the right to marry, however, many older same-sex
couples will be condemned to lead less healthy, less
happy, shorter, and less prosperous lives than their
peers.
Il. Allowing Older Heterosexual Couples To
Marry Despite Being Non-Procreative,
While Forbidding Older Same-Sex
Couples From Marrying Because They
Are Non-Procreative, Is Self-Evidently
Irrational
As Amici have demonstrated, the states’ refusal
to license and recognize same-sex couples’ marriages
imposes heavy burdens on older same-sex couples.
The states’ primary justification for imposing these
burdens is that, because same-sex couples cannot
procreate, there is no reason for a_ state to
“solemnize” and “subsidize” their unions. DeBoer,
772 F.3d at 407. However, as Justice Scalia has
observed, “denying the benefits of marriage to
homosexual couples” could not “possibly” be justified
on the ground that the purpose of marriage is “the
encouragement of procreation” because “the elderly
are allowed to marry.” Lawrence v. Texas, 539 U.S.
558, 605 (2003) (Scalia, J., dissenting). Indeed, the
fact that older heterosexual couples are allowed to
marry, while older same-sex couples are not, vividly
demonstrates that state prohibitions on marriage by
same-sex marriages tend to be more financially secure than
same-sex couples living in states that did not recognize same-
sex marriages. Movement Advancement Project, et al., Paying
an Unfair Price: The Financial Penalty for Being LGBT in
America, at 10-11 (Nov. 2014), available at http://www.igbt
map.org/file/paying-an-unfair-price-full-report.pdf.
30
same-sex couples deprive these couples of equal
protection under the law.
The Court has made clear that, “even in the
ordinary equal protection case calling for the most
deferential of standards,” a challenged “classification
[must] bear a_ rational relationship to an
independent and legitimate legislative end.” Romer
v. Evans, 517 U.S. 620, 632 (1996). Thus, even if
limiting the benefits of marriage to couples capable
of procreating were a legitimate goal — and Amici do
not believe that it is® — “[t]he State may not rely on
a classification whose relationship to [that] goal is so
attenuated as to render the distinction arbitrary or
irrational.” City of Cleburne v. Cleburne Living
Center, 473 U.S. 432, 446 (1985).
Prohibiting same-sex couples from marrying is
not a rational means to restrict the benefits of
marriage to couples capable of procreation.
Approximately 15 percent of the marriages entered
into each year involve an older couple that is almost
certainly incapable of procreation.*! By contrast, if
all legal restrictions are removed, same-sex couples
are likely to account for two to four percent of all
marriages.*2. A _ classification that allows a
© See, e.g., Griswold v. Connecticut, 381 U.S. 479 (1965)
(Constitution protects the rights of married couples not to
procreate).
61 See supra notes 29-31.
62 Most studies estimate that LGBT people constitute about two
to four percent of the population. See, e.g., Gates, Special
Report, supra note 53 (noting that 3.4 percent of American
adults self-identify as LGBT). Assuming that, if allowed to do
31
substantial number of older couples to marry despite
being incapable of procreation, while preventing a
small minority of older couples from marrying
because they are incapable of procreation, clearly
does not bear a rational relationship to the goal of
restricting marriage to couples capable of
procreation.
In any case, the states’ justification for denying
marriage licenses to same-sex couples is plainly
pretextual. No state has ever sought to deny older
heterosexual couples the right to marry on the
grounds that their unions do “not run the risk of
unintended offspring.” DeBoer, 772 F.3d at 405. To
the contrary, many states have gone out of their way
to allow older heterosexual couples to marry.®* For
example, a number of states allow otherwise
unlawful marriages only if the celebrants are too old
(or otherwise unable) to procreate.“ The states’
so, LGBT people are likely to marry at about the same rate as
other people, about two to four percent of all marriages will
involve same-sex couples.
63 Cf. Turner v. Safely, 482 U.S. 78, 98 (1987) (state's claim that
it restricted inmates from marriage in order to advance its goal
of fostering rehabilitation “suspect” because the state “routinely
approved” requests to marry from male inmates, who
constituted the majority of inmates, while virtually always
denying female inmates’ requests to marry).
64 See Ariz. Rev. Stat. § 25-101 (first cousins may marry if both
are at least 65 or older, or one is over 65 and the judge receives
“proof. . . that one of the cousins is unable to reproduce”); 750
Ill. Comp. Stat. Ann. 5/212(f) (first cousins may marry if both
are 50 or older or if either presents proof of being “permanently
and irreversibly sterile”); Ind. Code Ann. § 31-11-1-2 (first
cousins may marry if both are at least 65 years old); Utah Code
32
willingness to allow older heterosexual couples to
marry demonstrates that they “must think marriage
valuable for something other than just procreation.”
Baskin v. Bogan, 766 F.3d 648, 662 (7th Cir. 2014)
(Posner, J.).%
The truth is clear: the states are refusing to
license and recognize marriages involving older
same-sex couples — alone among all older couples —
solely because they are same-sex couples. A state
Ann. § 30-1-1(2) (first cousins may marry if both parties are 65
or older or, when both parties are 55 or older, if a judge finds
that either party is unable to reproduce); Wis. Stat. § 765.03
(2014) (first cousins may marry if the female is 55 or older or
“either party is permanently sterile”).
6 The Court has already recognized that marriage serves a
number of “important and significant” purposes unrelated to
procreation, including serving as an “expression[}] of emotional!
support and public commitment” as well as a “precondition to
the receipt of government benefits” and that these elements are
sufficient to “form a_ constitutionally protected marital
relationship.” Turner, 482 U.S. at 95-96 (1987).
6 See Baskin, 766 F.3d at 661 (“The state treats married
homosexuals as would-be ‘free-riders’ on heterosexual
marriage, unreasonably reaping benefits intended by the state
for fertile couples. But infertile couples are free riders too.
Why eve they allowed to reap the benefits accorded marriages
of fertile couples, and homosexuals are not?”); see also Bostic v.
Schaefer, 760 F.3d 352, 382 (4th Cir. 2014) (highlighting
“extreme underinclusivity” of state law that permits marriage
among infertile heterosexual couples); Bishop v. United States
ex rel. Holder, 962 F. Supp. 2d 1252, 1293 (N.D. Okla. 2014),
affd, 760 F.3d 1070 (10th Cir. 2014) (‘Same-sex couples are
being subjected to a ‘naturally procreative’ requirement to
which no other Oklahoma citizens are subjected, including .. .
the elderly .... Rationality review has a limit, and this well
exceeds it.”).
33
law that serves no purpose other than “to impose a
disadvantage, a separate status, and so a stigma,”
Windsor, 570 U.S. at _. 133 S. Ct. at 2681, on a
small minority of older couples plainly does not serve
a “legitimate legislative end,” Romer, 517 U.S. at
633. Because the states’ refusal to license or
recognize marriages by same-sex couples is not
rationally related to any legitimate governmental
purpose, it deprives same-sex couples of their right
to equal protection under the law
IV. Older Same-Sex Couples Should Not
Have To Wait Any Longer To Enjoy The
Benefits Of Marriage
LGBT people should not have to wait until “state
democratic forces,” DeBoer, 772 F.3d. at 407, decide
that they can marry the person they love. Rather,
“[m]inorities trampled on by the democratic process
have recourse to the courts; the recourse is called
constitutional law.” Baskin, 766 F.3d at 671. As
demonstrated above, state provisions that prohibit
licensing and recognition of marriages by same-sex
couples cannot survive even the most deferential
scrutiny. Therefore, the Court should now declare
these provisions unconstitutional.
The need for the Court to protect the
constitutional rights of older same-sex couples —
many of whom are advanced in years and in
declining health — is especially great. The long delay
in licensing and recognizing marriages by same-sex
couples has already caused many older couples to
lose a lifetime’s worth of tangible and intangible
34
benefits.*’ If the Court does not act, older same-sex
couples will be forced to continue to wait until the
day, if ever, when the states choose to rescind their
unconstitutional marriage restrictions. Even if
that day arrives eventually, it will have come too
late for many of them.®9
6? Further delay will only compound the loss. Many federal
benefits have a duration requirement. See, e.g., 42 U.S.C.
§ 416(c),(g) (couple must be married for nine months before an
employee’s spouse is eligible to receive Spousal Survivors
Benefits). As a result, the longer a couple must wait to marry,
the greater the chance that they will not be able to obtain these
benefits. See, e.g., Rom Lieber, After 58 Years in a Couple, a
Spouse Fights for Benefits, N.Y. Times (Mar. 21, 2014)
(Surviving spouse, who married his same-sex partner of 58
years weeks after it became legal to do so in their state, denied
Social Security Spousal Survivors Benefits because, at the time
of his spouse’s death, the couple had only been married for five
months).
68 The wait would likely be a long one. The State’s marriage
prohibitions have been incorporated into their state
constitutions. The process of amending most state
constitutions is a protracted and difficult one. In Tennessee,
for example, a constitutional amendment may be approved
either by legislative initiative or through a constitutional
convention. Under the former procedure, the proposed
amendment must be approved during two consecutive terms of
the legislature, and must then be approved by the voters at the
time of the next gubernatorial election. The latter procedure
requires three consecutive statewide votes. See Tennessee
Const. Art. XI, Sec. 3.
89 See, e.g., Gray v. Orr, Case No. 1:13-cv-08449 (N.D. IIL),
Compl.,, 74 1-2 (DE 1) (64-year-old plaintiff likely to die from
breast cancer prior to effective date for lifting of the state’s ban
on marriage by same-sex couples).
35
CONCLUSION
For the foregoing reasons, Amici respectfully
submit that the Court should reverse the decision of
the United States Court of Appeals for the Sixth
Circuit and find that the Fourteenth Amendment to
the United States Constitution requires states to
grant a marriage license to otherwise eligible same-
sex couples and to recognize the marriage of same-
sex couples lawfully performed out-of-state.
Respectfully submitted,
Jonathan Jacob Nadler
Counsel of Record
Rachael A. Harris
Lauren S. Kuley
Brandon Roman
SQUIRE PATTON BoaGs (US) LLP
2550 M Street, N.W.
Washington, D.C. 20037
202-457-6016
Jack.nadler@squirepb.com
Counsel for Amicus Curiae Services and
Advocacy for Gay, Lesbian, Bisexual and
Transgender Elders (SAGE); American
Society on Aging; Justice in Aging;
National Committee to Preserve
Social Security and Medicare; and
National Hispanic Council on Aging
March 4, 2015
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.