Amicus Curiae Brief — Obergefell v. Hodges

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Nos. 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, DIRECTOR, OHIO DEPARTMENT

OF HEALTH, ET AL.

[ADDITIONAL CAPTIONS LISTED ON INSIDE COVER]

ON WRITS OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF OF TEXAS VALUES AS AMICUS

CURIAE IN SUPPORT OF RESPONDENTS

JONATHAN M. SAENZ DAVID S. LILL

900 Congress Ave., Suite 220 Counsel of Record

Austin, Texas 78701 Lill Firm, P.C.

(512) 478-2220 4407 Bee Caves Road

jsaenz@txvalues.org Suite 111, Building 1

Austin, TX 78746

JARED R. WOODFILL (512) 330-0252

Woodfill Law Firm P.C. david @lillfirm.com

River Oaks Green

3131 Eastside St., Suite 450

Houston, Texas 77098 Counsel for Amicus Curiae

ee ee eee

VALERIA TANCO, ET AL., PETITIONERS

Vv.

BILL HASLAM, GOVERNOR OF TENNESSEE, ET AL.

APRIL DEBOER, ET AL., PETITIONERS

Vv.

RICK SNYDER, GOVERNOR OF MICHIGAN, ET AL.

GREGORY BOURKE, ET AL., PETITIONERS

Vv.

STEVE BESHEAR, GOVERNOR OF KENTUCRY, ET AL.

QUESTIONS PRESENTED

1. Does the Fourteenth Amendment require a state

to license a marriage between two people of the same

sex?

2. Does the Fourteenth Amendment require a state

to recognize a marriage between two people of the same

sex when their marriage was lawfully licensed and per-

formed out of state?

(i)

TABLE OF CONTENTS

BINNIE i sreinisinicinnetdaenientansemieniiiimeiamstiiiaiiniiies

ERENCE neat e een a Rae

Il. The petitioners’ arguments for heightened

gE

Ili. Legalization of same-sex marriage through

democratic processes is far preferable to

legalization through judicial decree......................

ETRE TE A SSSI SONNE ace ce de TE PO

(ii)

TABLE OF AUTHORITIES

Cases

A.L.A. Schechter Poultry Corp. v. United States,

8 24

Bd. of Tr. of Univ. of Ala. v. Garrett,

ee Ss Se ee enencencnnssensemnesennenasnenecenneneenssemneenemdiies 24

Bob Jones University v. United States,

Bt Ee 22

Bostic v. Schaefer,

Se eee 17

Boy Scouts v. Dale,

EEE SRR RE resect enna atnmre 14

Buck v. Bell,

gk Ear eee mean 25

Burwell v. Hobby Lobby Stores, Inc.,

ee Ma TTT iti ntttieeteaenienintneeninctisitineniinmtaintiig 14, 22

Dandridge v. Williams,

gL) Reena enn vere 7

Emp't Div., Dep't of Human Res. of Or. v. Smith,

8 cee 12

FCC v. Beach Commce’ns, Inc.,

4 ne 7, 10, 12-13

Geiger v. Kitzhaber,

994 F. Supp. 2d 1128 (D. Or. 2014)... eceeeeeeeee 13

Heller v. Doe,

TI iia aati 7

Hernandez-Montiel v. INS,

225 F.3d 1084 (Oth Cir. 2000) ..........cccccccccccccccccccccscecccceee 16

Kitchen v. Herbert,

ee ee ee Oe Gy I cecccccccnectnccncescxcnsescnscncneeses 17

Lindsley v. Natural Carbonic Gas Co.,

iat ealacianiain 7

Lochner v. New York,

ee 4, 19, 24, 25

McCullen v. Coakley,

EE eee ee ea 12

McNosky v. Perry,

No. 1:13-cv-00631-SS (W.D. Tex.) ..........cccccesssscesssceneeees 12

Morehead v. New York ex rel. Tipaldo,

i 24

New State Ice Co. v. Liebmann,

EEE EN 18

Pollock v. Farmers’ Loan & Trust Co.,

A RT 25

Reynolds v. United States,

I i 12

Robicheauz v. Caldwell,

2 F. Supp. 3d 910 (E.D. La. 2014) 2.0.0.0... ccceseceseseseeess 13

Roe v. Wade,

EEE EE enna renee ee meee .20

Scott v. Sandford,

EE LE a Semen Neen aeRO 25

Seminole Tribe of Fla. v. Florida,

—T Te Ree Vator

United States v. Lopez,

BG TG, BE Cae ccceccccccecsesccccsceccessscecsezsvecesesesscense

Washington v. Davis,

|, § 2

Washington v. Glucksberg,

4 i oe

Rules

Bm: Cb. BR. BE Bie) accccercesecsecseccccsesesesecccocccsesescnncescaceseses

Burm, Gt. BR. BIB .ccrvecccesscevecesccsscvssesscecesccsnssssssonssovosssecese

Other Authorities

J. Michael Bailey, Michael P. Dunne, and Nicholas

G. Martin, Genetic and Environmental

Influences on Sexual Orientation and Its

Correlates in an Australian Twin Sample, 78

Journal of Personality and Social Psychology

ee 2

BOBS CIB) cccccccccocecccccecsecescesccccccscscccescccccnsecsessscesosceososs 15

Roy F. Baumeister, Gender Differences in Erotic

Plasticity: The Female Sex Drive as Socially

Flexible and Responsive, 126 Psychological

Bulletin 347-74 (ZOOO)........-..ccsccsssseeceersreneeeetererseeeeetneees 14

Peter S. Bearman and Hannah Bruckner,

Opposite-sex Twins and Adolescent Same-sex

Attraction, 107 Am. J. of Sociology 1179-1205

George W. Dent, Jr., Traditional Marriage: Still

Worth Defending, 18 BYU J. Pub. L. 419 (2004)

(v)

Lisa M. Diamond, Development of Sexual

Orientation Among Adolescent and Young

Adult Women, 34 Developmental Psychology

Re eR iretcrecncntenninmnacnnsnssenssnnenensneenentemensen 14-15

See Lisa M. Diamond, / was wrong! Men are pretty

darn sexually fluid, too, Society for Personality

and Social Psychology Preconference on

Sexuality, Austin, TX (February 13, 2014)........... 15-16

Lisa M. Diamond, Sexual Fluidity: Understanding

Women’s Love and Desire (2008) ........:-.cssseseseesees 14,15

Lisa M. Diamond, Was /t a Phase? Young

Women’s Relinquishment of Lesbian/Bisexual

Identities over a 5-Year Period, 84 Journal of

Personality and Social Psychology 352-64 (2003).......14

Frank H. Easterbrook,

Abstraction and Authority, 59 U. Chi. L. Rev.

ESE REPRESSES BATRA ie wenn eee ee eR 17

Ruth Bader Ginsburg, Some Thoughts on

Autonomy and Equality in Relation to Roe v.

Wade, 63 N.C. L. Rev. 37 (1985)..........-ccccsccsesssessceeess 4, 20

Sherif Girgis, Robert P. George, and Ryan T.

Anderson, What Is Marriage?,

34 Harv. J.L. & Pub. Pol’y 245 (2014)... ce cceeeeeeeeees 4

Jesse Graham, Jonathan Haidt, and Brian Nosek,

Liberals and Conservatives Rely on Different

Sets of Moral Foundations, 96 Journal of

Personality and Social Psychology 1029 (2009)........... 10

Jonathan Haidt & Jesse Graham,

When Morality Opposes Justice: Conservatives

(vi)

Have Moral Intuitions That Liberals May Not

Recognize, 20 Socia] Justice Research 98 (2007) ... 9-10

Learned Hand, The Spirit of Liberty, in Irving

Dillard, ed., The Spirit of Liberty: Papers and

Addresses of Learned Hand 189 (1953) ...................--+. 25

Interview by J.J. Helland with Cass R. Sunstein,

Courting Disaster, salon.com (September 12,

G.M. Herek, et al., Demographic, Psychological,

and Social Characteristics of Self-Identified

Lesbian, Gay, and Bisexual Adults in a U.S.

Probability Sample, 7 Sexuality Res. & Soc.

I ITI isiteilichseitinsiddiialaniaiinibainpanentiniingnananiaimenie 16

Institute for American Values, Marriage and the

Law: A Statement of Principles (2006) ...............cc--:000+- 9

Niklas Langstrém, Oazi Rahman, Eva Carlstrém

and Paul Lichtenstein, Genetic and

Environmental Effects on Same-sex Sexual

Behavior: A Population Study of Twins in

Sweden 39 Archives of Sexual Behavior 75-80

Sra iciieiieeeiihinedenmcanciedeetabiseietiiatiatained cients 15

Lawrence Lessig, The Regulation of Social

Meaning, 62 U. Chi. L. Rev. 943 (1995) ..............0000..0.- s

Michael W. McConnell, Federalism: Evaluating

the Founders’ Design, 54 U. Chi. L. Rev. 1483

EC SEE ee See nee ae wee one ee ae eee 19

Michael W. McConnell, The Constitution and

Same-Sex Marriage, Wall St. J. (March 21, 2013) .....20

(vii)

Michael W. McConnell, The Importance of

Humility in Judicial Review: A Comment on

Ronald Dworkin’s “Moral Reading” of the

Constitution, 65 Fordham L. Rev. 1269 (1997)..........

Michael W. McConnell, The Right to Die and the

Jurisprudence of Tradition, 1997 Utah L. Rev.

Letitia Anne Peplau & Linda D. Garnets, A New

Paradigm for Understanding Women’s

Sexuality and Sexual Orientation, 56 Journal of

Social Issues 329-50 (Z000).........s0sceccsssecesesreseneeernereres

A. Raymond Randolph, Before Roe v. Wade: Judge

Friendly’s Draft Abortion Opinion, 29 Harv. J.

L. Pub. Pol’y 1035 (2006) ........cccccsssccssssessscccssssesseeeesssssees

David A. Strauss, Why Was Lochner Wrong?, 70

U. Cah, Li. Rev. SIS GBUD) .2c.ccccceccccscceccecccscccsvescccceceees

Cass R. Sunstein, On the Expressive Function of

Law, 144 U. Pa. L. Rev. 2021 (1996)..........................

Cass R. Sunstein, The Right To Marry, 26 Cardozo

La. Bev. BBL, SEBS GESTS) nccccccsccosssscsscessssnscescssssocsssccnes

Anna Waugh, Tarrant County Marriage Plaintiffs

Come Out as Straight, Dallas Voice (May 16,

2014, 7:05 A.M.),

http:/Awww.dallasvoice.com/tarrant-county-

marriage-plaintiffs-straight-10172981.html. ............

James Q. Wilson, Against Homosexual Marriage,

Commentary (March 1, 1996) ................cccccssssssesseeeees

James Q. Wilson, The Marriage Problem: How

Our Culture Has Weakened Families (2002) ..........

(viii)

Robin Fretwell Wilson, Marriage of Necessity:

Same-Sex Marriage and Religious Liberty

Protections, 64 Case Western L. Rev. 1161

_—_—__ EEE cee seen oe e or Oe 21

Witherspoon Institute, Marriage and the Public

GOO: TO FVRCTIESS GIBG ED ccecccccccesessescsssccsscssscccscseccsesses 9

(ix)

In the Supreme Court of the United States

Nos. 14-556, 14-562, 14-562, and 14-574

JAMES OBERGEFELL, ET AL., PETITIONERS

v.

RICHARD HODGES, DIRECTOR, OHIO DEPARTMENT OF

HEALTH, ET AL.

VALERIA TANCO, ET AL., PETITIONERS

Vv.

BILL HASLAM, GOVERNOR OF TENNESSEE, ET AL.

APRIL DEBOER, ET AL., PETITIONERS

Vv.

RICK SNYDER, GOVERNOR OF MICHIGAN, ET AL.

GREGORY BOURKE, ET AL., PETITIONERS

v.

STEVE BESHEAR, GOVERNOR OF KENTUCKY, ET AL.

ON WRITS OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF OF TEXAS VALUES AS AMICUS

CUR’ A~ IN SUPPORT OF RESPONDENTS

(1)

2

INTEREST OF AMICUS

Amicus Curiae Texas Values seeks to preserve and

advance a culture where families prosper and every hu-

man life is valued. Texas Values promotes its core values

of faith, family, and freedom through policy research,

public education, and grassroots mobilization. Amicus

believes that strong families are founded on the ideal of a

lifelong marriage of one man and one woman, and is

committed to preserving marriage as an institution in-

herently linked to procreation and childrearing, one that

connects children to their mothers and fathers, for the

good of children and society as a whole. Because this

case questions the constitutionality of a state’s sovereign

decision to preserve marriage as the union between one

man and one woman, Amicus has an interest in respond-

ing to the constitutional claims that the petitioners as-

sert.’

SUMMARY OF ARGUMENT

This case is not about whether the States should rec-

ognize same-sex marriage. It is about the question of

who decides. The decision of whether (and when) to

make this revolutionary social change belongs to the

people and their elected representatives. The States did

' Neither the parties nor their counsel authored any part of this

brief. Nor did they contribute any money toward its preparation or

submission. See Sup. Ct. R. 37.6. The petitioners were notified of

and have consented to the filing of this brief. See Sup. Ct. R. 37.2(a).

The respondents have filed a blanket consent.

3

not surrender this authority to the federal judiciary

when they ratified the Fourteenth Amendment.

The court of appeals and the respondents’ briefs have

capably explained why this Court lacks the authority to

impose same-sex marriage on the States. The amici offer

three additional points.

First, the constitutional case for same-sex marriage

rests on an ideological judgment that the institution of

marriage exists primarily to celebrate the love and com-

mitment of two people. The opponents of same-sex mar-

riage, by contrast, believe that marriage and human sex-

uality should be used primarily to generate positive ex-

ternalities for society, by encouraging procreation and

by deterring irresponsible behaviors (such as out-of-

wedlock births) that impose costs on others. On this

view, the love-and-personal-fulfillment component of

marriage is important but secondary to society’s needs

for promoting the creation of new offspring while dis-

couraging out-of-wedlock births. That view of marriage

may not be fashionable among the illuminati, but that

does not make it irrational or unconstitutional. The peti-

tioners are asking this Court to commit the sin of Loch-

ner. Nullify a state law based on philosophical beliefs

widely held by elites, while refusing to acknowledge

competing values that rationally inform the legislature’s

decision. Cf David A. Strauss, Why Was Lochner

Wrong?, 70 U. Chi. L. Rev. 373 (2003). The Fourteenth

Amendment does not enact the ideology of the sexual

revolution.

Second, the arguments for “heightened scrutiny” of-

fered by the petitioners and the Solicitor General are

4

meritless. The States’ marriage laws do not classify

based on sexual orientation, and even if they did homo-

sexuals cannot qualify as a “suspect class” because they

wield substantial political clout and because sexual orien-

tation is not an immutable trait.

Finally, if same-sex marriage is to legalized, it is far

preferable that it occur through state-by-state democrat-

ic change rather than nationwide judicial imposition.

Same-sex marriage is an exceedingly recent phenome-

non. Leaving matters to the States will generate reliable

data on the empirical effects of same-sex marriage, ena-

bling future policymakers to determine whether this

novel social innovation is enlightened or misguided. A

federalist solution will also facilitate peace by avoiding a

nationalized, one-size-fits-all solution and enabling the

supporters and opponents of same-sex marriage to mi-

grate to jurisdictions with more agreeable laws. See

Lochner v. New York, 198 U.S. 45, 76 (1905) (Holmes, J.,

dissenting) (“Our Constitution is made for people of fun-

damentally differing views.”). In addition, the federalist

solution is consistent with popular sovereignty and will

allow the legalization of same-sex marriage to enjoy a

democratic pedigree and legitimacy that the legalization

of abortion lacks because it was imposed by an over-

reaching court decree. See, e.g., Ruth Bader Ginsburg,

Some Thoughts on Autonomy and Equality in Relation

to Roe v. Wade, 63 N.C. L. Rev. 37 (1985); Cass R. Sun-

stein, The Right To Marry, 26 Cardozo L. Rev. 2081,

2085 (2005) (“The issue of same-sex marriage is best

handled through democratic areas and at the state lev-

el.”). For these reasons, even supporters of same-sex

5

marriage should reject its imposition by the federal

courts.

Most of all, the relief sought by the petitioners—

nationwide judicial imposition of same-sex marriage in

the name of “interpreting” the Constitution—will rein-

force perceptions of the federal judiciary as a naked po-

litical institution that can be used to short-circuit the

federalist and democratic processes of state-by-state

change. Court-imposed same-sex marriage will galvanize

other interest groups awed by the success of the same-

sex marriage movement, who will increase pressure on

the President and Senate to appoint judges who will im-

pose their policy goals from the bench. More and more,

judicial selection will be determined not by legal ability

but by ideological conformity with the views of powerful

interest groups. The Court should counter these trends

by rejecting the petitioners’ claims and making clear that

it will not entertain attempts to enlist the federal judici-

ary in political crusades.

ARGUMENT

I. THE STATE’S MARRIAGE LAWS EASILY

SURVIVE RATIONAL-BASIS REVIEW

The disagreements over whether same-sex marriage

should be legal arise from differences in value judgments

and differing views over the answers to disputed empiri-

cal questions. The petitioners’ arguments are based on

the ideology of the sexual revolution, which views mar-

riage and human sexuality as existing primarily for love

and personal fulfillment. Same-sex marriage follows nat-

urally from that worldview—as does no-fault divorce,

legalized abortion, subsidies for contraception, tolerance

6

of non-marital sexual relations, and subsidizing out-of-

wedlock births through the welfare state. This philoso-

phy is popular among liberals, progressives, and academ-

ics. And for some it has attained an almost natural-law

status in their way of thinking.

Others, however, believe that marriage and human

sexuality should be used primarily to generate positive

externalities for society. The love-and-personal-

fulfillment component is a collateral benefit but takes a

back seat to society’s needs for encouraging procreation,

ensuring that childrearing occurs in stable, intact fami-

lies with both a mother and father, and deterring behav-

iors that impose negative externalities (such as abor-

tions, out-of-wedlock births, and the spread of disease).

There is nothing “religious” about this perspective on

marriage and sexuality; it is held by many secular indi-

viduals and defended in secular terms. See, e.g., James Q.

Wilson, The Marriage Problem: How Our Culture Has

Weakened Families (2002). But it is correlated with reli-

gious belief, and this is unsurprising given that most

faith traditions teach their adherents to exalt the needs

of others and society over individualized pursuits of hap-

piness or personal gratification.

This way of thinking about marriage and sexuality is

foreign to many in today’s society. But that does not

make it unconstitutional—and it does not make the

States’ marriage laws irrational when they are easily ex-

plained from a perspective on marriage that emphasizes

its role in producing societal benefits. Committed, life-

long, opposite-sex marriages generate two types of posi-

tive externalities for society that same-sex unions do not.

7

First, opposite-sex marriages produce offspring, which

are needed to ensure economic growth and the survival

of the human race. Same-sex unions are biologically in-

capable of producing children, and every child adopted

by a homosexual parent is the product of some type of

opposite-sex union. It is therefore rational for the State

to subsidize opposite-sex marriages, which are likely to

benefit society by producing new offspring, while with-

holding that subsidy from same-sex marriages, which are

far less likely to produce this particular societal benefit.

Of course not all opposite-sex marriages produce

children. Some couples are sterile; some are deliberately

childless. But rational-basis review does not require a

perfect fit between means and ends. See Heller v. Doe,

509 U.S. 312, 321 (1993); Dandridge v. Williams, 397

U.S. 471, 485 (1970); Lindsley v. Natural Carbonic Gas

Co., 220 U.S. 61, 78 (1911). It is enough if the States can

show that opposite-sex marriages are more likely than

same-sex marriages to produce children—indeed, it is

enough if one could rationally speculate that opposite-sex

marriages might be more likely than same-sex marriag-

es to produce children. See FCC v. Beach Commce’ns,

Inc., 508 U.S. 307, 315 (1993) (“[Llegislative choice is not

subject to courtroom fact-finding and may be based on

rational speculation unsupported by evidence or empiri-

cal data.”). The petitioners do not deny that one could

rationally hold this belief; they do not even deny the em-

pirical claim that opposite-sex married couples are more

likely than same-sex couples to create new offspring.

That concedes that the States’ marriage laws survive ra-

tional-basis review.

8

Second, opposite-sex marriage reduces out-of-

wedlock births by channeling procreative heterosexual

intercourse into marriage. The sexual practices of homo-

sexuals do not result in pregnancy, so same-sex marriage

does not further this goal. The petitioners contend that

recognizing same-sex marriage will do nothing to un-

dermine the State’s interests in promoting reproduction

and reducing out-of-wedlock births, but that is irrelevant

when conducting rational-basis review. A State can ra-

tionally conclude that recognizing same-sex marriages

will not further those interests—or that it will not fur-

ther these interests to the same extent as opposite-sex

marriage. Marriage is a government subsidy, and a State

may reserve its subsidies for behaviors that are most

likely to generate the positive externalities that the State

seeks to promote.

The States’ marriage laws are rationally related to

yet a third government interest, and that goes to the ex-

pressive function of a State’s marriage laws. See general-

ly Lawrence Lessig, The Regulation of Social Meaning,

62 U. Chi. L. Rev. 943 (1995); Cass R. Sunstein, On the

Expressive Function of Law, 144 U. Pa. L. Rev. 2021

(1996). Supporters of traditional marriage oppose laws

that express an endorsement of sexual-revolution ideolo-

gy or genderless marriage, while supporters of same-sex

marriage oppose laws that express a view that opposite-

sex marriages are preferable to other living arrange-

ments. A State may choose to have its marriage laws re-

flect either of these competing views. The respondents

have chosen to have their States’ marriage laws reflect

the view that the primary purpose of marriage and hu-

9

man sexuality is to generate positive externalities for so-

ciety—rather than to confer legal recognition and subsi-

dies on any two people who happen to love each other.

That perspective on marriage may not be as fashionable

as it once was, but it is assuredly rational, and it is held

by many thoughtful and distinguished scholars as well as

millions of ordinary Americans. See, e.g., Witherspoon

Institute, Marriage and the Public Good: Ten Principles

(2008), http://bit.ly/1zkm0al (signed by over 70 scholars);

Institute for American Values, Marriage and the Law: A

Statement of Principles (2006), http://bit.ly/lqEhf7u

(signed by more than 100 scholars).

The petitioners’ failure to understand why so many of

their fellow Americans oppose same-sex marriage should

not have led them to dismiss their views as irrational.

Instead, it should have led them to read some of the

many scholarly defenses of traditional marriage—none

of which the petitioners so much as acknowledge (let

alone refute) in their briefs. See, e.g., Sherif Girgis, Rob-

ert P. George, and Ryan T. Anderson, What Js Mar-

riage’, 34 Harv. J.L. & Pub. Pol’y 245 (2014); James Q.

Wilson, Against Homosexual Marriage, Commentary

(March 1, 1996), http://bit.ly/Im5SK1b; George W. Dent,

Jr., Traditional Marriage: Still Worth Defending, 18

BYU J. Pub. L. 419 (2004). The petitioners also ignore

Jonathan Haidt’s work explaining how conservatives and

liberals differ in their conceptions of morality—which

largely explains their divergent views on the same-sex

marriage issue. See, e.g., Jonathan Haidt and Jesse Gra-

ham, When Morality Opposes Justice: Conservatives

Have Moral Intuitions That Liberals May Not Recog-

10

nize, 20 Social Justice Research 98, 111-12 (2007) (“[OJn

the issue of gay marriage it is crucial that liberals under-

stand the conservative view of social institutions. Con-

servatives generally believe ... that human beings need

structure and constraint to flourish, and that social insti-

tutions provide these benefits.... These are not crazy

ideas.”); Jesse Graham, Jonathan Haidt, and Brian

Nosek, Liberals and Conservatives Rely on Different

Sets of Moral Foundations, 96 Journal of Personality

and Social Psychology 1029 (2009). On rational-basis re-

view, the petitioners’ burden is to negate every concciva-

ble rationale that might be offered for a law—and that

requires them to refute every scholarly defense that has

been offered for traditional marriage, as well as scholars

(such as Haidt) who defend the rationality of those who

support traditional marriage. See Beach Commce’ns, 508

U.S. at 315 (“[TJhose attacking the rationality of the leg-

islative classification have the burden to negative every

conceivable basis which might support it.”) (internal quo-

tations omitted). One does not refute arguments by ig-

noring them.

More importantly, it is not possible to “refute” the

belief that the institution of marriage exists primarily to

generate positive externalities such as the production of

children and the raising of children in stable, committed

family structures with both a mother and a father. Many

liberals and progressives disagree with that understand-

ing of the purpose of marriage, but that is nothing more

than a normative value judgment and it does not supply

a basis for a constitutional holding. Disagreements over

the purpose of marriage are no different from normative

ll

disagreements in other areas of law. Some believe that

the primary purpose of tort law is deterring negligent

behavior by tortfeasors; others emphasize the corrective-

justice concerns of ensuring compensation for accident

victims. Some believe that antitrust law should pursue

economic efficiency and consumer welfare; others think

it should protect “small dealers and worthy men” from

competitive market forces. Some believe that food law

should pursue libertarian aims; others think it should

promote nutrition or ensure the ethical treatment of an-

imals. People who disagree over these issues do not call

their opponents’ views “irrational” or “unconstitutional.”

Instead, they recognize that their opponents are pro-

ceeding from a different normative framework that em-

phasizes certain values over others—and they further

recognize that rational people can disagree over which

values should take priority. Those who support tradi-

tional marriage deserve similar courtesy from the peti-

tioners and from this Court.

II. THE PETITIONERS’ ARGUMENTS FOR

HEIGHTENED SCRUTINY ARE UNTENABLE

The petitioners and the Solicitor General contend

that the States’ marriage laws should be subjected to

“heightened scrutiny,” but their arguments are untena-

ble for numerous reasons.

First, even if one were to accept the petitioners’ claim

that homosexuals should qualify as a “suspect class,” the

States’ rnarriage laws do not classify based on sexual ori-

entation. Everyone is subjected to the same definition of

marriage, without regard to one’s sexual orientation. The

States’ marriage laws equally prevent heterosexual

12

same-sex friends from marrying each other and claiming

the tax benefits (and other benefits) associated with that

status.? And homosexuals are as free to marry an oppo-

site-sex spouse as anyone else in the State. A law that

applies equally to everyone does not “classify” simply

because some identifiable group wants to violate it. Laws

that restrict smoking in public places do not implicate

the equal-protection rights of smokers—because these

laws (like the States’ marriage laws) impose a uniform

standard of conduct applicable to all people. See McCul-

len v. Coakley, 134 S. Ct. 2518, 2534 (2014) (facially neu-

tral buffer zone is “neither content nor viewpoint based,”

even though the only speech affected would come fiom

one particular viewpoint); see also Reynolds v. United

States, 98 U.S. 145 (1878); Empt Div., Dep't of Human

Res. of Or. v. Smith, 494 U.S. 872, 878 (1990).

To be sure, the States’ marriage laws may have a

disparate impact on homosexuals. But disparate-impact

claims are not cognizable in equal-protection law. See

Washington v. Davis, 426 U.S. 229, 242 (1976). Only laws

that expressly classify according to suspect criteria trig-

ger heightened scrutiny. See Beach Commce’ns, 508 U.S.

? Not all persons who wish to marry a same-sex partner will have a

homosexual orientation. The plaintiffs in McNosky v. Perry, No.

1:13-cv-00631-SS (W.D. Tex.), have publicly admitted that they have

a heterosexual orientation and plan to marry each other as a state-

ment of solidarity with same-sex couples. See Anna Waugh, Tarrant

County Marriage Plaintiffs Come Out as Straight, Dallas Voice

(May 16, 2014, 7:05 a.m.), http:/Awww.dallasvoice.com/tarrant-

county-marriage-plaintiffs-straight-10172981.html] (last visited on

March 30, 2015).

13

at 313 (“In areas of social and economic policy, a statuto-

ry classification that neither proceeds along suspect

lines nor infringes fundamental constitutional rights

must be upheld against equal protection challenge if

there is any reasonably conceivable state of facts that

could provide a rational] basis for the classification.” (em-

phasis added)). When a law does not classify based on

one’s members! ip in a suspect class, but merely has a

disparate impact on that suspect class, it is reviewed un-

der the rational-basis standard. See Davis, 426 U.S. at

239.

The only classifications that appear in the States’

marriage laws are based on sex, age, and consanguini-

ty—not sexual orientation.* The petitioners and the So-

licitor General appear to believe that heightened scruti-

ny should apply simply because persons with a homosex-

ual orientation are disadvantaged by a law—even when

the law does not expressly classify based on sexual orien-

tation. That would give homosexuals a status under the

Equal Protection Clause even more protective than that

conferred upon racial minorities. See Davis, 426 U.S. at

239.

Second, this Court has never held that homosexuals

are a “suspect class,” and the arguments for suspect-

class status are far weaker now than they were 20 years

* The petitioners’ claim that the States’ marriage laws embody un-

constitutional sex discrimination is meritless for the reasons pre-

sented in the respondents’ briefs. See also Robicheauz v. Caldwell, 2

F. Supp. 3d 910 (E.D. La. 2014); Geiger v. Kitzhaber, 994 F. Supp.

2d 1128, 1139-40 (D. Or. 2014).

14

ago. Homosexuals have enormous political clout, espe-

cially in the Democratic Party, and their political power

is growing. Congress recently repealed the military's

“Don’t Ask, Don’t Tell” policy, and the President signed

an executive order prohibiting sexual-orientation dis-

crimination by federal contractors without exempting

religiously oriented businesses. But see Burwell v. Hob-

by Lobby Stores, Inc., 134 S. Ct. 2751 (2014); Boy Scouts

v. Dale, 530 U.S. 640 (2000). And Attorney General Eric

Holder and several state attorneys general took the ex-

traordinary step of refusing to defend traditional mar-

riage laws in court. In light of these successes, the Solici-

tor General’s suggestion that homosexuals lack sufficient

political power borders on preposterous. See U.S. Br. 17,

19-20. The Solicitor General complains that some States

have been less solicitous of the homosexual agenda, but

no constituency wins 100% of its political battles. If the

inability to get a law changed through democratic pro-

cesses were sufficient evidence of political powerless-

ness, then every claimant who had to resort to a lawsuit

would pass the test.

Third, sexual orientation is not an “immutable” char-

acteristic akin to race. Some say that sexual orientation

tends to be stable—more so for men than for women.‘

* See Roy F. Baumeister, Gender Differences in Erotic Plasticity:

The Female Sex Drive as Socially Flerible and Responsive, 126

Psychological Bulletin 347-74 (2000); Lisa M. Diamond, Serual Flu-

idity: Understanding Women’s Love and Desire (2008); Lisa M.

Diamond, Was /t a Phase? Young Women’s Relinquishment of Les-

bian/Bisexrual Identities over a 5-Year Period, 84 Journal of Per-

sonality and Social Psychology 352-64 (2003); Lisa M. Diamond, De-

(continued...)

15

And although some have cited evidence of a genetic as-

pect to homosexuality,’ that does not make it an “immu-

table” characteristic akin to race. Professor Lisa Dia-

mond’s book, Sexual Fluidity: Understanding Women’s

Love and Desire (Harvard University Press 2009), ar-

gues that women exhibit a large degree of sexual plastic-

ity or fluidity, characterized by non-exclusivity, incon-

sistency, and change in reported sexual identity and in

sexual behaviors. Professor Diamond also provides evi-

dence of longitudinal change and self-reports that are

inconsistent with an “immutable” orientation. Across six

longitudinal studies, she notes that 75 percent of women

who identified as lesbian, bisexual, or unlabeled changed

their self-reported identity (at least once) within six

years of having first coming out. See Lisa M. Diamond, J

was wrong! Men are pretty darn sexually fluid, too, So-

velopment of Sexual Orientation Among Adolescent and Young

Adult Women, 34 Developmental Psychology 1085-95 (1998); Letitia

Anne Peplau & Linda D. Garnets, A New Paradigm for Under-

standing Women’s Sexuality and Sexual Orientation, 56 Journal of

Social Issues 329-50 (2000).

® See J. Michael Bailey, Michael P. Dunne, and Nicholas G. Martin,

Genetic and Environmental Influences on Sexual Orientation and

Its Correlates in an Australian Twin Sample, 78 Journal of Per-

sonality and Social Psychology 524-36 (2000); Peter S. Bearman and

Hannah Bruckner, Opposite-sex Twins and Adolescent Same-sex

Attraction, 107 Am. J. of Sociology 1179-1205 (2002); Niklas Lang-

strém, Oazi Rahman, Eva Carlstrém and Paul Lichtenstein, Genetic

and Environmental Effects on Same-sex Sexual Behavior: A Popu-

lation Study of Twins in Sweden 39 Archives of Sexual Behavior

75-80 (2010).

16

ciety for Personality and Social Psychology Preconfer-

ence on Sexuality, Austin, TX (February 13, 2014). Even

the study most commonly touted by supporters of same-

sex marriage reports that only 84% of lesbians (and 95%

of male homosexuals) agreed that they “had little or no

choice about their sexual orientation.” See G.M. Herek,

et al., Demographic, Psychological, and Social Charac-

teristics of Self-Identified Lesbian, Gay, and Bisexual

Adults in a U.S. Probability Sample, 7 Sexuality Res. &

Soc. Pol’y 176, 186, 188 (2010). That means that there is

some malleability in sexual orientation, especially among

women. Calling sexual orientation “immutable” is hyper-

bole—and the Solicitor General’s brief is carefully

phrased to avoid claiming that sexual orientation is im-

mutable.*®

Finally, there is no “fundamental right” to same-sex

marriage because same-sex marriage is not “deeply

rooted in this Nation’s history and tradition.” See Wash-

ington v. Glucksberg, 521 U.S. 702, 703 (1997). The peti-

® See U.S. Br. 11-12 (“{D]scrimination against lesbian or gay people

is based on an immutable or distinguishing characteristic.”) (em-

phasis added); id at 19 (“The broad consensus in the scientific and

medical community is that sexual orientation is not a choice for les-

bian and gay people any more than it is for their straight neigh-

bors.”) (emphasis added). This is not a claim that sexual orientation

is “immutable,” and the Solicitor General does not dispute (or even

acknowledge) Professor Diamond’s findings that sexual orientation

is fluid, particularly among lesbians. The judges who have played

amateur scientist by declaring sexual orientation “immutable” are

out of their depth on this question. See, e.g., Hernandez-Montiel v.

INS, 225 F.3d 1084, 1093 (9th Cir. 2000).

17

tioners and some courts try to get around this problem

declaring a generalized “right to marry” to be “deeply

rooted” in history and tradition—and then announcing

that this “deeply rooted” right includes the right to mar-

ry any person of one’s choice, including a same-sex part-

ner. See, e.g., Kitchen v. Herbert, 755 F.3d 1193, 1209-10

(10th Cir. 2014); Bostic v. Schaefer, 760 F.3d 352, 375-77

(4th Cir. 2014). There are many problems with this ap-

proach. To begin, Glucksberg requires court to apply a

“careful description” of the alleged right when undertak-

ing the historical inquiry. See Glucksberg, 521 U.S. at

703. This means that judges cannot declare a right that

is not “deeply rooted in this Nation’s history and tradi-

tion” (such as a right to same-sex marriage) to be “deeply

rooted in this Nation’s history and tradition” by boosting

the level of generality at which the right is defined. See

id.; U.S. Const. art. V; Michael W. McConnell, The Right

to Die and the Jurisprudence of Tradition, 1997 Utah L.

Rev. 665; Frank H. Easterbrook, Abstraction and Au-

thority, 59 U. Chi. L. Rev. 349 (1992). And in all events,

even if the petitioners’ abstraction maneuver were per-

missible, it is demonstrably false to assert that a general-

ized “right to marry” a partner of one’s choosing is

“deeply rooted in this Nation’s history and tradition.”

The States have always restricted one’s choice of mar-

riage partner, forbidding not only same-sex marriages

but also non-consensual marriages, marriages between

close relatives, and marriages involving persons below

the age of consent.

18

IIIl.LEGALIZATION OF SAME-SEX MARRIAGE

THROUGH DEMOCRATIC PROCESSES IS

FAR PREFERABLE TO LEGALIZATION

THROUGH JUDICIAL DECREE

It is possible that some members of this Court will

not be persuaded that the judiciary lacks the power to

impose same-sex marriage on the States. But even ju-

rists who are convinced that wey have the power to force

same-sex marriage on the States should nevertheless re-

frain from doing so and allow the attempts to redefine

marriage to occur through democratic processes.

First, same-sex marriage has not existed long enough

to generate reliable data regarding its effects on oppo-

site-sex marriage, parenting, procreation, and public

health. Allowing the States to decide whether (and for

how long) to proceed with this novel social experiment

will help policymakers determine whether same-sex

marriage is a good idea. Court-imposed same-sex mar-

riage will forever entrench a constitutional rule, making

it harder to study the effects of same-sex marriage (be-

cause it will no longer be possible to compare outcomes

in the States that permit the practice with outcomes in

the other States), and disabling legislatures from chang-

ing course if it turns out that same-sex marriage has

some negative or unintended side effects. This is one of

the principal reasons that constitutional federalism ex-

ists—and it will be obliterated by the nationwide imposi-

tion of same-sex marriage via judicial edict. See New

State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932)

(Brandeis, J., dissenting) (“It is one of the happy inci-

dents of the federal system that a single courageous

State may, if its citizens choose, serve as a laboratory;

19

and try novel social and economic experiments without

risk to the rest of the country.”); United States v. Lopez,

514 U.S. 549, 581 (1995) (Kennedy, J., concurring)

(“{Tyhe theory and utility of our federalism are revealed,

for the States may perform their role as laboratories for

experimentation to devise various solutions where the

best solution is far from clear.”).

Second, a federalist solution to the same-sex mar-

riage debate will facilitate national peace and maximize

political-preference satisfaction, by allowing both the

supporters and opponents of same-sex marriage to vote

with their feet and migrate to jurisdictions with more

agreeable laws. See, e.g., Michael W. McConnell, Feder-

alism: Evaluating the Founders’ Design, 54 U. Chi. L.

Rev. 1483, 1493-94 (1987). The petitioners find this solu-

tion abhorrent, because they are unwilling to tolerate the

prospect that any State would adopt a policy on same-sex

marriage that departs from what they believe to be right

and just. But that is the price one must pay for living in a

federal republic; some States may adopt policies that

others find deeply offensive or immoral. Those who sup-

port traditional marriage are no doubt equally dismayed

at the acceptance of same-sex marriage in New England

and on the west coast. But in the words of Justice

Holmes, our Constitution “is made for people of funda-

mentally differing views,” and federalism gives each side

of the same-sex marriage debate a second-best solution.

See Lochner, 198 U.S. at 76 (Holmes, J., dissenting). The

petitioners believe that our Constitution is made only for

those who support same-sex marriage.

20

Third, same-sex marriage will receive less public ac-

ceptance if it is legalized by judicial ukase rather than by

democratically elected legislatures. Many supporters of

legalized abortion have made similar arguments in criti-

cizing Roe v. Wade, 410 U.S. 113 (1973), for (paradoxical-

ly) undermining the cause of abortion rights. Abortion

law was already moving in the direction of liberalization

before Roe, and Roe’s decision to constitutionalize the

issue galvanized the anti-abortion movement and trig-

gered a backlash against the Court’s needlessly over-

broad opinion. See, e.g., Ruth Bader Ginsburg, Some

Thoughts on Autonomy and Equality in Relation to Roe

v. Wade, 63 N.C. L. Rev. 37 (1985). If Roe had adopted a

“minimalist” holding, by invalidating only the most re-

strictive anti-abortion laws, while allowing the democrat-

ic process to resolve the remaining issues surrounding

the legality of abortion, then many believe the right to

abortion would be more widely accepted today. See In-

terview by J.J. Helland with Cass R. Sunstein, Courting

Disaster, salon.com (September 12, 2005),

http-//bit.ly/1ICEmZ7X (last visited March 30, 2015).

These criticisms of Roe are equally applicable to the

plaintiffs’ efforts to constitutionalize a right to same-sex

marriage. See Michael W. McConnell, The Constitution

and Same-Sex Marriage, Wall St. J. (March 21, 2013),

on.wsj.com/ImknYDB (“Change that comes through the

political process has greater democratic legitimacy.”).

Fourth, court-imposed same-sex marriage will

threaten the First Amendment freedoms of persons and

institutions that oppose homosexuality and same-sex

marriage. When same-sex marriage is legalized by legis-

21

latures, the people and their legislators have an oppor-

tunity to seek explicit protections for religious institu-

tions and other dissidents, as such exemptions could be

needed to secure passage of the legislation. See Robin

Fretwell Wilson, Marriage of Necessity: Same-Sex Mar-

riage and Religious Liberty Protections, 64 Case West-

ern L. Rev. 1161, 1162 (2014) (“In jurisdictions that vol-

untarily enacted same-sex marriage, religious liberty

protections for religious objectors who adhere to a het-

erosexual view of marriage—exempting them from re-

quirements to facilitate marriages inconsistent with their

religious beliefs, by providing a reception hall, for exam-

ple—proved vital to the legislation’s success.”); id. at

1162-63 (describing the judicial imposition of same-sex

marriage as “fraught with risk for religious dissenters

while legislative or popular enactments offer important,

if flawed, protections to religious organizations and indi-

viduals.”).

Judicial imposition of same-sex marriage will not con-

tain these protections, and it will remove any need for

the supporters of same-sex marriage to agree to these

protections in exchange for the passage of a same-sex

marriage bill. The need for these protections is real.

Elected officials in Boston, Chicago, and San Francisco

threatened to deny business licenses to Chick-fil-A after

its President spoke out against same-sex marriage. A

judicial pronouncement that opposition to same-sex mar-

riage is “unconstitutional” (and therefore un-American)

will further embolden public officials to engage in these

bullying tactics against those who speak in support of

traditional marriage. And one should not assume that the

22

First Amendment will come to their rescue. The same

elected officials who want to punish Chick-fil-A for sup-

porting traditional marriage will lobby for the appoint-

ment of judges who will find a “compelling” government

interest in eradicating alleged or perceived discrimina-

tion and stigma against same-sex couples. Cf Bob Jones

University v. United States, 461 U.S. 574, 604 (1983);

Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751,

2787 (2014) (Ginsburg, J., dissenting) (contending that

the government can satisfy RFRA’s strict-scrutiny

standard by relying on “compelling governmental inter-

ests in uniform compliance with the law”). At the end of

the day, the First Amendment is mere words on a piece

of paper, and words offer no protection without institu-

tions to enforce them.

Finally, the judicial imposition of same-sex marriage

will cement perceptions of the federal judiciary as a na-

ked political institution that creates and enforces consti-

tutional rights according to whatever happens to be

trendy or fashionable. Legal realists and attitudinalist

political scientists have been peddling this view of the

courts for decades, but it has not penetrated the con-

sciousness of the public, which still regards “law” as

something objective rather than the personal agenda of

judges. But no one will believe a claim that same-sex

marriage became a constitutional right when the States

ratified the Fourteenth Amendment in 1868. A court that

imposes same-sex marriage on the States can do so only

by asserting that judges can change the meaning of the

Constitution without using Article V, or by asserting that

the Constitution delegates to the federal judiciary the

23

authority to impose never-before-recognized constitu-

tional rights at moments of its choosing. Under either of

these rationales, the only reason that the courts would

be forcing same-sex marriage on the States is because

federal judges want it to be legal in all 50 States and are

not willing to wait for States to change their laws

through democratic processes.

This is a dangerous precedent to establish—even for

those who believe that same-sex marriage is good policy.

If a right to same-sex marriage can be constitutionalized

by judicial decree, then any policy can become constitu-

tionalized through the courts. That will cause interest

groups to increase their demands for judges who will

impose their preferred policies from the bench, and the

already dysfunctional judicial-confirmation process will

become further poisoned as ideological conformity will

override considerations of legal ability. Indeed, jurists

who envision a modest or restrained role for the judici-

ary in resolving our nation’s disputes—such as Oliver

Wendell Holmes, Learned Hand, or Henry Friendly—

will likely become un-appointable. When constitutional

law becomes regarded as the plaything of judges, the fo-

cus of judicial appointments shifts away from finding ju-

rists of ability and distinction, and toward finding judges

who will impose policies that the President and Senate

are unable to attain through democratic processes.

This is already beginning to happen. Jurists of im-

mense talent and ability have been rejected, filibustered,

or denied up-or-down votes by the Senate. Henry

Friendly would not even be considered for a judicial ap-

pointment in the current administration, because he did

24

not think that federal courts should impose their views of

abortion policy on the States. See A. Raymond Randolph,

Before Roe v. Wade: Judge Friendly’s Draft Abortion

Opinion, 29 Harv. J. L. Pub. Pol’y 1035 (2006). One can

only imagine what new ideological “litmus tests” will be

imposed as the federal judiciary moves to constitutional-

ize more areas of American public policy.

Liberals and progressives should be especially trou-

bled by this prospect. Rule by judges is two-way street,

and the judge-empowering interpretative methodologies

propounded by the petitioners have historically been

used by this Court to invalidate laws favored by liberals

and progressives—much more so than they have been

used to nullify laws favored by conservatives. See Loch-

ner, 198 U.S. at 64; ALLA Schechter Poultry Corp. v.

United States, 295 U.S. 495 (1935) (striking down federal

minimum-wage and maximum-hours regulations for

poultry workers); Morehead v. New York ex rel. Tipaldo,

298 U.S. 587 (1936) (invalidating minimum-wage law for

women); Seminole Tribe of Fla. v. Florida, 517 U.S. 44

(1996); Bd. of Tr. of Univ. of Ala. v. Garrett, 531 U.S. 356

(2001). Many liberals and progressives seem to believe

that an invisible-hand mechanism will ensure that doc-

trines like “equal protection” and “substantive due pro-

cess” will be used only to invalidate laws that liberals dis-

like, while conservative jurists play by the rules of judi-

cial restraint. But there is no mechanism to ensure these

happy endings. Once constitutional doctrines are severed

from history and tradition—as the petitioners propose—

then its use by future courts will depend entirely on the

25

outcomes of future Presidential and Senatorial elections,

which no one can predict.

We close with an observation from one of the great

appellate judges of the 20th century, Learned Hand, who

wrote that the “spirit of liberty is that spirit which is not

too sure that it is right.” Learned Hand, The Spirit of

Liberty, in Irving Dillard, ed., The Spirit of Liberty: Pa-

pers and Addresses of Learned Hand 189, 190 (1953). A

judge’s personal belief in the rightness of a cause has

never been a reliable measure for determining whether a

ruling will withstand the test of history. See Dred Scott v.

Sandford, 60 U.S. 393 (1856); Lochner, 198 U.S. 45; Pol-

lock v. Farmers’ Loan & Trust Co., 157 U.S. 429 (1895);

Buck v. Bell, 247 U.S. 200 (1927) (Holmes, J.). Issues are

often more complex than judges think, and their legal

training gives them no comparative advantage in resolv-

ing the complex empirical questions and value judgments

that go into deciding whether same-sex marriage should

be legal.’

This Court would do well to follow Judge Hand’s ad-

monition.

’ See Michael W. McConnell, The Importance of Humility in Judi-

cial Review: A Comment on Ronald Dworkin’s “Moral Reading” of

the Constitution, 65 Fordham L. Rev. 1269, 1292 (1997) (“[AJn es-

sential element of responsible judging is a respect for the opinions

and judgments of others, and a willingness to suspend belief, at least

provisionally, in the correctness of one’s own opinions.”).

26

CONCLUSION

The judgment of the court of appeals should be af-

firmed.

Respectfully submitted.

JONATHAN M. SAENZ

900 Congress Avenue

Suite 220

Austin, Texas 78701

(512) 478-2220

jsaenz@txvalues.org

JARED R. WOODFILL

Woodfill Law Firm P.C.

River Oaks Green

3131 Eastside Street

Suite 450

Houston, Texas 77098

(713) 751-3080

jwoodfill@woodfilllaw.com

April 2015

DAVID S. LILL

Counsel of Record

Lill Firm, P.C.

4407 Bee Caves Road

Suite 111, Building 1

Austin, TX 78746

(512) 330-0252

david @lillfirm.com

Counsel for Amicus Curiae