Appendix — Tanco v. Haslam, 135 S. Ct. 1040 (2015) (No. 14-562)

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14-562

In the Supreme Court of the Hnited States

VALERIA TANCO, ET AL., PETITIONERS

Vv.

WILLIAM EDWARD “BILL” HASLAM, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI

ABBY R. RUBENFELD DOUGLAS HALLWARD-DRIEMEIER

RUBENFELD LAW OFFICE, PC Counsel of Record

2409 Hillsboro Road, Ste 200 Ropes & GRaY LLP

Nashville, TN 37212 One Metro Center

700 12th Street, N.W., Ste 900

WILLIAM L. HARBISON Washington, D.C. 20005

PHILLIP F. CRAMER

(202) 508-4600

J. ScoTt HICKMAN Douglas. Hallward-Driemeier@

JOHN L. FARRINGER

SHERRARD & ROE, PLC ———

150 3rd Ave. South, Ste 1100 SHANNON P. MINTER

Nashville, TN 37201 DAVID C. CORDELL

MAUREEN T. HOLLAND CHRISTOPHER F. STOLL

HOLLAND & ASSOCIATES, PC AMY WHELAN

1429 Madison Avenue ASAF ORR

Memphis, TN 38104 NATIONAL CENTER FOR LESBIAN

RIGHTS

REGINA M. LAMBERT 870 Market Street, Ste 370

7010 Stone Mill Drive San Francisco, CA 94102

Knoxville, TN 37919

TABLE OF CONTENTS

Page

Appendix A — Court of appeals opinion

es NE ehittiinenricenneticensnntinnninninn la

Appendix B — Court of appeals order

CR 10la

Appendix C — District court order

8 en 104a

Appendix D — District court order

(Mar. 14, 2014) ................ eaeininaial 106a

Appendix E — District court memorandum opinion

8 en 108a

Appendix F — Statutory provision:

U.S. Const. Amend. XIV, § 1 ....... 131la

Appendix G — Statutory provision:

Tenn. Const. art. XI, § 18.............. 132a

Appendix H — Statutory provision:

Tenn. Code Ann. § 36-3-113.......... 133a

Appendix I — District court declaration of Valeria

Tanco (Nov. 15, 2013)............-.......- 134a

Appendix J — District court declaration of Sophy

Jesty (Nov. 15, 2013)............cceceee. 148a

Appendix K — District court declaration of Ijpe

DeKoe (Nov. 15, 2013)................... 152a

Appendix L — District court declaration of

Thomas Kostura (Nov. 15, 2013)..157a

Appendix M — District court declaration of

Matthew Mansell (Nov. 16, 2013) 162a

(I)

Table of Contents—Continued:

Appendix N — District court declaration of Johno

Espejo (Nov. 16, 2013).................. 168a

Appendix O — Court of appeals declaration of

Sophy Jesty (Apr. 3, 2014)............ 174a

Appendix P — Court of appeals declaration of

Valeria Tanco (Apr. 3, 2014)......... 177a

APPENDIX A

RECOMMENDED FOR FULL-TEXT

PUBLICATION

Pursuant to Sixth Circuit I.0.P. 32.1(b)

File Name: 14a0275p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Nos. 14-1341; 3057; 3464; 5291; 5297; 5818

14-1341

APRIL DEBOER, et al.,

Plaintiffs-Appellees,

Vv.

RICHARD SNYDER, Governor, State of Michigan, in

his official capacity, et al.,

Defendants-Appellants.

14-3057

JAMES OBERGEFELL, et al.,

Plaintiffs-A ppellees,

Vv.

RICHARD HODGES, Director of the Ohio

Department of Health, in his official capacity,

Defendant-Appellant.

14-3464

BRITTANI HENRY, et al.,

Plaintiffs-Appellees,

Vv.

(la)

RICHARD HODGES, Director of the Ohio

Department of Health, in his official capacity,

Defendant-Appellant.

14-5291

GREGORY BOURKE, et al.,

Plaintiffs-Appellees,

STEVE BESHEAR, Governor, Commonwealth of

Kentucky, in his official capacity,

Defendant-Appellant.

14-5297

VALERIA TANCO, et aL,

Plaintiffs-Appellees,

WILLIAM EDWARD “BILL” HASLAM, Governor,

State of Tennessee, in his official capacity, et al.,

Defendants-Appellants.

14-5818

TIMOTHY LOVE, et al.,

Plaintiffs/Intervenors-Appellees,

Vv.

STEVE BESHEAR, Governor, Commonwealth of

Kentucky, in his official capacity,

Defendant- Appellant.

14-1341

Appeal from the United States District Court for the

Eastern District of Michigan at Detroit;

No. 2:12-cv-10285—Bernard A. Friedman, District

Judge.

14-3057 & 14-3464

Appeals from the United States District Court for the

Southern District of Ohio at Cincinnati;

Nos. 1:13-cv-00501 & 1:14-cv-00129—Timothy S. Black,

District Judge.

14-5291 & 14-5818

Appeals from the United States District Court for the

Western District of Kentucky at Louisville;

No. 3:13-cv-00750—John G. Heyburn II, District Judge.

14-5297

Appeal from the United States District Court for the

Middle District of Tennessee at Nashville;

No. 3:13-cv-01159—Aleta Arthur Trauger, District

Judge.

Argued: August 6, 2014

Decided and Filed: November 6, 2014

Before: DAUGHTREY, SUTTON and COOK, Circuit

Judges.

COUNSEL

ARGUED: Aaron D. Lindstrom, OFFICE OF THE

MICHIGAN ATTORNEY GENERAL, Lansing, Mich-

igan, for Appellant in 14-1341. Carole M. Stanyar, Ann

Arbor, Michigan, for Appellees in 14-1341. Eric E.

Murphy, OFFICE OF THE OHIO ATTORNEY

GENERAL, Columbus, Ohio, for Appellant in 14-3057

and 14-3464. Alphonse A. Gerhardstein, GERHARD-

STEIN & BRANCH CO. LPA, Cincinnati, Ohio, for

Appellees in 143057 and 14-3464. Leigh Gross

Latherow, VANANTWERP, MONGE, JONES, ED-

WARDS & MCCANN, LLP, Ashland, Kentucky, for

Appellant in 14-5291 and 14-5818. Laura E. Landenwich,

CLAY DANIEL WALTON & ADAMS, PLC, Louis-

ville, Kentucky, for Appellees in 14-5291 and 14-5818.

Joseph F. Whalen, OFFICE OF THE TENNESSEE

ATTORNEY GENERAL, Nashville, Tennessee, for

Appellants in 14-5297. William L. Harbison, SHER-

RARD & ROE, PLC, Nashville, Tennessee, for Appel-

lees in 14-5297. ON BRIEF: 14-1341: Aaron D.

Lindstrom, Kristin M. Heyse, OFFICE OF THE

MICHIGAN ATTORNEY GENERAL, Lansing, Mich-

igan, for Appellant. Carole M. Stanyar, Ann Arbor,

Michigan, Dana M. Nessel, Detroit, Michigan, Robert A.

Sedler, WAYNE STATE UNIVERSITY LAW

SCHOOL, Detroit, Michigan, Kenneth M. Mogill, MO-

GILL, POSNER & COHEN, Lake Orion, Michigan, for

Appellees. Kyle J. Bristow, BRISTOW LAW, PLLC,

Clarkston, Michigan, Alphonse A. Gerhardstein, GER-

HARDSTEIN & BRANCH CO. LPA, Cincinnati, Ohio,

David A. Robinson, North Haven, Connecticut, Debo-

rah J. Dewart, Swansboro, North Carolina, Paul Ben-

jamin Linton, Northbrook, Illinois, James R. Wierenga,

DAVID & WIERENGA, P.C., Grand Rapids, Michigan,

Eric Rassbach, THE BECKET FUND FOR RELI-

GIOUS LIBERTY, Washington, D.C., James J. Walsh,

Thomas J. Rheaume, Jr.. BODMAN PLC, Detroit,

Michigan, William J. Olson, WILLIAM J. OLSON, P.C.,

Vienna, Virginia, Lawrence J. Joseph, Washington,

D.C., Thomas M. Fisher, OFFICE OF THE ATTOR-

NEY GENERAL OF INDIANA, Indianapolis, Indiana,

Mary E. McAlister, LIBERTY COUNSEL, Lynchburg,

Virginia, Mathew D. Stayer, Anita L. Stayer, LIBER-

TY COUNSEL, Orlando, Florida, Anthony R. Picarello,

Jr., Jeffrey Hunter Moon, Michael F. Moses, U.S.

CONFERENCE OF CATHOLIC BISHOPS, Wash-

ington, D.C., Alexander Dushku, R. Shawn Gunnarson,

KIRTON MCCONKIE, Salt Lake City, Utah, Erin

Elizabeth Mersinon, THOMAS MORE LAW CENTER,

Ann Arbor, Michigan, David Boyle, Long Beach, Cali-

fornia, Benjamin G. Shatz, MANATT, PHELPS &

PHILLIPS, LLP, Los Angeles, California, Elizabeth B.

Wydra, CONSTITUTIONAL ACCOUNTABILITY

CENTER, Washington, D.C., Paul M. Smith, JENNER

& BLOCK LLP, Washington, D.C., Catherine E. Stet-

son, HOGAN LOVELLS US LLP, Washington, D.C.,

Jason Walta, NATIONAL EDUCATION ASSOCIA-

TION, Washington, D.C., Diana Raimi, JAFFE RAITT

HEUER & WEISS, P.C., Ann Arbor, Michigan, Rocky

C. Tsai, ROPES & GRAY LLP, San Francisco, Cali-

fornia, Alan M. Gershel, THOMAS M. COOLEY LAW

SCHOOL, Auburn Hills, Michigan, Jerome C. Roth,

Nicole S. Phillis, MUNGER, TOLLES & OLSON LLP,

San Francisco, California, Andrew J. Davis, FOLGER

LEVIN LLP, San Francisco, California, Nicholas M.

O'Donnell, SULLIVAN & WORCESTER LLP, Boston,

Massachusetts, Sean R. Gallagher, POLSINELLI PC,

Denver, Colorado, Mark C. Fleming, Felicia H. Ells-

worth, WILMER CUTLER PICKERING HALE

AND DORR LLP, Boston, Massachusetts, Paul R.Q.

Wolfson, Dina B. Mishra, WILMER CUTLER PICK-

ERING HALE AND DORR LLP, Washington, D.C.,

Alan Schoenfeld, WILMER CUTLER PICKERING

HALE AND DORR LLP, New York, New York, Di-

ane M. Soubly, STEVENSON KEPPELMAN ASSO-

CIATES, Ann Arbor, Michigan, Ria Tabacco Mar,

NAACP LEGAL DEFENSE & EDUCATIONAL

FUND, INC., New York, New York, Christy L. An-

derson, BRYAN CAVE LLP, Denver, Colorado, Car-

mine D. Boccuzzi, Jr.,. CLEARY GOTTLIEB STEEN

& HAMILTON LLP, New York, New York, Jonathan

B. Miller, OFFICE OF THE MASSACHUSETTS

ATTORNEY GENERAL, Boston, Massachusetts, Jyo-

tin Hamid, Joseph Rome, DEBEVOISE & PLIMPTON

LLP, New York, New York, Jeffrey S. Trachtman,

KRAMER LEVIN NAFTALIS & FRANKEL LLP,

New York, New York, Christopher D. Man, CHAD-

BOURNE & PARKE LLP, Washington, D.C., Chase B.

Strangio, AMERICAN CIVIL LIBERTIES UNION

FOUNDATION, New York, New York, Suzanne B.

Goldberg, COLUMBIA LAW SCHOOL, New York,

New York, Marcia D. Greenberger, Emily J. Martin,

NATIONAL WOMEN’S LAW CENTER, Washington,

D.C., G. David Carter, Joseph P. Bowser, Hunter

Carter, ARENT FOX LLP, Washington, D.C., Sara

Bartel, MORRISON & FOERSTER LLP, San Fran-

cisco, California, Daniel McNeel Lane, Jr., Matthew E.

Pepping, AKIN GUMP STRAUSS HAUER & FELD

LLP, San Antonio, Texas, Jessica M. Weisel, AKIN

GUMP STRAUSS HAUER & FELD LLP, Los Ange-

les, California, Michael L. Whitlock, BINGHAM

MCCUTCHEN LLP, Washington, D.C., for Amici Cu-

riae. 14-3057: Bridget E. Coontz, Zachery P. Keller,

OFFICE OF THE OHIO ATTORNEY GENERAL,

Columbus, Ohio, for Appellant. Alphonse A. Gerhard-

stein, Jennifer L. Branch, Jacklyn Gonzales Martin,

GERHARDSTEIN & BRANCH CO. LPA, Cincinnati,

Ohio, Lisa T. Meeks, NEWMAN & MEEKS CO., LPA,

Cincinnati, Ohio, Chase B. Strangio, James D. Esseks,

AMERICAN CIVIL LIBERTIES UNION FOUN-

DATION, New York, New York, Drew Dennis, ACLU

OF OHIO, INC., Cleveland, Ohio, for Appellees. Byron

J. Babione, ALLIANCE DEFENDING FREEDOM,

Scottsdale, Arizona, Lawrence J. Joseph, Washington,

D.C., Benjamin G. Shatz, MANATT, PHELPS &

PHILLIPS, LLP, Los Angeles, California, Carmine D.

Boccuzzi, Jr., CLEARY GOTTLIEB STEEN & HAM-

ILTON LLP, New York, New York, Gregory R.

Nevins, LAMBDA LEGAL DEFENSE AND EDU-

CATION FUND, INC., Atlanta, Georgia, Susan L.

Sommer, LAMBDA LEGAL DEFENSE AND EDU-

CATION FUND, INC., New York, New York, Camilla

B. Taylor, LAMBDA LEGAL DEFENSE AND ED-

UCATION FUND, INC., Chicago, Illinois, Mark C.

Fleming, Felicia H. Ellsworth, WILMER CUTLER

PICKERING HALE AND DORR LLP, Boston, Mas-

sachusetts, Paul R.Q. Wolfson, Dina B. Mishra, WIL-

MER CUTLER PICKERING HALE AND DORR

LLP, Washington, D.C., Alan Schoenfeld, WILMER

CUTLER PICKERING HALE AND DORR LLP,

New York, New York, Paul M. Smith, JENNER &

BLOCK LLP, Washington, D.C., Roberta A. Kaplan,

Jaren Janghorbani, Joshua D. Kaye, Jacob H. Hupart,

PAUL, WEISS, RIFKIND, WHARTON & GARRI-

SON LLP, New York, New York, Thomas D. Warren,

BAKER & HOSTETLER LLP, Cleveland, Ohio, Jef-

frey S. Trachtman, KRAMER LEVIN NAFTALIS &

FRANKEL LLP, New York, New York, Marcia D.

Greenberger, Emily J. Martin, NATIONAL WOM-

EN’S LAW CENTER, Washington, D.C., Shannon P.

Minter, Christopher F. Stoll, NATIONAL CENTER

FOR LESBIAN RIGHTS, Washington, D.C., for Amici

Curiae. 14-3464: Eric E. Murphy, Bridget E. Coontz,

OFFICE OF THE OHIO ATTORNEY GENERAL,

Columbus, Ohio, for Appellant. Alphonse A. Gerhard-

stein, Jennifer L. Branch, Jacklyn Gonzales Martin,

GERHARDSTEIN & BRANCH CO. LPA, Cincinnati,

Ohio, Lisa T. Meeks, NEWMAN & MEEKS CO., LPA,

Cincinnati, Ohio, Susan L. Sommer, M. Currey Cook,

Keith Hammeran, LAMBDA LEGAL DEFENSE &

EDUCATION FUND, INC., New York, New York,

Paul D. Castillo, LAMBDA LEGAL DEFENSE &

EDUCATION FUND, INC., Dallas, Texas, for Appel-

lees. Catherine E. Stetson, HOGAN LOVELLS US

LLP, Washington, D.C., Andrew J. Davis, FOLGER

LEVIN LLP, San Francisco, California, Sean R. Gal-

lagher, POLSINELLI PC, Denver, Colorado, Nicholas

M. O’Donnell, SULLIVAN & WORCESTER LLP,

Boston, Massachusetts, Carmine D. Boccuzzi, Jr.,

CLEARY GOTTLIEB STEEN & HAMILTON LLP,

New York, New York, Ria Tabacco Mar, NAACP LE-

GAL DEFENSE & EDUCATIONAL FUND, INC.,

New York, New York, Jyotin Hamid, Joseph Rome,

DEBEVOISE & PLIMPTON LLP, New York, New

York, Suzanne B. Goldberg, COLUMBIA LAW

SCHOOL, New York, New York, Daniel McNeel Lane,

Jr., Matthew E. Pepping, AKIN GUMP STRAUSS

HAUER & FELD LLP, San Antonio, Texas, Jessica M.

Weisel, AKIN GUMP STRAUSS HAUER & FELD

LLP, Los Angeles, California, Paul D. Ritter, Jr.,

Christopher J. Weber, Robert G. Schuler, KEGLER,

BROWN, HILL & RITTER CO., L.P.A., Columbus,

Ohio, Lawrence J. Joseph, Washington, D.C., Harlan D.

Karp, Tina R. Haddad, Cleveland, Ohio, Benjamin G.

Shatz, MANATT, PHELPS & PHILLIPS, LLP, Los

Angeles, California, Christopher D. Man, CHAD-

BOURNE & PARKE LLP, Washington, D.C., Mark C.

Fleming, Felicia H. Ellsworth, WILMER CUTLER

PICKERING HALE AND DORR LLP, Boston, Mas-

sachusetts, Paul R.Q. Wolfson, Dina B. Mishra, WIL-

MER CUTLER PICKERING HALE AND DORR

LLP, Washington, D.C., Alan Schoenfeld, WILMER

CUTLER PICKERING HALE AND DORR LLP,

New York, New York, Rocky C. Tsai, ROPES &

GRAY LLP, San Francisco, California, Joseph R.

Guerra, SIDLEY AUSTIN LLP, Washington, D.C.,

Emma L. Dill, BRYAN CAVE LLP, San Francisc,

California, Jeffrey S. Trachtman, KRAMER LEVIN

NAFTALIS & FRANKEL LLP, New York, New

York, Marcia D. Greenberger, Emily J. Martin, NA-

TIONAL WOMEN’S LAW CENTER, Washington,

D.C., Sara Bartel, MORRISON & FOERSTER LLP,

San Francisco, California, G. David Carter, Joseph P.

Bowser, Hunter T. Carter, ARENT FOX LLP, Wash-

ington, D.C., Marjory A. Gentry, ARNOLD & POR-

TER LLP, San Francisco, California, Diane M. Soubly,

STEVENSON KEPPELMAN ASSOCIATES, Ann

Arbor, Michigan, Harlan D. Karp, Cleveland, Ohio, for

Amici Curiae. 14-6291: Leigh Gross

Latherow, William H. Jones, Jr., Gregory L. Monge,

VANANTWERP, MONGE, JONES, EDWARDS &

MCCANN, LLP, Ashland, Kentucky, for Appellant.

Laura E. Landenwich, Daniel J. Canon, L. Joe Dunman,

CLAY DANIEL WALTON & ADAMS, PLC, Louis-

ville, Kentucky, Shannon R. Fauver, Dawn R. Elliott,

FAUVER LAW OFFICE, PLLC, Louisville, Ken-

tucky, for Appellees. David A. Robinson, North Haven,

Connecticut, Deborah J. Dewart, Swansboro, North

Carolina, Stanton L. Cave, LAW OFFICE OF STAN

CAVE, Lexington, Kentucky, Eric Rassbach, THE

BECKET FUND FOR RELIGIOUS LIBERTY,

Washington, D.C., David Boyle, Long Beach, California,

Benjamin G. Shatz, MANATT, PHELPS & PHILLIPS,

LLP, Los Angeles, California, Paul M. Smith, JEN-

NER & BLOCK LLP, Washington, D.C., Catherine E.

Stetson, HOGAN LOVELLS US LLP, Washington,

10a

D.C., Andrew J. Davis, FOLGER, LEVIN LLP, San

Francisco, California, Rocky C. Tsai, ROPES & GRAY

LLP, San Francisco, California, Jerome C. Roth, Nicole

S. Phillis, MUNGER, TOLLES & OLSON LLP, San

Francisco, California, Nicholas M. O’Donnell, SULLI-

VAN & WORCESTER LLP, Boston, Massachusetts,

Carmine D. Boccuzzi, Jr.. CLEARY GOTTLIEB

STEEN & HAMILTON LLP, New York, New York,

Mark C. Fleming, Felicia H. Ellsworth, WILMER

CUTLER PICKERING HALE AND DORR LLP,

Boston, Massachusetts, Paul R.Q. Wolfson, Dina B.

Mishra, WILMER CUTLER PICKERING HALE

AND DORR LLP, Washington, D.C., Alan Schoenfeld,

WILMER CUTLER PICKERING HALE AND

DORR LLP, New York, New York, Sean R. Gallagher,

POLSINELLI PC, Denver, Colorado, Jyotin Hamid,

Joseph Rome, DEBEVOISE & PLIMPTON LLP, New

York, New York, Christy L. Anderson, BRYAN

CAVE LLP, Denver, Colorado, Ria Tabacco Mar,

NAACP LEGAL DEFENSE & EDUCATIONAL

FUND, INC., New York, New York, Suzanne B. Gold-

berg, COLUMBIA LAW SCHOOL, New York, New

York, Joshua A. Block, Chase Strangio, AMERICAN

CIVIL LIBERTIES UNION FOUNDATION, New

York, New York, Elizabeth B. Wydra, CONSTITU-

TIONAL ACCOUNTABILITY CENTER, Washing-

ton, D.C., Marcia D. Greenberger, Emily J. Martin,

NATIONAL WOMEN’S LAW CENTER, Washington,

D.C., Jeffrey S. Trachtman, KRAMER LEVIN

NAFTALIS & FRANKEL LLP, New York, New

York, Christopher D. Man, CHADBOURNE &

PARKE LLP, Washington, D.C., Sara Bartel, MOR-

RISON & FOERSTER LLP, San Francisco, California,

Daniel McNeel Lane, Jr., Matthew E. Pepping, AKIN

lla

GUMP STRAUSS HAUER & FELD LLP, San Anto-

nio, Texas, Jessica M. Weisel, AKIN GUMP STRAUSS

HAUER & FELD LLP, Los Angeles, California, Diane

M. Soubly, STEVENSON KEPPELMAN ASSOCI-

ATES, Ann Arbor, Michigan, Marjory A. Gen-

try, ARNOLD & PORTER LLP, San Francisco, Cali-

fornia, Michael L. Whitlock, BINGHAM MCCUTCH-

EN LLP, Washington, D.C., G. David Carter, Joseph P.

Bowser, Hunter Carter, ARENT FOX LLP, Washing-

ton, D.C., for Amici Curiae. 14-6297: Joseph F. Whalen,

Martha A. Campbell, Kevin G. Steiling, OFFICE OF

THE TENNESSEE ATTORNEY GENERAL, Nash-

ville, Tennessee, for Appellants. William L. Harbison,

Phillip F. Cramer, J. Scott Hickman, John L. Farringer,

SHERRARD & ROE, PLC, Nashville, Tennessee, Ab-

by R. Rubenfeld, RUBENFELD LAW OFFICE, PC,

Nashville, Tennessee, Maureen T. Holland, HOLLAND

AND ASSOCIATES, PLLC, Memphis, Tennessee,

Regina M. Lambert, Knoxville, Tennessee, Shannon P.

Minter, Christopher F. Stoll, Amy Whelan, Asaf On,

NATIONAL CENTER FOR LESBIAN RIGHTS, San

Francisco, California, for Appellees. Deborah J. Dewart,

Swansboro, North Carolina, Eric Rassbach, THE

BECKET FUND FOR RELIGIOUS LIBERTY,

Washington, D.C., Byron J. Babione, ALLIANCE

DEFENDING FREEDOM, Scottsdale, Arizona, Paul

M. Smith, JENNER & BLOCK LLP, Washington, D.C..,

Catherine E. Stetson, HOGAN LOVELLS US LLP,

Washington, D.C., Benjamin G. Shatz, MANATT,

PHELPS & PHILLIPS, LLP, Los Angeles, California,

Elizabeth B. Wydra, CONSTITUTIONAL AC-

COUNTABILITY CENTER, Washington, D.C., An-

drew J. Davis, FOLGER LEVIN LLP, San Francisco,

California, Rocky C. Tsai, ROPES & GRAY LLP, San

12a

Francisco, California, Jerome C. Roth, Nicole S. Phillis,

MUNGER, TOLLES & OLSON LLP, San Francisco,

California, Nicholas M. O’Donnell, SULLIVAN &

WORCESTER LLP, Boston, Massachusetts, Sean R.

Gallagher, POLSINELLI PC, Denver, Colorado, Car-

mine D. Boccuzzi, Jr.. CLEARY GOTTLIEB STEEN

& HAMILTON LLP, New York, New York, Mark C.

Fleming, Felicia H. Ellsworth, WILMER CUTLER

PICKERING HALE AND DORR LLP, Boston, Mas-

sachusetts, Paul R.Q. Wolfson, Dina B. Mishra, WIL-

MER CUTLER PICKERING HALE AND DORR

LLP, Washington, D.C., Alan Schoenfeld, WILMER

CUTLER PICKERING HALE AND DORR LLP,

New York, New York, Barbara J. Chisholm, P. Casey

Pitts, ALTSHULER BERZON LLP, San Francisco,

California, Christy L. Anderson, BRYAN CAVE LLP,

Denver, Colorado, Jyotin Hamid, Joseph Rome,

DEBEVOISE & PLIMPTON LLP, New York, New

York, Ria Tabacco Mar, NAACP LEGAL DEFENSE

& EDUCATIONAL FUND, INC., New York, New

York, Joshua A. Block, Chase B. Strangio, AMERI-

CAN CIVIL LIBERTIES UNION FOUNDATION,

New York, New York, Christopher D. Man, CHAD-

BOURNE & PARKE LLP, Washington, D.C., Marcia

D. Greenberger, Emily J. Martin, NATIONAL WOM-

EN’S LAW CENTER, Washington, D.C., Jeffrey S.

Trachtman, KRAMER LEVIN NAFTALIS &

FRANKEL LLP, New York, New York, G. David

Carter, Joseph P. Bowser, Hunter Carter, ARENT

FOX LLP, Washington, D.C., Sara Bartel, MORRI-

SON & FOERSTER LLP, San Francisco, California,

Daniel McNeel Lane, Jr., Matthew E. Pepping, AKIN

GUMP STRAUSS HAUER & FELD LLP, San Anto-

nio, Texas, Jessica M. Weisel, AKIN GUMP STRAUSS

13a

HAUER & FELD LLP, Los Angeles, California, Mar-

jory A. Gentry, ARNOLD & PORTER LLP, San

Francisco, California, Diane M. Soubly, STEVENSON

KEPPELMAN ASSOCIATES, Ann Arbor, Michigan,

Michael L. Whitlock, BINGHAM MCCUTCHEN LLP,

Washington, D.C., Suzanne B. Goldberg, COLUMBIA

LAW SCHOOL, New York, New York, for Amici Cu-

riae. 14-5818: Leigh Gross Latherow, William H. Jones,

Jr., Gregory L. Monge, VANANTWERP, MONGE,

JONES, EDWARDS & MCCANN, LLP, Ashland,

Kentucky, for Appellant. Laura E. Landenwich, Daniel

J. Canon, L. Joe Dunman, CLAY DANIEL WALTON

& ADAMS, PLC, Louisville, Kentucky, for Appellees.

Diane M. Soubly, STEVENSON KEPPELMAN AS-

SOCIATES, Ann Arbor, Michigan, for Amicus Curiae.

SUTTON, J., delivered the opinion of the court,

in which COOK, J., joined. DAUGHTREY, J. (pp. 43-

64), delivered a separate dissenting opinion.

OPINION

SUTTON, Circuit Judge. This is a case about

change—and how best to handle it under the United

States Constitution. From the vantage point of 2014, it

would now seem, the question is not whether American

law will allow gay couples to marry; it is when and how

that will happen. That would not have seemed likely as

recently as a dozen years ago. For better, for worse, or

for more of the same, marriage has long been a social

institution defined by relationships between men and

women. So long defined, the tradition is measured in

millennia, not centuries or decades. So widely shared,

the tradition until recently had been adopted by all

governments and major religions of the world.

l4a

But things change, sometimes quickly. Since

2003, nineteen States and the District of Columbia have

expanded the definition of marriage to include gay cou-

ples, some through state legislation, some through ini-

tiatives of the people, some through state court deci-

sions, and some through the actions of state governors

and attorneys general who opted not to appeal adverse

court decisions. Nor does this momentum show any

signs of slowing. Twelve of the nineteen States that

now recognize gay marriage did so in the last couple of

years. On top of that, four federal courts of appeals

have compelled several other States to permit same-

sex marriages under the Fourteenth Amendment.

What remains is a debate about whether to allow

the democratic processes begun in the States to contin-

ue in the four States of the Sixth Circuit or to end them

now by requiring all States in the Circuit to extend the

definition of marriage to encompass gay couples. Pro-

cess and structure matter greatly in American gov-

ernment. Indeed, they may be the most reliable, liber-

ty-assuring guarantees of our system of government,

requiring us to take seriously the route the United

States Constitution contemplates for making such a

fundamental change to such a fundamental social insti-

tution.

Of all the ways to resolve this question, one op-

tion is not available: a poll of the three judges on this

panel, or for that matter all federal judges, about

whether gay marriage is a good idea. Our judicial com-

missions did not come with such a sweeping grant of

authority, one that would allow just three of us—just

two of us in truth—to make such a vital policy call for

the thirty-two million citizens who live within the four

15a

States of the Sixth Circuit: Kentucky, Michigan, Ohio,

and Tennessee. What we have authority to decide in-

stead is a legal question: Does the Fourteenth Amend-

ment to the United States Constitution prohibit a State

from defining marriage as a relationship between one

man and one woman?

Through a mixture of common law decisions,

statutes, and constitutional provisions, each State in

the Sixth Circuit has long adhered to the traditional

definition of marriage. Sixteen gay and lesbian couples

claim that this definition violates their rights under the

Fourteenth Amendment. The circumstances that gave

rise to the challenges vary. Some involve a birth, others

a death. Some involve concerns about property, taxes,

and insurance, others death certificates and rights to

visit a partner or partner’s child in the hospital. Some

involve a couple’s effort to obtain a marriage license

within their State, others an effort to achieve recogni-

tion of a marriage solemnized in another State. All seek

dignity and respect, the same dignity and respect given

to marriages between opposite-sex couples. And all

come down to the same question: Who decides? Is this a

matter that the National Constitution commits to reso-

lution by the federal courts or leaves to the less expedi-

ent, but usually reliable, work of the state democratic

processes?

Michigan. One case comes from Michigan,

where state law has defined marriage as a relationship

between a man and a woman since its territorial days.

See An Act Regulating Marriages § 1 (1820), in 1 Laws

of the Territory of Michigan 646, 646 (1871). The State

reaffirmed this view in 1996 when it enacted a law that

16a

declared marriage “inherently a unique relationship be-

tween a man and a woman.” Mich. Comp. Laws § 551.1.

In 2004, after the Massachusetts Supreme Judicial

Court invalidated the Commonwealth’s prohibition on

same-sex marriage, Goodridge v. Dep't of Pub. Health,

798 N.E.2d 941 (Mass. 2003), nearly fifty-nine percent

of Michigan voters opted to constitutionalize the State’s

definition of marriage. “To secure and preserve the

benefits of marriage for our society and for future gen-

erations of children,” the amendment says, “the union

of one man and one woman in marriage shall be the only

agreement recognized as a marriage or similar union

for any purpose.” Mich. Const. art. I, § 25.

April DeBoer and Jayne Rowse, a lesbian couple

living in Michigan, challenge the constitutionality of

this definition. Marriage was not their first objective.

DeBoer and Rowse each had adopted children as single

parents, and both wanted to serve as adoptive parents

for the other partner’s children. Their initial complaint

alleged that Michigan’s adoption laws violated the

Equal Protection Clause of the Fourteenth Amend-

ment. The State moved to dismiss the lawsuit for lack

of standing, and the district court tentatively agreed.

Rather than dismissing the action, the court “invit[ed

the] plaintiffs to seek leave to amend their complaint

to... challenge” Michigan’s laws denying them a mar-

riage license. DeBoer R. 151 at 3. DeBoer and Rowse

accepted the invitation and filed a new complaint alleg-

ing that Michigan’s marriage laws violated the due pro-

cess and equal protection guarantees of the Fourteenth

Amendment.

Both sets of parties moved for summary judg-

ment. The district court concluded that the dispute

17a

raised “a triable issue of fact” over whether the “ra-

tionales” for the Michigan laws furthered “a legitimate

state interest,” and it held a nine-day trial on the issue.

DeBoer R. 89 at 4, 8. The plaintiffs’ experts testified

that same-sex couples raise children as well as oppo-

site-sex couples, and that denying marriage to same-

sex couples creates instabilities for their children and

families. The defendants’ experts testified that the evi-

dence regarding the comparative success of children

raised in same-sex households is inconclusive. The dis-

trict court sided with the plaintiffs. It rejected all of the

State’s bases for its marriage laws and concluded that

the laws failed to satisfy rational basis review.

Kentucky. Two cases challenge two aspects of

Kentucky’s marriage laws. Early on, Kentucky defined

marriage as “the union of a man and a woman.” Jones v.

Hallahan, 501 S.W.2d 588, 589 (Ky. 1973); see An Act

for Regulating the Solemnization of Marriages § 1, 1798

Ky. Acts 49, 49-50. In 1998, the Kentucky legislature

codified the common law definition. The statute says

that “marriage’ refers only to the civil status, condition,

or relation of one (1) man and one (1) woman united in

law for life, for the discharge to each other and the

community of the duties legally incumbent upon those

whose association is founded on the distinction of sex.”

Ky. Rev. Stat. § 402.005. In 2004, the Kentucky legisla-

ture proposed a constitutional amendment providing

that “[ojnly a marriage between one man and one wom-

an shall be valid or recognized as a marriage in Ken-

tucky.” Ky. Const. § 233A. Seventy-four percent of the

voters approved the amendment.

Two groups of plaintiffs challenge these Ken-

tucky laws. One group, the fortuitously named Love

18a

plaintiffs, challenges the Commonwealth’s marriage-

licensing law. Two couples filed that lawsuit: Timothy

Love and Lawrence Ysunza, along with Maurice

Blanchard and Dominique James. Both couples claim

that the Fourteenth Amendment prohibits Kentucky

from denying them marriage licenses.

The other group, the Bourke plaintiffs, challeng-

es the ban on recognizing out-of-state same-sex mar-

riages. Four same-sex couples filed the lawsuit: Grego-

ry Bourke and Michael DeLeon; Jimmy Meade and Lu-

ther Barlowe; Randell Johnson and Paul Campion; and

Kimberly Franklin and Tamera Boyd. All four couples

were married outside Kentucky, and they contend that

the State’s recognition ban violates their due process

and equal protection rights. Citing the hardships im-

posed on them by the recognition ban—loss of tax

breaks, exclusion from intestacy laws, loss of dignity—

they seek to enjoin its enforcement.

The district court ruled for the plaintiffs in both

cases. In Love, the court held that the Commonwealth

could not justify its definition of marriage on rational

basis grounds. It also thought that classifications based

on sexual orientation should be subjected to intermedi-

ate scrutiny, which the Commonwealth also failed to

satisfy. In Bourke, the court invalidated the recognition

ban on rational basis grounds.

Ohio. Two cases challenge Ohio’s refusal to rec-

ognize out-of-state same-sex marriages. Ohio also has

long adhered to the traditional definition of marriage.

See An Act Regulating Marriages § 1, 1803 Ohio Laws

31, 31; Carmichael v. State, 12 Ohio St. 553, 560 (1861).

It reaffirmed this definition in 2004, when the legisla-

ture passed a Defense of Marriage Act, which says that

19a

marriage “may only be entered into by one man and

one woman.” Ohio Rev. Code § 3101.01(A). “Any mar-

riage entered into by persons of the same sex in any

other jurisdiction,” it adds, “shall be considered and

treated in all respects as having no legal force or effect.”

Id. §3101.01(C\(2). Later that same year, sixty-two

percent of Ohio voters approved an amendment to the

Ohio Constitution along the same lines. As amended,

the Ohio Constitution says that Ohio recognizes only “a

union between one man and one woman” as a valid

marriage. Ohio Const. art. XV, § 11.

Two groups of plaintiffs challenge these Ohio

laws. The first group, the Obergefell plaintiffs, focuses

on one application of the law. They argue that Ohio’s

refusal to recognize their out-of-state marriages on

Ohio-issued death certificates violates due process and

equal protection. Two same-sex couples in long-term,

committed relationships filed the lawsuit:

James Obergefell and John Arthur; and David Mich-

ener and William Herbert Ives. All four of them are

from Ohio and were married in other States. When Ar-

thur and Ives died, the State would not list Obergefell

and Michener as spouses on their death certificates.

Obergefell and Michener sought an injunction to re-

quire the State to list them as spouses on the certifi-

cates. Robert Grunn, a funeral director, joined the law-

suit, asking the court to protect his right to recognize

same-sex marriages on other death certificates.

The second group, the Henry plaintiffs, raises a

broader challenge. They argue that Ohio’s refusal to

recognize out-of-state marriages between same-sex

couples violates the Fourteenth Amendment no matter

what marital benefit is affected. The Henry case in-

20a

volves four same-sex couples, all married in other

States, who want Ohio to recognize their marriages on

their children’s birth certificates. Three of the couples

(Brittani Henry and Brittni Rogers; Nicole and Pam

Yorksmith; Kelly Noe and Kelly McCracken) gave

birth to children in Ohio and wish to have both of their

names listed on each child’s birth certificate rather than

just the child’s biological mother. The fourth couple (Jo-

seph Vitale and Robert Talmas) lives in New York and

adopted a child born in Ohio. They seek to amend their

son’s Ohio birth certificate so that it lists both of them

as parents.

The district court granted the plaintiffs relief in

both cases. In Obergefell, the court concluded that the

Fourteenth Amendment protects a fundamental right

to keep existing marital relationships intact, and that

the State failed to justify its law under heightened

scrutiny. The court likewise concluded that classifica-

tions based on sexual orientation deserve heightened

scrutiny under equal protection, and that Ohio failed to

justify its refusal to recognize the couples’ existing

marriages. Even under rational basis review, the court

added, the State came up short. In Henry, the district

court reached many of the same conclusions and ex-

panded its recognition remedy to encompass all mar-

ried same-sex couples and all legal incidents of mar-

riage under Ohio law.

Tennessee. The Tennessee case is of a piece with

the two Ohio cases and one of the Kentucky cases, as it

too challenges the State’s same-sex-marriage recogni-

tion ban. Tennessee has always defined marriage in

traditional terms. See An Act Concerning Marriages §

3 (1741), in Public Acts of the General Assembly of

Zila

North-Carolina and Tennessee 46, 46 (1815). In 1996,

the Tennessee legislature reaffirmed “that the histori-

cal institution and legal contract solemnizing the rela-

tionship of one (1) man and one (1) woman shall be the

only legally recognized marital contract in this state in

order to provide the unique and exclusive rights and

privileges to marriage.” Tenn. Code Ann. § 36-3-113(a).

In 2006, the State amended its constitution to incorpo-

rate the existing definition of marriage. See Tenn.

Const. art. XI, § 18. Eighty percent of the voters sup-

ported the amendment.

Three same-sex couples, all in committed rela-

tionships, challenge the recognition ban: Valeria Tanco

and Sophy Jesty; Ijpe DeKoe and Thomas Kostura; and

Johno Espejo and Matthew Mansell. All three couples

were legally married in other States. The district court

preliminarily enjoined the law. Relying on district court

decisions within the circuit and elsewhere, the court

concluded that the couples likely would show that Ten-

nessee’s ban failed to satisfy rational basis review. The

remaining preliminary injunction factors, the court held,

also weighed in the plaintiffs’ favor.

All four States appealed the decisions against

them.

Il.

Does the Due Process Clause or the Equal Pro-

tection Clause of the Fourteenth Amendment require

States to expand the definition of marriage to include

same-sex couples? The Michigan appeal (DeBoer) pre-

sents this threshold question, and so does one of the

Kentucky appeals (Love). Caselaw offers many ways

to think about the issue.

22a

Perspective of an intermediate court. Start with

a recognition of our place in the hierarchy of the federal

courts. As an “inferior” court (the Constitution’s pre-

ferred term, not ours), a federal court of appeals begins

by asking what the Supreme Court’s precedents re-

quire on the topic at hand. Just such a precedent con-

fronts us.

In the early 1970s, a Methodist minister married

Richard Baker and James McConnell in Minnesota. Af-

terwards, they sought a marriage license from the

State. When the clerk of the state court denied the re-

quest, the couple filed a lawsuit claiming that the denial

of their request violated the Due Process and Equal

Protection Clauses of the Fourteenth Amendment.

Baker v. Nelson, 191 N.W.2d 185, 186 (Minn. 1971). The

Minnesota Supreme Court rejected both claims. As for

the due process claim, the state court reasoned: “The

institution of marriage as a union of man and woman,

uniquely involving the procreation and rearing of chil-

dren within a family, is as old as the book of Genesis. . . .

This historic institution manifestly is more deeply

founded than the asserted contemporary concept of

marriage and societal interests for which petitioners

contend. The due process clause . . . is not a charter for

restructuring it by judicial legislation.” Jd. As for the

equal protection claim, the court reasoned: “(Tyhe

state’s classification of persons authorized to marry”

does not create an “irrational or invidious discrimina-

tion. . . . [T]hat the state does not impose upon hetero-

sexual married couples a condition that they have a

proved capacity or declared willingness to procreate . . .

[creates only a] theoretically imperfect [classifica-

23a

tion] . . . [and] ‘abstract symmetry’ is not demanded by

the Fourteenth Amendment.” Jd. at 187. The Supreme

Court’s decision four years earlier in Loving v. Virginia,

388 U.S. 1 (1967), which invalidated Virginia’s ban on

interracial marriages, did not change this conclusion.

“[IIn commonsense and in a constitutional sense,” the

state court explained, “there is a clear distinction be-

tween a marital restriction based merely upon race and

one based upon the fundamental difference in sex.”

Baker, 191 N.W.2d at 187.

Baker and McConnell appealed to the United

States Supreme Court. The Court rejected their chal-

lenge, issuing a one-line order stating that the appeal

did not raise “a substantial federal question.” Baker v.

Nelson, 409 U.S. 810, 810 (1972). This type of summary

decision, it is true, does not bind the Supreme Court in

later cases. But it does confine lower federal courts in

later cases. It matters not whether we think the deci-

sion was right in its time, remains right today, or will

be followed by the Court in the future. Only the Su-

preme Court may overrule its own precedents, and we

remain bound even by its summary decisions “until

such time as the Court informs [us] that [we] are not.”

Hicks v. Miranda, 422 U.S. 332, 345 (1975) (internal

quotation marks omitted). The Court has yet to inform

us that we are not, and we have no license to engage in

a guessing game about whether the Court will change

its mind or, more aggressively, to assume authority to

overrule Baker ourselves.

But that was then; this is now. And now, claim-

ants insist, must account for United States v. Windsor,

133 S. Ct. 2675 (2013), which invalidated the Defense of

Marriage Act of 1996, a law that refused for purposes of

24a

federal statutory benefits to respect gay marriages au-

thorized by state law. Yet Windsor does not answer

today’s question. The decision never mentions Baker,

much less overrules it. And the outcomes of the cases

do not clash. Windsor invalidated a federal law that

refused to respect state laws permitting gay marriage,

while Baker upheld the right of the people of a State to

define marriage as they see it. To respect one decision

does not slight the other. Nor does Windsor’s reason-

ing clash with Baker. Windsor hinges on the De-

fense of Marriage Act’s unprecedented intrusion into

the States’ authority over domestic relations. Jd. at

2691-92. Before the Act’s passage in 1996, the federal

government had traditionally relied on state definitions

of marriage instead of purporting to define marriage

itself. Id. at 2691. That premise does not work—it runs

the other way— in a case involving a challenge in feder-

al court to state laws defining marriage. The point of

Windsor was to prevent the Federal Government from

“divest[ing]” gay couples of “a dignity and status of

immense import” that New York’s extension of the def-

inition of marriage gave them, an extension that “with-

out doubt” any State could provide. I/d. at 2692, 2695.

Windsor made explicit that it does not answer today’s

question, telling us that the “opinion and its holding are

confined to . . . lawful marriages” already protected by

some of the States. Jd. at 2696. Bringing the matter to

a close, the Court held minutes after releasing Windsor

that procedural obstacles in Hollingsworth v. Perry,

133 S. Ct. 2652 (2013), prevented it from considering

the validity of state marriage laws. Saying that the

Court declined in Hollingsworth to overrule Baker

openly but decided in Windsor to overrule it by stealth

25a

makes an unflattering and unfair estimate of the Jus-

tices’ candor.

Even if Windsor did not overrule Baker by name,

the claimants point out, lower courts still may rely on

“doctrinal developments” in the aftermath of a sum-

mary disposition as a ground for not following the deci-

sion. Hicks, 422 U.S. at 344. And Windsor, they say,

together with Lawrence v. Texas, 5389 U.S. 558 (2003),

and Romer v. Evans, 517 U.S. 620 (1996), permit us to

cast Baker aside. But this reading of “doctrinal devel-

opments” would be a groundbreaking development of

its own. From the perspective of a lower court, sum-

mary dispositions remain “controlling precedent, unless

and until re-examined by [the Supreme] Court.” Tully

v. Griffin, Inc., 429 U.S. 68, 74 (1976); see Hicks, 422

U.S. at 343-45. And the Court has told us to treat the

two types of decisions, whether summary dispositions

or full-merits decisions, the same, “prevent{ing] lower

courts” in both settings “from coming to opposite con-

clusions on the precise issues presented and necessarily

decided by those actions.” Mandel v. Bradley, 432 U.S.

173, 176 (1977). Lest doubt remain, the Court has also

told us not to ignore its decisions even when they are in

tension with a new line of cases. “If a precedent of this

Court has direct application in a case, yet appears to

rest on reasons rejected in some other line of decisions,

the Court of Appeals should follow the case which di-

rectly controls, leaving to this Court the prerogative of

overruling its own decisions.” Rodriguez de Quijas v.

Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989);

see Agostini v. Felton, 521 U.S. 203, 237 (1997).

Just two scenarios, then, permit us to ignore a

Supreme Court decision, whatever its form: when the

26a

Court has overruled the decision by name (if, say,

Windsor had directly overruled Baker) or when the

Court has overruled the decision by outcome (if, say,

Hollingsworth had invalidated the California law with-

out mentioning Baker). Any other approach returns us

to a world in which the lower courts may anticipatorily

overrule all manner of Supreme Court decisions based

on counting-to-five predictions, perceived trajecto. ies

in the caselaw, or, worst of all, new appointments to the

Court. In the end, neither of the two preconditions for

ignoring Supreme Court precedent applies here.

Windsor as shown does not mention Baker, and it clari-

fies that its “opinion and holding” do not govern the

States’ authority to define marriage. Hollingsworth

was dismissed. And neither Lawrence nor Romer men-

tions Baker, and neither is inconsistent with its out-

come. The one invalidates a State’s criminal antisodo-

my law and explains that the case “does not involve...

formal recognition” of same-sex relationships. Law-

rence, 539 U.S. at 578. The other invalidates a

“(s}weeping” and “unprecedented” state law that pro-

hibited local communities from passing laws that pro-

tect citizens from discrimination based on sexual orien-

tation. Romer, 517 U.S. at 627, 633, 635-36.

That brings us to another one-line order. On Oc-

tober 6, 2014, the Supreme Court “denied” the “peti-

tions for writs of certiorari” in 1,575 cases, seven of

which arose from challenges to decisions of the Fourth,

Seventh, and Tenth Circuits that recognized a constitu-

tional right to same-sex marriage. But this kind of ac-

tion (or inaction) “imports no expression of opinion up-

on the merits of the case, as the bar has been told many

times.” United States v. Carver, 260 U.S. 482, 490

(1923). “The ‘variety of considerations [that] underlie

27a

denials of the writ’ counsels against according denials of

certiorari any precedential value.” Teague v. Lane, 489

U.S. 288, 296 (1989) (internal citation omitted). Just as

the Court’s three decisions to stay those same court of

appeals decisions over the past year, all without a reg-

istered dissent, did not end the debate on this issue, so

too the Court’s decision to deny certiorari in all of these

appeals, all without a registered dissent, does not end

the debate either. A decision not to decide is a decision

not to decide.

But don’t these denials of certiorari signal that,

from the Court’s perspective, the right to same-sex

marriage is inevitable? Maybe; maybe not. Even if we

grant the premise and assume that same-sex marriage

will be recognized one day in all fifty States, that does

not tell us how—whether through the courts or

through democracy. And, if through the courts, that

does not tell us why—whether through one theory of

constitutional invalidity or another. Four courts of ap-

peals thus far have recognized a constitutional right to

same-sex marriage. They agree on one thing: the result.

But they reach that outcome in many ways, often more

than one way in the same decision. See Bostic v.

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

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

(rational basis, animus); Latta v. Otter, No. 14-35420,

2014 WL 4977682 (9th Cir. Oct. 7, 2014) (animus, fun-

damental rights, suspect classification); Bishop v. Smith,

760 F.3d 1070 (10th Cir. 2014) (fundamental rights);

Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014)

(same). The Court’s certiorari denials tell us nothing

about the democracy-versus-litigation path to same-sex

marriage, and they tell us nothing about the validity of

any of these theories. If a federal court denies the peo-

28a

ple suffrage over an issue long thought to be within

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

part, cannot find one, as several other judges have con-

cluded as well. See Bostic, 760 F.3d at 385-98 (Niemey-

er, J., dissenting); Kitchen, 755 F.3d at 1230-40 (Kelly,

J., concurring in part and dissenting in part); Conde-

Vidal v. Garcia-Padilla, No. 14-1253-PG, 2014 WL

5361987 (D.P.R. Oct. 21, 2014); Robicheauz v. Caldwell,

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

There are many ways, as these lower court deci-

sions confirm, to look at this question: originalism; ra-

tional basis review; animus; fundamental rights; sus-

pect classifications; evolving meaning. The parties in

one way or another have invoked them all. Not one of

the plaintiffs’ theories, however, makes the case for

constitutionalizing the definition of marriage and for

removing the issue from the place it has been since the

founding: in the hands of state voters.

Original meaning. All Justices, past and pre-

sent, start their assessment of a case about the mean-

ing of a constitutional provision by looking at how the

provision was understood by the people who ratified it.

If we think of the Constitution as a covenant between

the governed and the governors, between the people

and their political leaders, it is easy to appreciate the

force of this basic norm of constitutional interpreta-

tion—that the originally understood meaning of the

charter generally will be the lasting meaning of the

charter. When two individuals sign a contract to sell a

house, no one thinks that, years down the road, one

party to the contract may change the terms of the deal.

That is why the parties put the agreement in writing

29a

and signed it publicly—to prevent changed perceptions

and needs from changing the guarantees in the agree-

ment. So it normally goes with the Constitution: The

written charter cements the limitations on government

into an unbending bulwark, not a vane alterable when-

ever alterations occur—unless and until the people, like

contracting parties, choose to change the contract

through the agreed-upon mechanisms for doing so. See

U.S. Const. art. V. If American lawyers in al] manner

of settings still invoke the original meaning of Magna

Carta, a Charter for England in 1215, surely it is not

too much to ask that they (and we) take seriously the

original meaning of the United States Constitution, a

Charter for this country in 1789. Any other approach,

too lightly followed, converts federal judges from in-

terpreters of the document into newly commissioned

authors of it.

Many precedents gauging individual rights and

national power, leading to all manner of outcomes, con-

firm the import of original meaning in legal debates.

See, e.g., Marbury v. Madison, 5 U.S. (1 Cranch) 137,

173-80 (1803); McCulloch v. Maryland, 17 US. (4

Wheat.) 316, 401-25 (1819); Legal Tender Cases, 79 U.S.

457, 536-38 (1870); Myers v. United States, 272 U.S. 52,

110-39 (1926); INS v. Chadha, 462 U.S. 919, 944-59

(1983); Plaut v. Spendthrift Farm, Inc., 514 U.S. 211,

218-25 (1995); Washington v. Glucksburg, 521 U.S. 702,

710-19 (1997); Crawford v. Washington, 541 U.S. 36, 42-

50 (2004); Boumediene v. Bush, 553 U.S. 723, 739-46

(2008); Giles v. California, 554 U.S. 353, 358-61 (2008);

District of Columbia v. Heller, 554 U.S. 570, 576-600

(2008).

30a

In trying to figure out the original meaning of a

provision, it is fair to say, the line between interpreta-

tion and evolution blurs from time to time. That is an

occupational hazard for judges when it comes to old or

generally worded provisions. Yet that knotty problem

does not confront us. Yes, the Fourteenth Amendment

is old; the people ratified it in 1868. And yes, it is gen-

erally worded; it says: “[NJjor shall any State deprive

any person of life, liberty, or property, without due

process of law; nor deny to any person within its juris-

diction the equal protection of the laws.” Nobody in

this case, however, argues that the people who adopted

the Fourteenth Amendment understood it to require

the States to change the definition of marriage.

Tradition reinforces the point. Only months ago,

the Supreme Court confirmed the significance of long-

accepted usage in constitutional interpretation. In one

case, the Court held that the customary practice of

opening legislative meetings with prayer alone proves

the constitutional permissibility of legislative prayer,

quite apart from how that practice might fare under the

most up-to-date Establishment Clause test. Town of

Greece v. Galloway, 134 S. Ct. 1811, 1818-20 (2014). In

another case, the Court interpreted the Recess Ap-

pointments Clause based in part on long-accepted us-

age. NLRB v. Noel Canning, 134 S. Ct. 2550, 2559-60

(2014). Applied here, this approach permits today’s

marriage laws to stand until the democratic processes

say they should stand no more. From the founding of

the Republic to 2003, every State defined marriage as a

relationship between a man and a woman, meaning that

the Fourteenth Amendment permits, though it does

not require, States to define marriage in that way.

3la

Rational basis review. Doctrine leads to the

same place as history. A first requirement of any law,

whether under the Due Process or Equal Protection

Clause, is that it rationally advance a legitimate gov-

ernment policy. Vance v. Bradley, 440 U.S. 93, 97

(1979). Two words (“judicial restraint,” FCC v. Beach

Commce’ns, Inc., 508 U.S. 307, 314 (1993)) and one prin-

ciple (trust in the people that “even improvident deci-

sions will eventually be rectified by the democratic pro-

cess,” Vance, 440 U.S. at 97) tell us all we need to know

about the light touch judges should use in reviewing

laws under this standard. So long as judges can con-

ceive of some “plausible” reason for the law—any plau-

sible reason, even one that did not motivate the legisla-

tors who enacted it—the law must stand, no matter

how unfair, unjust, or unwise the judges may consider

it as citizens. Heller v. Doe, 509 U.S. 312, 330 (1993);

Nordlinger v. Hahn, 505 U.S. 1, 11, 17-18 (1992).

A dose of humility makes us hesitant to condemn

as unconstitutionally irrational a view of marriage

shared not long ago by every society in the world,

shared by most, if not all, of our ancestors, and shared

still today by a significant number of the States. Hesi-

tant, yes; but still a rational basis, some rational basis,

must exist for the definition. What is it? Two at a min-

imum suffice to meet this low bar. One starts from the

premise that governments got into the business of de-

fining marriage, and remain in the business of defining

marriage, not to regulate love but to regulate sex, most

especially the intended and unintended effects of male-

female intercourse. Imagine a society without marriage.

It does not take long to envision problems that might

32a

result from an absence of rules about how to handle the

natural effects of male-female intercourse: children.

May men and women follow their procreative urges

wherever they take them? Who is responsible for the

children that result? How many mates may an individ-

ual have? How does one decide which set of mates is

responsible for which set of children? That we rarely

think about these questions nowadays shows only how

far we have come and how relatively stable our society

is, not that States have no explanation for creating such

rules in the first place.

Once one accepts a need to establish such ground

rules, and most especially a need to create stable family

units for the planned and unplanned creation of chil-

dren, one can well appreciate why the citizenry would

think that a reasonable first concern of any society is

the need to regulate male-female relationships and the

unique procreative possibilities of them. One way to

pursue this objective is to encourage couples to enter

lasting relationships through subsidies and other bene-

fits and to discourage them from ending such relation-

ships through these and other means. People may not

need the government’s encouragement to have sex.

And they may not need the government’s encourage-

ment to propagate the species. But they may well need

the government’s encouragement to create and main-

tain stable relationships within which children may

flourish. It is not society’s laws or for that matter any

one religion’s laws, but nature’s laws (that men and

women complement each other biologically), that creat-

ed the policy imperative. And governments typically

are not second-guessed under the Constitution for pri-

oritizing how they tackle such issues. Dandridge v. Wil-

liams, 397 U.S. 471, 486-87 (1970).

33a

No doubt, that is not the only way people view

marriage today. Over time, marriage has come to serve

another value—to solemnize relationships character-

ized by love, affection, and commitment. Gay couples,

no less than straight couples, are capable of sharing

such relationships. And gay couples, no less than

straight couples, are capable of raising children and

providing stable families for them. The quality of such

relationships, and the capacity to raise children within

them, turns not on sexual orientation but on individual

choices and individual commitment. All of this supports

the policy argument made by many that marriage laws

should be extended to gay couples, just as nineteen

States have done through their own sovereign powers.

Yet it does not show that the States, circa 2014, sud-

denly must look at this policy issue in just one way on

pain of violating the Constitution.

The signature feature of rational basis review is

that governments will not be placed in the dock for do-

ing too much or for doing too little in addressing a poli-

cy question. Jd. In a modern sense, crystallized at some

point in the last ten years, many people now critique

state marriage laws for doing too little—for being un-

derinclusive by failing to extend the definition of mar-

riage to gay couples. Fair enough. But rational basis

review does not permit courts to invalidate laws every

time a new and allegedly better way of addressing a

policy emerges, even a better way supported by evi-

dence and, in the Michigan case, by judicial factfinding.

If legislative choices may rest on “rational speculation

unsupported by evidence or empirical data,” Beach

Comme’ns, 508 U.S. at 315, it is hard to see the point of

premising a ruling of unconstitutionality on factual find-

ings made by one unelected federal judge that favor a

34a

different policy. Rational basis review does not em-

power federal courts to “subject” legislative line-

drawing to “courtroom” factfinding designed to show

that legislatures have done too much or too little. /d.

What we are left with is this: By creating a sta-

tus (marriage) and by subsidizing it (e.g., with tax-filing

privileges and deductions), the States created an incen-

tive for two people who procreate together to stay to-

gether for purposes of rearing offspring. That does not

convict the States of irrationality, only of awareness of

the biological reality that couples of the same sex do

not have children in the same way as couples of oppo-

site sexes and that couples of the same sex do not run

the risk of unintended offspring. That explanation, still

relevant today, suffices to allow the States to retain au-

thority over an issue they have regulated from the be-

ginning.

To take another rational explanation for the de-

cision of many States not to expand the definition of

marriage, a State might wish to wait and see before

changing a norm that our society (like all others) has

accepted for centuries. That is not preserving tradition

for its own sake. No one here claims that the States’

original definition of marriage was unconstitutional

when enacted. The plaintiffs’ claim is that the States

have acted irrationally in standing by the traditional

definition in the face of changing social mores. Yet one

of the key insights of federalism is that it permits la-

boratories of experimentation—accent on the plural—

allowing one State to innovate one way, another State

another, and a third State to assess the trial and error

over time. As a matter of state law, the possibility of

gay marriage became real in 2003 with the Massachu-

3oa

setts Supreme Judicial Court’s decision in Goodridge.

Eleven years later, the clock has not run on assessing

the benefits and burdens of expanding the definition of

marriage. Eleven years indeed is not even the right

timeline. The fair question is whether in 2004, one year

after Goodridge, Michigan voters could stand by the

traditional definition of marriage. How can we say that

the voters acted irrationally for sticking with the seen

benefits of thousands of years of adherence to the tradi-

tional definition of marriage in the face of one year of

experience with a new definition of marriage? A State

still assessing how this has worked, whether in 2004 or

2014, is not showing irrationality, just a sense of stabil-

ity and an interest in seeing how the new definition has

worked elsewhere. Even today, the only thing anyone

knows for sure about the long-term impact of redefin-

ing marriage is that they do not know. A Burkean

sense of caution does not violate the Fourteenth

Amendment, least of all when measured by a timeline

less than a dozen years long and when assessed by a

system of government designed to foster step-by-step,

not sudden winner-take-all, innovations to policy prob-

lems.

In accepting these justifications for the four

States’ marriage laws, we do not deny the foolish,

sometimes offensive, inconsistencies that have haunted

marital legislation from time to time. States will hand

some people a marriage license no matter how often

they have divorced or remarried, apparently on the

theory that practice makes perfect. States will not

even prevent an individual from remarrying the same

person three or four times, where practice no longer

seems to be the issue. With love and commitment no-

where to be seen, States will grant a marriage license

36a

to two friends who wish to share in the tax and other

material benefits of marriage, at least until the State’s

no-fault divorce laws allow them to exit the partnership

freely. And States allow couples to continue procreat-

ing no matter how little stability, safety, and love they

provide the children they already have. Nor has unjus-

tified sanctimony stayed off the stage when it comes to

marital legislation—with monogamists who “do not

monog” criticizing alleged polygamists who “do not

polyg.” See Paul B. Beers, Pennsylvania Politics To-

day and Yesterday 51 (1980).

How, the claimants ask, could anyone possibly

be unworthy of this civil institution? Aren’t gay and

straight couples both capable of honoring this civil in-

stitution in some cases and of messing it up in others?

All of this, however, proves much too much. History is

replete with examples of love, sex, and marriage taint-

ed by hypocrisy. Without it, half of the world’s litera-

ture, and three-quarters of its woe, would disappear.

Throughout, we have never leveraged these inconsist-

encies about deeply personal, sometimes existential,

views of marriage into a ground for constitutionalizing

the field. Instead, we have allowed state democratic

forces to fix the problems as they emerge and as evolv-

ing community mores show they should be fixed. Even

if we think about today’s issue and today’s alleged in-

consistencies solely from the perspective of the claim-

ants in this case, it is difficult to call that formula, al-

ready coming to terms with a new view of marriage, a

failure.

Any other approach would create line-drawing

problems of its own. Consider how plaintiffs’ love-and-

commitment definition of marriage would fare under

37a

their own rational basis test. Their definition does too

much because it fails to account for the reality that no

State in the country requires couples, whether gay or

straight, to be in love. Their definition does too little

because it fails to account for plural marriages, where

there is no reason to think that three or four adults,

whether gay, bisexual, or straight, lack the capacity to

share love, affection, and commitment, or for that mat-

ter lack the capacity to be capable (and more plentiful)

parents to boot. If it is constitutionally irrational to

stand by the man-woman definition of marriage, it must

be constitutionally irrational to stand by the monoga-

mous definition of marriage. Plaintiffs have no answer

to the point. What they might say they cannot: They

might say that tradition or community mores provide a

rational basis for States to stand by the monogamy def-

inition of marriage, but they cannot say that because

that is exactly what they claim is illegitimate about the

States’ male-female definition of marriage. The predic-

ament does not end there. No State is free of marriage

policies that go too far in some directions and not far

enough in others, making all of them vulnerable—if the

claimants’ theory of rational basis review prevails.

Several cases illustrate just how seriously the

federal courts must take the line-drawing deference

owed the democratic process under rational basis re-

view. Massachusetts Board of Retirement v. Murgia,

427 U.S. 307 (1976), holds that a State may require law

enforcement officers to retire without exception at age

fifty, in order to assure the physical fitness of its police

force. If a rough correlation between age and strength

suffices to uphold exception-free retirement ages (even

though some fifty-year-olds swim/bike/run triathlons),

why doesn’t a correlation between male-female inter-

38a

course and procreation suffice to uphold traditional

marriage laws (even though some straight couples don’t

have kids and many gay couples do)? Armour v. City of

Indianapolis, 132 S. Ct. 2073 (2012), says that if a city

cancels a tax, the bureaucratic hassle of issuing refunds

entitles it to keep money already collected from citizens

who paid early. If administrative convenience amounts

to an adequate public purpose, why not a rough sense of

social stability? More deferential still, Kotch v. Board

of River Port Pilot Commissioners, 330 U.S. 552 (1947),

concludes that a State’s interest in maintaining close

ties among those who steer ships in its ports justifies

denying pilotage licenses to anyone who isn’t a friend or

relative of an incumbent pilot. Can we honestly say

that traditional marriage laws involve more irrationali-

ty than nepotism?

The debate over marriage of course has another

side, and we cannot deny the costs to the plaintiffs of

allowing the States to work through this profound poli-

cy debate. The traditional definition of marriage denies

gay couples the opportunity to publicly solemnize, to

say nothing of subsidize, their relationships under state

law. In addition to depriving them of this status, it de-

prives them of benefits that range from the profound

(the right to visit someone in a hospital as a spouse or

parent) to the mundane (the right to file joint tax re-

turns). These harms affect not only gay couples but al-

so their children. Do the benefits of standing by the

traditional definition of marriage make up for these

costs? The question demands an answer—but from

elected legislators, not life-tenured judges. Our task

under the Supreme Court’s precedents is to decide

whether the law has some conceivable basis, not to

gauge how that rationale stacks up against the argu-

39a

ments on the other side. Respect for democratic con-

trol over this traditional area of state expertise ensures

that “a statewide deliberative process that enable[s] its

citizens to discuss and weigh arguments for and against

same-sex marriage” can have free and reasonable rein.

Windsor, 133 S. Ct. at 2689.

Animus. Given the broad deference owed the

States under the democracy-reinforcing norms of ra-

tional basis review, the cases in which the Supreme

Court has struck down a state law on that basis are few.

When the Court has taken this step, it usually has been

due to the novelty of the law and the targeting of a sin-

gle group for disfavored treatment under it. In one

case, a city enacted a new zoning code with the none-

too-subtle purpose of closing down a home for the intel-

lectually disabled in a neighborhood that apparently

wanted nothing to do with them. The reality that the

code applied only to homes for the intellectually disa-

bled—and not to other dwellings such as fraternity

houses—led the Court to invalidate the regulation on

the ground that the city had based it upon “an irration-

al prejudice against the mentally retarded.” City of

Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 450

(1985). In another case, a statewide initiative denied

gays, and gays alone, access to the protection of the

State’s existing antidiscrimination laws. The novelty of

the law, coupled with the distance between the reach of

the law and any legitimate interest it might serve,

showed that the law was “born of animosity toward”

gays and suggested a design to make gays “unequal to

everyone else.” Romer, 517 U.S. at 634-35.

40a

None of the statewide initiatives at issue here

fits this pattern. The four initiatives, enacted between

2004 and 2006, codified a long-existing, widely held so-

cial norm already reflected in state law. “[Marriage be-

tween a man and a woman,” as the Court reminded us

just last year, “had been thought of by most people as

essential to the very definition of that term and to its

role and function throughout the history of civilization.”

Windsor, 133 S. Ct. at 2689.

Neither was the decision to place the definition

of marriage in a State’s constitution unusual, nor did it

otherwise convey the kind of malice or unthinking

prejudice the Constitution prohibits. Nineteen States

did the same thing during that period. Human Rights

Campaign Found., Equality from State to State 2006, at

13-14 (2006), available at http://s3.amazonaws.com/hre-

assets//files/assets/resources/StateToState2007.pdf.

And if there was one concern animating the initiatives,

it was the fear that the courts would seize control over

an issue that people of good faith care deeply about. If

that is animus, the term has no useful meaning.

Who in retrospect can blame the voters for hav-

ing this fear? By then, several state courts had altered

their States’ traditional definitions of marriage under

the States’ constitutions. Since then, more have done

the same. Just as state judges have the authority to

construe a state constitution as they see fit, so do the

people have the right to overrule such decisions or

preempt them as they see fit. Nor is there anything

static about this process. In some States, the people

have since re-amended their constitutions to broaden

the category of those eligible to marry. In other States,

the people seemed primed to do the same but for now

4la

have opted to take a wait-and-see approach of their

own as federal litigation proceeds. See, e.g., Wesley

Lowery, Same-Sex Marriage Is Gaining Momentum,

but Some Advocates Don’t Want It on the Ballot in

Ohio, Wash. Post (June 14, 2014), http://www.washing

tonpost.com/politics/same-sex-marriage-is-gaining-

momentum-but-ohio-advocates-dont-want-it-on-the-

ballot/2014/06/14/a090452a-e77e-1 le3-afc6-al dd9407abcf

story.html (explaining that Ohio same-sex marriage

advocates opted not to place the question on the 2014

state ballot despite collecting nearly twice the number

of required signatures). What the Court recently said

about another statewide initiative that people care pas-

sionately about applies with equal vigor here: “Delib-

erative debate on sensitive issues such as racial prefer-

ences all too often may shade into rancor. But that does

not justify removing certain court-determined issues

from the voters’ reach. Democracy does not presume

that some subjects are either too divisive or too pro-

found for public debate.” Schuette v. Coal. to Defend

Affirmative Action, 134 S. Ct. 1623, 1638 (2014). “It is

demeaning to the democratic process to presume that

the voters are not capable of deciding an issue of this

sensitivity on decent and rational grounds.” /d. at 1637.

What of the possibility that other motivations af-

fected the amendment process in the four States? If as-

sessing the motives of multimember legislatures is dif-

ficult, assessing the motives of al/ voters in a statewide

initiative strains judicial competence. The number of

people who supported each initiative—Michigan (2.7

million), Kentucky (1.2 million), Ohio (3 3 million), and

Tennessee (1.4 million}—was large and surely diverse.

In addition to the proper role of the courts in a democ-

racy, many other factors presumably influenced the

42a

voters who supported and opposed these amendments:

that some politicians favored the amendment and oth-

ers opposed it; that some faith groups favored the

amendment and others opposed it; that some thought

the amendment would strengthen families and others

thought it would weaken them or were not sure; that

some thought the amendment would be good for chil-

dren and others thought it would not be or were not

sure; and that some thought the amendment would pre-

serve a long-established definition of marriage and oth-

ers thought it was time to accommodate gay couples.

Even a rough sense of morality likely affected voters,

with some thinking it immoral to exclude gay couples

and others thinking the opposite. For most people,

whether for or against the amendment, the truth of

why they did what they did is assuredly complicated,

making it impossible to pin down any one consideration,

as opposed to a rough aggregation of factors, as moti-

vating them. How in this setting can we indict the 2.7

million Michigan voters who supported the amendment

in 2004, less than one year after the first state supreme

court recognized a constitutional right to gay marriage,

for favoring the amendment for prejudicial reasons and

for prejudicial reasons alone? Any such conclusion can-

not be squared with the benefit of the doubt customari-

ly given voters and legislatures under rational basis re-

view. Even the gay-rights community, remember, was

not of one mind about taking on the benefits and bur-

dens of marriage until the early 1990s. See George

Chauncey, Why Marriage? The History Shaping To-

day’s Debate over Gay Equality 58, 88 (2004); Michael J.

Klarman, From the Closet to the Altar: Courts, Back-

lash, and the Struggle for Same-Sex Marriage 48-52

(2013). A decade later, a State’s voters should not be

43a

taken to task for failing to be of one mind about the is-

sue themselves.

Some equanimity is in order in assessing the mo-

tives of voters who invoked a constitutionally respected

vehicle for change and for resistance to change: direct

democracy. See Pac. States Tel. & Tel. Co. v. Oregon,

223 U.S. 118, 151 (1912). Just as gay individuals are no

longer abstractions, neither should we treat States as

abstractions. Behind these initiatives were real people

who teach our children, create our jobs, and defend our

shores. Some of these people supported the initiative

in 2004; some did not. It is no less unfair to paint the

proponents of the measures as a monolithic group of

hate-mongers than it is to paint the opponents as a

monolithic group trying to undo American families.

“Tolerance,” like respect and dignity, is best traveled

on a “two-way street.” Ward v. Polite, 667 F.3d 727, 735

(6th Cir. 2012). If there isa dominant theme to the

Court’s cases in this area, it is to end otherness, not to

create new others.

All of this explains why the Court’s decisions in

City of Cleburne and Romer do not turn on reading the

minds of city voters in one case or of statewide initia-

tive supporters in the other. They turn on asking

whether anything but prejudice to the affected class

could explain the law. See City of Cleburme, 473 U.S. at

450; Romer, 517 U.S. at 635. No such explanations ex-

isted in those cases. Plenty exist here, as shown above

and as recognized by many others. See Lawrence, 539

U.S. at 585 (O’Connor, J., concurring in the judgment)

(“Unlike the moral disapproval of same-sex rela-

tions[,] . . . other reasons exist to promote the institu-

tion of marriage beyond mere moral disapproval of an

excluded group.”); Bishop, 760 F.3d at 1104-09 (Holmes,

J., concurring) (same); Citizens for Equal Prot. v.

Bruning, 455 F.3d 859, 868 (8th Cir. 2006) (enactment

not “inexplicable by anything but animus’ towards

same-sex couples”); Conaway v. Deane, 932 A.2d 571,

635 (Md. 2007) (no reason to “infer antipathy”); Her-

nandez v. Robles, 855 N.E.2d 1, 8 (N.Y. 2006) (those

who favor the traditional definition are not “irrational,

ignorant or bigoted”); Andersen v. King Cnty., 138 P.3d

963, 981 (Wash. 2006) (en banc) (“the only reason” for

the law was not “anti-gay sentiment”).

One other point. Even if we agreed with the

claimants that the nature of these state constitutional

amendments, and the debates surrounding them, re-

quired their invalidation on animus grounds, that would

not give them what they request in their complaints:

the right to same-sex marriage. All that the invalida-

tion of the amendments would do is return state law to

where it had always been, a status quo that in all four

States included state statutory and common law defini-

tions of marriage applicable to one man and one wom-

an—definitions that no one claims were motivated by ill

will. The elimination of the state constitutional provi-

sions, it is true, would allow individuals to challenge the

four States’ other marital laws on state constitution-

al grounds. No one filed such a challenge here, howev-

er.

Fundamental right to marry. Under the Due

Process Clause, courts apply more muscular review—

"strict,” “rigorous,” usually unforgiving, scrutiny—to

laws that impair “fundamental” rights. In considering

the claimants’ arguments that they have a fundamental

45a

right to marry each other, we must keep in mind that

something can be fundamentally important without be-

ing a fundamental right under the Constitution. Oth-

erwise, state regulations of many deeply important

subjects—from education to healthcare to living condi-

tions to decisions about when to die— would be subject

to unforgiving review. They are not. See San Antonio

Indep. Sch. Dist. v. Rodriguez,411 U.S. 1, 35 (1973)

(public education); Maher v. Roe, 432 U.S. 464, 469

(1977) (healthcare); Lindsey v. Normet, 405 U.S. 56, 73-

74 (1972) (housing); Glucksberg, 521 U.S. at 728 (right

to die). Instead, the question is whether our nation has

treated the right as fundamental and therefore worthy

of protection under substantive due process. More pre-

cisely, the test is whether the right is “deeply rooted in

this Nation’s history and tradition” and “implicit in the

concept of ordered liberty,” such that “neither liberty

nor justice would exist if they were sacrificed.”

Glucksberg, 521 U.S. at 721 (internal citations omitted).

That requirement often is met by placing the right in

the Constitution, most obviously in (most of) the guar-

antees in the Bill of Rights. See id. at 720. But the

right to marry in general, and the right to gay marriage

in particular, nowhere appear in the Constitution. That

route for recognizing a fundamental right to same-sex

marriage does not exist.

That leaves the other option—that, even though

a proposed right to same-sex marriage does not appear

in the Constitution, it turns on bedrock assumptions

about liberty. This too does not work. The first state

high court to redefine marriage to include gay couples

did not do so until 2003 in Goodridge.

46a

Matters do not change because Loving v. Virgin-

ia, 388 U.S. 1 (1967), held that “marriage” amounts to a

fundamental right. When the Court decided Loving,

“marriage between a man and a woman no doubt [was]

thought of . . . as essential to the very definition of that

term.” Windsor, 133 S. Ct. at 2689. In referring to

“marriage” rather than “opposite-sex marriage,” Lov-

ing confirmed only that “opposite-sex marriage” would

have been considered redundant, not that marriage in-

cluded same-sex couples. Loving did not change the

definition. That is why the Court said marriage is

“fundamental to our very existence and survival,”

388 U.S. at 12, a reference to the procreative definition

of marriage. Had a gay African-American male and a

gay Caucasian male been denied a marriage license in

Virginia in 1968, would the Supreme Court have held

that Virginia had violated the Fourteenth Amendment?

No one to our knowledge thinks so, and no Justice to

our knowledge has ever said so. The denial of the li-

cense would have turned not on the races of the appli-

cants but on a request to change the definition of mar-

riage. Had Loving meant something more when it pro-

nounced marriage a fundamental right, how could the

Court hold in Baker five years later that gay marriage

does not even raise a substantial federal question? Lov-

ing addressed, and rightly corrected, an unconstitu-

tional eligibility requirement for marriage; it did not

create a new definition of marriage.

A similar problem confronts the claimants’ reli-

ance on other decisions treating marriage as a funda-

mental right, whether in the context of a statute deny-

ing marriage licenses to fathers who could not pay child

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

or a regulation restricting prisoners’ ability to obtain

47a

marriage licenses, Turner v. Safley, 482 U.S. 78, 94-95

(1987). It strains credulity to believe that a year after

each decision a gay indigent father could have required

the State to grant him a marriage license for his part-

nership or that a gay prisoner could have required the

State to permit him to marry a gay partner. When

Loving and its progeny used the word marriage, they

did not redefine the term but accepted its traditional

meaning.

No doubt, many people, many States, even some

dictionaries, now define marriage in a way that is un-

tethered to biology. But that does not transform the

fundamental-rights decision of Loving under the old

definition into a constitutional right under the new def-

inition. The question is whether the old reasoning ap-

plies to the new setting, not whether we can shoehorn

new meanings into old words. Else, evolving-norm lex-

icographers would have a greater say over the meaning

of the Constitution than judges.

The upshot of fundamental-rights status, keep in

mind, is strict-scrutiny status, subjecting all state eligi-

bility rules for marriage to rigorous, usually unforgiv-

ing, review. That makes little sense with respect to the

trials and errors societies historically have undertaken

(and presumably will continue to undertake) in deter-

mining who may enter and leave a marriage. Start

with the duration of a marriage. For some, marriage is

a commitment for life and beyond. For others, it isa

commitment for life. For still others, it is neither. In

1969, California enacted the first pure no-fault divorce

statute. See Family Law Act of 1969, 1969 Cal. Stat.

3312. A dramatic expansion of similar laws followed.

See Lynn D. Wardle, No-Fault Divorce and the Divorce

48a

Conundrum, 1991 BYU L. Rev. 79, 90. The Court has

never subjected these policy fits and starts about who

may leave a marriage to strict scrutiny.

Consider also the number of people eligible to

marry. As late as the eighteenth century, “(t]he pre-

dominance of monogamy was by no means a foregone

conclusion,” and “[mjost of the peoples and cultures

around the globe” had adopted a different system.

Nancy F. Cott, Public Vows: A History of Marriage

and the Nation 9 (2000). Over time, American officials

wove monogamy into marriage’s fabric. Beginning in

the nineteenth century, the federal government “en-

couraged or forced” Native Americans to adopt the pol-

icy, and in 1878 the Supreme Court upheld a federal an-

tibigamy law. Jd. at 26; see Reynolds v. United States,

98 U.S. 145 (1878). The Court has never taken this top-

ic under its wing. And if it did, how would the constitu-

tional, as opposed to policy, arguments in favor of same-

sex marriage not apply to plural marriages?

Consider finally the nature of the individuals eli-

gible to marry. The age of consent has not remained

constant, for example. Under Roman law, men could

marry at fourteen, women at twelve. The American

colonies imported that rule from England and kept it

until the mid-1800s, when the people began advocating

for a higher minimum age. Today, all but two States

set the number at eighteen. See Vivian E. Hamilton,

The Age of Marital Capacity: Reconsidering Civil

Recognition of Adolescent Marriage, 92 B.U. L. Rev.

1817, 1824-32 (2012). The same goes for the social ac-

ceptability of marriage between cousins, a union

deemed “desirable in many parts of the world”; indeed,

around “10 percent of marriages worldwide are be-

49a

tween people who are second cousins or closer.” Sarah

Kershaw, Living Together: Shaking Off the Shame, N.Y.

Times (Nov. 25, 2009), http:/Awww.nytimes.com/2009/

11/26/garden/26cousins.html. Even in the United

States, cousin marriage was not prohibited until the

mid-nineteenth century, when Kansas—followed by

seven other States—enacted the first ban. See Diane B.

Paul & Hamish G. Spencer, “/t’s Ok, We’re Not Cousins

by Blood”: The Cousin Marriage Controversy in His-

torical Perspective, 6 PLoS Biology 2627, 2627 (2008).

The States, however, remain split: half of them still

permit the practice. Ghassemi v. Ghassemi, 998 So. 2d

731, 749 (La. Ct. App. 2008). Strict scrutiny? Neither

Loving nor any other Supreme Court decision says so.

Discrete and insular class without political

power. A separate line of cases, this one under the

Equal Protection Clause, calls for heightened review of

laws that target groups whom legislators have singled

out for unequal treatment in the past. This argument

faces an initial impediment. Our precedents say that

rational basis review applies to sexual-orientation clas-

sifications. See Davis v. Prison Health Servs., 679 F.3d

433, 438 (6th Cir. 2012); Scarbrough v. Morgan Cnty.

Bd. of Educ., 470 F.3d 250, 260-61 (6th Cir. 2006); Stem-

ler v. City of Florence, 126 F.3d 856, 873-74 (6th Cir.

1997).

There is another impediment. The Supreme

Court has never held that legislative classifications

based on sexual orientation receive heightened review

and indeed has not recognized a new suspect class in

more than four decades. There are ample reasons for

staying the course. Courts consider four rough factors

50a

in deciding whether to treat a legislative classification

as suspect and presumptively unconstitutional: wheth-

er the group has been historically victimized by gov-

ernmental discrimination; whether it has a defining

characteristic that legitimately bears on the classifica-

tion; whether it exhibits unchanging characteristics

that define it as a discrete group; and whether it is po-

litically powerless. See Rodriguez, 411 U.S. at 28.

We cannot deny the lamentable reality that gay

individuals have experienced prejudice in this country,

sometimes at the hands of public officials, sometimes at

the hands of fellow citizens. Stonewall, Anita Bryant’s

uninvited answer to the question “Who are we to

judge?”, unequal enforcement of antisodomy laws be-

tween gay and straight partners, Matthew Shepard,

and the language of insult directed at gays and others

make it hard for anyone to deny the point. But we also

cannot deny that the institution of marriage arose in-

dependently of this record of discrimination. The tradi-

tional definition of marriage goes back thousands of

years and spans almost every society in history. By

contrast, “American laws targeting same-sex couples

did not develop until the last third of the 20th century.”

Lawrence, 539 U.S. at 570. This order of events pre-

vents us from inferring from history that prejudice

against gays led to the traditional definition of mar-

riage in the same way that we can infer from history

that prejudice against African Americans led to laws

against miscegenation. The usual leap from history of

discrimination to intensification of judicial review does

not work.

Windsor says nothing to the contrary. In argu-

ing otherwise, plaintiffs mistake Windsor’s avoidance of

5la

one federalism question for avoidance of federalism al-

together. Here is the key passage:

Despite these considerations, it is unnecessary

to decide whether this federal intrusion on

state power is a violation of the Constitution

because it disrupts the federal balance. The

State’s power in defining the marital relation is

of central relevance in this case quite apart

from principles of federalism. Here the State’s

decision to give this class of persons the right

to marry conferred upon them a dignity and

status of immense import. When the State

used its historic and essential authority to de-

fine the marital relation in this way, its role

and its power in making the decision enhanced

the recognition, dignity, and protection of the

class in their own community DOMA, because

of its reach and extent, departs from this histo-

ry and tradition of reliance on state law to de-

fine marriage. “({D]iscriminations of an unusual

character especially suggest careful considera-

tion to determine whether they are obnoxious

to the constitutional provision.”

Windsor, 133 S. Ct. at 2692 (quoting Romer, 517 U.S. at

633). Plaintiffs read these words (and others that fol-

low) as an endorsement of heightened review in today’s

case, pointing to the first two sentences as proof that

individual dignity, not federalism, animates Windsor’s

holding.

Yet federalism permeates both parts of this pas-

sage and both parts of the opinion. Windsor begins by

expressing doubts about whether Congress has the

delegated power to enact a statute like DOMA at all.

52a

But instead of resolving the case on the far-reaching

enumerated-power ground, it resolves the case on the

narrower Romer ground—that anomalous exercises of

power targeting a single group raise suspicion that big-

otry rather than legitimate policy is afoot. Why was

DOMA anomalous? Only federalism can supply the an-

swer. The national statute trespassed upon New

York’s time-respected authority to define the marital

relation, including by “enhanc[ing] the recognition, dig-

nity, and protection” of gay and lesbian couples. /d.

Today’s case involves no _ such “divestiing]”/

“depriv[ing]’/“undermin[ing]” of a marriage status

granted through a State’s authority over domestic rela-

tions within its borders and thus provides no basis for

inferring that the purpose of the state law was to “im-

pose a disadvantage”/“a separate status”/“a stigma” on

gay couples. Jd. at 2692-95. When the Framers “split

the atom of sovereignty,” U.S. Term Limits, Inc. v.

Thornton, 514 U.S. 779, 8388 (Kennedy, J., concurring),

they did so to enhance liberty, not to allow the National

Government to divest liberty protections granted by

the States in the exercise of their historic and in this

instance nearly exclusive power. What we have here is

something entirely different. It is the States doing ex-

actly what every State has been doing for hundreds of

years: defining marriage as they see it. The only thing

that has changed is the willingness of many States over

the last eleven years to expand the definition of mar-

riage to encompass gay couples.

Any other reading of Windsor would require us

to subtract key passages from the opinion and add an

inverted holding. The Court noted that New York

“without doubt” had the power under its traditional au-

thority over marriage to extend the definition of mar-

53a

riage to include gay couples and that Congress had no

power to enact “unusual” legislation that interfered

with the States’ long-held authority to define marriage.

Windsor, 133 S. Ct. at 2692-93. A decision premised on

heightened scrutiny under the Fourteenth Amendment

that redefined marriage nationally to include same-sex

couples not only would divest the States of their tradi-

tional authority over this issue, but it also would au-

thorize Congress to do something no one would have

thought possible a few years ago—to use its Section 5

enforcement powers to add new definitions and exten-

sions of marriage rights in the years ahead. That would

leave the States with little authority to resolve ever-

changing debates about how to define marriage (and

the benefits and burdens that come with it) outside the

beck and call of Congress and the Court. How odd that

one branch of the National Government (Congress)

would be reprimanded for entering the fray in 2013 and

two branches of the same Government (the Court and

Congress) would take control of the issue a short time

later.

Nor, as the most modest powers of observation

attest, is this a setting in which “political powerlessness”

requires “extraordinary protection from the majoritar-

ian political process.” Rodriguez, 411 U.S. at 28. This is

not a setting in which dysfunction mars the political

process. See Reynolds v. Sims, 377 U.S. 583 (1964);

Baker v. Carr, 369 U.S. 186 (1962). It is not a setting in

which the recalcitrance of Jim Crow demands judicial,

rather than we-can’t-wait-forever legislative, answers.

See Brown v. Bd. of Educ., 347 U.S. 483 (1954). It is

not a setting in which time shows that even a potential-

ly powerful group cannot make headway on issues of

equality. See Frontiero v. Richardson, 411 U.S. 677

54a

(1973). It is not a setting where a national crisis—the

Depression—seemingly demanded constitutional inno-

vation. See W. Coast Hotel Co. v. Parrish, 300 U.S. 379

(1937). And it is not a setting, most pertinently, in

which the local, state, and federal governments histori-

cally disenfranchised the suspect class, as they did with

African Americans and women. See United States v.

Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938).

Instead, from the claimants’ perspective, we

have an eleven-year record marked by nearly as many

successes as defeats and a widely held assumption that

the future holds more promise than the past—if the

federal courts will allow that future to take hold.

Throughout that time, other advances for the claimants’

cause are manifest. Nationally, “Don’t Ask, Don’t Tell”

is gone. Locally, the Cincinnati charter amendment

that prevented gay individuals from obtaining certain

preferences from the city, upheld by our court in 1997,

Equality Found. of Greater Cincinnati, Inc. v. City of

Cincinnati, 128 F.3d 289 (6th Cir. 1997), is no more.

The Fourteenth Amendment does not insulate influen-

tial, indeed eminently successful, interest groups from a

defining attribute of al! democratic initiatives—some

succeed, some fail—particularly when succeeding more

and failing less are in the offing.

Why, it is worth asking, the sudden change in

public opinion? If there is one thing that seems to chal-

lenge hearts and minds, even souls, on this issue, it is

the transition from the abstract to the concrete. If

twenty-five percent of the population knew someone

who was openly gay in 1985, and seventy-five percent

knew the same in 2000, Klarman, supra, at 197, it is fair

to wonder how few individuals still have not been

55a

forced to think about the matter through the lens of a

gay friend or family member. That would be a discrete

and insular minority.

The States’ undoubted power over marriage

provides an independent basis for reviewing the laws

before us with deference rather than with skepticism.

An analogy shows why. When a state law targets

noncitizens—a group marked by its lack of political

power and its history of enduring discrimination—it

must in general meet the most demanding of constitu-

tional tests in order to survive a skirmish with a court.

But when a federal law targets noncitizens, a mere ra-

tional basis will save it from invalidation. This dispari-

ty arises because of the Nation’s authority (and the

States’ corresponding lack of authority) over interna-

tional affairs. Mathews v. Diaz, 426 U.S. 67, 84-85

(1976). If federal preeminence in foreign relations re-

quires lenient review of federal immigration classifica-

tions, why doesn’t state preeminence in domestic rela-

tions call for equally lenient review of state marriage

definitions?

Evolving meaning. If all else fails, the plaintiffs

invite us to consider that “[a] core strength of the

American legal system .. . is its capacity to evolve” in

response to new ways of thinking about old policies.

DeBoer Appellees’ Br. at 57-58. But even if we accept

this invitation and put aside the past—original meaning,

tradition, time-respected doctrine—that does nct take

the plaintiffs where they wish ‘9 go. We could, to be

sure, look at this case alongside evolving moral and pol-

icy considerations. The Supreme Court has done so be-

fore. Lawrence, 539 U.S. at 573. It may do so again. “A

56a

prime part of the history of our Constitution . . . is the

story of the extension of constitutional rights .. . to

people once ignored or excluded.” United States v. Vir-

ginia, 518 U.S. 515, 557 (1996). Why not do so here?

Even on this theory, the marriage laws do not

violate the Constitution. A principled jurisprudence of

constitutional evolution turns on evolution in society’s

values, not evolution in judges’ values. Freed of feder-

al-court intervention, thirty-one States would continue

to define marriage the old-fashioned way. Lawrence,

by contrast, dealt with a situation in which just thirteen

States continued to prohibit sodomy, and even then

most of those laws had fallen into desuetude, rarely be-

ing enforced at all. On this record, what right do we

have to say that societal values, as opposed to judicial

values, have evolved toward agreement in favor of

same-sex marriage?

The theory of the living constitution rests on the

premise that every generation has the right to govern

itself. If that premise prevents judges from insisting

on principles that society has moved past, so too should

it prevent judges from anticipating principles that soci-

ety has yet to embrace. It follows that States must en-

joy some latitude in matters of timing, for reasonable

people can disagree about just when public norms have

evolved enough to require a democratic response. To-

day’s case captures the point. Not long ago American

society took for granted the rough correlation between

marriage and creation of new life, a vision under which

limiting marriage to opposite-sex couples seemed natu-

ral. Not long from now, if current trends continue,

American society may define marriage in terms of af-

firming mutual love, a vision under which the failure to

57a

add loving gay couples seems unfair. Today’s society

has begun to move past the first picture of marriage,

but it has not yet developed a consensus on the second.

If, before a new consensus has emerged on a so-

cial issue, federal judges may decide when the time is

ripe to recognize a new constitutional right, surely the

people should receive some deference in deciding when

the time is ripe to move from one picture of marriage to

another. So far, not a single United States Supreme

Court Justice in American history has written an opin-

ion maintaining that the traditional definition of mar-

riage violates the Fourteenth Amendment. No one

would accuse the Supreme Court of acting irrationally

in failing to recognize a right to same-sex marriage in

2013. Likewise, we should hesitate to accuse the States

of acting irrationally in failing to recognize the right in

2004 or 2006 or for that matter today. Federal judges

engaged in the inherent pacing that comes with living

constitutionalism should appreciate the inherent pacing

that comes with democratic majorities deciding within

reasonable bounds when and whether to embrace an

evolving, as opposed to settled, societal norm. The one

form of pacing is akin to the other, making it anomalous

for the Court to hold that the States act unconstitution-

ally when making reasonable pacing decisions of their

own.

From time to time, the Supreme Court has

looked beyond our borders in deciding when to expand

the meaning of constitutional guarantees. Lawrence,

539 U.S. at 576. Yet foreign practice only reinforces

the impropriety of tinkering with the democratic pro-

cess in this setting. The great majority of countries

across the world—including such progressive democra-

58a

cies as Australia and Finland—still adhere to the tradi-

tional definition of marriage. Even more telling, the

European Court of Human Rights ruled only a few

years ago that European human rights laws do not

guarantee a right to same-sex marriage. Schalk &

Kopf v. Austria, 2010-IV Eur. Ct. H.R. 409. “The area

in question,” it explained in words that work just as

well on this side of the Atlantic, remains “one of evolv-

ing rights with no established consensus,” which means

that States must “enjoy [discretion] in the timing of the

introduction of legislative changes.” /d. at 438. It reit-

erated this conclusion as recently as this July, declaring

that “the margin of appreciation to be afforded” to

States “must still be a wide one.” Haiméildinen v. Fin-

land, No. 37359/09, HUDOC, at *19 (Eur. Ct. H.R. July

16, 2014). Our Supreme Court relied on the European

Court’s gay-rights decisions in Lawrence. 539 U.S. at

576. What neutral principle of constitutional interpre-

tation allows us to ignore the European Court’s same-

sex marriage decisions when deciding this case? If the

point is relevant in the one setting, it is relevant in the

other, especially in a case designed to treat like matters

alike.

Other practical considerations also do not favor

the creation of a new constitutional right here. While

these cases present a denial of access to many benefits,

what is “{o]f greater importance” to the claimants, as

they see it, “is the loss of . . . dignity and respect” occa-

sioned by these laws. Love Appellees’ Br. at 5. No

doubt there is much to be said for “dignity and re-

spect in the eyes of the Constitution and its interpret-

ers. But any loss of dignity and respect on this issue

did not come from the Constitution. It came from the

neighborhoods and communities in which gay and lesbi-

59a

an couples live, and in which it is worth trying to cor-

rect the problem in the first instance—and in that way

“to allow the formation of consensus respecting the way

the members” of a State “treat each other in their daily

contact and constant interaction with each other.”

Windsor, 133 S. Ct. at 2692.

For all of the power that comes with the authori-

ty to interpret the United States Constitution, the fed-

eral courts have no long-lasting capacity to change

what people think and believe about new social ques-

tions. If the plaintiffs are convinced that litigation is

the best way to resolve today’s debate and to change

heads and hearts in the process, who are we to say?

Perhaps that is not the only point, however. Yes, we

cannot deny thinking the plaintiffs deserve better—

earned victories through initiatives and legislation and

the greater acceptance that comes with them. But

maybe the American people too deserve better—not

just in the sense of having a say through representa-

tives in the legislature rather than through representa-

tives in the courts, but also in the sense of having to

come face to face with the issue. Rights need not be

countermajoritarian to count. See, e.g., Civil Rights Act

of 1964, Pub. L. No. 88352, 78 Stat. 241. Isn’t the goal

to create a culture in which a majority of citizens digni-

fy and respect the rights of minority groups through

majoritarian laws rather than through decisions issued

by a majority of Supreme Court Justices? It is danger-

ous and demeaning to the citizenry to assume that we,

and only we, can fairly understand the arguments for

and against gay marriage.

Last, but not least, federal courts never expand

constitutional guarantees in a vacuum. What one group

60a

wants on one issue from the courts today, another

group will want on another issue tomorrow. The more

the Court innovates under the Constitution, the more

plausible it is for the Court to do still more—and the

more plausible it is for other advocates on behalf of

other issues to ask the Court to innovate still more.

And while the expansion of liberal and conservative

constitutional rights will solve, or at least sidestep, the

amendment-difficulty problem that confronts many in-

dividuals and interest groups, it will exacerbate the

judge-confirmation problem. Faith in democracy with

respect to issues that the Constitution has not commit-

ted to the courts reinforces a different, more sustaina-

ble norm.

ITT.

Does the Constitution prohibit a State from

denying recognition to same-sex marriages conducted

in other States? That is the question presented in the

two Ohio cases (Obergefell and Henry), one of the Ken-

tucky cases (Bourke), and the Tennessee case (Tanco).

Our answer to the first question goes a long way to-

ward answering this one. If it is constitutional for a

State to define marriage as a relationship between a

man and a woman, it is also constitutional for the State

to stand by that definition with respect to couples mar-

ried in other States or countries.

The Constitution in genera) does not delineate

when a State must apply its own laws and when it must

apply the laws of another State. Neither any federal

statute nor federal common law fills the gap. Through-

out our history, each State has decided for itself how to

resolve clashes between its laws and laws of other sov-

ereigns—giving rise to the field of conflict of laws. The

6la

States enjoy wide latitude in fashioning choice-of-law

rules. Sun Oil Co. v. Wortman, 486 U.S. 717, 727-29

(1988); Allstate Ins. Co. v. Hague, 449 U.S. 302, 307-08

(1981).

The plaintiffs in these cases do not claim that re-

fusal to recognize out-of-state gay and lesbian marriag-

es violates the Full Faith and Credit Clause, the princi-

pal constitutional limit on state choice-of-law rules.

Wisely so. The Clause “does not require a State to ap-

ply another State’s law in violation of its own legitimate

public policy.” Nevada v. Hall, 440 U.S. 410, 422 (1979).

If defining marriage as an opposite-sex relationship

amounts to a legitimate public policy—and we have just

explained that it does—the Full Faith and Credit

Clause does not prevent a State from applying that pol-

icy to couples who move from one State to another.

The plaintiffs instead argue that failure to rec-

ognize gay marriages celebrated in other States vio-

lates the Due Process and Equal Protection Clauses.

But we do not think that the invocation of these differ-

ent clauses justifies a different result. As shown, com-

pliance with the Due Process and Equal Protection

Clauses in this setting requires only a rational relation-

ship between the legislation and a legitimate public

purpose. And a State does not behave irrationally by

insisting upon its own definition of marriage rather

than deferring to the definition adopted by another

State. Preservation of a State’s authority to recognize,

or to opt not to recognize, an out-of-state marriage pre-

serves a State’s sovereign interest in deciding for itself

how to define the marital relationship. It also discour-

ages evasion of the State’s marriage laws by allowing

individuals to go to another State, marry there, then

62a

return home. Were it irrational for a State to adhere to

its own policy, what would be the point of the Supreme

Court’s repeated holdings that the Full Faith and Cred-

it Clause “does not require a State to apply another

State’s law in violation of its own public policy”? Id.

Far from undermining these points, Windsor re-

inforces them. The case observes that “(tthe definition

of marriage is the foundation of the State’s broader au-

thority te regulate the subject of domestic relations

with respect to the protection of offspring, property in-

terests, and the enforcement of marital responsibilities.”

133 S. Ct. at 2691 (internal quotation marks omitted).

How could it be irrational for a State to decide that the

foundation of its domestic-relations law will be its defi-

nition of marriage, not somebody else’s? Windsor adds

that “[eJach state as a sovereign has a rightful and le-

gitimate concern in the marital status of persons domi-

ciled within its borders.” Jd. How could it be irrational

for a State to apply its definition of marriage to a couple

in whose marital status the State as a sovereign has a

rightful and legitimate concern?

Nor does the policy of nonrecognition trigger

Windsor’s (or Romer’s) principle that unprecedented

exercises of power call for judicial skepticism. States

have always decided for themselves when to yield to

laws of other States. Exercising this power, States of-

ten have refused to enforce all sorts of out-of-state

rules on the grounds that they contradict important lo-

cal policies. See Restatement (First) of Conflict of

Laws § 612; Restatement (Second) of Conflict of Laws §

90. Even more telling, States in many instances have

refused to recognize marriages performed in other

States on the grounds that these marriages depart

63a

from cardinal principles of the State’s domestic-

relations laws. See Restatement (First) of Conflict of

Laws § 134; Restatement (Second) of Conflict of Laws §

283. The laws challenged here involve routine rather

than anomalous uses of state power.

What of the reality that Ohio recognizes some

heterosexual marriages solemnized in other States

even if those marriages could not be performed in Ohio?

See, e.g., Mazzolini v. Mazzolini, 155 N.E.2d 206, 208

(Ohio 1958). The only reason Ohio could have for ban-

ning recognition of same-sex marriages performed

elsewhere and not prohibiting heterosexual marriages

performed elsewhere, the Ohio plaintiffs claim, is ani-

mus or “discrimination{] of an unusual character.”

Obergefell Appellees’ Br. at 18 (quoting Windsor, 133 S.

Ct. at 2692).

But, in making this argument, the plaintiffs mis-

apprehend Ohio law, wrongly assuming that Ohio

would recognize as valid any heterosexual marriage

that was valid in the State that sanctioned it. That is

not the case. Ohio law recognizes some out-of-state

marriages that could not be performed in Ohio, but not

all such marriages. See, e.g., Mazzolini, 155 N.E.2d at

208 (marriage of first cousins); Hardin v. Davis, 16 Ohio

Supp. 19, 20 (Ohio Ct. Com. Pl. 1945) (marriage by

proxy). In Mazzolini, the most relevant precedent, the

Ohio Supreme Court stated that a number of hetero-

sexual marriages—ones that were “incestuous, polyg-

amous, shocking to good morals, unalterably opposed to

a well defined public policy, or prohibited”—would not

be recognized in the State, even if they were valid in

the jurisdiction that performed them. 155 N.E.2d at

208-09 (noting that first-cousin marriages fell outside

64a

this rule because they were “not made void by explicit

provision” and “not incestuous”). Ohio law declares

same-sex marriage contrary to the State’s public policy,

placing those marriages within the longstanding excep-

tion to Ohio’s recognition rule. See Ohio Rev. Code §

3101.01(C).

IV.

That leaves one more claim, premised on the

constitutional right to travel. In the Tennessee case

(Tanco) and one of the Ohio cases (Henry), the claim-

ants maintain that a State’s refusal to recognize out-of-

state same-sex marriages illegitimately burdens the

right to travel—in the one case by penalizing couples

who move into the State by refusing to recognize their

marriages, in the other by preventing their child from

obtaining a passport because the State refused to pro-

vide a birth certificate that included the names of both

parents.

The United States Constitution does not men-

tion a right to travel by name. “Yet the constitutional

right to travel from one State to another is firmly em-

bedded in our jurisprudence.” Saenz v. Roe, 526 U.S.

489, 498 (1999) (internal quotation marks omitted). It

provides three guarantees: (1) “the right of a citizen of

one State to enter and to leave another State”; (2) “the

right to be treated as a welcome visitor rather than an

unfriendly alien” when visiting a second State; and (3)

the right of new permanent residents “to be treated

like other citizens of that State.” Jd. at 500.

Tennessee’s nonrecognition law does not violate

these prohibitions. It does not ban, or for that matter

regulate, movement into or out of the State other than

in the respect all regulations create incentives or disin-

65a

centives to live in one place or another. Most critically,

the law does not punish out-of-state new residents in

relation to its own born and bred. Nonresidents are

“treated” just “like other citizens of that State,” id., be-

cause the State has not expanded the definition of mar-

riage to include gay couples in all settings, whether the

individuals just arrived in Tennessee or descend from

Andrew Jackson.

The same is true for the Ohio law. No regulation

of movement or differential treatment between the

newly resident and the longstanding resident occurs.

All Ohioans must follow the State’s definition of mar-

riage. With respect to the need to obtain an Ohio birth

certificate before obtaining a passport, they can get one.

The certificate just will not include both names of the

couple. The “just” of course goes to the heart of the

matter. In that respect, however, it is due process and

equal protection, not the right to travel, that govern

the issue.

se *

This case ultimately presents two ways to think

about change. One is whether the Supreme Court will

constitutionalize a new definition of marriage to meet

new policy views about the issue. The other is whether

the Court will begin to undertake a different form of

in the way we as a country optimize

the handling of efforts to address requests for new civil

liberties.

If the Court takes the first approach, it may re-

solve the issue for good and give the plaintiffs and

many others relief. But we will never know what might

have been. If the Court takes the second approach, is it

not possible that the traditional arbiters of change—the

66a

people—will meet today’s challenge admirably and set-

tle the issue in a productive way? In just eleven years,

nineteen States and a conspicuous District, accounting

for nearly forty-five percent of the population, have ex-

ercised their sovereign powers to expand a definition of

marriage that until recently was universally followed

going back to the earliest days of human history. That

is a difficult timeline to criticize as unworthy of further

debate and voting. When the courts do not let the peo-

ple resolve new social issues like this one, they perpet-

uate the idea that the heroes in these change events are

judges and lawyers. Better in this instance, we think, to

allow change through the customary political processes,

in which the people, gay and straight alike, become the

heroes of their own stories by meeting each other not

as adversaries in a court system but as fellow citizens

seeking to resolve a new social issue in a fair-minded

way.

For these reasons, we reverse.

DISSENT

MARTHA CRAIG DAUGHTREY, Circuit Judge, dis-

senting.

“The great tides and currents which engulf the rest

of men do not turn aside in their course to pass the

judges by.”

Benjamin Cardozo, The Nature of

the Judicial Process (1921)

The author of the majority opinion has drafted

what would make an engrossing TED Talk or, possibly,

an introductory lecture in Political Philosophy. But as

an appellate court decision, it wholly fails to grapple

with the relevant constitutional question in this appeal:

67a

whether a state’s constitutional prohibition of same-sex

marriage violates equal protection under the Four-

teenth Amendment. Instead, the majority sets up a

false premise—that the question before us is “who

should decide?”—and leads us through a largely irrele-

vant discourse on democracy and federalism. In point

of fact, the real issue before us concerns what is at

stake in these six cases for the individual plaintiffs and

their children, and what should be done about it. Be-

cause I reject the majority’s resolution of these ques-

tions based on its invocation of voz populi and its rev-

erence for “proceeding with caution” (otherwise known

as the “wait and see” approach), I dissent.

In the main, the majority treats both the issues

and the litigants here as mere abstractions. Instead of

recognizing the plaintiffs as persons, suffering actual

harm as a result of being denied the right to marry

where they reside or the right to have their valid mar-

riages recognized there, my colleagues view the plain-

tiffs as social activists who have somehow stumbled in-

to federal court, inadvisably, when they should be out

campaigning to win “the hearts and minds” of Michigan,

Ohio, Kentucky, and Tennessee voters to their cause.

But these plaintiffs are not political zealots trying to

push reform on their fellow citizens; they are commit-

ted same-sex couples, many of them heading up de fac-

to families, who want to achieve equal status—de jure

status, if you will—with their married neighbors,

friends, and coworkers, to be accepted as contributing

members of their social and religious communities, and

to be welcomed as fully legitimate parents at their chil-

dren’s schools. They seek to do this by virtue of exer-

68a

cising a civil right that most of us take for granted—the

right to marry.’

Readers who are familiar with the Supreme

Court’s recent opinion in United States v. Windsor, 133

S. Ct. 2675 (2013), and its progeny in the circuit courts,

particularly the Seventh Circuit’s opinion in Baskin v.

Bogan, 766 F.3d 648, 654 (7th Cir. 2014) (“Formally

these cases are about discrimination against the small

homosexual minority in the United States. But at a

deeper level, . . . they are about the welfare of Ameri-

ean children.”), must have said to themselves at various

points in the majority opinion, “But what about the

children?” I did, and I could not find the answer in the

opinion. For although my colleagues in the majority

pay lip service to marriage as an institution conceived

for the purpose of providing a stable family unit “within

which children may flourish,” they ignore the destabi-

lizing effect of its absence in the homes of tens of thou-

sands of same-sex parents throughout the four states of

the Sixth Circuit.

Indeed, with the exception of Ohio, the defend-

ants in each of these cases—the proponents of their re-

spective “defense of marriage” amendments—spent

virtually their entire oral arguments professing what

has come to be known as the “irresponsible procreation”

theory: that limiting marriage and its benefits to oppo-

' See, e.g., Loving v. Virginia, 388 U.S. 1, 12 (1967) (“Marriage is

one of the ‘basic civil rights of man,’ fundamental to our very exist-

ence and survival.”) (quoting Skinner v. Oklahoma, 316 U.S. 535,

541 (1942)). The Supreme Court has described the right to marry

as “of fundamental importance for all individuals” and as “part of

the fundamental ‘right of privacy’ implicit in the Fourteenth

Amendment's Due Process Clause.” Zablocki v. Redhail, 434 U.S.

374, 384 (1978).

69a

site-sex couples is rational, even necessary, to provide

for “unintended offspring” by channeling their biologi-

cal procreators into the bonds of matrimony. When we

asked counsel why that goal required the simultaneous

exclusion of same-sex couples from marrying, we were

told that permitting same-sex marriage might deni-

grate the institution of marriage in the eyes of oppo-

site-sex couples who conceive out of wedlock, causing

subsequent abandonment of the unintended offspring

by one or both biological parents. We also were in-

formed that because same-sex couples cannot them-

selves produce wanted or unwanted offspring, and be-

cause they must therefore look to non-biological means

of parenting that require planning and expense, stabil-

ity in a family unit headed by same-sex parents is as-

sured without the benefit of formal matrimony. But, as

the court in Baskin pointed out, many “abandoned chil-

dren [born out of wedlock to biological parents] are

adopted by homosexual couples, and those children

would be better off both emotionally and economically

if their adoptive parents were married.” Jd. How iron-

ic that irresponsible, unmarried, opposite-sex couples in

the Sixth Circuit who produce unwanted offspring must

be “channeled” into marriage and thus rewarded with

its many psychological and financial benefits, while

same-sex couples who become model parents are pun-

ished for their responsible behavior by being denied the

right to marry. As an obviously exasperated Judge

Posner responded after puzzling over this same para-

dox in Baskin, “Go figure.” Id. at 662.

In addressing the “irresponsible procreation”

argument that has been referenced by virtually every

state defendant in litigation similar to this case, the

Baskin court noted that estimates put the number of

70a

American children being raised by same-sex parents at

over 200,000. Jd. at 663. “Unintentional offspring are

the children most likely to be put up for adoption,” id.

at 662, and because statistics show that same-sex cou-

ples are many times more likely to adopt than opposite-

sex couples, “same-sex marriage improves the pro-

spects of unintended children by increasing the number

and resources of prospective adopters.” Jd. at 663.

Moreover, “(i}f marriage is better for children who are

being brought up by their biological parents, it must be

better for children who are being brought up by their

adoptive parents.” /d. at 664.

The concern for the welfare of children that ech-

oes throughout the Baskin opinion can be traced in part

to the earlier opinion in Windsor, in which the Supreme

Court struck down, as unconstitutional on equal-

protection grounds, section 3 of the federal Defense of

Marriage Act (DOMA), which defined the term “mar-

riage” for federal purposes as “mean[ing] only a legal

union between one man and one woman as husband and

wife,” and the term “spouse” as “refer[ring] only to a

person of the opposite sex who is a husband or a wife.”

Id. at 2683 (citing 1 U.S.C. § 7). Although DOMA did

not affect the prerogative of the states to regulate mar-

riage within their respective jurisdictions, it did de-

prive same-sex couples whose marriages were consid-

ered valid under state law of myriad federal benefits.

As Justice Kennedy, writing for the majority, pointed

out:

DOMA’s principal effect is to identify a subset

of state-sanctioned marriages and make them

unequal. The principal purpose is to impose in-

equality, not for other reasons like governmen-

J7la

tal efficiency ... . The differentiation demeans

the [same-sex] couple, whose moral and sexual

choices the Constitution protects, see Law-

rence [v. Texas], 539 U.S. 558 [(2003)], and

whose relationship the State has sought to dig-

nify. And it humiliates tens of thousands of

children now being raised by same-sex couples.

The law in question makes it even more diffi-

cult for the children to understand the integri-

ty and closeness of their own family and its

concord with other families in their community

and in their daily lives.

Id. at 2694.

Looking more closely at the situation of just one

of the same-sex couples from the six cases before us

brings Justice Kennedy’s words on paper to life. Two

of the Michigan plaintiffs, April DeBoer and Jayne

Rowse, are unmarried, same-sex partners who have

lived as a couple for eight years in a home they own to-

gether. They are both trained and employed as nurses,

DeBoer in a hospital neonatal department and Rowse

in an emergency department at another hospital. To-

gether they are rearing three children but, due to exist-

ing provisions in Michigan’s adoption laws, DeBoer and

Rowse are prohibited from adopting the children as

joint parents because they are unmarried. Instead,

Rowse alone adopted two children, who are identified

in the record as N and J. DeBoer adopted the third

child, who is identified as R.

All three children had difficult starts in life, and

two of them are now characterized as “special needs”

children. N was born on January 25, 2009, to a biologi-

cal mother who was homeless, had psychological im-

72a

pairments, was unable to care for N, and subsequently

surrendered her legal rights to N. The plaintiffs volun-

teered to care for the boy and brought him into their

home following his birth. In November 2009, Rowse

completed the necessary steps to adopt N legally.

Rowse also legally adopted J after the boy’s fos-

ter care agency asked Rowse and DeBoer initially to

serve as foster parents and legal guardians for him, de-

spite the uphill climb the baby faced. According to the

plaintiffs’ amended complaint:

J was born on November 9, 2009, at Hutzel

Hospital, premature at 25 weeks, to a drug ad-

dicted prostitute. Upon birth, he weighed 1

pound, 9 ounces and tested positive for mariju-

ana, cocaine, opiates and methadone. His birth

mother abandoned him immediately after de-

livery. J remained in the hospital in the

NICU for four months with myriad different

health complications, and was not expected to

live. If he survived, he was not expected to be

able to walk, speak or function on a normal lev-

el in any capacity. ... With Rowse and DeBo-

er’s constant care and medical attention, many

of J’s physical conditions have resolved.

The third adopted child, R, was born on Febru-

ary 1, 2010, to a 19-year-old girl who received no prena-

tal care and who gave birth at her mother’s home be-

fore bringing the infant to the hospital where plaintiff

DeBoer worked. R continues to experience issues re-

lated to her lack of prenatal care, including delayed

gross motor skills. She is in a physical-therapy pro-

gram to address these problems.

73a

Both DeBoer and Rowse share in the responsi-

bilities of raising the two four-year-olds and the five-

year-old. The plaintiffs even have gone so far as to “co-

ordinate their work schedules so that at least one par-

ent is generally home with the children” to attend to

their medical needs and perform other parental duties.

Given the close-knit, loving environment shared by the

plaintiffs and the children, DeBoer wishes to adopt N

and J legally as a second parent, and Rowse wishes to

adopt R legally as her second parent.

Although Michigan statutes allow married cou-

ples and single persons to adopt, those laws preclude

unmarried couples from adopting each other’s children.

As a result, DeBoer and Rowse filed suit in federal dis-

trict court challenging the Michigan adoption statute,

Michigan Compiled Laws § 710.24, on federal equal-

protection grounds. They later amended their com-

plaint to include a challenge to the so-called Michigan

Marriage Amendment, see Mich. Const. art. I, § 25,

added to the Michigan state constitution in 2004, after

the district court suggested that the plaintiffs’ “injury

was not traceable to the defendants’ enforcement of

section [710.24]” but, rather, flowed from the fact that

the plaintiffs “were not married, and any legal form of

same-sex union is prohibited” in Michigan. The case

went to trial on the narrow legal issue of whether the

amendment could survive rational basis review, i.e.,

whether it proscribes conduct in a manner that is ra-

tionally related to any conceivable legitimate govern-

mental purpose.

The bench trial lasted for eight days and consist-

ed of testimony from sociologists, economists, law pro-

fessors, a psychologist, a historian, a demographer, and

74a

a county clerk. Included in the plaintiffs’ presentation

of evidence were statistics regarding the number of

children in foster care or awaiting adoption, as well as

testimony regarding the difficulties facing same-sex

partners attempting to retain parental influence over

children adopted in Michigan. Gary Gates, a demogra-

pher, and Vivek Sankaran, the director of both the

Child Advocacy Law Clinic and the Child Welfare Ap-

pellate Clinic at the University of Michigan Law School,

together offered testimony painting a grim picture of

the plight of foster children and orphans in the state of

Michigan. For example, Sankaran noted that just un-

der 14,000 foster children reside in Michigan, with ap-

proximately 3,500 of those being legal orphans. Never-

theless, same-sex couples in the state are not permitted

to adopt such children as a couple. Even though one

person can legally adopt a child, should anything hap-

pen to that adoptive parent, there is no provision in

Michigan’s legal framework that would “ensure that the

children would necessarily remain with the surviving

non-legal parent,” even if that parent went through the

arduous, time-consuming, expensive adoption-approval

process. Thus, although the State of Michigan would

save money by moving children from foster care or

state care into adoptive families, and although same-

sex couples in Michigan are almost three times more

likely than opposite-sex couples to be raising an adopt-

ed child and twice as likely to be fostering a child, there

remains a legal disincentive for same-sex couples to

adopt children there.

David Brodzinsky, a developmental and clinical

psychologist, for many years on the faculty at Rutgers

University, reiterated the testimony that Michigan’s

ban on adoptions by same-sex couples increases the po-

T5a

tential risks to children awaiting adoptions. The re-

mainder of his testimony was devoted to a systematic,

statistic-based debunking of studies intimating that

children raised in gay or lesbian families, ipso facto, are

less well-adjusted than children raised by heterosexual

couples. Brodzinsky conceded that marriage brings so-

cietal legitimatization and stability to children but not-

ed that he found no statistically significant differences

in general characteristics or in development between

children raised in same-sex households and children

raised in opposite-sex households, and that the psycho-

logical well-being, educational development, and peer

relationships were the same in children raised in gay,

lesbian, or heterosexual homes.

Such findings led Brodzinsky to conclude that

the gender of a parent is far less important than the

quality of the parenting offered and that family pro-

cesses and resources are far better predictors of child

adjustment than the family structure. He testified that

those studies presuming to show that children raised in

gay and lesbian families exhibited more adjustment

problems and decreased educational achievement were

seriously flawed, simply because they relied on statis-

tices concerning children who had come from families

experiencing a prior traumatic breakup of a failed het-

erosexual relationship. In fact, when focusing upon

children of lesbian families created through donor in-

semination, Brodzinsky found no differences in compar-

ison with children from donor insemination in hetero-

sexual families or in comparison with children con-

ceived naturally in heterosexual families. According to

Brodzinsky, such a finding was not surprising given the

fact that all such children experienced no family disrup-

tion in their past. For the same reason, few differences

76a

were noted in studies of children adopted at a very ear-

ly age by same-sex couples and children naturally born

into heterosexual families.

Nancy Cott, a professor of history at Harvard

University, the director of graduate studies there, and

the author of Public Vows: A History of Marriage and

the Nation, also testified on behalf of the plaintiffs. She

explained how the concept of marriage and the roles of

the marriage partners have changed over time. As

summarized by Cott, the wife’s identity is no longer

subsumed into that of her husband, interracial mar-

riages are legal now that the antiquated, racist concept

of preserving the purity of the white race has fallen in-

to its rightful place of dishonor, and traditional gender-

assigned roles are no longer standard. Cott also testi-

fied that solemnizing marriages between same-sex

partners would create tangible benefits for Michigan

citizens because spouses would then be allowed to in-

herit without taxation and would be able to receive re-

tirement, Social Security, and veteran’s benefits upon

the death of an eligible spouse. Moreover, statistics

make clear that heterosexual marriages have not suf-

fered or decreased in number as a result of states per-

mitting same-sex marriages. In fact, to the contrary,

Cott noted that there exists some evidence that many

young people now refuse to enter into heterosexual

marriages until their gay or lesbian friends can also en-

joy the legitimacy of state-backed marriages.

Michael Rosenfeld, a Stanford University sociol-

ogist, testified about studies he had undertaken that

confirmed the hypothesis that legitimation of same-sex

relationships promotes their stability. Specifically,

Rosenfeld’s research established that although same-

77a

sex couples living in states without recognition of their

commitments to each other did have a higher break-up

rate than heterosexual married couples, the break-up

rates of opposite-sex married couples and same-sex

couples in recognized civil unions were virtually identi-

cal. Similarly, the break-up rates of same-sex couples

not living in a state-recognized relationship approxi-

mated the break-up rate of heterosexual couples cohab-

iting without marriage.

Rosenfeld also criticized the methodology of

studies advanced by the defendants that disagreed with

his conclusions. According to Rosenfeld, those critical

studies failed to take into account the stability or lack

of stability of the various groups examined. For exam-

ple, he testified that one such study compared children

who had experienced no adverse family transitions with

children who had lived through many such traumatic

family changes. Not surprisingly, children from broken

homes with lower-income-earning parents who had less

education and lived in urban areas performed more

poorly in school than other children. According to

Rosenfeld, arguments to the contrary that failed to con-

trol for such differences, taken to their extreme, would

lead to the conclusion that only high-income individuals

of Asian descent who earned advanced degrees and

lived in suburban areas should be allowed to marry.

To counteract the testimony offered by the

plaintiffs’ witnesses, the defendants presented as wit-

nesses the authors or co-authors of three studies that

disagreed with the conclusions reached by the plaintiffs’

experts. All three studies, however, were given little

credence by the district court because of inherent flaws

in the methods used or the intent of the authors. For

78a

example, the New Family Structures Study reported

by Mark Regnerus, a sociologist at the University of

Texas at Austin, admittedly relied upon interviews of

children from gay or lesbian families who were prod-

ucts of broken heterosexual unions in order to support

a conclusion that living with such gay or lesbian fami-

lies adversely affected the development of the children.

Regnerus conceded, moreover, that his own depart-

ment took the highly unusual step of issuing the follow-

ing statement on the university website in response to

the release of the study:

[Dr. Regnerus’s opinions] do not reflect the

views of the sociology department of the Uni-

versity of Texas at Austin. Nor do they reflect

the views of the American Sociological Associ-

ation which takes the position that the conclu-

sions he draws from his study of gay parenting

are fundamentally flawed on conceptual and

methodological grounds and that the findings

from Dr. Regnerus’[s] work have been cited

inappropriately in efforts to diminish the civil

rights and legitimacy of LBGTQ partners and

their families.

In fact, the record before the district court reflected

clearly that Regnerus’s study had been funded by the

Witherspoon Institute, a conservative “think tank” op-

posed to same-sex marriage, in order to vindicate “the

traditional understanding of marriage.”

Douglas Allen, the co-author of another study

with Catherine Pakaluk and Joe Price, testified that

children raised by same-sex couples graduated from

high school at a significantly lower rate than did chil-

dren raised by heterosexual married couples. On cross-

T9a

examination, however, Allen conceded that “many of

those children who . . . were living in same-sex house-

holds had previously lived in an opposite sex household

where their parents had divorced, broken up, some

kind of separation or transition.” Furthermore, Allen

provided evidence of the bias inherent in his study by

admitting that he believed that engaging in homosexual

acts “means eternal separation from God, in other

words[,] going to hell.”

The final study advanced by the defendants was

conducted by Loren Marks, a professor in human ecolo-

gy at Louisiana State University, in what was admit-

tedly an effort to counteract the “groupthink” por-

trayed by perceived “liberal psychologists.” But slt-

hough Marks criticized what he perceived to be “a pro-

nounced liberal lean on social issues” by many psy-

chologists, he revealed his own bias by acknowledging

that he was a lay clergyman in the Church of Jesus

Christ of Latter Day Saints (LDS) and that the LDS

directive “for a couple to be married by God’s authority

in God’s house, the holy temple, and then to have chil-

dren per the teaching that God’s commandment for his

children to multiply and replenish the earth remains in

force.”

Presented with the admitted biases and method-

ological shortcomings prevalent in the studies per-

formed by the defendant’s experts, the district court

found those witnesses “largely unbelievable” and not

credible. DeBoer v. Snyder, 973 F. Supp.2d 757, 768

(E.D. Mich. 2014). Proceeding to a legal analysis of the

core issue in the litigation, the district court then con-

cluded that the proscriptions of the marriage amend-

ment are not rationally related to any legitimate state

80a

interest. Addressing the defendants’ three asserted

rational bases for the amendment’, the district court

found each such proffered justification without merit.

Principally, the court determined that the

amendment is in no way related to the asserted state

interest in ensuring an optimal environment for child-

rearing. The testimony adduced at trial clearly refuted

the proposition that, all things being equal, same-sex

couples are less able to provide for the welfare and de-

velopment of children. Indeed, marriage, whether be-

tween same-sex or opposite-sex partners, increases

stability within the family unit. By permitting same-

sex couples to marry, that stability would not be

threatened by the death of one of the parents. Even

more damning to the defendants’ position, however, is

the fact that the State of Michigan allows heterosexual

couples to marry even if the couple does not wish to

have children, even if the couple does not have suffi-

cient resources or education to care for children, even if

the parents are pedophiles or child abusers, and even if

the parents are drug addicts.

Furthermore, the district court found no reason

to believe that the amendment furthers the asserted

state interests in “proceeding with caution” before “al-

tering the traditional definition of marriage” or in “up-

holding tradition and morality.” As recognized by the

district court, there is no legitimate justification for de-

* In the district court, the state did not advance an “unintended

pregnancy” argument, nor was that claim included in the state’s

brief on appeal, although counsel did mention it during oral argu-

ment. In terms of “optimal environment,” the state emphasized the

need for children to have “both a mom and a dad,” because “men

and women are different,” and to have a “biological connection to

their parents.”

8la

lay when constitutional rights are at issue, and even

adherence to religious views or tradition cannot serve

to strip citizens of their right to the guarantee of equal

protection under the law.

Finally, and relatedly, the district court

acknowledged that the regulation of marriage tradi-

tionally has been seen as part of a state’s police power

but concluded that this fact cannot serve as an excuse

to ignore the constitutional rights of individual citizens.

Were it otherwise, the court observed, the prohibition

in Virginia and in many other states against miscegena-

tion still would be in effect today. Because the district

court found that “regardless of whoever finds favor in

the eyes of the most recent majority, the guarantee of

equal protection must prevail,” the court held the

amendment and its implementing statutes “unconstitu-

tional because they violate the Equal Protection Clause

of the Fourteenth Amendment to the United States

Constitution.” Id. at 775.

If I were in the majority here, I would have no

difficulty in affirming the district court’s opinion in

DeBoer. The record is rich with evidence that, as a

pragmatic matter, completely refutes the state’s effort

to defend the ban against same-sex marriage that is in-

herent in the marriage amendment. Moreover, the dis-

trict court did a masterful job of supporting its legal

conclusions. Upholding the decision would also control

the resolution of the other five cases that were consoli-

dated for purposes of this appeal.

Is a thorough explication of the legal basis for

such a result appropriate? It is, of course. Is it neces-

sary? In my judgment, it is not, given the excellent—

even eloquent—opinion in DeBoer and in the opinions

82a

that have come from four other circuits in the last few

months that have addressed the same issues involved

here: Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014)

(holding Utah statutes and state constitutional amend-

ment banning same-sex marriage unconstitutional un-

der the Fourteenth Amendment); Bostic v. Schaefer,

760 F.3d 352 (4th Cir. 2014) (same, Virginia); Baskin v.

Bogan, 766 F.3d 648 (7th Cir. 2014) (same, Indiana

statute and Wisconsin state constitutional amendment);

and Latta v. Otter, Nos. 14-35420, 14-35421, 1217668,

2014 WL 4977682 (9th Cir. Oct. 7, 2014) (same, Idaho

and Nevada statutes and state constitutional amend-

ments).”

Kitchen was decided primarily on the basis of

substantive due process, based on the Tenth Circuit’s

determination that under Supreme Court precedents,

the right to marry includes the right to marry the per-

son of one’s choice. The court located the source of that

right in Supreme Court opinions such as Maynard v.

Hill, 125 U.S. 190, 205 (1888) (recognizing marriage as

“the most important relation in life”); Meyer v. Nebras-

ka, 262 U.S. 390, 399 (1923) (holding that the liberty

protected by the Fourteenth Amendment includes the

freedom “to marry, establish a home and bring up chil-

dren”); Loving, 388 U.S. at 12 (“The freedom to marry

has long been recognized as one of the vital personal

* On October 6, the Supreme Court denied certiorari and lifted

stays in Kitchen, Bostic, and Baskin, putting into effect the dis-

trict court injunctions entered in each of those three cases. A stay

of the mandate in the Idaho case in Latta also has been vacated,

and the appeal in the Nevada case is not being pursued. As a result,

marriage licenses are currently being issued to same-sex couples

throughout most—if not all—of the Fourth, Seventh, Ninth, and

Tenth Circuits.

88a

rights essential to the orderly pursuit of happiness by

free men.”); Zablocki, 434 U.S. at 384 (recognizing that

“the right to marry is of fundamental importance for all

individuals”); and Turner v. Safley, 482 U.S. 78, 95-96

(1987) (in the context of a prison inmate’s right to mar-

ry, “[such] marriages are expressions of emotional sup-

port and public commitment/[,] . . . elements [that] are

important and significant aspects of the marital rela-

tionship” even in situations in which procreation is not

possible). Kitchen, 755 F.3d at 1209-11. The Tenth Cir-

cuit also found that the Utah laws violated equal pro-

tection, applying strict scrutiny because the classifica-

tion in question impinged on a fundamental right. In

doing so, the court rejected the state’s reliance on vari-

ous justifications offered to establish a compelling state

interest in denying marriage to same-sex couples, find-

ing “an insufficient causal connection” between the

prohibition on same-sex marriage and the state’s “ar

ticulated goals,” which included a purported ~wretalh in

fostering biological reproduction, encouraging optimal

childrearing, and maintaining gendered parenting

styles. Jd. at 1222. The court also rejected the state’s

prediction that legalizing same-sex marriage would re-

sult in social discord, citing Watson v. City of Memphis,

373 U.S. 526, 535 (1963) (rejecting “community confu-

sion and turmoil” as a reason to delay desegregation of

public parks). Jd. at 1227.

The Fourth Circuit in Bostic also applied strict

scrutiny to strike down Virginia’s same-sex-marriage

prohibitions as infringing on a fundamental right, citing

Loving and observing that “[o]ver the decades, the Su-

preme Court has demonstrated that the right to marry

is an expansive liberty interest that may stretch to ac-

commodate changing societal norms.” 760 F.3d at 376.

84a

In a thoughtful opinion, the court analyzed each of the

state’s proffered interests: maintaining control of the

“definition of marriage, ” adhering to the “tradition of

opposite-sex marriage,” “protecting the institution of

marriage,” “encouraging responsible procreation,” and

“promoting the optimal childrearing environment.” Id.

at 378. In each instance, the court found that there was

no link between the state’s purported “compelling in-

terest” and the exclusion of same-sex couples “from

participating fully in our society, which is precisely the

type of segregation that the Fourteenth Amendment

cannot countenance.” /d. at 384. As to the state’s inter-

est in federalism, the court pointed to the long-

recognized principle that “[s]tate laws defining and

regulating marriage, of course, must respect the consti-

tutional rights of persons,” id. at 379 (quoting Windsor,

133 S. Ct. at 2691), and highlighted Windsor’s reitera-

tion of “Loving’s admonition that the states must exer-

cise their authority without trampling constitutional

guarantees.” Jd. Addressing the state’s contention

that marriage under state law should be confined to op-

posite-sex couples because unintended pregnancies

cannot result from same-sex unions, the court noted

that “[bJecause same-sex couples and infertile opposite-

sex couples are similarly situated, the Equal Protection

Clause counsels against treating these groups differ-

ently.” Id. at 381-82 (citing City of Cleburne v.

Cleburne Living Ctr., 473 U.S. 432, 439 (1985)).

The Seventh Circuit’s Baskin opinion is firmly

grounded in equal-protection analysis. The court pro-

ceeded from the premise that “[dl]iscrimination by a

state or the federal government against a minority,

when based on an immutable characteristic of the

members of that minority (most familiarly skin color

85a

and gender), and occurring against an historical back-

ground of discrimination against the persons who have

that characteristic, makes the discriminatory law or

policy constitutionally suspect.” 766 F.3d at 654. But

the court also found that “discrimination against same-

sex couples is irrational, and therefore unconstitutional

even if the discrimination is not subjected to height-

ened scrutiny.” Id. at 656. This conclusion was based

on the court’s rejection of “the only rationale that the

states put forth with any conviction—that same-sex

couples and their children don’t need marriage because

same-sex couples can’t produce children, intended or

unintended,” an argument “so full of holes that it can-

not be taken seriously.” Jd. (emphasis in original). The

court therefore found it unnecessary to engage in “the

more complex analysis found in more closely balanced

equal-protection cases” or under the due process clause

of the Fourteenth Amendment.” /d. at 656-57.

The Ninth Circuit’s opinion in Latta also focuses

on equal-protection principles in finding that Idaho’s

and Nevada’s statutes and constitutional amendments

prohibiting same-sex marriage violate the Fourteenth

Amendment. Because the Ninth Circuit had recently

held in SmithKline Beecham Corp. v. Abbott Labs., 740

F.3d 471, 481 (9th Cir. 2014), that classifications based

on sexual orientation are subject to heightened scrutiny,

a conclusion the court drew from its reading of Windsor

to require assessment more rigorous than rational-

basis review, the path to finding an equal-protection

violation was less than arduous. As did the Tenth Cir-

cuit in Kitchen, the court in Latta found it “wholly illog-

ical” to think that same-sex marriage would affect op-

posite-sex couples’ choices with regard to procreation.

86a

Latta, 2014 WL 4977682, *5 (citing Kitchen, 755 F.3d at

1223).

These four cases from our sister circuits provide

a rich mine of responses to every rationale raised by

the defendants in the Sixth Circuit cases as a basis for

excluding same-sex couples from contracting valid

marriages. Indeed, it would seem unnecessary for this

court to do more than cite those cases in affirming the

district courts’ decisions in the six cases now before us.

Because the correct result is so obvious, one is tempted

to speculate that the majority has purposefully taken

the contrary position to create the circuit split regard-

ing the legality of same-sex marriage that could prompt

a grant of certiorari by the Supreme Court and an end

to the uncertainty of status and the interstate chaos

that the current discrepancy in state laws threatens.

Perhaps that is the case, but it does not relieve the dis-

senting member of the panel from the obligation of a

rejoinder.

Baker v. Nelson

If ever there was a legal “dead letter” emanating

from the Supreme Court, Baker v. Nelson, 409 U.S. 810

(1972), is a prime candidate. It lacks only a stake

through its heart. Nevertheless, the majority posits

that we are bound by the Court’s aging one-line order

denying review of an appeal from the Minnesota Su-

preme Court “for want of a substantial federal ques-

tion.” As the majority notes, the question concerned

the state’s refusal to issue a marriage license to a same-

sex couple, but the decision came at a point in time

when sodomy was legal in only one state in the country,

Illinois, which had repealed its anti-sodomy statute in

1962. The Minnesota statute criminalizing same-sex

87a

intimate relations was not struck down until 2001, al-

most 30 years after Baker was announced‘. The Minne-

sota Supreme Court’s denial of relief to a same-sex

couple in 1971 and the United States Supreme Court’s

conclusion that there was no substantial federal ques-

tion involved in the appeal thus is unsurprising. As the

majority notes—not facetiously, one hopes—” that was

then; this is now.”

At the same time, the majority argues that we

are bound by the eleven words in the order, despite the

Supreme Court silence on the matter in the 42 years

since it was issued. There was no recognition of Baker

in Romer v. Evans, 517 U.S. 620 (1996), nor in Law-

rence v. Texas, 539 U.S. 558 (2003), and not in Windsor,

despite the fact that the dissenting judge in the Second

Circuit’s opinion in Windsor made the same argument

that the majority makes in this case. See Windsor v.

United States, 699 F.3d 169, 189, 192-95 (2d Cir. 2012)

(Straub, J., dissenting in part and concurring in part).

And although the argument was vigorously pressed by

the DOMA proponents in their Supreme Court brief in

Windsor,’ neither Justice Kennedy in his opinion for the

court nor any of the four dissenting judges in their

three separate opinions mentioned Baker. In addition,

the order was not cited in the three orders of October 6,

2014, denying certiorari in Kitchen, Bostic, and Baskin.

If this string of cases—Romer, Lawrence, Windsor,

Kitchen, Bostic, and Baskin—does not represent the

* See Doe v. Ventura, No. 01-489, 2001 WL 543734 (D. Ct. of

Hennepin Cnty. May 15, 2001) (unreported).

* See United States v. Windsor, Brief on the Merits for Respond-

ent the Bipartisan Legal Advisory Group of the U.S. House of

Representatives, No. 12-307, 2013 WL 267026 at 16-19, 25-26 (Jan.

22, 2013).

88a

Court’s overruling of Baker sub silentio, it certainly

creates the “doctrinal development” that frees the low-

er courts from the strictures of a summary disposition

by the Supreme Court. See Hicks v. Miranda, 422 U.S.

332, 344 (1975) (internal quotation marks and citation

omitted).

Definition of Marriage

The majority's “original meaning” analysis

strings together a number of case citations but can tell

us little about the Fourteenth Amendment, except to

assure us that “the people who adopted the Fourteenth

Amendment [never] understood it to require the States

to change the definition of marriage.” The quick an-

swer is that they undoubtedly did not understand that

it would also require school desegregation in 1955 or

the end of miscegenation laws across the country, be-

ginning in California in 1948 and culminating in the

Loving decision in 1967. Despite a civil war, the end of

slavery, and ratification of the Fourteenth Amendment

in 1868, extensive litigation has been necessary to

achieve even a modicum of constitutional protection

from discrimination based on race, and it has occurred

primariy by judicial decree, not by the democratic elec-

tion process to which the majority suggests we should

defer regarding discrimination based on sexual orienta-

tion.

Moreover, the majority’s view of marriage as “a

social institution defined by relationships between men

and women” is wisely described in the plural. There is

not now and never has been a universally accepted def-

inition of marriage. In early Judeo-Christian law and

throughout the West in the Middle Ages, marriage was

a religious obligation, not a civil status. Historically, it

89a

has been pursued primarily as a political or economic

arrangement. Even today, polygymous marriages out-

number monogamous ones—the practice is widespread

in Africa, Asia, and the Middle East, especially in coun-

tries following Islamic law, which also recognizes tem-

porary marriages in some parts of the world. In Asia

and the Middle East, many marriages are still arranged

and some are even coerced.

Although some of the older statutes regarding

marriage cited by the majority do speak of the union of

“a man and a woman,” the picture hardly ends there.

When Justice Alito noted in Windsor that the oppo-

nents of DOMA were “implicitly ask[ing] us to endorse

[a more expansive definition of marriage and] to reject

the traditional view,” Windsor, 133 S. Ct. at 2718 (Alito,

J., dissenting), he may have been unfamiliar with all

that the “traditional view” entailed, especially for

women who were subjected to coverture as a result of

Anglo-American common law. Fourteenth Amendment

cases decided by the Supreme Court in the years since

1971 that “invalidat{[ed] various laws and policies that

categorized by sex have been part of a transformation

that has altered the very institution at the heart of this

case, marriage.” Latta, 2014 WL 4977682, at *20 (Ber-

zon, J., concurring).

Historically, marriage was a profoundly une-

qual institution, one that imposed distinctly dif-

ferent rights and obligations on men and wom-

en. The law of coverture, for example, deemed

the “the husband and wife . . . one person,”

such that “the very being or legal existence of

the woman [was] suspended .. . or at least [was]

incorporated and consolidated into that of the

90a

husband” during the marriage. 1 William

Blackstone, Commentaries on the Laws of

England 441 (83d rev. ed. 1884). Under the prin-

ciples of coverture, “a married woman [was] in-

capable, without her husband’s consent, of

making contracts . . . binding on her or him.”

Bradwell v. Illinois, U.S. 130, 141 (1872)

(Bradley, J., concurring). She could not sue or

be sued without her husband’s consent. See,

e.g., Nancy F. Cott, Public Vows: A History of

Marriage and the Nation 11-12 (2000). Mar-

ried women also could not serve as the legal

guardians of their children. Frontiero v. Rich-

ardson, 411 U.S. 677, 685 (1973) (plurality op.).

Marriage laws further dictated economically

disparate roles for husband and wife. In many

respects, the marital contract was primarily

understood as an economic arrangement be-

tween spouses, whether or not the couple had

or would have children. “Coverture expressed

the legal essence of marriage as reciprocal: a

husband was bound to support his wife, and in

exchange she gave over her property and la-

bor.” Cott, Public Vows, at 54. That is why

“married women traditionally were denied the

legal capacity to hold oor convey

ty ... .99 Frontiero, 411 U.S. at 685. Notably,

husbands owed their wives support even if

there were no children of the marriage. See,

e.g., Hendrik Hartog, Man and Wife in Ameri-

ca: A History 156 (2000).

There was also a significant disparity between

the rights of husbands and wives with regard

9la

to physical intimacy. At common law, “a wom-

an was the sexual property of her husband;

that is, she had a duty to have intercourse with

him.” John D’Emilio & Estelle B. Freedman,

Intimate Matters: A History of Sexuality in

America 79 (3d ed. 2012). Quite literally, a

wife was legally “the possession of her hus-

band, . . . [her] husband’s property.” Hartog,

Man and Wife in America, at 137. Accordingly,

a husband could sue his wife’s lover in tort for

“entic{ing]” her or “alienat{ing]” her affections

and thereby interfering with his property

rights in her body and her labor. Jd. A hus-

band’s possessory interest in his wife was un-

doubtedly also driven by the fact that, histori-

cally, marriage was the only legal site for licit

sex; sex outside of marriage was almost uni-

versally criminalized. See, e.g., Ariela R. Dub-

ler, Immoral Purposes: Marriage and the Ge-

nus of Illicit Sex, 115 Yale L.J. 756, 763-64

(2006).

Notably, although sex was strongly presumed

to be an essential part of marriage, the ability

to procreate was generally not. See, e.g., Ches-

ter Vernier, American Family Laws: A Com-

parative Study of the Family Law of the For-

ty-Eight American States, Alaska, the District

of Columbia, and Hawaii (to Jan. 1, 1931) (1931)

I § 50, 239-46 (at time of survey, grounds for

annulment typically included impotency, as

well as incapacity due to minority or “non-age”;

lack of understanding and insanity; force or du-

ress; fraud; disease; and incest; but not inabil-

ity to conceive); II § 68, at 38-39 (1932) (at time

92a

of survey, grounds for divorce included “impo-

tence”; vast majority of states “generally held

that impotence. . . does not mean sterility but

must be of such a nature as to render complete

sexual intercourse practically impossible”; and

only Pennsylvania “mal[dje sterility a cause”

for divorce).

The common law also dictated that it was legal-

ly impossible for a man to rape his wife. Men

could not be prosecuted for spousal rape. A

husband’s “incapacity” to rape his wife was

justified by the theory that ‘the marriage con-

stitute[d] a blanket consent to sexual intimacy

which the woman [could] revoke only by dis-

solving the marital relationship.” See, e.g., Jill

Elaine Hasday, Contest and Consent: A Legal

History of Marital Rape, 88 Calif. L. Rev 1373,

1376 n.9 (2000) (quoting Model Penal Code and

Commentaries, § 213.1 cmt. 8(c), at 342 (Official

Draft and Revised Comments 1980)).

Concomitantly, dissolving the marital partner-

ship via divorce was exceedingly difficult.

Through the mid-twentieth century, divorce

could be obtained only on a limited set of

grounds, if at all. At the beginning of our na-

tion’s history, several states did not permit full

divorce except under the narrowest of circum-

stances; separation alone was the remedy, even

if a woman could show “cruelty endangering

life or limb.” Peter W. Bardaglio, Reconstruct-

ing the Household: Families, Sex, and the Law

in the Nineteenth-Century South 33 (1995); see

also id. 32-33. In part, this policy dove

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