# Appendix — Tanco v. Haslam, 135 S. Ct. 1040 (2015) (No. 14-562) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0307%3A003 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 2015 ## Text 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) II 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) 2a RICHARD HODGES, Director of the Ohio Department of Health, in his official capacity, Defendant-Appellant. 14-5291 GREGORY BOURKE, et al., Plaintiffs-Appellees, v. STEVE BESHEAR, Governor, Commonwealth of Kentucky, in his official capacity, Defendant-Appellant. 14-5297 VALERIA TANCO, et aL, Plaintiffs-Appellees, v. 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. 3a 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 4a 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- 5a 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 6a & 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, 7a 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, 8a 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 9a 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? I. 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 A. 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. B. 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 C. 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. D. 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 4a 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. E. 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. F. 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? G. 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0307%3A003. Public record. Not legal advice.