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

eee

In the Supreme Court of the Anited States

VALERIA TANCO, ET AL., PETITIONERS

WILLIAM EDWARD “BILL” HASLAM, ET AL.

Vv.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

REPLY BRIEF FOR PETITIONERS

ABBY R. RUBENFELD

RUBENFELD LAW OFFICE, PC

2409 Hillsboro Road,

Ste. 200

Nashville, TN 87212

WILLIAM L. HARBISON

PHILLIP F. CRAMER

J. Scott HICKMAN

JOHN L. FARRINGER

SHERRARD & ROE, PLC

160 8rd Ave. South,

Ste. 1100

Nashville, TN 87201

MAUREEN T. HOLLAND

HOLLAND & Assoc., PC

1429 Madison Avenue

Memphis, TN 38104

REGINA M. LAMBERT

7010 Stone Mill Drive

Knoxville, TN 87919

EN SG ee a a RTT TT KC

DOUGLAS HALLWARD-DRIEMEIER

Counsel of Record

Ropes & GRAY LLP

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

Washington, D.C. 20005

(202) 508-4600

Douglas_Hallward-Driemeier@

ropesgray.com

CHRISTOPHER THOMAS BROWN

JUSTIN G. FLORENCE

ROPES & GRAY LLP

Prudential Tower

800 Boylston Street

Boston, MA 02199

SHANNON P. MINTER

DAVID C. CODELL

CHRISTOPHER F’. STOLL

AMY WHELAN

ASAF ORR

NATIONAL CENTER FOR LESBIAN

RIGHTS

870 Market Street, Ste. 370

San Francisco, CA 94102

PAUL 8S. KELLOGG

RopEs & GRAY LLP

1211 Avenue of the Americas

New York, New York 10086

SAMIRA A. OMEROVIC*

EMERSON A. SIEGLE

JOHN T. DEY*

Ropes & GRAY LLP

One Metro Center

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

Washington, D.C. 20005

JOSHUA E. GOLDSTEIN

Ropes & GRAY LLP

Prudential Tower

800 Boylston Street

Boston, MA 02199

* Not admitted to practice in the District of Columbia; supervised by Ropes &

Gray LLP partners who are members of the District of Columbia ber

II.

TABLE OF CONTENTS

Page

Neither the Full Faith and Credit Clause nor

choice-of-law principles permit Tennessee to deny

petitioners’ rights under the Fourteenth

ES cicciticinhiinintinirnaieninindeniiniaeaniatsniianmenntemie 3

Tennessee’s Non-Recognition Laws violate the

Pomrteenths AmGiGRRGIAt, .......cccccocoscccscccsscsssssessccesccesese 8

A. Tennessee’s Non-Recognition Laws infringe

upon fundamental rights and liberty

interests in violation of the Due Process

B. The Non-Recognition Laws violate

petitioners’ rights to equal protection of the

1. The Non-Recognition Laws’ sharp

departure from Tennessee’s policies to

recognize out-of-state marriages and

strengthen non-biological parental ties

warrants careful consideration ................ 12

2. Tennessee’s Non-Recognition Laws are

subject to heightened scrutiny under

the Equal Protection Clause because

they discriminate on the basis of sex ...... 16

3. Tennessee’s Non-Recognition Laws are

subject to heightened scrutiny under

the Equal Protection Clause because

they discriminate on the basis of sexual

ee aceeterrensniiscninsicniticiiapninnsiniininninciintaliniadatin 17

(1)

II

Table of Contents—Continued Page

C. Tennessee may not, consistent with the

Fourteenth Amendment right to travel,

require same-sex spouses to abandon their

marital status to enter the State..................... 19

D. The Non-Recognition Laws fail any standard

of review because there is no legitimate,

much less important or compelling, basis for

denying legal protection to petitioners’

existing marriages and families........................ 20

IIIT icindeeseiehaatipeettinehnetininlengeepiideceaietabibiabananmipioaiaai 25

III

TABLE OF AUTHORITIES

Page(s)

Cases:

Boddie v. Connecticut, 401 U.S. 371 (197) ................. 5

Dunn v. Blumstein, 405 U.S. 330 (1972).................... 19

Edwards v. California, 314 U.S. 160 (1941).............. 23

Farnham v. Farnham, 323 S.W.3d 129 (Tenn.

OR. Ra, Ge piccnnccansscsnnsssnsnssnnienintitiiacamenns 12, 13

Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) .................... 4

Griswold v. Connecticut, 381 U.S. 479 (1965)............ 10

Heller v. Doe, 509 U.S. 312 (19938) ...........ccccccceesseseeeees 18

J.E.B.v. Alabama ez rel. T.B.,511 U.S. 127

CED acceccsssessesvennscnsesemnseccsimiiiaieiiaiiaiaaaiemaainai 16, 18

Lawrence v. Texas, 539 U.S. 558 (20038) ............... 11, 14

Loving v. Virginia, 388 U.S. 1 (1967).................. 4,9, 16

Lucas v. Forty-Fourth Gen. Assembly of

Colorado, 377 U.S. 713 (1964) ......cccccccccssscrsesscccccees 23

McLaughlin v. Florida, 379 U.S. 184 (1964) ............. 16

Meyer v. Nebraska, 262 U.S. 390 (1923)..............---+. 5,9

Milwaukee Cnty. v. M.E. White Co., 296 U.S.

SP CHD cncecenscesasseresemscemmanmnnintiibiinesibialainibiiimges 4

Mississippi Univ. for Women v. Hogan, 458

CEE, Filed Citi cnccasecemsesentoncennunininiiiniiinabiiiaeaalinee 18

Pennegar v. State, 10 S.W. 305 (Tenn. 1889)............. 13

Planned Parenthood of Southeastern Pa. v.

Casey, 506 U.S. SBS (19B2)...............cccccccccccsssseeeee 8,9

Plyler v. Doe, 457 U.S. 202 (1982) .........2...........ceeeeeeeee 17

Rhodes v. McAfee, 457 S.W.2d 522 (Tenn. 1970)....... 13

Saenz v. Roe, 526 U.S. 489 (1999)............cceccccescceeesseees 14

IV

Cases—Continued: Page(s)

Shapiro v. Thompson, 394 U.S. 618 (1969) ................ 20

State v. Bell, 66 Tenn. 9 (1872)................ceeccseeeeneenseeees 14

Tennessee Mun. League v. Thompson, 958

Ne, ee 13

The Passenger Cases, 48 U.S. 283 (1849) .................. 19

Turner v. Safley, 482 U.S. 78 (1987) .............-ccccsseeeeeee 10

United States v. Windsor, 133 S. Ct. 2675

Ee passim

Williams v. North Carolina,

ea 5

Ee 5

Zablocki v. Redhail, 434 U.S. 374 (1978) ............00--+ 20

Constitution and Statutes:

U.S. Const.:

ne 4

Eee passim

1996 Tenn. Pub. Acts 10381...................0-ccccccececscssseseseses 13

Tenn. Code. Ann.:

eT 15

A ee 15

Miscellaneous: Page

1 Joel Prentiss Bishop, Commentaries on the

Law of Marriage and Divorce (5th ed.

IID cnssesssasnsesssssecnnsnennensenseesnsnmmmmnmmesnenmmecnemesenannnees 6

William M. Richman et al., Uaiwstending

Conflict of Laws (4th ed. PE conensctennctnencensesseemens 6

In the Supreme Court of the United States

No. 14-562

VALERIA TANCO, ET AL., PETITIONERS

vz.

WILLIAM EDWARD “BILL” HASLAM, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

REPLY BRIEF FOR PETITIONERS

The Fourteenth Amendment prohibits Tennessee

from treating petitioners’ existing marriages as nulli-

ties under state law. Tennessee’s Non-Recognition

Laws strip petitioners of both the status and the pro-

tections of marriage, stigmatize their families, deprive

them of critical legal protections, and leave them vul-

nerable to harm in virtually every aspect of their lives.

None of the interests that respondents have asserted

can justify the intentional imposition of such profoundly

unequal treatment.

Rather than focus on the Fourteenth Amendment

question on which the Court granted certiorari, re-

spondents change the topic, arguing that the Full Faith

and Credit Clause permits the State to disregard peti-

tioners’ marriages. That Clause, however, imposes ob-

ligations on Tennessee; it does not shield the State

from the independent requirements of due process and

equal protection. Contrary to respondents’ argument,

marriage is not a transient status, the validity of which

is in constant flux as a family traverses the country. As

(1)

2

a fundamental familial relationship underpinning our

society, marriage is a status that carries substantial

constitutional protection and cannot be invalidated or

disregarded by any state without compelling justifica-

tion. By stripping petitioners of that status as a condi-

tion of entering the State, Tennessee deprives them of

a fundamental aspect of personal liberty in violation of

the Due Process Clause.

Tennessee’s Non-Recognition Laws also deny

equal protection to petitioners and other married same-

sex couples and their children. Those laws are a highly

unusual departure from Tennessee’s longstanding prac-

tice of recognizing marriages that are valid where cele-

brated and create for the first time, apart from the

State’s prior refusal to recognize interracial marriages,

a categorical rule of non-recognition based on disap-

proval of a particular group. Despite respondents’ as-

sertion that the State simply seeks to promote mar-

riage between couples capable of unassisted procrea-

tion, Tennessee has never denied recognition to the

marriages of opposite-sex couples who cannot, or

choose not to, engage in unassisted procreation, and

Tennessee’s family law strongly protects the bonds be-

tween parents and their non-biological children. Mar-

ried same-sex couples bring children into their families

in the same ways that many opposite-sex couples do.

The Non-Recognition Laws undermine, rather than

promote, the asserted policies of “family stability” and

“increasing the likelihood that when children are born,

they will be born into stable family units.” Resp. Br.

39. Tennessee’s policies favoring the recognition of vir-

tually all other marriages and protecting non-biological

parent-child bonds demonstrate that the Non-

Recognition Laws have both the purpose and the effect

3

of imposing inequality on same-sex couples and their

children. In addition to violating equal protection in

that most basic way, the Non-Recognition Laws also

discriminate on the bases of sex and sexual orientation

and cannot survive the heightened scrutiny required

for such laws.

Finally, accepting respondents’ invocation of state

sovereignty would undermine the national unity that

our federal system forges from separate sovereigns. It

is the fundamental right of citizens to be free to travel

and relocate from one state to another, without undue

burdens on their migration. Respondents offer no state

interest that could justify subjecting petitioners’ mar-

riages to legal nullification in their new home state.

I. NEITHER THE FULL FAITH AND CREDIT CLAUSE

NOR CHOICE-OF-LAW PRINCIPLES PERMIT TEN-

NESSEE TO DENY PETITIONERS’ RIGHTS UNDER

THE FOURTEENTH AMENDMENT

Respondents’ brief attempts to evade the question

presented by arguing that Tennessee may disregard

petitioners’ marriages because the Full Faith and Cred-

it Clause and choice-of-law rules do not, in the State’s

view, require Tennessee to recognize petitioners’ mar-

riages. Wholly apart from any question regarding the

Full Faith and Credit Clause or choice-of-law rules,

however, petitioners’ claims are that the Fourteenth

Amendment prevents Tennessee from disregarding

their marital status because that amendment protects

petitioners’ due process interests in their existing mar-

riages, their right to equal protection of the laws, and

their right to travel between the states without undue

burden. Regardless of what obligations the Full Faith

and Credit Clause independently imposes on Tennessee

4

to recognize the official acts and records of another

state, that clause does not affirmatively empower Ten-

nessee to do something that another, later-enacted

provision of the Constitution forbids. Cf. Fitzpatrick v.

Bitzer, 427 U.S. 445, 456 (1976) (“[TJhe Eleventh

Amendment, and the principle of state sovereignty

which it embodies * * * are necessarily limited by * * *

the Fourteenth Amendment.”). Nor does the latitude

that the Constitution affords states in choice of law

leave states’ marital recognition laws free from Four-

teenth Amendment scrutiny. Cf. Loving v. Virginia,

388 U.S. 1, 12 (1967) (holding that the Fourteenth

Amendment barred enforcement of Virginia statute

imposing criminal penalties on interracial couples who

traveled out of state to enter into lawful marriage in

another jurisdiction).

Rather than affirmatively granting states permis-

sion to do anything, the Full Faith and Credit Clause

imposes an obligation on the states: “Full Faith and

Credit shall be given in each State to the public Acts,

Records, and judicial Proceedings of every other

State.” U.S. Const. Art. IV, § 1 (emphasis added).

“The very purpose of the full-faith and credit clause

was to alter the status of the several states as inde-

pendent foreign sovereignties, each free to ignore obli-

gations created under the laws or by the judicial pro-

ceedings of the others, and to make them integral parts

of a single nation.” Milwaukee Cnty. v. M.E. White Co.,

296 U.S. 268, 276-277 (1935). By depriving married

same-sex couples who move to Tennessee of something

so fundamental as their marital status, the Non-

Recognition Laws frustrate the goal of forming a “sin-

gle nation.” None of the Full Faith and Credit Clause

cases upon which respondents rely involved fundamen-

5

tal constitutional rights, much less the denial of such

rights on an impermissibly discriminatory basis. Peti-

tioners’ Fourteenth Amendment claims, in contrast, are

grounded in the rights of persons to respect for their

fundamental liberty interests, equal protection of the

laws, and rights to interstate travel.

Further, respondents’ attempt to reframe the issue

fails on its own terms. Although marriages are not

judgments, they occupy a unique legal status in our

tradition. As this Court has recognized, the rights “to

marry, establish a home and bring up children” are “es-

sential to the orderly pursuit of happiness by free” per-

sons. Meyer v. Nebraska, 262 U.S. 390, 399 (1923). In-

deed, in the divorce context, this Court has emphasized

the “intensely practical considerations,” including the

need to avoid “considerable disaster to innocent per-

sons,” that underlie the “command” of the Full Faith

and Credit Clause that “decrees of a state altering the

marital status of its domiciliaries [must be] valid

throughout the Union.” Williams v. North Carolina,

317 U.S. 287, 301 (1942). The same considerations apply

to recognition of marriages. “Since divorce, like mar-

riage, creates a new status, every consideration of poli-

cy makes it desirable that the effect should be the same

wherever the question arises.” Williams v. North Car-

olina, 325 U.S. 226, 230 (1945). Although this Court has

never addressed the issue directly, no state should be

permitted categorically to deny full faith and credit to

an entire class of persons’ valid marriages entered into

out of state in the absence of a weighty justification,

given “the basic position of the marriage relationship in

this society’s hierarchy of values.” Boddie v. Connecti-

cut, 401 U.S. 371, 374 (1971).

6

Nor does a state’s broad constitutional leeway in

applying choice-of-law rules support categorically deny-

ing recognition of same-sex couples’ marriages. Inter-

state recognition of marriages is not merely a matter of

choice of law, but also involves the question whether a

state should or must recognize a legal status validly ob-

tained in another state. Accordingly, states have not

treated marriages as governed only by ordinary choice-

of-law rules, but rather have afforded the strongest

possible presumption of validity and respect to mar-

riages. Because of the need to avoid “the unseemly

spectacle of the same persons being held to be differ-

ently mated in marriage in different countries,” states

have long recognized the rule that “every government

ought to accept of all marriages celebrated within the

territorial limits of other governments, whether they

are such marriages as itself approves or not.” 1 Joel

Prentiss Bishop, Commentaries on the Law of Mar-

riage and Divorce § 360 (5th ed. 1873). Indeed, the

place-of-celebration rule “is widely recognized as a cen-

tral element of American Family Law.” See Conflict of

Laws and Family Law Professors Amicus Br. 5.

States’ longstanding adherence to the place-of-

celebration rule “avoids the potentially hideous prob-

lems that would arise if the legality of a marriage var-

ied from state to state.” William M. Richman et al.,

Understanding Conflict of Laws § 119, at 415 (4th ed.

2013) (describing the “overwhelming tendency” of

states to recognize valid marriages from other states).

Although some states have reserved the right to deny

recognition to an out-of-state marriage when it violated

a strong public policy, actual denials of recognition have

been extremely rare. See Conflict of Laws and Family

Law Professors Amicus Br. 6. Indeed, before the cur-

7

rent wave of state laws targeting married same-sex

couples, “the public policy exception was on the verge

of becoming obsolete.” See id. at 8 (internal citations

and quotation marks omitted). In practice, apart from

laws barring interracial marriages, states, including

Tennessee, have departed from the place-of-celebration

rule only rarely, based on an individualized analysis of

the facts presented by a particular case, and only when

recognition would be deeply offensive to an important

state policy, such as by condoning violation of a criminal

law. See zd. at 5-6.

Tennessee cannot plausibly claim that recognizing

the marriages of same-sex couples would be deeply of-

fensive to any strong, constitutionally permissible state

policy or even harm the state’s interests in any way.

That is all the more so because respondents deny any

intent to “exclude” or otherwise “denigrat[e}”’ same-sex

couples. Resp. Br. 45. Respondents’ representations

confirm that there is no important substantive policy

interest that would be harmed by recognizing petition-

ers’ marriages. The assertion of such an interest in the

Non-Recognition Laws is merely ipse dizit that does

not justify legal disregard of petitioners’ marital status.

In reality, the Non-Recognition Laws, of course, do ex-

clude same-sex couples and denigrate them and their

children in many of the same ways that this Court in

United States v. Windsor, 133 S. Ct. 2675 (2013),

acknowledged that the federal Defense of Marriage Act

(DOMA) denigrated and humiliated married same-sex

couples and their children. As more fully explained be-

low, see pp. 20-23, infra, under the Fourteenth

Amendment, any purported public policy supposedly

served by the State’s denial of recognition of petition-

ers’ marriages is constitutionally insufficient to justify

8

depriving petitioners’ existing marriages of legal

recognition.

In sum, the State’s attempt to reframe the question

before the Court fails to account for the nature of peti-

tioners’ Fourteenth Amendment claims, misapplies the

Full Faith and Credit Clause, ignores the longstanding

adherence of states to the place-of-celebration rule,

and, on all these counts, misunderstands the very insti-

tution of marriage.

II. TENNESSEE’S NON-RECOGNITION LAWS VIO-

LATE THE FOURTEENTH AMENDMENT

A. Tennessee’s Non-Recognition Laws Infringe

Upon Fundamental Rights And Liberty In-

terests In Violation Of The Due Process

Clause

As petitioners’ opening brief explained (Br. 21-22),

because the fundamental right to marry protected by

the Fourteenth Amendment’s Due Process Clause in-

cludes the right to remain married, a state’s wholesale

disregard of a couple’s marital status warrants strict

scrutiny. Contrary to respondents’ argument (Br. 24),

this Court’s precedent provides no basis for limiting the

scope of that heightened protection to marriages of op-

posite-sex spouses. As an initial matter, it is no answer

to argue, as do respondents (Br. 17-24), that the scope

of the Constitution’s protection of existing marriages

must be assessed at the narrowest possible historical

level and that, because prior cases have involved oppo-

site-sex spouses, the right to remain married must be

so limited. This Court has rejected that method of con-

stitutional analysis, observing that it would leave those

once excluded from a fundamental right always so. See

Planned Parenthood of Southeastern Pa. v. Casey, 505

9

U.S. 833, 847-848 (1992) (observing that “the Court was

no doubt correct” to uphold in Loving the substantive

due process right of interracial couples to marry, alt-

hough “interracial marriage was illegal in most States”

at the time of the Fourteenth Amendment’s adoption).

Moreover, there is no merit to respondents’ argu-

ment that the fundamental right to be and remain mar-

ried is limited to opposite-sex couples because of “the

procreative capacity of [the] man-woman relationship.”

Resp. Br. 18. Same-sex couples have the same inter-

ests in, and the same need for, the constitutional pro-

tections afforded to existing marriages as opposite-sex

couples, including interests relating to children. Peti-

tioners agree that one of the reasons this Court has af-

forded significant constitutional protection to an exist-

ing marital relationship is that, once married, spouses

often share responsibility for raising children. See, e.g.,

Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (recogniz-

ing that the rights “to marry, establish a home and

bring up children” are “essential to the orderly pursuit

of happiness by free” persons). But as this Court rec-

ognized in United States v. Windsor, and as the families

of the petitioners in this case illustrate, same-sex

spouses can and do have children. 133 S. Ct. 2675, 2694

(2013). The stability provided by marriage is no less

important for their children than it is for others’.

Nowhere in their brief do _ respondents

acknowledge that married same-sex couples have and

raise children together. The State’s disregard of these

families undermines the State’s avowed policy of “pro-

motion of family stability” and “increasing the likeli-

hood that when children are born, they will be born into

stable family units.” Resp. Br. 39. Rather than pro-

moting that goal, Tennessee’s Non-Recognition Laws

10

“diminish{] the stability and predictability” that mar-

riage provides, “humiliate{] ** * children now being

raised by [married] same-sex couples” in Tennessee by

communicating to them that their parents’ “marriage is

less worthy than the marriages of others,” and “bring[]

financial harm” to these children and their parents.

Windsor, 133 S. Ct. at 2694-2696.

Further, this Court’s precedent establishes that

the constitutionally protected aspects of marriage are

not limited to procreation-related interests. Rather,

the Due Process Clause protects bilateral relationships

of mutual obligation and support, including between

married couples for whom sexual intimacy for the pur-

pose of procreation is either not feasible or not de-

sired. In Turner v. Safley, the Court noted that mar-

riages “are expressions of emotional support and public

commitment,” that “[t]hese elements are an important

and significant aspect of the marital relationship,” and

that, despite prisoners’ inability to engage in sexual in-

timacy, “these remaining elements are sufficient to

form a constitutionally protected marital relation-

ship.” 482 U.S. 78, 95-96 (1987) (emphasis added); see

Griswold v. Connecticut, 381 U.S. 479, 485-486 (1965)

(married couples have a constitutionally protected right

to use contraception so as not to procreate).

Respondents do not suggest that the State could

withhold recognition from married opposite-sex couples

who are unable to procreate. Respondents’ amici make

this concession explicitly, admitting that “[a}nnulment

of childless marriages * * * would surely trench upon

constitutionally protected privacy rights.” Scholars of

History and Related Disciplines Amicus Br. 17. That is

equally true of married same-sex couples, regardless of

whether they can have children through unassisted

11

procreation. Respondents’ fixation on whether couples’

procreation is assisted or unassisted is demeaning not

only to the equal dignity of same-sex couples, many of

whom are raising children, but also to the dignity of

marriage itself. Cf. Lawrence v. Texas, 539 U.S. 558,

567 (2003) (noting that “it would demean a married

couple were it said that marriage is just about the right

to have sexual intercourse”). The fundamental right to

be and remain married does not turn on procreative

abilities or choices; Tennessee’s non-recognition of

same-sex couples’ marriages infringes upon that right

and is therefore subject to strict scrutiny.

Under the reasoning of Windsor, the marriage of a

same-sex couple, like the marriages of other couples,

gives rise to a “liberty protected by” the Constitution’s

guarantee of due process. Windsor, 133 S. Ct. at

2695. In Windsor, the Court held that Edith Windsor’s

marriage to Thea Spyer “conferred upon them a dignity

and status of immense import,” id. at 2692, and that, by

prohibiting recognition of their marriage, DOMA de-

nied them “{tJhe liberty protected by the Fifth

Amendment’s Due Process Clause,” id. at 2695. That

was so even though the couple had no children. Once a

liberty interest is created through a valid marriage of a

same-sex couple in a state, the Fourteenth Amend-

ment’s Due Process Clause prohibits other states from

denying recognition to that marriage, just as the Fifth

Amendment’s Due Process Clause prohibits the federal

government from denying recognition to that marriage.

12

B. The Non-Recognition Laws Violate Petition-

ers’ Rights To Equal Protection Of The

Laws

1. The Non-Recognition Laws’ sharp de-

parture from Tennessee’s policies to rec-

ognize out-of-state marriages and

strengthen non-biological parental ties

warrants careful consideration

Respondents have not rebutted petitioners’

demonstration that Tennessee’s Non-Recognition Laws

are “‘discriminations of an unusual character’ [that] es-

pecially require careful consideration.” Windsor, 133 S.

Ct. at 2693 (citation omitted). The policies that the

Non-Recognition Laws purportedly advance—to deny

recognition to any marriage inconsistent with the

State’s own marriage policy (Resp. Br. 31) or to pro-

mote only marriages between couples that possess “in-

herent[] procreative capacity” (id. at 39)—depart

sharply from how Tennessee has in practice treated the

marriages of opposite-sex couples. The fact that Ten-

nessee targets only same-sex couples while pursuing

contrary policies for similarly situated opposite-sex

couples is strong evidence that the Non-Recognition

Laws were enacted for the impermissible purpose of

treating married same-sex couples and their children

unequally.

First, the State’s Non-Recognition Laws are a

stark departure from the well-established policy in

Tennessee that, because of the fundamental interest

that spouses have in their existing marriages, and that

society has in the stability of their unions, “a marriage

valid where celebrated is valid everywhere,” Farnham

v. Farnham, 323 S.W.3d 129, 134 (Tenn. Ct. App. 2009)

13

(quoting Pennegar v. State, 10 S.W. 305, 306 (Tenn.

1889)). Tennessee consistently applies the place-of-

celebration rule even if doing so would be contrary to

the State’s own marriage licensing laws. See Pet. Br. 6-

7.'

In modern times, apart from the Non-Recognition

Laws, Tennessee has made only a narrow exception to

the general rule of recognition: when sexual relations

between the spouses would be a crime. E£.g., Rhodes v.

McAfee, 457 S.W.2d 522, 523 (Tenn. 1970) (voiding a

marriage where a participant would be “deemed guilty

of incest” and required to “undergo confinement in the

penitentiary”). In the past, Tennessee also denied

recognition to valid out-of-state marriages for two oth-

er purposes: to express moral condemnation of the rela-

tionship between the spouses, e.g., Pennegar, 10 S.W.

at 305 (denying recognition to marriage of man and

woman who had committed adultery as contrary to

“public morals,” where woman’s former husband was

still living); or to “dissuade [certain types of] couples

‘ Respondents’ assertion that the non-recognition statute

does not single out the marriages of same-sex couples to be disre-

garded (Br. 31-32) has no merit. The title of the statute, which

under Tennessee’s Constitution limits the application of the law,

see Tennessee Mun. League v. Thompson, 9568 S.W.2d 333, 338

(Tenn. 1997), describes it as “AN ACT To amend [the Code] rela-

tive to same sex marriages and the enforceability of such marriage

contracts.” 1996 Tenn. Pub. Acts 1031 (emphasis added). The con-

stitutional arnendment that petitioners challenge is likewise lim-

ited to the marriages of same-sex couples. Pet. App. 132a. Since

these measures were enacted, Tennessee courts have continued to

recognize out-of-state marriages of opposite-sex couples that could

not have been entered into in Tennessee. See, e.g., Farnham v.

Farnham, 323 S.W.3d 129, 140 (Tenn. Ct. App. 2009).

14

from migrating to the state,” Conflict of Law Scholars

Amicus Br. 21; ¢.g., State v. Bell, 66 Tenn. 9 (1872)

(denying recognition to interracial marriage entered

into in Mississippi).

Plainly, the State may not apply any of these ex-

ceptions to deny recognition to marriages of same-sex

couples. See Lawrence, 539 U.S. 558 (holding state may

not criminalize consensual sexual conduct between

adults of the same sex); Windsor, 133 S. Ct. at 2693

(holding that expressing moral disapproval of same-sex

relationships is not a valid governmental purpose);

Saenz v. Roe, 526 U.S. 489, 511 (1999) (“The States * * *

do not have any right to select their citizens.”). Even

though the marriages of same-sex couples implicate

none of the public policies that Tennessee has ever re-

garded—or constitutionally may regard—as sufficient

to warrant invalidation of a marriage, the State never-

theless categorically denies legal recognition to this en-

tire class of married couples. The “unusual character”

of this discrimination, Windsor, 133 S. Ct. at 2693 (cita-

tion omitted), is evidence that it is not supported by

any legitimate state policy, but instead is aimed at “im-

pos[ing] a disadvantage, a separate status, and so a

stigma” on married same-sex couples and their families.

Ibid.

Second, while respondents assert a purported in-

terest in promoting families in which the spouses can

“procreate naturally” (Br. 39), Tennessee’s marriage

and parentage laws include numerous policies support-

ive of opposite-sex couples without regard to whether

they can “procreate naturally.” Not only does Tennes-

see permit opposite-sex couples who are unable to

“procreate naturally” to marry and to have their out-of-

state marriages recognized, it also strongly protects

15

parental ties between parents and their non-biological

children. For example, Tennessee allows a married

person to adopt the biological child of her spouse.

Tenn. Code. Ann. § 36-1-115(c). An adoptive parent is

legally equivalent to a biological parent. See id. § 36-1-

121(a). Similarly, Tennessee provides that “[a] child

born to a married woman as a result of artificial insem-

ination, with consent of the married woman’s husband,

is deemed to be the legitimate child of the husband and

wife,” though the husband has no biological connection

to the child. Jd. § 68-3-306; see Family Law Scholars

Amicus Br. 11-18 (“State laws permit and protect non-

biological parent-child’ relationships established

through adoption, assisted reproduction, and other

ties.”).

The State’s selective application of its avowed

preference for “natural procreation” only to same-sex

couples demonstrates that the stated purpose cannot

explain Tennessee’s non-recognition of the marriages of

same-sex couples. Destabilizing existing marriages and

families simply because the couple are of the same sex

does not promote family stability for married opposite-

sex couples raising their biological children, but serves

only to mark married same-sex couples “as living in

marriages less respected than others.” Windsor, 133 S.

Ct. at 2696. In light of the State’s strong policies pro-

tecting the bonds between parents and their non-

biological children, the State’s purported justification

for the Non-Recognition Laws can only be regarded as

pretext for an improper purpose to “impose inequality,”

id. at 2694, on married same-sex couples and their chil-

dren. For these reasons, this Court should subject the

Non-Recognition Laws at least to the “careful consid-

eration” that this Court applied in Windsor.

16

2. Tennessee’s Non-Recognition Laws are

subject to heightened scrutiny under the

Equal Protection Clause because they

discriminate on the basis of sex

Respondents do not dispute that Tennessee law on

its face limits recognition of marital relationships based

on the sex of the participants by expressly limiting a

man’s chosen spouse to a woman and a woman’s chosen

spouse to a man. See Pet. Br. 34-39. Respondents’ ar-

gument that Tennessee’s Non-Recognition Laws nev-

ertheless do not discriminate on the basis of sex be-

cause they do not “give advantage, disadvantage, or

preference” to men over women or women over men

(Br. 42) ignores this Court’s admonition in McLaughlin

v. Florida, 379 U.S. 184 (1964), that heightened scruti-

ny is appropriate “under the Equal Protection Clause”

even where there is “a showing of equal application

among the members of the class defined by the legisla-

tion,” id. at 191.

For similar reasons, respondents fail in their at-

tempt (Br. 42) to distinguish Loving by pointing out

that the restriction invalidated in that case was adopt-

ed for the purpose of promoting racial disparity. With

respect to both race and sex, this Court has held that

the Equal Protection Clause prohibits not only classifi-

cations that impose inequality on racial minorities and

women as groups, but also classifications that “serve[]

to ratify and perpetuate invidious, archaic, and over-

broad stereotypes,” such as those “about the relative

abilities of men and women.” J.E.B. v. Alabama ez rel.

T.B., 511 U.S. 127, 131 (1994). Tennessee’s Non-

Recognition Laws perpetuate gender-based stereo-

types or expectations such as the view that a woman

should form a family and raise children only with a man,

17

and vice versa. See Pet. Br. 36-39. “The government

has no authority to restrict these choices based on gen-

der-based stereotypes or expectations, just as it has no

authority to dictate the roles that men and women fill

within marriage on such bases.” National Women’s

Law Center Amicus Br. 4.

8. Tennessee’s Non-Recognition Laws are

subject to heightened scrutiny under the

Equal Protection Clause because they

discriminate on the basis of sexual ori-

entation

Respondents do not deny that Tennessee’s Non-

Recognition Laws treat married gay and lesbian cou-

ples unequally compared to other married couples.

Notwithstanding this facial discrimination, respondents

argue that the Court need not determine the level of

scrutiny applicable to state laws that discriminate on

the basis of sexual orientation and should apply only

rational-basis scrutiny under the Equal Protection

Clause because Tennessee’s marriage laws have “al-

ways defined marriage in the traditional way” and are

not the result of discrimination. Resp. Br. 43.

Respondents’ argument misapprehends the nature

of the heightened-scrutiny inquiry. Application of a

heightened level of scrutiny turns on whether the clas-

sification employed is one that is constitutionally suspi-

cious. This Court has recognized that when a law clas-

sifies persons on certain “suspect” bases, such as race,

sex, and national origin, such classifications warrant

close consideration because they “tend to be irrelevant

to any proper legislative goal.” Plyler v. Doe, 457 U.S.

202, 216 n.14 (1982).

18

Contrary to respondents’ argument, Tennessee’s

Non-Recognition Laws are not immune from height-

ened scrutiny simply because they codify a longstand-

ing “tradition.” “Ancient lineage of a legal concept does

not give it immunity from attack” under the Equal Pro-

tection Clause. Heller v. Doe, 509 U.S. 312, 326 (1993).

Rather, as this Court has repeatedly noted, equal pro-

tection principles prevent states from relying on gener-

alizations that perpetuate “historical patterns of dis-

crimination,” J.E.B., 511 U.S. at 139 n.11, even when

the State’s asserted purpose for the classification is

“benign,” Mississippi Univ. for Women v. Hogan, 458

U.S. 718, 728 (1982). The long history of gay and lesbi-

an persons’ exclusion from full participation in society,

including from marriage, began as a history of gay and

lesbian people essentially being unseen or treated as

nonexistent by the law, and was followed by a history

of gay and lesbian people being specifically targeted for

unequal treatment by the law. See Pet. Br. 39-45. Both

parts of that history support petitioners’ arguments as

to why heightened scrutiny, not a presumption of valid-

ity, is appropriate for laws that discriminate based on

sexual orientation.

Tennessee’s Non-Recognition Laws perpetuate and

intentionally codify the exclusion of gay and lesbian

persons from marriage. As such, they should be re-

garded with the same close scrutiny applied to laws

that discriminate on other suspect bases.

19

C. Tennessee May Not, Consistent With The

Fourteenth Amendment Right To Travel,

Require Same-Sex Spouses To Abandon

Their Marital Status To Enter The State

Respondents’ assertion that “it was petitioners

who moved into Tennessee” (Br. 26) and did so knowing

“that their marriages would not be recognized” (id. at

14) presents no defense at all to petitioners’ right to

travel argument. Tennessee’s cramped view of the

right to travel is incompatible with our nation’s consti-

tutional framework and with the modern realities of

national life and commerce. Petitioners came to Ten-

nessee for many reasons—including to pursue their ca-

reers, earn a livelihood, or serve their country. In some

instances, they had little practical choice in the matter,

whether due to orders from the U.S. Army or the deci-

sions of an employer. Before moving, they had married

and begun their lives as a family, including with the ad-

dition of children. That is a reality of our socially and

economically unified nation. Americans, “as members

of the same community, must have the right to pass and

repass through every part of it without interruption, as

freely as in our own States.” The Passenger Cases, 48

U.S. 283, 492 (1849).

Tennessee cannot cure its infringement of the right

to travel by placing travelers on notice of the burdens

the State will inflict upon them. Nor can it condition

travel to or through the State on relinquishment of pe-

titioners’ constitutionally protected liberty interest in

their marriages. Cf. Dunn v. Blumstein, 405 U.S. 330,

342 (1972) (Tennessee may not deprive citizens of the

right to vote as a condition of entry).

20

By minimizing the harms the Non-Recognition

Laws cause to petitioners, respondents ignore the as-

pect of the right to travel that prohibits a state from

“unreasonably burdenfing!]” travel to the State.

Shapiro v. Thompson, 394 U.S. 618, 629 (1969). Re-

spondents rightly acknowledge that the status, dignity,

and other benefits of marriage are critical to opposite-

sex couples and the welfare of their children; however,

when petitioners note the profound injury inflicted up-

on their families by being stripped of those same pro-

tections, respondents dismiss them as a mere “laundry

list” or “litany” of “‘harms.’” Resp. Br. 26 (quotes in

original). For the same reasons that respondents rec-

ognize the importance of marriage to opposite-sex cou-

ples, stripping married same-sex couples of their mari-

tal status under state law—a status that is for many

the “most important relation in life,” Zablocki v.

Redhail, 434 U.S. 374, 384 (1978) (internal quotation

marks omitted)—is precisely the kind of injury that

“unreasonably burdens” their migration into the State.

D. The Non-Recognition Laws Fail Any Stand-

ard Of Review Because There Is No Legiti-

mate, Much Less Important Or Compelling,

Basis For Denying Legal Protection To Peti-

tioners’ Existing Marriages And Families

Respondents contend that the Non-Recognition

Laws are justified by the State’s interest in encourag-

ing couples who can “procreate naturally” to marry so

as to regulate “‘the intended and unintended effects of

male-female intercourse’” and thereby “increas[e] the

likelihood that when children are born, they will be

born into stable family units.” Resp. Br. 39 (quoting

Pet. App. 31a). But the State’s interest in providing a

stable setting for raising children is the same regard-

21

less of how those children come into the world. Re-

spondents offer no plausible explanation why the stabil-

ity of petitioners’ families is less deserving of protec-

tion than others’.

The State’s proffered rationale is particularly un-

persuasive when offered as a reason to disregard the

existing marriages of couples who are already raising

children. Mr. Mansell and Mr. Espejo, who were mar-

ried in California in 2008, had children there before

they moved to Tennessee in 2012. And Dr. Tanco and

Dr. Jesty, who were married in New York before mov-

ing to Tennessee, were expecting a (since-born) child at

the time of the district court complaint. As demon-

strated above, the State’s claim that its interest is to

encourage “naturally procreative” couples to marry is

belied by its recognition of all other marriages for op-

posite-sex couples, and its promotion of the ties within

those marriages between non-biological parents and

children. See pp. 14-15, supra.

Even apart from that telling inconsistency, there is

no rational connection between the State’s asserted in-

terest and nullifying, for all state-law purposes, the le-

gal status of existing families already headed by same-

sex couples. To the contrary, depriving petitioners of

that protected status demonstrably undermines the

State’s interest in “promotl[ing] family stability” and

“increasing the likelihood that when children are born,

they will be born into stable family units.” Resp. Br.

39.

Finally, respondents’ reliance on principles of fed-

eralism and democratic government (Br. 46-49) is mis-

placed. Such principles support rather than undermine

the strength of petitioners’ Fourteenth Amendment

22

claims and their right to invoke those constitutional

protections.

Respondents seek to cabin this Court’s analysis in

Windsor by noting the Cv urt’s discussion of the histori-

cal role of states in regulating marriage. But Windsor

focused on that division of authority between state and

federal governments to highlight the unusual nature of

DOMA. See 133 S. Ct. at 2693. The Non-Recognition

Laws are similarly unusual as relates to the exercise of

authority by the several states, given the nearly uni-

versal comity that the states traditionally have extend-

ed to one another in marriage recognition.

When states license a marriage, they create a new

family unit that is designed to be enduring. States en-

courage, and spouses rely on, an expectation that mar-

riage creates stability and permanence, precisely in or-

der to achieve the other important goals of marriage,

including the care and nurture of children. Especially

in our mobile society, that stability would be impossible

if the married couple believed that the continued

recognition of their marriage might change upon cross-

ing a state border. Thus, in comity to each other, states

have always, with narrow exceptions not applicable

here, given recognition to marriages celebrated in their

sister states. The Non-Recognition Laws “depart[]

from this history and tradition of reliance” on the place

of celebration. 133 S. Ct. at 2692.

Nor can deference to the democratic process shield

the Non-Recognition Laws from judicial review. A

state policy’s adoption by popular vote or relation to a

subject historically regulated by the states does not

immunize the policy from Fourteenth Amendment re-

view. “A citizen’s constitutional rights can hardly be

23

infringed simply because a majority of the people

choose that it be.” Lucas v. Forty-Fourth Gen. Assem-

bly of Colorado, 377 U.S. 713, 736-737 (1964).

Moreover, even if the democratic process in Ten-

nessee might someday lead to recognition of petition-

ers’ marriages, the harms petitioners face are concrete

and ongoing and warrant a remedy now. Although our

states are laboratories of democracy, our constitutional

system would lose much of its meaning if the ambit of

their experimentacion could include the denial of fun-

damental liberties or equal protection under the law. It

is impossible, in retrospect, to look back on the land-

mark civil rights decisions of this Court in other areas

and believe that our country would now be a more per-

fect union if only the freedoms and rights recognized in

those cases had been withheld longer. While “{i]t is

frequently the case that a State might gain a momen-

tary respite from the pressure of events by the simple

expedient of shutting its gates to the outside world,”

Edwards v. California, 314 U.S. 160, 173-174 (1941),

the Constitution “was framed upon the theory that the

peoples of the several states must sink or swim togeth-

er, and that in the long run prosperity and salvation are

in union, and not division,” ibid. (quoting Baldwin v.

Seelig, 294 U.S. 511, 523 (1935)). Under our Constitu-

tion, Tennessee cannot—even for a short time—shut its

gates to married same-sex couples—as married cou-

ples—without a permissible reason for doing so. No

such justification is present here.

sss * *

Tennessee’s Non-Recognition Laws violate the

Fourteenth Amendment— infringing petitioners’ rights

to remain married, to enjoy equal protection of the

24

laws, and to travel unburdened to the State. The Non-

Recognition Laws subject only one class of legally mar-

ried couples to this treatment, marking a sharp retreat

from the longstanding tradition of recognizing marriag-

es valid in the place of celebration. Respondents offer

neither a plausible interest that supports disregarding

these lawful marriages, nor any rationale that can sur-

vive the judicial consideration required by the Consti-

tution. The State’s only proffered explanation for void-

ing these marriages under state law—promoting the

stability of the family as the fundamental building block

of society—is undermined, not advanced, by laws that

disregard marriages and destabilize families of same-

sex couples.

25

CONCLUSION

For the foregoing reasons, the judgment of the

court of appeals should be reversed.

ABBY R. RUBENFELD

RUBENFELD LAW OFFICE, PC

WILLIAM L. HARBISON

PHILLIP F. CRAMER

J.ScoTtTr HICKMAN

JOHN L. FARRINGER

SHERRARD & ROE, PLC

MAUREEN T. HOLLAND

HOLLAND & ASSOCIATES, PC

REGINA M. LAMBERT

APRIL 2015

Respectfully submitted,

DOUGLAS HALLWARD-DRIEMEIER

CHRISTOPHER THOMAS BROWN

JUSTIN G. FLORENCE

PAUL S. KELLOGG

SAMIRA A. OMEROVIC

JOSHUA E. GOLDSTEIN

EMERSON A. SIEGLE

JOHN T. DEY

RorEs & GRAY LLP

SHANNON P. MINTER

DAVID C. CODELL

CHRISTOPHER F’. STOLL

AMY WHELAN

ASAF ORR

NATIONAL CENTER FOR LESBIAN

RIGHTS

Counsel for Petitioners