# Amicus Curiae Brief — 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%3A028 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2015 ## Text JAMES OBERGEFELL, ET AL., AND BRITTANI HENRY, ET AL, PETITIONERS, Vv. RICHARD HODGES, DIRECTOR, OHIO DEPARTMENT OF HEALTH, ET AL., RESPONDENTS. VALERIA TANCO, ET AL., PETITIONERS, Vv. WILLIAM EDWARD “BILL” HASLAM, GOVERNOR OF TENNESSEE, ET AL., RESPONDENTS. APRIL DEBOER, ET AL., PETITIONERS, Vv. RICK SNYDER, GOVERNOR OF MICHIGAN, ET AL., RESPONDENTS. GREGORY BOURKE, ET AL., AND TIMOTHY LOVE, ET AL., PETITIONERS, Vv. STEVE BESHEAR, GOVERNOR OF KENTUCKY, ET AL., RESPONDENTS. On Writs of Certiorari to the United States Court peals for the Sixth "Sixth Cireut BRIEF OF BAY AREA LAWYERS FOR INDIVIDUAL FREEDOM, ET AL. AS AMICI CURIAE SUPPORTING PETITIONERS JEROME C. ROTH Counsel of Record AMELIA L.B. SARGENT MUNGER, TOLLES & OLSON LLP 560 Mission Street 27th Floor San Francisco, CA 94105 Jerome.Roth@mto.com (415) 512-4000 VALSON-EPES PRINTING CO., INC. — (202) 789-0086 — WASHINGTON, D. C. 20002 TABLE OF CONTENTS PAGE i ccmelarnomincnas l Ieee 2 EE 4 I. It Is The Province And Duty Of This Court To Hold That The Marriage Bans Violate The I a rceessas 4 A. Classifications That Are Intended Only To Disadvantage A Group Of People Fail Even B. It Is Uniquely The Province Of The Courts To Decide The Equal Protection Challenge I iciccecntnsmnansscsisanntcseseenesessess 5 Il. Excluding Same-Sex Couples From The Institution Of Marriage Harms Gay And Lesbian Individuals, Their Families, And Their EEE SE cee 9 A. Marriage Is A Uniquely Revered Institution In American Society .......................... 9 B. Exclusion From Marriage Causes Tar cible EE 14 iy TID cincccccicactectsem eennetasonenss 14 2. Legal And Economic Harm ....... ................ 19 3. Emotional And Physica! Harm. .................... 22 C. The Marriage Bans Communicate Governmental Animus Toward Same-Sex Ee 23 1. The Marriage Bans Stigmatize Same- ETT ee a 24 (1) Ul 2. The Marriage Bans’ Stigma Perpetuates Societal Discrimination Against Gay I SII nnccncenerenntmnenineniennnmeaseses 27 aidan atleast teintataaineiiaeal 30 Appendix — List of Amici Curiae ..........................00.00000 la TABLE OF AUTHORITIES FEDERAL CASES PAGE(S) Baskin v. Bogan, 766 F.3d 648 (7th Cir. 2014)..................... passim Bostic v. Schaefer, 760 F.3d 362 (4th Cir. 2014)............................... 3 Brown v. Board of Education, ee 2 City of Cleburne v. Cleburne Living Center, ae ee Se rrentensetscsssessentonnts 4, 5, 17, 26 Eisenstadt v. Baird, eee ree 5 Griswold v. Connecticut, Eve neee 10 Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014)........................... 2 Latta v. Otter, 771 F.3d 456 (9th Cir. 2014)...............0..000... 3,17 Lawrence v. Texas, | ESSERE pene 22, 28 Loving v. Virginia, oS Eee 4, 8,9, 10 Il Marbury v. Madison, § U.S. (1 Cranch) 137 (1803) ....................sscccsseee 6 Mayers v. Ridley, 465 F.2d 630 (D.C. Cir. 1972) ..................cccccce eens 8 Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010)............... 27 Plessy v. Ferguson, nrc ccrinsiniecetcnmeniittiniiadiie 2 Reynolds v. Sims, EERE ae 7,8 Romer v. Evans, gg ee passim SmithKline Beecham Corp. v. Abbott Laboratories, oe | tf 1. | | 4 Strauder v. West Virginia, TTT itso netrncnanniieienpamaneiiuaninn 23, 28 Taylor v. Louisiana, eee 24 Turner v. Safley, REPENS nee 10 United States v. Virginia, i nese enleninicianneentintenes 30 United States v. Windsor, A ee passim United States Department of Agriculture v. Moreno, er 5, 27 West Virginia State Board of Education v. Barnette, I a 7 IV Williams v. North Carolina, Ea eR en ae ee 10 STATE CASES Garden State Equality v. Dow, ee es Bi cerrenncctcnsereccsncsnvesesnesees 21 Goodridge v. Department of Public Health, 798 N.E.2d 941 (Mass. 2003).......... 10, 11, 15, 25 In re Marriage Cases, 183 P.3d 384 (Cal. 2008)....................... 24, 25, 28 Kerrigan v. Commissioner of Public Health, 957 A.2d 407 (Conn. 2008)................ 9, 14, 15, 25 Perez v. Lippold, EE er SERIES ETD ccrnicnesinccccemeunnnvencesonenennen 10 Varnum v. Brien, 763 N.W.2d 862 (lowa 2009)....................... 11, 12 CONSTITUTIONAL PROVISIONS SII, Ti I in rrnen sceunncernnnemnseuennenmeenemmmnnaneti 26 I nena 26 ener 26 pS Crome psomen 26 fo eS oe 4 STATE STATUTES Haw. Rev. Stat. § 572B (2014)................cccscccsscceees 12 Haw. Rev. Stat. § 572C-2 (2014)....................0...008. 12 Tenn. Code Ann. § 36-3-113 (2014)................0.00.... 26 V ADMINISTRATIVE REGULATIONS Rev. Rul. 2013-17, 2013-38 I.R.B. 201................... 20 OTHER AUTHORITIES Jeffrey M. Adams & Warren H. Jones, The Conceptualization of Marital Commitment: An Integrative Analysis, 72 J. Personality es Ey Ce Ce icceretenncidesnctecsscnscccssccss 11 M.V. Lee Badgett, The Economic Value of Marriage for Same-Sex Couples, 58 Drake Bes es EE OT cinsiencnccpenesnsnnnsennaimescess 19, 21 Robert A. Burt, Belonging in America: How to Understand Same-Sex Marriage, 25 BYU J. EN) een 10, 11 Kim Chandler, Alabama Set to Become 37" State to Allow Gay Marriage, Associated Press, Feb. 7, 2015, available at http://news.yahoo.com/gay-marriage- arrives-alabama-183946121. html. ................... 28 Lisa C. Connolly, Anti-Gay Bullying in Schools—Are Anti-Bullying Statutes the Solution?, 87 N.Y.U. L. Rev. 248 (2012)........... 23 Nancy F. Cott, Public Vows: A History of Marriage and the Nation (2000)................. 29, 30 Ashley Fantz, An Ohio Transgender Teen’s Suicide; A Mother’s Anguish, Jan. 4, 2015, CNN, http://www.cnn.com/2014/12/3 1/us/ohio- transgender-teen-suicide/ .....................cc0eeeeeeees 23 VI Adam W. Fingerhut et al., Identity, Minority Stress and Psychological Well-Being Among Gay Men and Lesbians, 1 Psychol. & gg TI AT 22 Gary J. Gates, Williams Institute, UCLA School of Law, LGBT Parenting in the United States (2013), http://williamsinstitute.law.ucla.edu/wp- content/uploads/lgbt-parenting. pdf. ................. 16 Gilbert Herdt & Robert Kertzner, J Do, But I Can’t: The Impact of Marriage Denial on the Mental Health and Sexual Citizenship of Lesbians and Gay Men in the United States, 3 J. Sexuality Res. Soc. Pol’y 33 Gregory M. Herek et al., Correlates of Internalized Homophobia in a Community Sample of Lesbians and Gay Men, 2 J. Gay & Lesbian Med. Ass’n 17 (1997)................. 22, 23 Robin A. Lenhardt, Understanding the Mark: Race, Stigma, and Equality in Context, 79 8458S S| eee 29 Ilan H. Meyer, Prejudice, Social Stress, and Mental Health in Lesbian, Gay and Bisexual Populations: Conceptual Issues and Research Evidence, 129 Psychol. Bull. ee ieciiaciiieiiintiniinnaisestitintianiditatimisinianiagiuniataiapeisi 22 vil New Jersey Civil Union Review Commission, The Legal, Medical, Economic & Social Consequences of New Jersey’s Civil Union Law (Dec. 10, 2008), http://Awww.nj.gov/lps/dcr/downloads/CURC TT icniicccntinteidnbiniiingniiindenieiis 15, 16 Office of Personnel Management, Coverage of Same—Sex Spouses, No. 13-203 (July 17, 2013), http://www.opm.gov/retirement- services/publications-forms/benefits- administration-letters/2013/13-203.pdf ........... 20 James G. Pawelski et al., The Effects of Marriage, Civil Union, and Domestic Partnership Laws on the Health and Well- being of Children, 118 Pediatrics 349 Marc R. Poirier, Name Calling: Identifying Stigma in the “Civil Union” / “Marriage” Distinction, 41 Conn. L. Rev. 1425 (2009)........ 29 Elizabeth S. Scott, Social Norms and the Legal Regulation of Marriage, 86 Va. L. Rev. PITT ssi cciincictiiatiinuiiidneniaitnchindehdanisesannenaneess 10 Thomas B. Stoddard, Why Gay People Should Seek the Right to Marry, Out/Look: Nat’ Gay & Lesbian Q., Fall 1989 ...............0.0.......... 12 USCIS, Same Sex Marriages, http://www.uscis.gov/family/same-sex- marriages (last updated Apr. 3, 2014)............. 21 Evan Wolfson, Why Marriage Matters: America, Equality, and Gay People’s Right i idininichiensepacinsddeniansngncinestinnsnese 13, 14 INTEREST OF AMICI CURIAE’ Bay Area Lawyers for Individual Freedom (BALIF) is a bar association of more than 600 lesbian, gay, bi- sexual, and transgender (LGBT) members of the San Francisco Bay Area legal community. As the nation’s oldest and largest LGBT bar association, BALIF pro- motes the professional interests of its members and the legal interests of the LGBT community at large. To accomplish this mission, BALIF actively participates in public policy debates concerning the rights of LGBT individuals and families. BALIF frequently appears as amicus curiae in cases, like this one, where it believes it can provide valuable perspective and argument that will inform court decisions on matters of broad public importance. Additional amici include a broad array of organiza- tions, including state, metropolitan, local, and minority bar associations and non-profit organizations. Each organization supporting this amicus brief is dedicated to ensuring that its constituents and all others in this country, including gay men and lesbians, receive equal treatment under the law. See App., infra, la-1l4a. ‘ No counsel for a party authored this brief in whole or in part, and no such counsel or party made a monetary contribution intended to fund the preparation or submission of this brief. All parties have consented to amici’s submission of this brief either in writing or by blanket consent letter. No person other than the amici curiae, or their counsel, made such a monetary con- tribution. A full list of amici curiae appears in the Appendix to this brief. (1) 2 SUMMARY OF ARGUMENT Foundational to the Equal Protection Clause of the Fourteenth Amendment is the principle that “the Con- stitution ‘neither knows nor tolerates classes among citizens.” Romer v. Evans, 517 U.S. 620, 623 (1996) (quoting Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting)). In line with this principle, it has long been bedrock law that “separate but equal” treatment does not satisfy the Federal Constitution. The very notion is a contradiction in terms: as this Court has emphasized since Brown vu. Board of Educa- tion, the Constitution’s promise of true equality is necessarily breached by government-sponsored separa- tion of a disfavored class. The statutory and constitutional bans in Kentucky, Michigan, Ohio, and Tennessee that prohibit same-sex couples from marrying and that prohibit recognition of legally performed marriages in other states (collective- ly, the “Marriage Bans”) betray these longstanding values. They exclude a class of people—gay men and lesbians—from the venerated institution of marriage. They do so for no purpose other than to deny that class of people access to marriage, creating a pernicious distinction that is as obvious and emotion-laden as it is difficult to fully articulate. And this unjustifiable dif- ferentiation of gay and lesbian couples, as amici ex- plain below, inflicts profound injury upon them. Be- cause the Marriage Bans set them apart, gay men, lesbians, and their families are deprived of critical benefits enjoyed by their heterosexual neighbors, are subjected to debilitating stigma, and are exposed to increased discrimination on the basis of their sexual orientation. These effects are repugnant to the Consti- tution’s guarantee of equality and are in no way miti- 3 gated by access—where available—to separate and inherently inferior systems of domestic partnership or civil union. The Marriage Bans cannot survive even rational basis review. Amici agree with Petitioners’ argument that these bans lack any legitimate justification; they have been enacted “for the purpose of disadvantaging the group burdened by the law.” Romer, 517 US. at 633. They “classif[y] homosexuals not to further a proper legislative end but to make them unequal to everyone else.” Id. at 635. There is widespread consensus among the district courts of the Sixth Circuit as well as other Courts of Appeals that laws such as the Marriage Bans unconsti- tutionally disadvantage gays and lesbians without any legitimate justification. Amici respectfully urge this Court to hold likewise. See Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014); Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014); Baskin v. Bogan, 766 F.3d 648 (7th Cir. 2014); Latta v. Otter, 771 F.3d 456 (9th Cir. 2014); Pet. App. 161a-218a?; 14-571 Pet. App. 103a-139a; 14-562 Pet. App. 108a-130a; Pet. App. 124a-157a. As explained below, first, the Court should not abandon its judicial responsibility, as the Sixth Circuit did, by refusing to adjudicate the constitutionality of the Marriage Bans and by leaving the constitutional legitimacy of the Marriage Bans exclusively in the hands of state voters. Doing so would amount to a stunning rejection of the constitutional underpinnings of our judicial system and over two hundred years of jurisprudence by this Court. Second, in deciding the constitutional issue, 2? Unless otherwise noted, citations to “Pet. App.” are to the Appendix in No. 14-556. 4 this Court should recognize that the institution of marriage is special, that nothing short of granting same-sex couples the same marriage rights enjoyed by opposite-sex couples fulfills the Constitution’s mandate of equal protection, and that the Marriage Bans inflict real, tangible, and unjustifiable harm on gay men and lesbians, as well as on their families and children. ARGUMENT L. It Is The Province And Duty Of This Court To Hold That The Marriage Bans Violate The Equal Protection Clause A. Classifications That Are Intended Only To Disadvantage A Group Of People Fail Even Rational Basis Review The Equal Protection Clause of the Fourteenth Amendment is “a commitment to the law’s neutrality where the rights of persons are at stake.” Romer, 517 U.S. at 623. In forbidding any state from “denyling] to any person within its jurisdiction the equal protection of the laws,” U.S. Const. amend. XIV, § 1, the Equal Protection Clause “requires the consideration of whether the classifications drawn by any statute con- stitute an arbitrary and invidious discrimination.” Loving v. Virginia, 388 U.S. 1, 10 (1967). Even under the most deferential review—the rational basis test—a state law must be “rationally related to a legitimate state interest.” City of Cleburne v. Cleburne Living Ctr., 473 US. 432, 440 (1985).° “The State may not rely on a 3 Amici believe that the Marriage Bans should be subject to heightened scrutiny. See, eg., SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471, 480 (9th Cir. 2014) (distinctions based on sexual orientation are subject to heightened scrutiny). However, because the Marriage Bans fail to advance any legit- 3) classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational.” Id. at 446. A “classification of persons undertaken for its own sake” fails even rational basis review, because by defi- nition it serves no legitimate governmental purpose. Romer, 517 U.S. at 635. As this Court repeatedly has explained, “[I]f the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare .. . desire to harm a politi- cally unpopular group cannot constitute a legitimate governmental interest.” Jd. at 634-35 (quoting US. Dep’t of Agric. v. Moreno, 413 U.S. 528, 534 (1973)). Accordingly, in Romer, this Court struck down a Colo- rado constitutional amendment that prohibited gov- ernmental protection of gay and lesbian ind#viduals. Id. at 636. The amendment, the Court held, was a “status-based enactment” that “impose[d] a special disability upon [gays and lesbians] alone.” Jd. at 631, 635. It “inflict[ed] on [gays and lesbians] immediate, continuing, and real injuries that outrun and belie any legitimate justifications that may be claimed for it.” Id. at 635; see also Eisenstadt v. Baird, 405 U.S. 438, 454- 55 (1972) (law prohibiting distribution of contracep- tives to unmarried individuals lacked a rational basis and violated the Equal Protection Clause). B. It Is Uniquely The Province Of The Courts To Decide The Equal Protection Challenge To The Marriage Bans The Sixth Circuit Court of Appeals entirely abdicat- ed its judicial responsibility in holding that, in the face imate governmental purpose, they fail to pass constitutional muster under even the most deferential standard of review. 6 of a federal constitutional challenge to the Marriage Bans under the Equal Protection Clause, state voters should have the last word as to whether the Marriage Bans were constitutional and when, if ever, they shou!d be invalidated. This Court should not repeat that error. It is both disappointing and surprising that such a fundamental precept of our nation’s revered constitu- tional system, dating back to the founding, should have to be pointed out in a brief filed before this Court in the year 2015. Since Marbury v. Madison, 5 US. (1 Cranch) 137 (1803), this Court has been crystal clear on the issue, never flinching from the urgent duty imposed on the judicial branch: It is emphatically the province and duty of the judi- cial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule.... So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or con- formably to the constitution, disregarding the law; the court must determine which of these conflicting rules govern the case. This is of the very essence of judicial duty. Id. at 177-78. And yet, despite these foundational principles, the Sixth Circuit held that it had no duty to “say what the law is” here because, in the face of a constitutional challenge to the Marriage Bans, the “definition of mar- riage” should be left “in the hands of state voters” and legislators. Pet. App. 29a; see also id. at 40a (“Do the benefits of standing by the traditional definition of 7 marriage make up for these costs? The question de- mands an answer—but from elected legislators, not life-tenured judges.”). That destructive tautology, pur- porting to reassign to voters and legislators the inher- ently judicial task of evaluating the constitutionality of state provisions originally decided upon by voters and legislators, flies directly in the face of the rule of law and the principles in which our country rightfully takes such great pride. As this Court held in West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), The very purpose of a Bill of Rights was to with- draw certain subjects from the vicissitudes of politi- cal controversy, to place them beyond the reach of majorities and officials and to establish them as le- gal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections. Id. at 638 (striking down regulation mandating flag- salute as violating First Amendment). When majority-enacted state laws are challenged as contravening the Equal Protection Clause—especially when they are challenged on the ground that they separate, disadvantage, and harm a minority—this Court has been adamant: the federal courts must act. See Reynolds v. Sims, 377 U.S. 533, 566 (1964) (stating in the context of apportioning state legislative repre- sentation: “We are told that the matter .. . is a complex and many-faceted one. We are advised that States can rationally consider [various] factors .... We are ad- monished not to restrict the power of the States to impose differing views as to political philosophy on 8 their citizens. We are cautioned about the dangers of entering into political thickets and [other] quagmires. Our answer is this: a denial of constitutionally protect- ed rights demands judicial protection; our oath and our office require no less of us.” (emphasis added)). And the federal courts have never shied away just because a challenge presented social controversy or touched on fundamental issues; quite the contrary, that is when their responsibility to decide constitutional issues is most critical. See Mayers v. Ridley, 465 F.2d 630, 642 (D.C. Cir. 1972) (“[A]ppellees suggest that appellants should address their complaints of racial discrimina- tion to the political branch of government and that attempting to wrench social reform from the judiciary disregards the principle of separation of powers. But while we must, of course, maintain proper respect for the jurisdiction of coordinate branches of government, under our law the judiciary too has the obligation of enforcing constitutional rights.” (emphasis added)); Baskin, 766 F.3d at 671 (“Minorities trampled on by the democratic process have recourse to the courts; the recourse is called constitutional law.”). Finally, the obligation of the courts to decide consti- tutionality is even more momentous when the subject of the challenged law is so essential an institution as marriage. “State laws defining and regulating mar- riage, of course, must respect the constitutional rights of persons[.}” United States v. Windsor, 133 S. Ct. 2675, 2691 (2013); see also Loving, 388 U.S. at 7 (“While the state court is no doubt correct in asserting that mar- riage is a social relation subject to the State’s police power, . . . the State does not contend in its argument before this Court that its powers to regulate marriage 9 are unlimited notwithstanding the commands of the Fourteenth Amendment. Nor could it do so... .”). The right to marry is not, as the DeBoer appellate court found, a mere “policy problem” or “social ques- tion[],” Pet. App. 37a, 62a, suitable for a “Burkean sense of caution,” id. at 37a. Rather, “[m)arriage is one of the ‘basic civil rights of man[kind],” “one of the vital per- sonal rights essential to the orderly pursuit of happi- ness{.)” Loving, 388 U.S. at 12. Whether it can consti- tutionally be denied to a class of people, and whether there is any rational basis for doing so, are questions for the judiciary. Il. Excluding Same-Sex Couples From The Institution Of Marriage Harms Gay And Lesbian Individuals, Their Families, And Their Children In deciding the constitutionality of the Marriage Bans, this Court should recognize that marriage enjoys a privileged status among the institutions that this country is founded upon, and that barring entry into that institution to same-sex couples imposes serious harm on them and on their families and children. A. Marriage Is A Uniquely Revered Institu- tion In American Society 1. Marriage holds a hallowed status in our society. As courts repeatedly recognize, marriage can be an essential aspect of the human experience. Far “more than a routine classification for purposes of certain statutory benefits,” Windsor, 133 S. Ct. at 2692, mar- riage is “an institution of transcendent historical, cul- tural and social significance,” Kerrigan v. Comm’r of Pub. Health, 957 A.2d 407, 418 (Conn. 2008), “an insti- tution more basic in our civilization than any other.” 10 Williams v. North Carolina, 317 U.S. 287, 303 (1942). Its significance to the couple involved is unparalleled; it is “intimate to the degree of being sacred.” Griswold v. Connecticut, 381 U.S. 479, 486 (1965). Furthermore, marriage is a time-honored demonstration to family, friends, and the community of a loving commitment and mutual responsibility between two people, and implies a return promise by society to respect that commitment. See Turner v. Safley, 482 U.S. 78, 95 (1987) (recognizing that marriage is an “expression[) of emotional support and public commitment”). The institution is “a highly public celebration of the ideals of mutuality, companionship, intimacy, fidelity, and family.” Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 954 (Mass. 2003). The right to marry, accordingly, “has long been rec- ognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men [and women).” Loving, 388 U.S. at 12; see also Perez v. Lip- pold, 198 P.2d 17, 18-19 (Cal. 1948) (“Marriage is ... something more than a civil contract subject to regula- tion by the state; it is a fundamental right of free men.”). As a result of the special significance of mar- riage in society, the institution has a critical “signaling” role, apart from the specific legal obligations it entails. Elizabeth S. Scott, Social Norms and the Legal Regula- tion of Marriage, 86 Va. L. Rev. 1901, 1917 (2000). The signal sent by the fact that two individuals are married alters how they view themselves, how they behave toward one another, and how society behaves toward them. First, married people understand they are to be emotionally and financially supportive, honest, and faithful to one another. See Robert A. Burt, Belonging 11 in America: How to Understand Same-Sex Marriage, 25 BYU J. Pub. L. 351, 357 (2011) (noting that “[t)his faithfulness has always been at the core of the marital status for mixed-sex couples”). Although married cou- ples may modify their expectations and behavior over time, they benefit by beginning with a common under- standing of the marital relationship, gleaned from a lifetime of participating in society, hearing about mar- riage, and observing married couples. See generally Jeffrey M. Adams & Warren H. Jones, The Conceptual- ization of Marital Commitment: An Integrative Analy- sis, 72 J. Personality Soc. Psychol. 1177 (1997). This shared understanding assists married couples in meet- ing individual and spousal expectations, and motivates them to work through temporary difficulties. See id. The institution of marriage likewise provides com- mon ground for others in society to understand a cou- ple’s relationship. Because marriage is universally recognized, married couples are readily treated in a manner that reflects their personal commitment and concomitant legal and social status. See Goodridge, 798 N.E.2d at 955 (“Because [marriage] fulfills yearn- ings for security, safe haven, and connection that ex- press our common humanity, civil marriage is an es- teemed institution, and the decision whether and whom to marry is among life’s momentous acts of self- definition.”). Spouses are understood as family mem- bers. When a married couple opens a joint bank or retirement account, or checks into a hotel, or applies for a credit card, or attends a parent-teacher confer- ence, or accompanies a child or grandchild on a plane flight, or rents a car together, there is no need for ex- planation or documentary proof of the relationship. See generally Varnum v. Brien, 763 N.W.2d 862, 883-84 12 (lowa 2009) (“Iowa’s marriage laws” are “designed to bring a sense of order to the legal relationships of committed couples and their families in myriad ways.”). For these reasons and others, many people regard getting married as the most important day in their lives—indeed, marriage “is the centerpiece of our entire social structure.” Thomas B. Stoddard, Why Gay People Should Seek the Right to Marry, Out/Look: Nat'l Gay & Lesbian Q., Fall 1989, at 9, 12. 2. Domestic partnership laws and civil unions, which some states have attempted to use to remedy the harm caused by the exclusion of same-sex couples from the institution of marriage, lack the significance, stability, and meaning of real marriage. These novel and unstable categories were invented recently,‘ and their meaning is ever-shifting.° Not surprisingly, in light of their novel and uncer- tain stature, domestic partnerships and civil unions are not valued by society in a way that compares to marriage. People do not associate these legalistic rela- tionships with the stability and permanence that char- acterize marriage. In turn, the registration of a domes- tic partnership is less meaningful to same-sex couples than getting married would be. The complex emotions that people experience when they get married—as well as the joy and human closeness they feel when they attend a wedding—simply do not attach to the minis- *The City of West Hollywood, California, enacted the first domestic partnership ordinance in the mid-1980s. ° For example, in 1997, Hawaii's statutory scheme granted same-sex couples only 60 rights associated with marriage, but recently expanded the number of such rights. See Haw. Rev. Stat. §§ 572B, 572C-2 (2014). 13 terial step of registering a domestic partnership or entering a civil union. Even when domestic partners celebrate their legal registration with a ceremony, the terrain is unfamiliar: Is the event a wedding? A com- mitment ceremony? Something else? The lack of a common vocabulary underscores the institution’s lack of societal stature. These difficulties continue throughout the relation- ship. Even the simple act of referring to one’s “partner” can be wrought with embarrassment and misunder- standing: members of same-sex couples can be left searching for a manner to explain, no matter how un- comfortable the setting, whether they are referring to their domestic partner or to their professional, athletic, or law partner. Consequently, same-sex couples must often explain the intricacies of state family law to friends and potentially hostile strangers alike. Such ambiguities, and the likelihood of differential treat- ment, would be reduced if same-sex couples could accu- rately refer to themselves as “married” or could refer to each other as “husband” or “wife,” a vocabulary that is universally understood. In sum, marriage has a unique status in American society. There is no dispute that marriage means far more than inheritance rights, tax advantages, or com- munity property. It is, instead, the ultimate symbol of “unequaled commitment.” Evan Wolfson, Why Mar- riage Matters: America, Equality, and Gay People’s Right to Marry 6 (2004). Simply put: “No matter what language people speak—from Arabic to Yiddish, from Chinook to Chinese—marriage is what we use to de- scribe a specific relationship of love and dedication to another person. It is how we explain the families that are united because of that love. And it universally 14 signifies a level of self-sacrifice and responsibility and a stage of life unlike any other.” Jd. at 3 (emphasis added). B. Exclusion From Marriage Causes Tangible Harm Denial of this fundamental right imposes serious harm on gay and lesbian individuals, couples, and their families. This harm is not limited to those same-sex couples who wish to marry. Rather, it is felt by all gay men and lesbians who see how people who share their sexual orientation are treated, as well as by their fami- lies and children. 1. Harm To Children Harm to children lies at the heart of the issue. “Formally, [the same-sex marriage] cases are about discrimination against the small homosexual minority in the United States. But at a deeper level, . . . they are about the welfare of American children.” Baskin, 766 F.3d at 654. Notably, “the ban on same sex marriage is likely to have an especially deleterious effect on the children of same sex couples.” Kerrigan, 957 A.2d at 474. Children perceive and understand the unique institution of marriage in American society and know the difference when their parents—their families—are excluded from it. As recognized by this Court in Wind- sor, the perceived “differentiation” of same-sex couples not only “demeans the couple, whose moral and sexual choices the Constitution protects,” but also “humiliates tens of thousands of children now being raised by same-sex couples.” Windsor, 133 S. Ct. at 2694. While Windsor addressed the differentiation felt regarding federal recognition of a state-sanctioned marriage, this “humiliation” is only exacerbated for children whose 15 parents are barred from marriage completely. More so than in Windsor, the Marriage Bans “make[] it even more difficult for the children to understand the integ- rity and closeness of their own family and its concord with other families in their community and in their daily lives.” Id. “A primary reason why many same sex couples wish to marry is so that their children can feel secure in knowing that their parents’ relationships are as valid and as valued as the marital relationships of their friends’ parents.” Kerrigan, 957 A.2d at 474; see also Baskin, 766 F.3d at 664 (“If a child’s same-sex parents are married .. . the child can feel secure in being the child of a married couple.”). Whereas “[cjhildren who are raised by civilly married parents benefit from the legal status granted to their parents,” children whose parents are not permitted to marry may suffer psycho- logical harm. James G. Pawelski et al., The Effects of Marriage, Civil Union, and Domestic Partnership Laws on the Health and Well-being of Children, 118 Pediat- rics 349, 358, 361 (2006). “Excluding same-sex couples from civil marriage . . . does prevent children of same- sex couples from enjoying the immeasurable ad- vantages that flow from the assurance of a stable fami- ly structure in which the children will be reared, edu- cated, and socialized.” Goodridge, 798 N.E.2d at 964 (citation omitted). As the President of the New Jersey Psychological Association has attested: Children of same-sex relationships must cope with the stigma of being in a family without the social recognition that exists through marriage .... Such stigma may be indirect such as the strain due to lack of social support and acceptance. Also, some 16 children may be targeted due to teasing in school or from peers. N.J. Civ. Union Rev. Comm’n, The Legal, Medical, Eco- nomic & Social Consequences of New Jersey’s Civil Union Law 16 (Dec. 10, 2008), http://www.nj.gov/lps/dcr/downloads/CURC-Final- Report-.pdf (quoting testimony of Dr. Judith Glassgold). In engaging in the rational basis analysis, the Court must look to the proffered “legitimate justification” provided by the state. As characterized by the dissent in DeBoer, this is “what has come to be known as the ‘irresponsible procreation’ theory: that limiting mar- riage and its benefits to opposite-sex couples is ration- al, even necessary, to provide for ‘unintended offspring’ by channeling their biological procreators into the bonds of matrimony.” Pet. App. 72a (Daughtrey, J., dissenting).* This rationale and other theories claim- ing vague state-related interests in child rearing simp- ly ignore the destabilizing and stigmatizing effect the Marriage Bans and similar laws have on over 200,000 children throughout the United States. There are approximately 125,000 same-sex couples raising nearly 220,000 children in the United States. Gary J. Gates, Williams Institute, UCLA School of Law, LGBT Parenting in the United States 3 (2013), http://williamsinstitute.law.ucla.edu/wp- content/uploads/igbt-parenting.pdf Some of these * The illogic of this theory was highlighted with some exasper- ation by the Baskin court as follows: “Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce un- wanted children; their reward is to be denied the right to marry. Go figure.” Baskin, 766 F.3d at 662. 17 families live in states where joint or second-parent adoption by same-sex couples is legal. In these states, the rationale simply proves that there is truly no basis for differentiating between same-sex and opposite-sex couples in conferring the right to marry. To the extent that children are better off in families in which the parents are married, they are better off whether they are raised by their biological parents or by adoptive parents. The discrimination against same-sex couples is irrational, and therefore uncon- stitutional even if the discrimination is not subject- ed to heightened scrutiny[.] Baskin, 766 F.3d at 656. This regime exemplifies the impermissible “classification whose relationship to an asserted goal is so attenuated as to render the distinc- tion arbitrary or irrational.” Cleburne, 473 U.S. at 446. In truth, “[tlo allow same-sex couples to adopt children and then to label their families as second-class because the adoptive parents are of the same sex is cruel as well as unconstitutional.” Latta v. Otter, 771 F.3d 456, 474 (9th Cir. 2014). Other states—including all the states of the Sixth Circuit—prohibit adoption by a second parent of the same sex, creating a legal void in the family relation- ship between the child and the non-adoptive parent. These states too lack a rational basis for prohibiting same-sex marriage simply because the evidence is overwhelming that all marriage, “whether between same-sex or opposite-sex partners, increases stability within the family unit.” Pet. App. 84a-85a (Daughtrey, J., dissenting). As the DeBoer district court found, same-sex couples are just as able to provide for the welfare and development of children as opposite-sex couples. 14-571 Pet. App. 127a-13la. By contrast, the 18 ramifications of a ban on marriage (and by conse- quence, on adoption) can be life-altering. What hap- pens if the adoptive or biological parent is not available in an emergency? Can the non-adoptive parent make medical decisions for the child? Will the non-adoptive parent be able to gain custody and care for the child if the recognized parent dies or becomes incapacitated? Because of the Marriage Bans, the answers to these fundamental questions are left uncertain.’ Every district court decision overturned by the Sixth Circuit found that the Marriage Bans had no rational basis and instead actively harmed children. Pet. App. 209a-210a (“Even if it were rational for legis- lators to speculate that children raised by heterosexual couples are better off than children raised by gay or lesbian couples, which it is not, there is simply no ra- tional connection between the Ohio marriage recogni- tion bans and the asserted goal, as Ohio’s marriage recognition bans do not prevent gay couples from hav- ing children.”); 14-574 Pet. App. 147a (“The Court fails to see how having a [same-sex parent] family could conceivably harm children.”); 14-571 Pet. App. 129a (finding “no differences” between outcomes in raising children in same-sex versus opposite-sex households and that the Michigan marriage law “actually fosters the potential for childhood destabilization”); 14-562 * As noted by the dissent in DeBoer, for example, in Michigan “(elven though one person can legally adopt a child, should anything happen to that adoptive parent, there is no provision in Michigan’s legal framework that would ‘ensure that the children would necessarily remain with the surviving non-legal parent,’ even if that parent went through the arduous, time- consuming, expensive adoption-approval process.” Pet. App. 78a (Daughtrey, J. dissenting). 19 Pet. App. 126a (issuing injunction due to “an imminent risk of potential harm to [Plaintiffs’] children during their developing years from the stigmatization and denigration of their family relationship”). The Sixth Circuit’s rationale does not withstand ra- tional-basis scrutiny, and the Court should reject it out of hand. 2. Legal And Economic Harm Aside from the harm to children, of course, is the harm to the couple themselves. This harm, too, “out- run{s) and belie[s]” any purported state justification for the Marriage Bans. Romer, 517 U.S. at 635. Exclusion of same-sex couples from the institution of marriage results in the denial of many real and concrete legal and economic benefits that are premised upon married status. See generally M.V. Lee Badgett, The Economic Value of Marriage for Same-Sex Couples, 58 Drake L. Rev. 1081 (2010). The legal harms suffered by same-sex couples barred from marriage are myriad: limits on medical access, death and inheritance benefits, federal benefits, and parental rights (as discussed above). In Tunco v. Haslam, 14-562 Pet. App. 108a-130a, the district court granted a preliminary injunction prohibiting Tennes- see from enforcing its Marriage Ban against three couples who married outside Tennessee. The “irrepa- rable harm” was extensive, affecting joint home owner- ship; availability of employer-sponsored health insur- ance plans; and parental rights, among other rights and privileges. The court called “particularly compel- ling” the circumstances of one couple whose baby is due any day, and any complications or medi- cal emergencies associated with the baby’s birth— 20 particularly one incapacitating Dr. Tanco—might require Dr. Jesty to make medical decisions for Dr. Tanco or their child. Furthermore, if Dr. Jesty were to die, it appears that her child would not be enti- tled to Social Security benefits as a surviving child. Finally, Dr. Tanco reasonably fears that Dr. Jesty will not be permitted to see the baby in the hospital if Dr. Tanco is otherwise unable to give consent. 14-562 Pet. App. 126a. The availability of federal benefits to married cou- ples post-Windsor further demonstrates that the Mar- riage Bans inflict real economic and legal harm on same-sex couples. As Windsor’s holding was limited to “lawful marriages,” Windsor, 133 S. Ct. at 2696, certain federal agencies have extended protections and re- sponsibilities to married same-sex couples; but many agencies have stated explicitly that they will not ex- tend protections to registered domestic partners. ® Thus, statutory schemes that allow same-sex couples to enter domestic partnerships or civil unions, but that do not allow them to marry, result in the deprivation of federal benefits because many federal agencies offer * For example, the Office of Personnel Management expressly provided that “[{bJenefits coverage is now available to a legally married same-sex spouse of a Federal employee or annuitant,” but “same-sex couples who are in a civil union or other forms of domestic partnership . . . will remain ineligible for most Federal benefits programs.” Office of Personnel Management, Coverage of Same—Sex Spouses, No. 13-203 (July 17, 2013), http//www.opm.gov/retirement-services/publications- forms/benefits-administration-letters/2013/13-203.pdf; see also Rev. Rul. 2013-17, 2013-38 1.R.B. 201 (extending federal tax benefits to same-sex marriages but not domestic partnerships or civil unions). 21 such benefits only to lawfully married couples. Per- haps the most striking example of the resulting dispar- ity arises in the immigration context, where the ques- tion of whether a same-sex couple is lawfully married or merely in a domestic partnership or civil union could mean the difference between deportation and a valid basis for a family-based immigration visa. USCIS, Same Sex Marriages, http:/Avww.uscis.gov/family/ same-sex-marriages (last updated Apr. 3, 2014). And by denying same-sex couples the right to marry, Ken- tucky, Michigan, Ohio, and Tennessee have placed those federal protections and responsibilities entirely off-limits to them. See generally Garden State Equality v. Dow, 79 A.3d 1036 (N.J. 2013). More generally, marriage confers numerous econom- ic benefits that stem from the unique commitment it represents. For example, marriage fosters greater specialization of labor, which can increase a couple’s income and the time available for family. Badgett, supra, at 1101. Marriage also tends to reduce a cou- ple’s transaction costs: Marriage “promotes economic efficiency by reducing transaction costs for couples, mainly by removing the need to renegotiate the terms of the legal relationship as couples experience changed circumstances.” Id. Furthermore, married individuals enjoy greater employment-related economic gains, whereas same-sex couples who cannot marry face uncertainty and pressures that may adversely affect their work performance and reduce their economic rewards. Id. at 1102-03. Though difficult to quantify, these economic benefits of marriage are well-known and acknowledged in the field of economics. Id. 22 3. Emotional And Physical Harm Aside from harming children, divesting couples of state, federal, and constitutional legal rights, and de- priving them of economic benefits, the Marriage Bans can have devastating emotional and physical conse- quences on individual gay and lesbian people. This is because the Marriage Bans legitimize and magnify societal prejudice and discrimination against gay and lesbian individuals—whose “moral and sexual choices the Constitution protects.” Windsor, 133 S. Ct. at 2694 (emphasis added) (citing Lawrence v. Texas, 539 US. 558 (2003)). The tragic results of that discrimination are well documented. It can cause gay men and lesbians to suffer “minority stress,” which manifests itself through “prejudice events”: expectations of rejection and dis- crimination, concealment of identity, and internalized homophobia. See Ilan H. Meyer, Prejudice, Social Stress, and Mental Health in Lesbian, Gay and Bisexu- al Populations: Conceptual Issues and Research Evi- dence, 129 Psychol. Bull. 674 (2003). Such stresses negatively affect the mental health and well-being of gay and lesbian individuals. See, eg., Gilbert Herdt & Robert Kertzner, J] Do, But I Can't: The Impact of Mar- riage Denial on the Mental Health and Sexual Citizen- ship of Lesbians and Gay Men in the United States, 3 J. Sexuality Res. Soc. Pol’y 33 (2006). “Greater exposure to discrimination and perceptions of stigma have been linked with poorer mental health in sexual minority individuals.” Adam W. Fingerhut et al., Identity, Mi- nority Stress and Psychological Well-Being Among Gay Men and Lesbians, 1 Psychol. & Sexuality 101, 105 (2010). 23 Internalized homophobia, for example, can lead to lowered self-esteem, anxiety, substance abuse, and depression. Gregory M. Herek et al., Correlates of Internalized Homophobia in a Community Sample of Lesbians and Gay Men, 2 J. Gay & Lesbian Med. Ass’n 17 (1997). And frequent suicides by gay teenagers have “drawn national attention to the insidious peer harassment that lesbian, gay, bisexual, and transgender (LGBT) youth face on a daily basis.” Lisa C. Connolly, Anti-Gay Bullying in Schools—Are Anti- Bullying Statutes the Solution?, 87 N.Y.U. L. Rev. 248, 249 (2012); see, e.g., Ashley Fantz, An Ohio Transgender Teen’s Suicide; A Mother’s Anguish, Jan. 4, 2015, CNN, http://www.cnn.com/2014/12/3 1/us/ohio-transgender- teen-suicide/ (discussing the Dec. 28, 2014 death of transgender teen Leelah Alcorn, whose suicide note pleaded, “The only way I will rest in peace is if one day transgender people aren’t treated the way I was, they're treated like humans, with valid feelings and human rights. ... Fix society. Please.”). C.The Marriage Bans Communicate Gov- ernmental Animus Toward Same-Sex Re- lationships The harms outlined above are consequences of the legal operation of state prohibitions on same-sex mar- riage. This Court has long recognized that state- condoned discrimination and separate-but-unequal institutions inflict injuries even beyond the deprivation of particular benefits and can themselves be markers of official denigration which serve to perpetuate dis- crimination. See, eg., Strauder v. West Virginia, 100 U.S. 303, 308 (1879) (noting that exclusion of non-white citizens from juries was “practically a brand upon them, affixed by the law, an assertion of their inferiori- 24 ty”) (abrogated on other grounds by Taylor v. Louisiana, 419 US. 522 (1975)). First, barring one group from a valued institution demeans the group’s members by officially designating them as somehow inferior. Sec- ond, exclusion of an unpopular group leads to stigmati- zation, which, in turn, leads to further discrimination. 1. The Marriage Bans Stigmatize Same- Sex Relationships As the Court noted in Windsor when it struck down the Defense of Marriage Act, “The avowed purpose and practical effect of the law here in question are to im- pose a disadvantage, a separate status, and so a stig- ma” on same-sex couples. Windsor, 133 S. Ct. at 2693. “Responsibilities, as well as rights, enhance the dignity and integrity of the person.” Id. at 2694. In depriving same-sex couples of the opportunity to take part in those rights and responsibilities, the Marriage Bans, like DOMA, “tell[] those couples, and all the world, that their” relationships are “unworthy of . . . recognition.” Id. As was true for DOMA, the Marriage Bans’ “prin- cipal effect is to identify a subset of [relationships] and make them unequal. The principal purpose is to im- pose inequality.” Id. That the Marriage Bans and similar laws convey of- ficial disapproval of same-sex relationships was noted as far back as 2008, when the California Supreme Court held that domestic partnership was not a consti- tutionally adequate substitute for marriage: [T]he statutory provisions that continue to limit ac- cess to [marriage] exclusively to opposite-sex cou- ples—while providing only a novel, alternative insti- tution for same-sex couples—likely will be viewed as an official statement that the family relationship 25 of same-sex couples is not of comparable stature or equal dignity to the family relationship of opposite- sex couples. In re Marriage Cases, 183 P.3d 384, 452 (Cal. 2008). To that end, the court reasoned: [T}here is a very significant risk that retaining a distinction in nomenclature with regard to this most fundamental of relationships whereby the term ‘marriage’ is denied only to same-sex couples inevi- tably will cause the new parallel institution that has been made available to those couples to be viewed as of a lesser stature than marriage and, in effect, as a mark of second-class citizenship. Id. at 445; see also Kerrigan, 957 A.2d at 474 (citing Jn re Marriage Cases, 183 P.3d at 445) (“[Blecause of the long and celebrated history of the term ‘marriage’ and the widespread understanding that this word describes a family relationship unreservedly sanctioned by the community, the statutory provisions that continue to limit access to this designation exclusively to opposite- sex couples—while providing only a novel, alternative institution for same-sex couples—likely will be viewed as an Official statement that the family relationship of same-sex couples is not of comparable stature or equal dignity to the family relationship of opposite-sex cou- ples.”); Goodridge, 798 N.E.2d at 962 (statutory bar on marriage for same-sex couples “confers an official stamp of approval on the destructive stereotype that same-sex relationships are inherently unstable and inferior to opposite-sex relationships and are not wor- thy of respect”). As the district court found in Obergefell, “no hypo- thetical justification’"—such as fostering natural pro- 26 creation—“can overcome the clear [] purpose” of the Marriage Bans, which is to “disparage and demean” same-sex relationships. Pet. App. 212a. The court noted that Ohio grants full faith and credit to out-of- state marriages that Ohio itself does not perform (eg., marriages between first cousins, marriages of mi- nors)}—Sut not to same-sex marriages. Jd. at 190a- 192a. Ohio singles out same-sex marriage for special, unfavorable treatment by refusing to recognize such marriages even when they were validly performed in another state. “The constitutional issue is clear[]” when a state treats one group differently from all the others: the law must be based on “irrational prejudice.” See Cleburne, 473 U.S. at 447, 450. That purpose to disparage and demean same-sex re- lationships is made even clearer by the fact that three states’ Marriage Bans prohibit state legislatures or any political subdivision within the state from creating or recognizing even domestic partnerships (which, as this brief demonstrates, are inferior to marriage and insuf- ficient to remedy the constitutional harms). See Ohio Const. art. XV, § 11 (“This state and its political subdi- visions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, . . . or effect of mar- riage.”); Ky. Const. § 233A (“A legal status . . . substan- tially similar to that of marriage . . . shall not be valid or recognized.”); Mich. Const. art. I, § 25 (ban on recog- nizing a “similar union” to marriage, such as a civil union).® ®* Tennessee is the only state in the Sixth Circuit which does not prohibit the creation of domestic partnerships that approx- imate the legal rights associated with marriage. See Tenn. Const. art. XI, § 18 (prohibiting state and local governments 27 The effect of the Marriage Bans is therefore not just exclusion from a set of “rights and responsibilities” associated with the legal institution of marriage, but official disapproval of same-sex couples that results in stigma. They have been enacted “for the purpose of disadvantaging the group burdened by the law.” Romer, 517 U.S. at 633. “[(I]f the constitutional concep- tion of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.” Id. at 634-35 (quot- ing Moreno, 413 U.S. at 534). In Romer, the Court invalidated a voter-enacted constitutional amendment that, it stated, “classifie[d] homosexuals not to further a proper legislative end but to make them unequal to everyone else.” Jd. at 635. The Court should do like- wise here for the Marriage Bans, whose broad harms betray the lack of any rational basis. 2. The Marriage Bans’ Stigma Perpetuates Societal Discrimination Against Gay Men And Lesbians When disapproval of same-sex marriage is en- shrined in the law, moral disapproval and discrimina- tion in society can fester and spread. By making sexu- al orientation a legally salient characteristic, the Mar- riage Bans encourage and provide “cover” for those who seek to treat gay men and lesbians differently based on their sexual orientation. See, eg., Perry vu. Schwarzenegger, 704 F. Supp. 2d 921, 973 (N.D. Cal. 2010) (describing how Proposition 8 sent “a message that gay relationships are not to be respected; that from allowing or recognizing same-sex marriages, but not do- mestic partnerships); Tenn. Code Ann. § 36-3-113 (2013) (same). 28 they are of secondary value, if of any value at all; that they are certainly not equal to those of heterosexuals”). Because the state provides for separate and lesser treatment of gay men and lesbians, certain individuals may logically conclude that it is permissible to treat them as inferior."° Cf Lawrence, 539 U.S. at 575 (crim- inalizing sexual conduct between same-sex couples was “an invitation to subject homosexual persons to dis- crimination both in the public and in the private spheres”); Strauder, 100 U.S. at 308 (exclusion of non- white citizens from juries was “a stimulant to... race prejudice”). As the California Supreme Court ex- plained, “providing only a separate and distinct desig- nation [of civil unions] for same-sex couples may well have the effect of perpetuating a more general premise ... that gay individuals and same-sex couples . . . may, under the law, be treated differently from, and less favorably than, heterosexual individuals or opposite- sex couples.” In re Marriage Cases, 183 P.3d at 402; cf Baskin, 766 F.3d at 658 (“Not that allowing same-sex marriage will change in the short run the negative views many Americans hold of same-sex marriage. But it will enhance the status of these marriages in the eyes of other Americans, and in the long run it may 1 One need look no further than the headlines for anecdotal evidence: when the Chief Justice of the Alabama Supreme Court directed counties to refuse to follow a federal court deci- sion invalidating a gay marriage ban, news reports highlighted coverage of a South Carolina pastor's prayer vigil, literally in the shadow of the Alabama State Capitol, at which he “urged southerners to [ ] refuse to recognize marriages that he said came ‘from the devil’s hell’[.)” Kim Chandler, Alabama Set to Become 37" State to Allow Gay Marriage, Associated Press, Feb. 7, 2015, available at http://news.yahoo.com/gay-marriage- arrives-alabama-183946121 html. 29 convert some of the opponents of such marriage by demonstrating that homosexual married couples are in essential respects, notably in the care of their adopted children, like other married couples.”). Moreover, by segregating gay men and lesbians, the Marriage Bans cause society to focus on sexual orienta- tion to the exclusion of other characteristics. As with segregation on the basis of race, when gay men and lesbians are singled out, and hence stigmatized, then an individual’s sexual orientation and all the negative connotations generally imputed to it—eventually overshadows or ‘eclipses all other aspects’ of his or her self, essentially becoming all that anyone sees. [Sexual orientation] becomes a sort of mask, a barrier that both makes it impossi- ble for the stigmatized person’s true self to be seen and fixes the range of responses that others will have to that person. Robin A. Lenhardt, Understanding the Mark: Race, Stigma, and Equality in Context, 79 N.Y.U. L. Rev. 803, 818-19 (2004). Thus, when gay men or lesbians dis- close that they are in a domestic partnership, others often see them only as gay—and treat them according- ly—rather than viewing them as full persons entitled to the same respect and dignity given to other mem- bers of society. See generally Marc R. Poirier, Name Calling: Identifying Stigma in the “Civil Un- ion” /“Marriage” Distinction, 41 Conn. L. Rev. 1425, 1429-30, 1479-89 (2009) (describing the way in which the nomenclature distinction perpetuates bias and facilitates discrimination). There is no doubt that the effect of the Marriage Bans is “immediate, continuing, and real injurly]” to gay and lesbian individuals. Romer, 517 US. at 635. 30 CONCLUSION A number of racial, religious, and ethnic minorities have, at various times in history, faced restrictions on their right to marry. See Nancy F. Cott, Public Vows: A History of Marriage and the Nation 4 (2000) (discussing for example Native Americans, African Americans, and Asian Americans). But “[a) prime part of the history of our Constitution ... is the story of the extension of consti- tutional rights and protections to people once ignored or excluded.” United States v. Virginia, 518 U.S. 515, 557 (1996). The Marriage Bans create a separate and une- qual regime for a disfavored class. Continuing to exclude, demean, and stigmatize gay and lesbian individuals and families is inconsistent with that constitutional tradition. The judgment of the Court of Appeals should be re- versed. Respectfully submitted. JEROME C. ROTH AMELIA L.B. SARGENT MUNGER, TOLLES & OLSON LLP 560 Mission Street 27th Floor San Francisco, CA 94105 Jerome.Roth@mto.com (415) 512-4000 MARCH 5, 2015 APPENDIX APPENDIX LIST OF AMICI CURIAE AIDS Legal Referral Panel (ALRP) The AIDS Legal Referral Panel (ALRP) provides le- gal services to people living with HIV/AIDS in the San Francisco Bay Area. ALRP is committed to ensuring justice for our clients in facing discrimination. Since roughly 80% of ALRP’s clients are LGBT, discrimina- tion against LGBT people directly impacts our clients. API Equality-LA API Equality-LA is a coalition of organizations and individuals who are committed to working in the Asian/Pacific Islander (API) community in the greater Los Angeles area for equal marriage rights and the recognition and fair treatment of LGBT families through community education and advocacy. API Equality-LA recognizes that the long history of dis- crimination against the API community, especially California's history of anti-miscegenation laws and exclusionary efforts targeted at Asian immigrants, parallels the contemporary exclusion of gays and lesbi- ans from marriage. The Asian American Bar Association of the Greater Bay Area (AABA) The Asian American Bar Association of the Greater Bay Area (AABA) is one of the largest Asian American bar associations in the nation and one of the largest minority bar associations in the State of California. From its inception in 1976, AABA and its attorneys (la) 2a have been actively involved in civil rights issues and community service. AABA members filed an amicus brief in the Bakke affirmative action case, filed a suc- cessful petition overturning the conviction of Fred Korematsu in the landmark Korematsu v. United States case, worked on the successful campaign to release Chol Soo Lee from prison, and were involved in efforts to release Wen Ho Lee and to unseal documents in his case. The Asian Pacific American Bar Association of Los Angeles County (APABA-LA) The Asian Pacific American Bar Association of Los Angeles County (APABA-LA) is a membership organi- zation comprised of over 700 attorneys, judges and law students. Since its formation in 1998, APABA-LA has advocated on issues that impact the APA community and has demonstrated a commitment to civil rights, racial justice, and equal opportunity. APABA-LA has, and continues to, oppose initiatives designed to deprive immigrants, people of color, and other minorities of their civil rights, including initiatives that discriminate based upon sexual orientation. APABA-LA strives to address all issues relevant to the equal treatment of those in the APA community. Atlanta Bar Association The Atlanta Bar Association has approximately 6,000 members and is interested in supporting this effort as a matter of justice. Atlanta Women for Equality Atlanta Women for Equality is a nonprofit organiza- tion dedicated to providing free legal advocacy to wom- 3a en and girls facing sex discrimination in the workplace or school and to helping our community build employ- ment and educational environments according to true standards of equal treatment. Our central goal is to use the law to overcome the oppressive power differen- tials socially predetermined gender roles impose and to empower those who suffer adverse treatment because they do not fit within the confines of sex-based stereo- types. We believe that statutes banning same-sex marriage enforce precisely the kind of gender categori- zation that undermines the basic principles of equality, freedom, and justice it is our mission to serve and our Constitution’s purpose to protect. California Employment Lawyers Association (CELA) The California Employment Lawyers Association (CELA) is an organization of approximately 1,200 attorneys who represent primarily plaintiffs in termi- nation, discrimination, wage and hour, civil rights and other civil cases arising in the workplace. CELA helps its members protect and expand the legal rights of working women and men through litigation, education, legislative activities and advocacy. Dallas Gay and Lesbian Bar Association (DGLBA) The Dallas Gay and Lesbian Bar * <¢2tiov (DGLBA) is composed of approximately 35 i. 4° | lav students, para-professionals, and related professio _.’ allies who share an interest in the laws that affect and protect the gay, lesbian, bisexual, and transgendered community. The DGLBA issues a monthly newsletter to nearly 200 subscribers on current topics of interest 4a in LGBT law and the community and has over 800 Facebook followers. The DGLBA holds monthly lunch- eon meetings for its members where speakers provide continuing legal education on a broad range of topics affecting lawyers who represent LBGT clients. The DGLBA also holds networking events, gives scholar- ships to deserving law students, profiles its members on its website, and educates and promotes legal issues affecting the LGBT community. Georgia Association for Women Lawyers The Georgia Association for Women Lawyers’ (GAWL) mission is to enhance the welfare and devel- opment of women lawyers and to support their inter- ests. GAWLs Amicus Policy provides for filing or join- ing amicus briefs in cases which will advance or clarify the law regarding issues that fall within our mission or that relate to the administration of justice. GAWL has found this brief to fall within these categories and is pleased to support this effort. Georgia Trial Lawyers Association Pursuant to our constitution, the Georgia Trial Lawyers Association is founded for the purpose of supporting and defending the civil justice system, the right to trial by jury, and individual rights of our mem- bership and our clients. Japanese American Bar Association (JABA) Japanese American Bar Association (JABA) is one of the oldest Asian Pacific American bar associations in the country and consists of a diverse membership of over 300 attorneys, judicial officers, and law students of Japanese and Asian Pacific Islander ancestry in the 5a greater Los Angeles area and beyond, including gay and lesbian individuals. With a deep appreciation of the unique history of Japanese Americans in the Unit- ed States and the failure of constitutional protections that led to their internment during World War II, JABA has a proud history of actively advocating and devoting resources to issues of civil rights and social justice, especially for those members of society who continue to suffer from discrimination and unequal treatment. LGBT & Allied Lawyers of Utah Bar Association LGBT & Allied Lawyers of Utah is a non-profit or- ganization of associated legal professionals and mem- bers of the Utah State Bar, whose mission is to pro- mote education, advocacy, and equality with regard to sexual orientation, gender identity, and gender expres- sion. LGBT Bar Association of Greater New York (LeGaL) The LGBT Bar Association of Greater New York (LeGaL) was one of the nation’s first bar associations of the lesbian, gay, bisexual, and transgender legal com- munity and remains one of the largest and most active organizations of its kind in the country. Serving the New York metropolitan area, LeGaL is dedicated to improving the administration of the law, ensuring full equality for members of the LGBT community, and promoting the expertise and advancement of LGBT legal professionals. 6a Lesbian and Gay Bar Association of Chicago (LAGBAC) The Lesbian and Gay Bar Association of Chicago (LAGBAC), founded in 1987, is one of the country’s oldest bar associations dedicated to serving the lesbian, gay, bisexual and transgender (LGBT) community and the only bar association in the Chicagoland area dedi- cated to serving the LGBT community. LAGBAC pro- vides judges, attorneys and law students with educa- tional experiences and career opportunities that sup- port them throughout their career. LAGBAC hosts countless CLE seminars, networking programs and social events throughout the year for its members and nonmembers, alike. With over 200 members, including practitioners, agency heads, professors, and law students, and dozens of judicial affiliates, LAGBAC has long been a leader in shaping public policy in Illinois and across the country. We, the board of directors, fully support the submission of this amicus brief to further achieve the organiza- tion's mission and to provide the Court with important insight on matters affecting public policy. Lesbian and Gay Lawyers Association of Los Angeles (LGLA) The Lesbian and Gay Lawyers Association of Los Angeles (LGLA) was founded in 1979 and has grown into a relevant, multi-cultural, open and active bar association of gay, lesbian, bisexual and transgender lawyers, judges, law students and other legal Profes- sionals. LGLA is dedicated to furthering justice and equality and the advancement of gay, lesbian, bisexual and transgender issues throughout California and around the nation by making judicial endorsements, 7a appearing amicus curiae in cases such as this one, holding representation on the Conference of Delegates for the State Bar of California, and providing educa- tional and networking opportunities for its members. LGLA has fought for equal justice for all persons with- out regard for their sexual orientation for more than thirty-five years. Lesbian, Gay, Bisexual, And Transgender (LGBT) Bar Association Of Maryland The Lesbian, Gay, Bisexual and Transgender (LGBT) Bar Association of Maryland is a state associa- tion of lawyers, judges and other legal professionals, law students, activists, and affiliate lesbians, gay, bi- sexual, and transgender legal organizations. Love Honor Cherish Love Honor Cherish (LHC) is the largest grassroots marriage equality organization in Southern California. Founded in May 2008 to defend the California Su- preme Court’s decision In re Marriage Cases, 43 Cal. 4th 757 (2008), LHC has strategically moved marriage equality forward since its inception. In 2010 and 2012, LHC launched efforts to gather signatures to put re- peal of Proposition 8 on the ballot in California due to its unwavering dedication to restore marriage equality in California as soon as possible. While those efforts were unsuccessful due to the prohibitive cost of fund- ing a signature gathering campaign, LHC’s volunteers had more than one million conversations about the importance of marriage equality with California voters. LHC continues to advance marriage equality through public education, community empowerment and out- reach in collaboration its coalition partners. 8a Minnesota Lavender Bar Association (MLBA) The Minnesota Lavender Bar Association (MLBA) is a voluntary professional association of LGBT attorneys and allies, promoting fairness and equality for the LGBT community within the legal industry and for the Minnesota community. The MLBA envisions a Minne- sota where LGBT attorneys, clients, and community members are treated equally and without discrimina- tion. The MLBA’s mission is to promote equality and justice in the legal profession and the LGBT communi- ty in Minnesota. New Mexico Lesbian And Gay Lawyers Associa- tion (NMLGLA) The New Mexico Lesbian and Gay Lawyers Associa- tion (NMLGLA), formed in 1995, is a non-profit, volun- tary bar organization committed to promoting and protecting the interest of the lesbian, gay, bisexual and transgender lawyers and to achieving their full partic- ipation in all rights, privileges and benefits of the legal profession. The NMLGLA also strives to promote the efficient administration of justice and the constant improvement of the law, especially as it relates to les- bians, gay men, bisexual and transgender individuals. New York State Bar Association The New York State Bar Association (NYSBA) was founded in 1876, and is the largest voluntary bar asso- ciation in the United States, with over 74,000 mem- bers. NYSBA serves the profession and the public by, inter alia, promoting reform in the law and facilitating the administration of justice. NYSBA has long sup- ported marriage equality for same-sex couples. In 2009, NYSBA passed a resolution supporting same-sex 9a marriage; and in 2010 the NYSBA was a lead sponsor of the American Bar Association’s resolution in support of same-sex marriage. The NYSBA supports allowing same-sex couples to marry and recognizing marriages if contracted elsewhere as the Association believes only marriage can grant full equality to same-sex couples and their families. OGALLA: The LGBT Bar Association of Oregon The LGBT Bar Association of Oregon is a voluntary organization of legal practitioners — including attor- neys, judges, paraprofessionals, and educators — dedi- cated to the promotion of the fair and just treatment of all people under the law regardless of sexual orienta- tion, gender identity, or gender expression, to providing visibility for LGBT persons in the law, to educating the public, the legal profession and the courts about legal issues of particular concern to the LGBT community, to identifying and eliminating the causes and conditions of prejudice in society, and to promoting a spirit of unity, while valuing the diversity of our community. Philippine American Bar Association of Los An- geles (PABA) The Philippine American Bar Association (PABA) is an organization of attorneys, students, and community leaders who have been dedicated to advancing the interests of the Filipino-American community and the Asian-American community-at-large for thirty years. PABA is fervently committed to creating a more com- passionate and just future, and proudly joins its col- leagues on this amicus brief to ensure the preservation of equality for persons from every walk of life. 10a Public Counsel Public Counsel is the largest pro bono law firm in the nation. Founded in 1970, Public Counsel is the public interest law office of the Los Angeles County and Beverly Hills Bar Associations and the Southern California affiliate of the Lawyers’ Committee for Civil Rights Under Law. Public Counsel is dedicated to advancing equal justice under law by delivering free legal services to indigent and underrepresented chil- dren, adults and families throughout Los Angeles County, ensuring that other community-based organi- zations serving this population have legal support, and mobilizing the pro bono resources of attorneys, law students and other professionals. Public Counsel’s staff of 71 attorneys and 50 support staff, along with over 5,000 volunteer lawyers, law students, and legal professionals, assists over 30,000 children, youth, fami- lies, and community organizations every year. Public Counsel’s clients include lesbian, gay, bisexual, and transgender youth and adults who are homeless or at risk of homelessness or who seek asylum in the US. because of persecution in their country of origin. As a civil rights organization, Public Counsel has steadfast- ly supported marriage equality. QLaw: The GLBT Bar Association of Washington QLaw, the GLBT Bar Association of Washington, is an association of gay, lesbian, bisexual, and transgender (GLBT) legal professionals and their friends. QLaw serves as a voice for gay, lesbian, bisex- ual, and transgender lawyers and other legal profes- sionals in the state of Washington on issues relating to diversity and equality in the legal profession, in the courts, and under the law. The organization has five lla purposes: to provide opportunities for members of the GLBT legal community to meet in a supportive, profes- sional atmosphere to exchange ideas and information; to further the professional development of GLBT legal professionals and law students; to educate the public, the legal profession, and the courts about legal issues of particular concern to the GLBT community; to em- power members of the GLBT community by improving access to the legal and judicial system and sponsoring education programs; and to promote and encourage the advancement of lesbian, gay, bisexual, and transgender attorneys in the legal profession. Queen’s Bench Bar Association Queen’s Bench Bar Association is a non-profit vol- untary membership organization made up of judges, lawyers, and law students in the San Francisco Bay Area. Established in 1921, Queen’s Bench is one of the oldest women’s bar associations in the country. Queen’s Bench seeks to advance the interests of wom- en in law and society, and to serve the professional needs of women lawyers, judges, and law students. Queen’s Bench has a strong and demonstrated interest in the preservation of the Constitutional right to equal protection of the laws. San Francisco La Raza Lawyers Association (SFLRLA) San Francisco La Raza Lawyers Association (SFLRLA) is a professional membership organization of San Francisco Bay Area Latino/a attorneys. Central to its mission is SFLRLA’s interest in protecting fun- damental constitutional rights and minority interests. Accordingly, in March 2004, SFLRLA filed the first 12a amicus brief to be filed by a bar association with the San Francisco Superior Court in what eventually be- came In re Marriage Cases, 43 Cal.4th 757 (2008). SFLRLA’s core mission is to serve the public interest by cultivating the science of jurisprudence, promoting reform in the law, facilitating the administration of justice, and cooperating with other professional and community organizations in the furtherance of our Stonewall Bar Association of Georgia, Inc. Stonewall Bar Association of Georgia, Inc. was es- tablished in 1995 as a coalition of attorneys, judges, law students, paralegals, and other legal professionals to utilize their expertise to support the rights of lesbi- an, gay, bisexual, and transgender people and oppose discrimination based on sexual orientation and gender identity. A voluntary bar association, consisting of almost 300 dues-paying members, SBA publishes an on-line directory of attorneys who are eager to serve gay, lesbian, bisexual and transgender clients. The organization also publishes a monthly newsletter that is emailed to approximately 800 legal professionals, provides scholarships to law students, conducts contin- uing education for attorneys, and provides opportuni- ties for networking with judges and other legal profes- sionals. SBA has worked with other organizations to file amicus briefs in cases that impact our community in Georgia. Such briefs have been submitted in Hol- lingsworth v. Perry and cases that overturned Georgia’s sodomy law and secured the rights of local govern- ments and private corporations to offer domestic part- nership benefits to company employees and their life partners. 13a Stonewall Law Association of Greater Houston (SLAGH) Stonewall Law Association of Greater Houston is a voluntary professional association of gay, lesbian, bi- sexual and transgender attorneys, judges, paralegals, law students and allies who provide a LGBT presence within the greater Houston legal community. SLAGH encourages the recognition of civil and human rights, promotes sensitivity to legal issues faced by LGBT community and those living with HIV, assures the fair and just treatment of members of the LGBT communi- ty, provides opportunities for LGBT attorneys, judges, law students and their allies to interact in a profes- sional setting, builds alliances with other minority bar associations and legal organizations, and enhances the practice and professional expertise of lawyers who serve or are members of the LGBT community. Tom Homann LGBT Law Association (THLA) The Tom Homann LGBT Law Association (THLA) is a non-profit voluntary membership bar association of attorneys, law students, judges, and other legal profes- sionals dedicated to the advancement of gay, lesbian, bisexual and transgender issues throughout California and the nation. We are the place for San Diego’s LGBT lawyers to network, build friendships, and develop their careers. THLA members are also committed to establishing and maintaining personal connections with local law student community. Through our suc- cessful mentor program, we provide encouragement, guidance, insight and friendship to the next generation of LGBT lawyers entering the San Diego legal commu- nity. l4a Women Lawyers Association of Los Angeles (WLALA) Women Lawyers Association of Los Angeles (WLALA) is a nonprofit organization comprised pri- marily of attorneys and judges in Los Angeles County. Founded in 1919, WLALA is dedicated to promoting the full participation of women lawyers and judges in the legal profession, maintaining the integrity of our legal system by advocating principles of fairness and equality, and improving the status of women in our society. WLALA believes that lawyer groups have a special obligation to protect the core guarantees of our Constitution from unlawful abrogation when a majori- ty of voters has attempted to deprive a minority of its constitutionally protected rights. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0307%3A028. Public record. Not legal advice.