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

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Nos. 14-556, 14-562, 14-571, 14-574

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Supreme Court of the United Siates

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No. 14-566

JAMES OBERGEFELL, et al., and BRITTANI HENRY, e¢ al.,

Petitioners,

—vV.—

RICHARD HODGES, Director,

Ohio Department of Health, et al.,

(Caption continued on inside cover)

ON WRITS OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

Respondents.

BRIEF FOR AMICI CURIAE CALIFORNIA COUNCIL

OF CHURCHES; CALIFORNIA FAITH FOR EQUALITY;

UNITARIAN UNIVERSALIST JUSTICE MINISTRY

CALIFORNIA; NORTHERN CALIFORNIA NEVADA

CONFERENCE, UNITED CHURCH OF CHRIST;

SOUTHERN CALIFORNIA NEVADA CONFERENCE,

UNITED CHURCH OF CHRIST; PACIFIC ASSOCIATION

OF REFORM RABBIS; CALIFORNIA NETWORK OF

METROPOLITAN COMMUNITY CHURCHES IN SUPPORT

OF PETITIONERS AND URGING REVERSAL

STACEY MARIE KAPLAN ERIC ALAN ISAACSON

‘KESSLER TOPAZ MELTZER Counsel of Record

& CHECK, LLP 655 West Broadway

One Sansome Street Suite 1900

Suite 1850 San Diego, California 92101

San Francisco, CA 94104 (619) 231-1058

(416) 400-3000 eisaacson@rgrdlaw.com

Attorneys for Amici Curiae

~~ 4

No. 14-5662

VALERIA TANCO, et al.,

Petitioners,

—_—vV. _—!

BILL HASLAM, Governor of Tennessee, et al.,

Respondents.

No. 14-571

APRIL DEBOER, et al.,

Petitioners,

RicK SNYDER, Governor of Michigan, et al.,

Respondents.

No. 14-574

GREGORY BOURKE, et al., and TIMOTHY LOVE, et al.,

Petitioners,

Cee A _—_-

STEVE BESHEAR, Governor of Kentucky, et ai.,

Respondents.

QUESTIONS PRESENTED

1. Does the Fourteenth Amendment require a

State to license a marriage between two people of

the same sex?

2. Does the Fourteenth Amendment require a

State to recognize a marriage between two people

of the same sex when their marriage was lawfully

licensed and performed out-of-state?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ...................-0seceseceeeeees i

IDENTITY AND INTEREST OF AMIC1............ 1

SUMMARY OF ARGUMENT. ...............ccccceesseesees 6

|| en 9

A. This Court Held in Turner v. Safley

that Although Civil Marriage Is a

Secular Institution, Its Arbitrary

Restriction Improperly Abridges

the Free Exercise of Religion .............. )

B. The Seminal Decision Striking Down

California Laws Against Mixed-Race

Marriages Did So on Religious-Liberty

en 12

C. Catholic Bishops Endorsed Perez v.

Sharp’s Religious-Liberty Rationale

When this Court Considered a

Baptist Couple’s Appeal in

EAU Cr VOPIIGE ceccncscessscsscesnssescesecessee 19

D. Perez and Turner Remain Good

Law that this Court Should

Reaffirm and Follow ............................ 22

E. According Equal Dignity to

Same-Sex Couples’ Marriages

Poses No Threat to Religious

ROE enn 29

CEFR E SEA EIGS cccceseccccssrscesesssctesseveveseverceveusseseossese 36

lll

TABLE OF AUTHORITIES

Page

CASES

Boddie v. Connecticut,

IE eee ane rane nenmnee re 28

Bowers v. Hardwick,

I 20

Cantwell v. Connecticut,

STEER oe Oa ean Ene REET 27

Church of Lukumi Babalu Aye v. City of Hialeah,

SEE ae a eee 24

Cleveland Bd. of Educ. v. LaFleur,

ncaa ititiieiacapeticiciatliaaitl 28

Davis v. Beason,

a 25

Eisenstadt v. Baird,

ET Ne ee 28

Employment Division v. Smith,

act ncaa erenianeiii 23-24, 27

Estate of Lopes,

152 Cal. App. 3d 302, 199 Cal. Rptr. 425 (1984)...... 18-19

Follett v. McCormick,

fT en EE ol 27

Green v. State,

EE a rr base nee oe er Oe 20

TABLE OF AUTHORITIES—Continued

Page

Griswold v. Connecticut,

Se Ns SPITE inirtirrintntincindeienaecnsiinnsinaseinnnciniitiauniadaiasiiodss 28

Hodgson v. Minnesota,

og ena eT 28

Hollingsworth v. Perry,

ss ene ne nen 1, 13, 34, 35

In re Marriage Cases,

43 Cal. 4th 757, 183 P.3d 384 (2008)... eee 3

Lawrence v. Texas,

ESET anne orion iitedinntsseidinndiiniginnndenibemensniiededbiaia 26

Loving v. Virginia,

I tt TT cerninincincnnctiierntinsiimenpanemniinte 6, 7-8, 19-23, 28

Marks v. United States,

ee CE i ictaitnsitenseaciinnessinniinindepniaetenamuiaemamnianniens 18

Maryland v. Baldwin

Be ETT cininencrinccccenibnieatnenpinnanitinaininntnibasnitainpiadal 10

Maynard v. Hill,

Sa UTE cicicittreeninisnsinncnannesiiemennnennencansnnitininniitil 6,10

Meister v. Moore,

ee eRe ee 10

Meyer v. Nebraska,

RTS SLUR Eye eT Sea weer 28

Murdock v. Pennsylvania,

SEER oe RHC Re eee Aenea 27

TABLE OF AUTHORITIES—Continued

Page

Naim v. Naim,

197 Va. 80, 87 S.E.2d 749 (1955), vacated, 350

U.S. 891 (1955), reinstated on remand, 197 Va.

734, 90 S.E. 2d 849 (Va. 1956), motion to recall

mandate denied, 350 U.S. 985 (1956) ................cccccc0eeeess 20

Newman v. Piggie Park Enterprises,

ns Sc etiiicticeintccnciciinicbaiisiinsiiabictataihdisititinabaitild 33

Ocean Grove Camp Meeting Ass'n v. Vespa-Papaleo,

339 Fed. Appx. 232 (3d Cir. 2009)..................cccesssessseeees 35

Panetti v. Quarterman,

ee IE iciscssicesninnciesitinsitsiiiinsataiieciuiidaniniaiinnialalenaliath de 18

People v. Greenleaf,

780 N.Y.S.2d 899 (New Paltz Justice Ct. 2004).............. 20

People v. Harris,

71 Cal. App. 3d 959, 139 Cal. Rpir. 778 (1977).............. 19

Perez v. Sharp,

32 Cal. 2d 711, 198 P.2d 17 (1948) ....0. 0... passim

Perry v. Brown,

Pe 1,35

Perry v. Schwarzenegger,

704 F. Supp. 2d 921 (N.D. Cal. 2010) ........0..... ec. eee 1,3

Pierce v. Society of Sisters,

nS iasientcteiciceniciiehceiestiiabetiadtieideeininninaiaiibams 27, 28

Reynolds v. United States,

eS RP interunsicienininsnininuianninnennsienaceniiaan: 16, 24-25

TABLE OF AUTHORITIES—Continued

Page

Scott v. Georgia,

Tee Oe eS 21

Snyder v. Phelps,

ae 34

State v. Gibson,

i re eT TE ONO ET 20

Strauss v. Horton,

46 Cal. 4th 364, 207 P.3d 48 (2009)... cccee eens |

Turner v. Safley,

EIR eee eae passim

United States v. Windsor,

I a taal eal 2

Wisconsin v. Yoder,

| en ea 28

CONSTITUTIONAL PROVISIONS

U.S. Constitution

STATUTES, RULES AND REGULATIONS

Supreme Court Rules

EIT HiT a iahiseniiiiriinhneernttinnnalinbdiiainedacadatienddemsisemameieditteiiamieaanie l

TABLE OF AUTHORITIES—Continued

Page

SECONDARY AUTHORITIES

Fay Botham, Almighty God Created the Races:

Christianity, Interracial Marriage & American

Law (Chapel Hill: University of North Carolina

EERE RATES Ee ABER e oe ere 12-13, 17, 18, 21

1 William Bradford, History of the Plymouth

Plantation, 1620-1647 (Boston: Massachusetts

ee, TIED | scseediacaeninctbesuabtenmenees 10

Catechism of the Cathlic Church

(Washington, D.C.: Libreria Editrice Vaticana, 2d

gS EEN EA ee ee Ae 30, 31

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

and the Nation (Cambridge, Mass. & London:

Harvard University Press, 2000)...................cccceseeeeees 24-25

David B. Cruz, “Just Don't Call It Marriage’’: The

First Amendment and Marriage as an Expressive

Resource, 74 S. Cal. L. Rev. 925 (2001) 00.0.0... 0c. 28

Carey Daniel, God the Original Segregationist and

Seven Other Segregation Sermons, (Dallas: Carey

a vee eee 32

Jeremy Dupertuis Bangs, Strangers and Pilgrims,

Travellers and Sojourners: Leiden and the

Foundations of the Plymouth Plantation

(Plymouth, Massachusetts: General Society of

Mayflower Descendents, 2009) ...................ccceecceeeeeeeeeeees 10

E.J. Graff, What is Marriage For?: The Strange Social

History of Our Most Intimate Institution (Boston:

Beacon Press, rev. ed. 2004) ...............cccccccscccseccseccssecceenes 25

vill

TABLE OF AUTHORITIES—Continued

Page

Eric Alan Isaacson, Are Same-Sex Marriages Really a

Threat to Religious Liberty?, 8 Stan. J. Civ. Rts.

pe BF Bl ee 10, 30, 32, 35, 37

Eric Alan Isaacson, Free Exercise for Whom? — Could

the Religious-Liberty Principle that Catholics

Established in Perez v. Sharp Also Protect Same-

Sex Couples’ Right to Marry?, 92 U. Det. Mercy

L. Rev. _ (forthcoming 2015) (working draft

online at http://works.bepress.com/eric_isaacson/1

I sti clatealitneamtndien 12, 19

Kenneth L. Karst, The Freedom of Intimate

Association, 89 Yale L.J. 624 (1980)................00... cece 29

Douglas Laycock, Afterword to Same-Sex Marriage

and Religious Liberty (Douglas Laycock, ef al.,

eds.; The Becket Fund for Religious Liberty, 2008) ....... 34

R.A. Lenhardt, Forgotten Lessons on Race, Law, and

Marriage: The Story of Perez v. Sharp, in Race

Law Stories 343 (Rachel F. Moran & Devon W.

Carbado, eds.; New York: Thomson

Renters/Foundation Press, 2008) ..................cccccccceeeceeeeees 12

Sharon M. Leon, An Image of God: The Catholic

Struggle with Eugenics (Chicago: University of

Chicago Press, 2013)

Sharon M. Leon, Tensions Not Unlike that Produced

by a Mixed Marriage: Daniel Marshall and

Catholic Challenges to Interracial Anti-

Miscegenation Statutes 26 U.S. Catholic Historian

27 (Dec. 2008)

TABLE OF AUTHORITIES—Continued

Page

Douglas NeJaime, Marriage Inequality: Same-Sex

Relationships, Re:igious Exemptions, and the

Production of Sexual Orientation Discrimination,

I: tie Ss 1s UREN eciensccttucicncrticcatitintncssesanicnnation 32

James M. Oleske, Jr., The Evolution of

Accommodation: Comparing the Unequal

Treatment of Religious Objections to Interracial

and Same-Sex Marriages, 50 Harv. Civ. Rts. Civ.

Lib. L. Rev. _ (forthcoming 2015) (working draft

online at

http://papers.ssrn.com/sol3/papers.cfm’abstract_id

=2400100 (accessed March 3, 2015)

Peggy Pascoe, What Comes Naturally: Miscegenation

Law and the Making of Race in America (Oxford

& New York: Oxford University Press, 2009) .... 12-14, 20

Marc R. Poirier, Microperformances of Identity:

Visible Same-Sex Couples and the Marriage

Controversy, 15 Wash. & Lee J. Civil Rts. &

Be en TIT citeinsccdcilariinsiaiaencasietaiehctaaddlinaiebliccnendamneaeneis 36

Richard A. Posner, Sex and Reason (Cambridge:

I CUI TI i cnsiirniiatshcinaiiatnieinieninainsbapnccticn 26

David W. Southem, John LaFarge and the Limits of

Catholic Interracialism, 19] 1-1963 (Baton Rouge

& London: Louisiana State University Press, 1996)

Mark Philip Strasser, On Same-Sex Marriage, Civil

Unions, and the Rule of Law: Constitutional

Interpretations at the Crossroads (Westport,

Connecticut: Praeger Publishers, 2002).......................... 25

TABLE OF AUTHORITIES—Continued

Laurence Tribe, American Constitutional Law

(Mineola, N.Y.: Foundation Press, 1978)

U.S. Conference of Catholic Bishops, Compendium —

Catchecism of the Catholic Church (Washington,

D.C.: Libreria Editrice Vaticana, 2006)...................

U.S. Confere.ice of Catholic Bishiops, United States

Catholic Catechism for Adults (Washington, D.C.:

U.S. Conference of Catholic Bishops, 2006)...........

Bryan H. Wildenthal, To Say “J Do”: Shahar v.

Bowers, Same-Sex Marriage, and Public Employee

Marriage Rights, 15 Ga. St. U. L. Rev. 381 (1998)

9 B.E. Witkin, California Procedure, Appeal §809 (Sth

Ie SE picitersiiceisiterensiainciinienbaeihenmiiendninpnscenabidiheinbamnntnenaneianss 19

Yearbook of American & Canadian Churches 2012

(Eileen W. Lindner, ed.; Nashville: Abington Press

for the National Council of Churches, 2012)

IDENTITY AND INTEREST OF AMICI

Amici curiae are California-based religious

organizations whose experience and insights the

Court may find helpful.'

Amici have labored for years to protect all

citizens’ free exercise of religion — including the

right to marry according to the precepts of their

own churches and synagogues. Their work has

included organizing efforts to file amicus curiae

briefs affirming the right to marry and opposing

governmental discrimination based on sexual

orientation, gender, and religious doctrine.?

When California’s Proposition 8 remained in

effect, same-sex couples in California congregations

were unable to enter lawful marriages in their

churches and synagogues. Amici found the ability

i Pursuant to Supreme Court Rule 37.6, counsel for

amici state that they authored this brief in whole, and that

no person or entity other than amici and their counsel made

any monetary contribution toward the brief's preparation or

submission. All parties have consented to the brief’s filing,

either through blanket letters of consent filed with the

Clerk, or through written consent accompanying this brief.

: See, e.g., Brief for Amici Curiae California Council of

Churches, et al. (filed Feb. 28, 2013), Hollingsworth v. Perry,

133 S. Ct. 2652 (2013); Brief of California Faith for Equality,

et al. (filed Oct. 25, 2010), Perry v. Brown, 671 F.3d 1052

(9th Cir. 2012) Brief for Amici Curiae California Council of

Churches, et al. (filed Jan. 15, 2009), Strauss v. Horton, 46

Cal. 4th 364, 377-78, 207 P.3d 48 (2009) (available online at

http://www.courts.ca.gov/documents/s1680xx-amcur-

councilchurch-support.pdf) (accessed March 3, 2015); Brief of

Unitarian Universalist Legislative Ministry California, et al.

(filed Feb. 3, 2010), Perry v. Schwarzenegger, 704 F. Supp.

2d 921 (N.D. Cal. 2010).

of clergy to serve their congregations was deeply

impaired by the California law denying equal

recognition to marriages of same-sex couples. Even

now that same-sex couples may lawfully marry in

California’s churches and synagogues, states such

as Ohio and Tennessee deny equal dignity to those

lawful marriages — to the great detriment of

lawfully married couples when they travel through

or relocate to those states and find themselves

“living in marriages less respected than others.”

United States v. Windsor, 133 38.Ct. 2675, 2696

(2013).

Amici submit that civil marriage is a civil right

that all Americans are entitled to enjoy, whatever

their religious identity or sexual orientation. It is

quite simply wrong for civil law to impose on all

citizens the liturgical limitations that some faith

communities place on their own religious rites of

marriage. It also is wrong for a state to deny legal

recognition to same-sex marriages lawfully entered

in another state.

The following Amici file this brief:

1. Amicus curiae California Council of

Churches is an organization of Christian churches

representing the theological diversity of

California’s mainstream and progressive

communities of faith. From its beginnings in 1913,

the Council’s membership today has grown to

comprise more than 6,000 California congregations,

with more than 1.5 million individual members,

drawn from 21 denominations that span the

spectrum of California’s mainstream Protestant

and Orthodox Christian communities.

Some of its member churches, particularly those

affiliated with the United Church of Christ and the

Universal Fellowship of Metropolitan Community

Churches, gladly welcome same-sex couples

seeking to be legally married in religious rites.

Other states’ laws denying recognition to those

lawful marriages obviously directly affect these

churches’ members when they travel through those

states, or when they must relocate to one of them —

whether temporarily or permanently.

The Council’s position on same-sex marriage is

unequivocally pro-religious freedom and pro-church

autonomy. In California’s Marriage Cases and

subsequent litigation, the California Council of

Churches has_ consistently declared: “Our

commitment to religious liberty for all and equal

protection under the law leads us to assert that the

State may not rely on the views of particular

religious sects as a basis for denying civil marriage

licenses to same-gender couples.”3

2. Amicus curiae California Faith for

Equality was organized in 2005 as a multi-faith

coalition whose mission is to educate, support, and

mobilize California’s faith communities to promote

equality for LGBT people, and to safeguard

3 Statement of Interest of the California Council of

Churches, in as Amici Curiae brief of the Unitarian

Universalist Association of Congregations, et al., at xv-xvi

(filed Sept. 26, 2007), In re Marriage Cases, 43 Cal. 4th 757,

183 P.3d 384 (2008) (No. S147999) (available online at

(accessed March 3, 2015); Brief of Unitarian Universalist

Legislative Ministry California, et al., as Amici Curiae at 6-

7, Perry v. Schwarzenegger, supra note 2.

religious freedom. As a multi-faith organization, it

respects and values the wisdom and perspectives of

all faith traditions, including both those that

celebrate same-sex marriage as a religious rite,

and those that do not. It speaks on behalf of

California’s churches and their lawfully married

same-sex couples, whose lawful marriages are

denied equal dignity by states such as Ohio and

Tennessee.

3. Amicus Curiae Unitarian Universalist

Justice Ministry California (formerly called

Unitarian Universalist Legislative Ministry) is a

statewide justice ministry that cultivates and

connects leaders and communities’. sharing

Unitarian Universalist values and principles. The

Ministry advocates public policies that: uphold the

worth and dignity of every person; further justice,

equity, and compassion in human relations;

promote democratic processes; protect religious

freedom; and engender respect for’ the

interdependent web of all existence. As a matter of

human dignity, California’s Unitarian Universalist

congregations and clergy have long supported

same-sex couples’ freedom to marry, both in

Unitarian Universalist religious rites, and as a

fundamental civil right. Many same-sex couples

have been legally married in ceremonies

solemnized by California’s Unitarian Universalist

clergy. Yet states such as Ohio and Tennessee

refuse to recognize and accord equal dignity to

lawful California marriages of same-sex couples.

4. Amicus curiae Northern California

Nevada Conference United Church of Christ

(“NCNC”) is a manifestation of the church of Jesus

Christ and a constituting body of the United

Church of Christ (UCC). The Conference's

membership includes 130 local churches in the

State of California, from the Oregon border to the

southern borders of Inyo, Tulare, Kings, and

Monterey counties. In 2005 the Conference co-

sponsored the resolution adopted by the General

Synod of the United Church of Christ, urging

“Equal Marriage Rights for All.” Clergy in many of

the Conference’s California churches solemnize

legal marriages of committed same-sex couples.

5. Amicus curiae Southern California

Nevada Conference of the United Church of

Christ (*“SCNC”) is a faith community gathered in

over 130 diverse congregations, most of them in

Southern California. Its mission is to be a united

and uniting community of the people of God,

covenanting together for mutual support and

common mission. Its denomination, the United

Church of Christ (UCC), is a “mainline” Protestant

denomination in the Reformed tradition, whose

history is witness to a long and profound

commitment to peace-seeking and advocacy of

justice for all. Many same-sex couples have

lawfully married in rites solemnized by its

churches’ clergy.

6. Amicus curiae Pacific Association of

Reform Rabbis (“PARR”), represents rabbis in

the Western Region of the Central Conference of

American Rabbis (“CCAR”). Dedicated to the

principles of Reform Judaism, PARR is an

organization of over 350 Reform rabbis in

California and twelve other states, one Canadian

province, and New Zealand. In 1996 the CCAR

endorsed civil marriage for gay people and in 2000

it recognized the right of Reform rabbis to perform

religious marriage ceremonies for gay and lesbian

Jews. PARR has a direct interest in this case, as

its members solemnize the legal marriages of same-

sex couples in their California congregations — yet

those marriages are not accorded legal recognition

by states such as Ohio and Tennessee.

7. Amicus curiae California Network of

Metropolitan Community Churches is a

statewide organization of Metropolitan Community

Churches (“MCC”). The first MCC worship service,

in a Los Angeles suburb in 1968, launched an

international movement of Christian churches with

a particular, but by no means exclusive, outreach

to the LGBT community. The MCC’s California

churches’ ministry naturally includes

solemnization of same-sex couples’ lawful

marriages. Those marriages are denied equal

dignity by states, such as Ohio and Tennessee,

which refuse to recognize them.

SUMMARY OF ARGUMENT

The “freedom to marry has long been recognized

as one of the vital personal rights essential to the

orderly pursuit of happiness by free men.” Loving

v. Virginia, 388 U.S. 1, 12 (1967). And civil

marriage is a secular institution that “does not

require any religious ceremony for its

solemnization.” Maynard v. Hill, 125 U.S. 190, 210

(1888). Nor should it require compliance with any

religious doctrine or dogma. For ours is a

pluralistic society, of many faiths and persuasions,

whose constitutional framework must ensure

fundamental liberty and equal rights for all.

It nonetheless should be clear that governmental

limitations on the right to marry may seriously

abridge citizens’ religious liberty. Amict's

experience in California demonstrates’ that

Proposition 8 did exactly that by outlawing the

marriages of same-sex couples, which were being

lawfully solemnized in hundreds of California’s

churches and synagogues. With Propvosition 8’s

demise, California clergy again may solemnize the

lawful marriages of same-sex couples in their

congregations. But those marriages now are

denied equal dignity under law by states such as

Ohio and Tennessee.

With this brief we endeavor to show that denying

same-sex couples the right to marry, and denying

equal dignity under law to the marriages of same-

sex couples entered lawfully in other states, both

violate the First Amendment free-exercise and

neutrality principles that apply to the States

through the due-process and equal-protection

clauses of the Fourteenth Amendment. For this

Court has itself sustained the right to marry as “an

exercise of religious faith.” Turner v. Safley, 482

U.S. 78, 96 (1987); see infra at 9-12. And the

seminal decision on marriage equality is at its core

a religious-liberty precedent: In Perez v. Sharp,‘a

Catholic couple persuaded California’s Supreme

Court to overturn California’s law against mixed-

race marriages as a violation of their right to

religious freedom under a regime of equal

protection for persons of all faiths. See infra 12-19.

When this Court reviewed the issue nearly two

decades later in Loving v. Virginia, 338 U.S. 1

(1967), Catholic bishops filed an amicus curiae

. 32 Cal. 2d 711, 198 P.2d 17 (1948).

brief urging this Court to follow Perez because

“marriage is an exercise of religion protected by the

First and Fourteenth Amendments” and thus “can

be restrained only upon a_ showing that it

constitutes a grave and immediate danger to

interests which the state may lawfully protect.”

See infra at 19-22.

The principle is one of universal application: If

Catholics in Perez had a religious-liberty interest

in legal recognition of mixed-race marriages to be

solemnized in their own churches, then Reform

Jews Unitarian Universalists, as well as members

of the United Church of Christ and Metropolitan

Community Churches, all must have a similar

religious-liberty interest in legal recognition of

same-sex marriages. See infra at 23-29. Amici

submit that religious liberty and equality under

5 Brief of Amicus Curiae, Urging Reversal, on behalf of

John J. Russell, Bishop of Richmond; Lawrence Cardinal

Shehan, Archbishop of Baltimore; Paul A. Hallinan,

Archbishop of Atlanta; Philip M. Hannan, Archbishop of

New Orleans; Robert E. Lucey, Archbishop of San Antonio;

Joseph B. Brunini, Apostolic Administrator of Natchez-

Jackson; Lawrence M. DeFalco, Bishop of Amarillo; Joseph

A. Dirick, Apostolic Administrator of Nashville; Thomas K.

Gorman, Bishop of Dallas-Ft. Worth; Joseph H. Hodges,

Bishop of Wheeling; John L. Morkovsky, Apostolic

Administrator of Galveston-Houston; Victor J. Reed, Bishop

of Oklahoma City and Tulsa; L. J. Reicher, Bishop of Austin;

Thomas Tschoepe, Bishop of San Angelo; Ernest L.

Unterkoefler, Bishop of Charleston; Vincent S. Waters,

Bishop of Raleigh; The National Catholic Conference for

Interracia! Justice; and The National Catholic Social Action

Conference (hereinafter “Catholic Bishops’ Loving brief”) at

19 (filed Feb. 16, 1967), Loving v. Virginia, 388 U.S. 1 (1967)

(No. 66-395), 1967 WL 113926.

law are honored not by state laws withholding

equal rights and imposing sectarian limitations

concerning who may marry, but rather by

recognizing marriage as a fundamental civil right

shared by all people, of all faiths and persuasions,

without regard to the doctrines and dogma of any

particular sect or sects. Perez and Turner are

sound decisions that this Court should reaffirm

and follow.

That some defend withdrawal of this right, as

somehow necessary to protect the religious liberty

of sectarians whose churches’ liturgical doctrines

preclude offering religious rites of marriage to

same-sex couples, reflects a profound

misunderstanding of what really is at stake.

Some opponents of marriage equality have

suggested that laws denying the right to marry are

rationally grounded in speculative fears that

honoring same-sex couples’ right to equality under

the civil law of matrimony somehow threatens the

religious liberty of Americans whose religious

liturgies do not encompass same-sex unions. The

threats are illusory. See infra at 30-37.

ARGUMENT

A. This Court Held in Turner v. Safley

that Although Civil Marriage Is a

Secular Institution, Its Arbitrary

Restriction Improperly Abridges the

Free Exercise of Religion

Marriage in the United States has long been a

secular civil institution, free from the many

liturgical limitations that particular faith

traditions are entitled to follow regarding what

marriages they will solemnize with their own

religious rites. A civil marriage, this Court has

said, “must be founded upon the agreement of the

parties” but “does not require any religious

ceremony for its solemnization.”’ This is as it

should be, for in a pluralistic society such as ours,

sectarian doctrines and forms ought not control the

exercise of a fundamental civil right.

Still it would be a mistake to think that the

fundamental civil right of marriage and the

constitutional right to free exercise of religion have

no relation. For in addition to being a secular civil

6 The Pilgrims who sailed on the Mayflower, landing at

Plymouth Rock in 1620, began the American tradition that

lawful marriage should be “a civil thing,” when in 1621 they

celebrated the “first marriage in this place.” 1 William

Bradford, History of the Plymouth Plantation, 1620-1647, at

216-18 (Boston: Massachusetts Historical Society, 1912)

(recounting the “first marriage in this place, which,

according to the laudable custome of the Low-—c[o]untries...

was thought most requisite to be performed by the

magistrate, as being a civil thing”); see Eric Alan Isaacson,

Are Same-Sex Marriages Really a Threat to Religious

Liberty?, 8 Stan. J. Civ. Rts. & Civ. Libs. 123, 138-39 (2012).

The Pilgrims thus adopted “a doctrinal principle separating

the responsibility of the church to minister to its members

from the civil obligation of the magistrate to regulate and

protect the rights of all.” Jeremy Dupertuis Bangs,

Strangers and Pilgrims, Travellers and Sojourners: Leiden

and the Foundations of the Plymouth Plantation 640

(Plymouth, Massachusetts: General Society of Mayflower

Descendents, 2009).

7 Maynard, 125 U.S. at 210; accord, e.g., Maryland v.

Baldwin, 112 U.S. 490, 494-95 (1884) (“a marriage is a civil

contract, and may be made .. . without attending

ceremonies, religious or civil”); Meister v. Moore, 96 U.S. 77,

78 (1877) (“Marriage is everywhere regarded as a civil

contract.”).

right, marriage also has an important place in

religious life for most (if not all) communities of

faith ~— each of which must be free to celebrate

matrimonial rites on its own terms.

This Court held in Turner v. Safley, 482 U.S. 78,

95-96 (1987), that “the decision to marry is a

fundamental right” that prison inmates retain even

though incarcerated, since “the commitment of

marriage may be an exercise of religious faith as

well as an expression of personal dedication,” and

“the religious and personal aspects of the marriage

commitment” remain “unaffected by the fact of

confinement or the pursuit of legitimate corrections

goals.” Id. at 96. These elements of free exercise

and free expression are, this Court held, “sufficient

to form a constitutionally protected marital

relationship in the prison context.” Id.

The religious significance of marriage is no less

important outside of prison when same-sex couples

seek to marry with the blessings of clergy in

Reform and Reconstructionist synagogues, and in

Unitarian Universalist, United Church of Christ,

and Metropolitan Community churches. State laws

denying gay or lesbian couples the right to marry

are unconstitutional because they directly impair

“an exercise of religious faith as well as an

expression of personal dedication.” Turner, 482

U.S. at 96.

Those faith communities and their members,

moreover, are entitled to equal protection of the

laws, both under the Fourteenth Amendment, and

under the religion clause’s requirement of

government neutrality with respect to religious

distinctions.

B. The Seminal Decision

Striking Down California

Laws Against Mixed-Race

Marriages Did So on

Religious-Liberty Grounds

The seminal decision sustaining a mixed-race

couple’s right to civil marriage was a religious-

liberty precedent. In the Califernia Supreme

Court’s 1948 decision reported officially as Perez v.

Sharp, and by West Publishing Co. as Perez uv.

Lippold,® a Roman Catholic couple represented by

an activist Roman Catholic lawyer successfully

argued that California’s ban on mixed-race

marriage violated their religious freedom.!® As the

8 See Eric Alan Isaacson, Free Exercise for Whom? —

Could The Religious-Liberty Principle that Catholics

Established in Perez v. Sharp Also Protect Same-Sex

Couples’ Right to Marry?, 92 U. Det. Mercy L. Rev. __

(forthcoming 2015) (August 12, 2014, working draft

available online at fi bepre /eric isaacson/1

(accessed March 3, 2015).

9 32 Cal. 2d 711, 198 P.2d 17 (1948). The different

captions apparently resulted from a succession in the Office

of County Clerk (named in his official capacity), which was

reflected in one reporter, but not the other. See R.A.

Lenhardt, Forgotten Lessons on Race, Law, and Marriage:

The Story of Perez v. Sharp, in Race Law Stories, 343, 344

n.6 (Rachel F. Moran & Devon W. Cabado, eds.; New York:

Thomson Reuters/Foundation Press, 2008).

10 =—s See generally Peggy Pascoe, What Comes Naturally:

Miscegenation Law and the Making of Race in America 205-

31 (Oxford & New York: Oxford University Press, 2009); Fay

Botham, Almighty God Created the Races: Christianity,

Interracial Marriage & American Law 11-51 (Chapel Hill:

University of North Carolina Press, 2009).

Catholics for the Common Good amicus brief in

Hollingsworth v. Perry aptly observed: “The hero of

Perez is Daniel Marshall, the President of the

Catholic Interracial Council of Los Angeles, and

the attorney who represented Sylvester Davis, an

African-American male, and Andrea Perez, a

woman of Mexican descent.”!!

Perez was deemed “white” under California law,

which barred her marriage to Davis, a black man.

Both were members of Saint Patrick’s Catholic

Church in Los Angeles, where Marshall led “a

small but very determined Catholic Interracial

Council” that he had formed in 1944 to advance the

cause of racial equality.'2 When the Los Angeles

County Clerk refused to issue Perez and Davis a

marriage license because California statutes

proscribed mixed-race marriages, Marshall took

their case straight to California’s Supreme Court,

demanding a writ directing the County Clerk to

issue a license. Marshall did so even though his

own Church’s Diocesan officials disapproved.!3

11 Amicus Curiae Brief for Catholics for the Common

Good, et al. at 21 (filed Jan. 29, 2013), Hollingsworth v.

Perry, 133 S.Ct. 2652 (2013); see also Sharon M. Leon,

Tensions Not Unlike That Produced by a Mixed Marriage:

Daniel Marshail and Catholic Challenges to Interracial Anti-

Miscegenation Statutes, 26 U.S. Catholic Historian 27 (Dec.

2008).

12 ~=6©Pascoe, supra note 10, at 206 & 204.

13 Historian Peggy Pascoe explains:

At the Los Angeles Diocese, Catholic officials

were appalled that Marshall had put the

Catholic Church in the position of seeming to

endorse interracial marriage. When Marshall

wrote to ask Auxiliary Bithop Joseph

The court papers in Perez starkly framed the

mixed-race couple’s right to marry in terms of

religious liberty. “There is no rule, regulation or

law of the Roman Catholic Church which forbids a

white person and a Negro person from receiving

conjointly the sacrament of matrimony and thus to

intermarry,” the couple’s writ petition averred.

The County Clerk’s refusal of a “license to

intermarry” thus had denied them “the right to

participate fully in the sacramental life of the

religion in which they believe,” thereby impinging

upon “the free exercise and enjoyment... of their

religious profession and _ worship.” An

accompanying brief argued that, thanks to the

many states’ laws then proscribing mixed-race

marriages, “petitioners are prohibited from

participating in the full sacramental life of the

McGucken, a onetime [Catholic Interracial

Council] supporter, to testify in the Perez

case, he received an immediate, and visceral,

refusal. “I cannot think of any point in

existing race relationships that will stir up

more passion and prejudice,” McGucken

fumed. “I want to make very clear that I am

not at all willing to be pulled into a

controversy of this kind.”

Pascoe, supra note 10, at 214 (quoting letter from Auxiliary Bishop

Joseph T. McGucken to Daniel G. Marshall, April 26, 1947, in Box

17, Folder 29, John LaFarge Papers, Georgetown University

Special Collections, Washington, D.C.); see also Sharon M. Leon,

An Image of God: The Catholic Struggle with Eugenics 155, 160

(Chicago: University of Chicago Press, 2013) (quoting same letter).

14 = Petition for Writ of Mandamus, 995, 6, at 3 (filed

Aug. 8, 1947), Perez v. Sharp.

6 IJd., 415, at 4.

religion of their choice in over 60 per cent of the

states of the Union.”!®

The County of Los Angeles countered that while

the couple’s Church might permit mixed-race

marriages, no religious-liberty interest could be at

stake, as the Catholic faith did not demand that

adherents marry outside their own _ race:

“Marrying a person of another race, even insofar as

the Church tolerates or permits it, is certainly not

required.”!” “It is true that the Catholic religion

forbids illicit intercourse,” the County

acknowledged, “but it is not necessary to marry one

-of another race to avoid such illicit intercourse. A

good Catholic could just as well live up to his

religion by avoiding the intercourse. The

petitioners will not be violating their religion by

failing to get married.”'®

Three of the California Supreme Court’s seven

justices found the County’s arguments thoroughly

1% Memorandum of Points and Authorities, XXII, at 5

(filed Aug. 8, 1947), Perez v. Sharp. Marshall's oral

argument reiterated that his Catholic clients “have the right

to participate in the full sacramental life of their church...

and that Section 69 of the Civil Code denies them the right

to participate fully in the sacramental life of their religion.”

Oral Argument in Support of Petition at 4 (Oct. 6, 1947),

Perez v. Sharp.

17 Respondent’s [Supplemental] Brief in Opposition to

Writ of Mandate at 51 (filed Oct. 6, 1947), Perez v. Sharp.

18 Id. at 51-52. County counsel began his oral

argument: “In the present case, the petitioners do not show

that it is religion that compels them to marry, but that it is

their own worldly choice.” Transcript of oral argument on

behalf of Respondent, at 2, Perez v. Sharp.

persuasive.'? Justice B. Rey Schauer and Justice

Homer R. Spence both concurred in Justice John

W. Shenk’s opinion declaring that because

“petitioners’ alleged right to marry is not a part of

their religion in the broad sense that it is a duty

enjoined by the church,” their claims were weaker

even than those of Mormon polygamists in

Reynolds v. United States,2° whose faith had

affirmatively required them to take more than one

wife.2! In contrast with the Mormon polygamists,

Perez and Davis could argue only “that their

marriage is permissive under the dogma, beliefs

and teaching of the church to which they claim

membership and that the sacrament of matrimony

will be administered to them by a priest of the

church if and when a license issues.”22

Yet the Catholic couple’s_ religious-liberty

argument carried the day. For though no opinion

was joined by a majority of the court, Justice

Shenk’s three-justice opinion was but a dissent.

Justice Roger J. Traynor, himself a Catholic,

filed a three-justice plurality opinion, joined by

Chief Justice Phil S. Gibson and Justice Jesse W.

Carter. It set out the mixed-race couple’s

argument,

that the statutes in question are

unconstitutional on the grounds that

19 ~=6 Perez, 32 Cal. 2d at 742-63, 198 P.2d at 35-47 (Shenk,

J., joined by Schauer and Spence, J.J., dissenting).

20 98 U.S. 145, 161 (1878).

21 Perez, 32 Cal. 2d at 744, 198 P.2d at 36 (Shenk, J.,

dissenting).

3 86d.

they prohibit the free exercise of their

religion and deny to them the right to

participate fully in the sacraments of

that religion. They are members of the

Roman Catholic Church. They

maintain that since the church has no

rule forbidding marriages between

Negroes and Caucasians, they are

entitled to receive the sacrament of

matrimony.”

Writing for his three-justice plurality, Justice

Traynor declared that if “the law is discriminatory

and irrational, it unconstitutionally restricts not

only religious liberty but the liberty to marry as

well.”24 Justice Edmonds, a “Christian Scientist for

whom religious freedom mattered,” provided the

fourth vote — which was needed for a precedential

majority on the seven-justice tribunal. He filed a

separate concurring opinion unequivocally holding

that the right to marry “is protected by the

constitutional guarantee of religious freedom.”26

By denying legal standing to the marriage of two

Catholics, whose Church allowed people of different

races to marry, the State of California had violated

their religious freedoin.

23 «Perez, 32 Cal. 2d at 713, 198 P.2d at 18 (Traynor

plurality).

2% = odId., 32 Cal. 2d at 713-14, 198 P.2d at 18 (Traynor

plurality).

2 Botham, supra note 10, at 42.

26 «=Perez, 32 Cal. 2d at 740, 198 P.2d at 34 (Edmonds, J.,

concurring); see Botham, supra note 10, at 42 (“Justice

Edmonds cast the deciding vote that gave victory to Andrea

Perez and Sylvester Davis.”; “what is clear is that Edmond’s

opinion shifted the entire outcome of the case”).

Justice Traynor’s plurality opinion addressed

religious liberty only briefly, and then devoted

greater attention both to more general equal-

protection concerns and to the character of civil

marriage as a fundamental! secular right. But

Justice Edmonds’ separate concurrence, grounded

on religious liberty, provided the rationale on

which a majority of the court’s justices agreed: “By

a four-to-three vote, the court invalidated

California’s antimiscegenation law on the basis of

the constitutional right to freedom of religion.”2’

Applying familiar rules of stare decisis, religious

liberty provided the decision’s precedential ratio

decidendi.”®

If Perez is correct, then laws denying same-sex

couples the right to marry are an unconstitutional

abridgment of those couples’ religious liberty to

marry, and of their faith communities’ and clergy’s

right to celebrate and solemnize their marriages —

just as California’s law denying legal recognition to

mixed-race unions violated a Catholic couple’s

religious liberty, as well as their right to equal

protection of the laws.

27 David W. Southern, John LaFarge and the Limits of

Catholic Interracialism, 1911-1963, at 274 (Baton Rouge &

London: Louisiana State University Press, 1996).

7% 6=s See, e.g., Panetti v. Quarterman, 551 U.S. 930, 949

(2007); Marks v. United States, 430 U.S. 188, 193 (1977);

Estate of Lopes, 152 Cal. App. 3d 302, 306-07, 199 Cal. Rptr.

425, 428-29 (1984); People v. Harris, 71 Cal. App. 3d 959,

966, 139 Cal. Rptr. 778, 783 (1977); 9 B.E. Witkin, California

Procedure, Appeal §809, at 879 (5th ed. 2008) (“It is possible

for a concurring opinion, not the main opinion, to constitute

the majority position of the court on a particular point.”); see

also id., Appeal §538, at 608-10.

C. Catholic Bishops Endorsed Perez v.

Sharp’s Religious-Liberty Rationale

When this Court Considered a

Baptist Couple’s Appeal in Loving v.

Virginia

When the constitutionality of state laws

proscribing mixed-race marriages got to this Court

in Loving, nearly two decades after Perez, Catholic

bishops weighed in as amici curiae fully supporting

Perez’s religious-liberty rationale.29

The case arose from Virginia. Rejecting a

Baptist couple’s contention that statutes

proscribing their marriage were unconstitutional,

the Virginia trial court invoked what many

Americans once took as binding Scriptural law —

that “Almighty God created the races” and “that He

did not intend for the races to mix.”® Virginia's

Supreme Court affirmed, following its own 1955

22 See supra note 5; see also Isaacson, Free Exercise for

Whom?, supra note 8, online working draft at 19-22.

% ~=—s Loving, Circuit Court opinion, reprinted in Loving,

No. 66-395, Transcript of Record, at 8, 16. The trial court

declared:

Almighty God created the races white, black,

yellow, malay and red, and he placed them on

separate continents. And but for the

interference with his arrangement there

would be no cause for such marriages. The

fact that he separated the races shows that he

did not intend for the races to mix.

Id.; see Pascoe, supra note 10, at 275; Loving, 388 U.S. at 3

(quoting trial court); see also Bowers v. Hardwick, 478 U.S. 186,

210 n.5 (1986) (Blackman, J., joined by Brennan, Marshall &

Stevens, J.J., dissenting) (same quote); cf. People v. Greenleaf, 780

N.Y.S.2d 899, 902 (New Paltz Justice Ct. 2004).

decision in Naim v. Naim,*' which had sustained

Virginia’s laws against racial mixing in “a public

institution established by God himself.”%2

When Loving reached this Court, sixteen

Catholic bishops and apostolic administrators filed

an amicus curiae brief asserting that Virginia’s

laws denying recognition to mixed-raced marriages

violated the Baptist couple’s religious liberty.®

Even with respect to marriages outside their own

Church, the Catholic bishops opposed permitting

legal enactments grounded upon the “views of third

persons to determine one of the most personal and

sensitive of human decisions.”* They urged this

31 197 Va. 80, 87 S.E.2d 749 (1955), vacated and

remanded, 350 U.S. 891 (1955), reinstated on remand, 197

Va. 734, 90 S.E. 2d 849 (Va. 1956), motion to recall mandate

denied, 350 U.S. 985 (1956).

32) = Naim, 197 Va. at 84, 87 S.E.2d at 752 (quoting State

v. Gibson, 36 Ind. 389, 402-03 (1871)). Following State v.

Gibson, 36 Ind. at 404, Naim sustained Virginia law barring

marriage between members of different races, declaring

“that the natural law which forbids their intermarriage and

the social amalgamation which leads to a corruption of races

is as clearly divine as that which imparted to them different

natures.” Naim, 197 Va. at 84, 87 S.E. 2d at 752. God’s law

was a common refrain in the precedents sustaining such

laws. See, e.g., Gibson, 36 Ind. at 404; Green v. State, 58

Ala. 190, 195 (1877) (“Surely there can not be any tyranny or

injustice in requiring both alike, to form this union with

those of their own race only, whom God hath joined together

by indelible peculiarities, which declare that He has made

the two races distinct.”); Scott v. Georgia, 39 Ga. 321, 326

(1869) (holding that members of different races may not

intermarry because the “God of nature made it otherwise”).

% =€©6©Ssee Botham, supra note 10, at 3, 170-74.

*% Botham, supra note 10, at 170-74; Catholic Bishops’

Loving Brief, supra note 5, at 17.

Court to follow the lead of Perez, where Justice

Traynor’s three-justice plurality opinion had found

that California’s anti-miscegenation statute

“unconstitutionally restricted both religious

freedom and the liberty to marry.”® The critical

fourth vote in Perez, the Catholic bishops

underscored, was provided by Justice Edmonds’

“separate concurring opinion,” clearly holding the

right to marry “is protected by the constitutional

guarantee of religious freedom.”

The Catholic bishops concluded by asserting that

“marriage is an exercise of religion protected by the

First and Fourteenth Amendments” and that “as

such, marriage can be restrained only upon a

showing that it constitutes a grave and immediate

danger to interests which the state may lawfully

protect.”37 That view accords with the ratio

decidendi of Perez, and with this Court’s holding in

Turner that depriving prison inmates, as a group,

of the right to marry trampled their “exercise of

religious faith.” Turner, 482 U.S. at 96.

The Catholic bishops believed then that religious

liberty protected the marriage right not only of

3% =Catholic Bishops’ Loving Brief, supra note 5, at 18.

The Catholic Bishop's brief thus “reiterated California

Supreme Court Justice Roger Traynor’s assertion that if

California's anti-miscegenation statutes were

unconstitutional and discriminatory, then they restricted

two fundamental! human liberties: religious freedom and the

freedom to marry.” Botham, supra note 10, at 172.

% Catholic Bishops’ Loving Brief, supra note 5, at 18

(quoting Perez, 32 Cal. 2d at 740, 198 P.2d at 34 (Edmonds,

J., concurring)).

37 ~Catholic Bishops’ Loving Brief, supra note 5, at 19.

Catholics, but of non-Catholics as well. For

Catholics and their marriages are, as a matter of

law, not specially privileged those of other faiths.

If religious liberty and equal protection of the

law mean anything, the right to marry is one

properly enjoyed by all Americans, of all faiths,

including those that bless marriages of same-sex

couples.

D. Perez and Turner Remain Good Law

that this Court Should Reaffirm and

Though Loving cited — and thus implicitly

rejected — the Virginia courts’ religious rationale

for outlawing mixed-race marriages,* and though

this Court cited Perez with approval,*? it did not

clearly endorse Perez’s religious-liberty rationale.

In light of this Court’s subsequent holding in

Turner, that marriage most often involves a

constitutionally protected “exercise of religious

faith,” 482 U.S. at 96, the Court should do so now.

For Perez's religious-liberty rationale remains

sound law that should apply as fully to a same-sex

couple who would marry in a Reform or

Reconstructionist synagogue, or in a Unitarian

Universalist, United Church of Christ, or

Metropolitan Community church, just as it applies

in Perez to a mixed-race couple seeking to marry in

a Catholic church.

Two objections must, of course, be answered.

One is that the Perez holding’s religious-liberty

3% = Loving, 388 U.S. at 3.

3 = odd. at 6 n.5.

rationale conflicts with this Court’s decisions

sustaining criminal penalties for Mormon

polygamy, as the Perez dissenters insisted.*° The

other is that Perez was impliedly overruled by this

Court’s decision in Employment Division v. Smith,

494 U.S. 872 (1990), which held that Oregon may

criminalize sacramental use of peyote.

Perez does not conflict with this Court’s decisions

rejecting free-exercise challenges to federal laws

criminalizing Mormon polygamy. For as Justice

Edmonds’ separate concurrence noted, those

decisions were grounded in what this Court

perceived as compelling justifications that simply

find no parallel here.*!

In Reynolds v. United States, 98 U.S. 145 (1878),

this Court embraced the view of Professor Francis

Lieber, that polygamy posed a grave threat to the

very existence of democratic institutions: “In fact,

according as monogamous or polygamous marriages

are allowed, do we find the principles on which the

Government of the people, to a greater or less

extent, rests.” Jd. at 165-66. The Court grounded

Reynolds’ holding on the assumption that

“polygamy leads to the patriarchal principle, ...

which, when applied to large communities, fetters

the people in stationary despotism, while that

principle cannot long exist in connection with

monogamy.” Id. at 166. Congress could

criminalize polygamy “because of the evil

(Shenk, J., dissenting).

41 See Perez, 32 Cal. 2d at 741-42, 198 P.2d at 35

(Edmonds, J.. separate concurrence).

consequences that were supposed to flow from

plural marriages” as harbingers of despotism

threatening democratic order itself.

To the same effect is Davis v. Beason, 133 U.S.

333 (1890), which reaffirmed Reynolds’ holding and

rationale for criminalizing polygamy. Davis added

that a system of plural marriage will “tend to

destroy the purity of the marriage relation, to

disturb the peace of families, to degrade woman,

and to debase man. Few crimes are more

pernicious to the best interests of society, and

receive more general or more deserved punishment.

To extend exemption from punishment for such

crimes would be to shock the moral judgment of the

community.” Id. at 341.

Same-sex relationships are entirely different

from the patriarchal polygamous’ systems

condemned by Reynolds and Davis. Where Mormon

polygamy was grounded in patriarchal inequality,

and the subjection of women as a class, today’s

same-sex marriages are grounded in recognizing

the full humanity, dignity, and equality of all

citizens. Same-sex couples’ marriages thus pose

42 «=Id. at 168. See also Church of Lukumi Babalu Aye v.

City of Hialeah, 508 U.S. 520, 569 (1993) (Souter, J.,

concurring) (citing Reynolds’ rationale); Nancy F. Cott,

Public Vows: A History of Marriage and the Nation 113-14

(Cambridge, Mass. & London: Harvard University Press,

2000) (discussing Reynolds); Mark Philip Strasser, On Same-

Sex Marriage, Civil Unions, and the Rule of Law:

Constitutional Interpretations at the Crossroads 124-25

(Westport, Connecticut: Praeger Publishers, 2002).

none of the threats to our democratic institutions

that were said to flow from polygamy.*

Neither will recognizing full civic equality for

gay and lesbian citizens “destroy the purity of the

marriage relation,” “disturb the peace of families,”

“degrade women,” or “debase man,” as Davis put it.

133 U.S. at 341. Committed same-sex

relationships cannot even remotely be

characterized as crimes “pernicious to the best

interests of society,” to again quote Davis. ld.

Neither Congress nor the States may criminalize

peaceable same-sex relationships. See Lawrence v.

Texas, 539 U.S. 558, 578-79 (2003).

Though nineteenth-century Mormons’ social

system of patriarchal polygamy might be

characterized as “a defiant stand against the

West’s most basic political and personal values,” it

should be clear that the movement toward same-

sex marriage honors egalitarian personal autonomy

and full human dignity for all.44 No credible

43 ~=6§ See generally E.J. Graff, What is Marriage For?: The

Strange Social History of Our Most Intimate Institution 168-

77 (Boston: Beacon Press, rev. ed. 2004).

“ Graff, supra note 42, at 177. Judge Richard A.

Posner has suggested that prohibiting polygamy may further

egalitarian objectives, observing that “the prohibition of

bigamy (polygamy) . . . increases the sexual and marital

opportunities of younger, poorer men.” Richard A. Posner,

Sex and Reason 215 (Cambridge: Harvard Univ. Press,

1992). He observes that “polygamy is anomalous in a system

of companionate marriage, because a man is unlikely to have

the same reciprocal relationship of love and trust with

multiple wives; as well as with the fact already noted that it

benefits a few men at the expense of the many.” /d. at 216.

Nor has polygamy generally been associated with decent

argument can be made that recognizing same-sex

couples’ full citizenship and right to marry might

produce the kind of social problems this Court

concluded would flow from the Mormons’ system of

polygamy.

Neither has Perez been impliedly overturned by

this Court’s holding in Employment Division v.

Smith, 494 U.S. 872, 874 (1990), that the Free

Exercise Clause “permits the State of Oregon to

include religiously inspired peyote use within the

reach of its general criminal! prohibition on use of

that drug.”

Obviously, no criminal prohibition is at issue

here, and Lawrence flatly bars criminal sanctions

for consensual same-sex relationships. But more

than that, Smith itself recognized this Court’s

many holdings that “the First Amendment bars

application” even of “a neutral, generally

applicable law to religiously motivated action”

when religious-liberty interests operate “in

conjunction with other constitutional protections,

such as freedom of speech and of the press,”*® or

treatment of women, for as Judge Posner observes: “It may

not be an accident that the congeries of practices loosely

referred to as ‘female circumcision’ — primarily, the removal

of the clitoris and (until marriage) the sewing up of the

entrance to the vagina (infibulation) — are found only, as far

as 1 am able to determine, in polygamous societies.” Id. at

256-57.

46 Smith, 494 U.S. at 881 (citing Cantwell ov.

Connecticut, 310 U.S. 296, 304-07 (1940) (invalidating a

licensing system for religious and charitable solicitations

under which the administrator had discretion to deny a

license to any cause he deemed nonreligious); Murdock v.

“the right of parents, acknowledged in Pierce v.

Society of Sisters, 268 U.S. 510 (1925), to direct the

education of their children.”*6 This case involves

such additional interests.

This Court has many times recognized marriage

itself as a fundamental liberty interest.47 Marriage

rests at the heart of the interests protected by this

Court’s decisions protecting autonomy in matters of

family life — such as Pierce, 268 U.S. at 534-35,

Meyer v. Nebraska, 262 U.S. 390, 399-401 (1923),

and Yoder, 406 U.S. 205, as well as by the right to

privacy recognized in Griswold v. Connecticut, 381

U.S. 479 (1965), and extended in other decisions.‘

The element of free speech also is present —

implicated by what marriage communicates. This

Court held in Turner that even prison inmates

retain their fundamental right to marry, because

“[mjany important attributes of marriage remain

Pennsylvania, 319 U.S. 105 (1943) (invalidating a flat tax on

solicitation as applied to the dissemination of religious

ideas); Follett v. McCormick, 321 U.S. 573 (1944) (same)).

46 Smith, 494 U.S. at 881 (citing Wisconsin v. Yoder, 406

U.S. 205 (1972) (invalidating compulsory school-attendance

laws as applied to Amish parents who refused on religious

grounds to send their children to school)).

47 See, e.g., Cleveland Bd. of Educ. v. LaFleur, 414 U.S.

632, 639-40 (1974) (“This Court has long recognized that

freedom of choice in matters of marriage and family life is

one of the liberties protected by the Due Process Clause of

the Fourteenth Amendment.”); Loving, 388 U.S. at 12

(“[mJarriage is one of the ‘basic civil rights of man’)

(citation omitted).

(1971); Eisenstadt v. Baird, 405 U.S. 438 (1972); Hodgson v.

Minnesota, 497 U.S. 417, 435 (1990).

‘ after taking into account the limitations

imposed by prison life.” Turner, 482 U.S. at 95.

These include the fact that “inmate marriages, like

others, are expressions of emotional support and

public commitment,” id., as well as the fact that

“many religions recognize marriage as having

spiritual significance; for some inmates and their

spouses, therefore, the commitment of marriage

may be an exercise of religious faith as well as an

expression of personal dedication.” Id. at 96.

The expressive element of marriage clearly

implicates “speech in its full constitutional

sense.”49 “When two people marry .. . they express

themselves more eloquently, tell us more about

who they are and who they hope to be, than they

ever could do by wearing armbands or carrying red

flags.”50 “If the First Amendment deserves

interpretations that will ‘protect a rich variety of

expressional modes,’ there is no reason in logic for

excluding the expression that is at the heart of

[jour] most intimate associations.”5!

In sum, the religious-liberty holdings of Perez

and Turner remain good law, under which state

4 Bryan H. Wildenthal, To Say “I Do”: Shahar v.

Bowers, Same-Sex Marriage, and Public Employee Marriage

Rights, 15 Ga. St. U. L. Rev. 381, 382 (1998); see also David

B. Cruz, “Just Don’t Call It Marriage”: The First Amendment

and Marriage as an Expressive Resource, 74 S. Cal. L. Rev.

925 (2001).

6 Kenneth L. Karst, The Freedom of Intimate

Association, 89 Yale L.J. 624, 654 (1980).

51 =6hdIJd. at 654 (quoting Laurence Tribe, American

Constitutional Law 579 (Mineola, N.Y.: Foundation Press,

1978)); see generally Cruz, supra note 49.

laws’ differential treatment of same-sex couple’s

marriages cannot be sustained.

E. According Equal Dignity to

Same-Sex Couples’ Marriages

Poses No Threat to Religious

Liberty

Some who oppose equal marriage rights have

portrayed same-sex couples’ marriages as

threatening the religious liberty of people whose

faith traditions do not bless same-sex

relationships. This, some have even argued, may

provide a rational basis for denying same-sex

couples the right to marry. They are mistaken.

Fears that same-sex couples’ marriages threaten

anyone’s religious liberty are simply unfounded.®

In the United States, a legally divorced man or

woman may lawfully marry again. This poses no

threat to the liberty of Roman Catholics, whose

Church both pronounces divorce “a grave offense

against natural law,” and condemns remarriage by,

or to, a divorced person as “public and permanent

adultery.”53 It directs divorced persons and gay

52 =6See generally, Isaacson, Are Same-Sex Marriages

Really a Threat to Religious Liberty?, supra note 6, 8 Stan.

J. Civ. Rts. & Civ. Libs. at 135-47.

Divorce is a grave offense against the natural

law... . Contracting a new union, even if it is

recognized by civil law, adds to the gravity of the

rupture: the remarried spouse is then in a situation

of public and permanent adultery... .

Catechism of the Catholic Church 42384 (Washington, D.C.:

Libreria Editrice Vaticana, 2d ed., 2000) (emphasis in

original).

people alike to lead lives of chastity and celibacy.™

Roman Catholic doctrine treats civil marriages of

the legally divorced and remarried, and civil

marriages of same-sex couples, both as nullities:

“The Church, since she is faithful to her Lord,

cannot recognize the union of people who are civilly

divorced and remarried.”55

It thus is hard to fathom how civil marriages of

same-sex couples could pose a greater threat to

Roman Catholics’ religious liberty than do the civil

marriages of many millions of Americans who have

legally divorced and remarried in contravention of

the Church’s clear doctrine. And if Roman

Catholics’ religious liberty is not threatened by

according legal recognition to such marriages, it is

hard to see how the religious liberty of others, such

as Southern Baptists or Mormons, could be at risk

either.

Most purported “threats” to “religious liberty”

come not from according equal dignity to same-sex

54 Compare Catechism of the Catholic Church, 41650

(advising divorced persons to live “in complete continence”),

with Catechism of the Catholic Church, 42359 (“Homosexual]

persons are called to chastity”).

55 U.S. Conference of Catholic Bishops, Compendium of

the Catechism of the Catholic Church, at 4349 (Washington,

D.C.: Libreria Editrice Vaticana, 2006); see also Catechism

of the Catholic Church, supra note 53, 41650 (with respect to

the civilly divorced “a new union cannot be recognized as

valid, if the first marriage was”); U.S. Conference of Catholic

Bishops, United States Catholic Catechism for Adults, at 287

(Washington, D.C.: U.S. Conference of Catholic Bishops,

2006) (“[i}n the case of those who have divorced civilly and

remarried . . . the Church considers the second marriage

invalid”).

marriages, but from concerns about the

enforcement of civil-rights laws in the minority of

states whose statutes prohibit discrimination on

the basis of sexual orientation in employment,

housing, and public accommodations.® Yet when

some churches insisted that racial integration was

contrary to God’s law,5? and Southern Protestants

cited religious grounds for segregation, this Court

rejected as “patently frivolous” contentions that

complying with the Civil Rights Act of 1964

“contravenes the will of God’ and constitutes an

interference with the ‘free exercise of religion.”

Newman v. Piggie Park Enterprises Inc., 390 U.S.

400, 420 n.5 (1968) (citation omitted). Contentions

56 Douglas NeJaime, Marriage Inequality: Same-Sex

Relationships, Religious Exemptions, and the Production of

Sexual Orientation Discrimination, 100 Cal. L. Rev. 1169,

1190 & n.66 (2012) (listing states). As it happens, none of

the states appearing as respondents here has enacted civil-

rights laws to protect gay or lesbian citizens from

discrimination in employment, housing, or public

accommodations. See id.

57 For one of many popular expressions of this view see

Carey Daniel, God The Original Segregationist and Seven

Other Segregation Sermons (Dallas: Carey Daniel, n.d.,

circa 1957). Time magazine reported in its November 5,

1956, issue that the Southern Baptist “Rev. Carey Daniel,

pastor of West Dallas’ First Baptist Church and brother of

Texas’ Democratic Senator (and candidate for governor)

Price Daniel, offered to turn his church buildings into an all-

white school if integration should be forced upon Dallas’

public schools.” Religion: Words & Works, Time, Nov. 5,

1956, at 70, available at http://content.time.com/

ime/ ine/ icle/ (accessed

March 3, 2015); see Isaacson, Are Same-Sex Marriages Really

a Threat to Religious Liberty?, supra note 6, 8 Stan. J. Civ.

Rts. & Civ. Libs., at 148 & n.123.

that civil rights protections for LGBT people might

violate free exercise should be deemed similarly

insubstantial.

The notion that civil rights laws will be employed

to persecute religious minorities is preposterous.

The amici who raised dire cries of threatened

persecution in prior proceedings, and that may be

expected to do so again, purport to speak not on

behalf of helpless minorities, but for America’s

largest and most powerful religious movements.

The Catholic Church ranks first, with more than 68

million adherents in the United States, and the

Southern Baptist Convention second, with more

than 16 million.5®? The Becket Fund said in its

Hollingsworth v. Perry amicus brief that “an

estimated 160 million Americans — 97.6% of all

religious adherents in the United States and more

than half of the entire population — belong to

religious bodies that affirm the _ traditional

definition of marriage.”™ The legitimate interests

of so many will not be trampled.

586 See generally James M. Oleske, Jr., The Evolution of

Accommodation: Comparing the Unequal Treatment of

Religious Objections to Interracial and Same-Sex Marriages,

50 Harv. Civ. Rts. Civ. Lib. L. Rev. __ (forthcoming 2015)

(working draft online at

. / / rs.cf{m? id=2400100

(accessed March 3, 2015).

5° See Yearbook of American & Canadian Churches

2012, at 11-14 (Eileen W. Lindner, ed.; Nashville: Abington

Press for the National Council of Churches, 2012).

® Amicus Curiae Brief for the Becket Fund for

Religious Liberty, at 6 (filed Jan. 28, 2013), Hollingsworth v.

Perry, 133 S.Ct. 2652 (2013) (citation omitted).

There is, of course, no danger that Americans

will be charged with “hate crimes” for opposing

same-sex relationships on religious grounds. This

Court’s decision in Snyder v. Phelps, 131 S.Ct. 1207

(2011), makes sure of that.

Neither is there any danger that churches will

lose their tax-exempt status, though in

Hollingsworth v. Perry The Becket Fund for

Religious Liberty held out the prospect of

“Ipjrivate churches losing their tax exemptions”

for opposing same-sex marriages.®! In fact,

however, the Becket Fund’s own “touchstone”

publication on the subject admits that “so long as

large and historically important churches refuse to

recognize gay marriages,” it is “unlikely that the

executive branch of any jurisdiction would try to

revoke tax exemptions over the issue.”™

Much ink nonetheless has been spilled about

New Jersey’s supposed revocation of a church’s tax-

exempt status. The Catholic Answers amicus brief

in Hollingsworth v. Perry reported that “an

evangelical ministry was found to have violated

state antidiscrimination law for refusing to rent its

facilities for a same-sex commitment ceremony.”®

The Catholics for the Common Good amicus brief

bemoaned the resulting “denial of tax exemption

for refusal to rent [a] religiously owned pavilion for

6 Douglas Laycock, Afterword to Same-Sex Marriage

and Religious Liberty 189, 193 (Douglas Laycock, et al., eds.;

The Becket Fund, 2008).

68 Brief Amicus Curiae Brief for Catholic Answers, et

al., (filed Jan. 29, 2013), Hollingsworth v. Perry, 133 S.Ct.

2652 (2013) at 19.

a civil union ceremony.”™ The Becket Fund’s

circuit-court brief declared that the State of New

Jersey had “withdrawn the property tax exemption

of a beach-side pavilion owned and operated by a

Methodist Church, because the Church refused on

religious grounds to host a same-sex civil union

ceremony.”®

That was not so. The property in question was

not owned by any church, but by a residential

community, the Ocean Grove Camp Meeting

Association, whose trustees are indeed Methodists,

and which controlled “all of the land in the seaside

community of Ocean Grove, New Jersey,”™ whose

population the 2010 Census placed at 3,342.°

Ocean Grove leases out residential properties in

the resort community, advertising on the Internet

that it “welcomes everyone to enjoy this beautiful,

seaside community without discrimination based

on race, gender, income level, education, religion,

or country of origin.”® It obtained a New Jersey

‘4 Amicus Curiae Brief for Catholics for the Common

Good at 32, (filed Jan. 28, 2013), Hollingsworth v. Perry, 133

S.Ct. 2652 (2013).

65 Amicus Curiae Brief for the Becket Fund for

Religious Liberty in Support of Defendants-Intervenors-

Appellants and in Support of Reversal at 14 (filed Sept. 24,

2010), Perry v. Brown (f.k.a. Perry v. Schwarzenegger), 671

F.3d 1052 (9th Cir. 2012) (No. 10-16696), 2610 WL 4075746.

6 Ocean Grove Camp Meeting Assn v. Vespa-Papaleo,

339 Fed. Appx. 232, 235 (3d Cir. 2009)

8’ See Isaacson, Are Same-Sex Marriages Really a

Threat to Religious Liberty?, supra note 6, 8 Stan. J. Civ.

Rts. & Civ. Libs., at 150.

6 Jd. at 150 n.137 (quoting Frequently Asked Questions,

Ocean Grove Camp Meeting Ass'n). The beach community's

publicly stated policy of nondiscrimination drew many gay

“Green Acres” real-property tax exemption for the

community's beachfront boardwalk and pavilion

not as religious properties, but as public facilities

to be held open for all to enjoy on an equal basis.®

A lesbian couple, who were long-term members of

the residential community, thought that included

tnem, so they applied to use the pavilion for a civil-

commitment ceremony.”

When Ocean Grove denied its lesbian residents

the use of their own residential community’s

supposedly public facilities, New Jersey officials

found probable cause to conclude that it no longer

qualified for the “Green Acres” tax exemption

accorded to properties made available for

nondiscriminatory public use.”7! No church’s tax-

exempt status was revoked, or even questioned.

Fears that same-sex couples’ marriages pose

grave threats to religious liberty simply are not

grounded in reality.

and lesbian residents: “By the mid-1990s, gay and lesbian

couples were moving in, and by the time the controversy

arose, about one-fourth of the residents were estimated to be

same-sex couples.” Marc R. Poirier, Microperformances of

Identity: Visible Same-Sex Couples and the Marriage

Controversy, 15 Wash. & Lee J. Civil Rts. & Soc. Just. 3, 51-

52 (2008) [hereinafter Microperformances of Identity].

6 NJ. Office of the Att'y Gen., Dep’t of Law & Pub.

Safety, Div. on Civ. Rts, No. PN34XB-03008, Finding of

Probable Cause, Bernstein v. Parker (Dec. 29, 2008).

7 ~=sr- Poirier, Microperformances of Identity, supra note 68,

at 76.

71 See Isaacson, Are Same-Sex Marriages Really a

Threat to Religious Liberty?, supra note 6, 8 Stan. J. Civ.

Rts. & Civ. Libs. at 150-51.

CONCLUSION

Consistent with principles of religious liberty

recognized in Perez and Turner, and with equal

protection of the laws for all Americans, the

judgment of the Sixth Circuit should be reversed.

DATED: March 4, 2015

Respectfully submitted,

ERIC ALAN ISAACSON

(Counsel of Record)

655 West Broadway, #1900

San Diego, CA 92101

Telephone: (619)231-1058

Email: eisaacson@rgrdlaw.com

STACEY MARIE KAPLAN

Kessler Topaz Meltzer &

Check, LLP

One Sansome Street, #1850

San Francisco, CA 94104

Telephone: (415)400-3000

Attorneys for Amici Curiae

California Council of Churches;

California Faith for Equality;

Unitarian Universalist Justice

Ministry California; Northern

California Nevada Conference,

United Church of Christ; Southern

California Nevada Conference,

United Church of Christ; Pacific

Association of Reform Rabbis

(‘PARR’); California Network of

Metropolitan Community

Churches

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.