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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2015

## Text

” Supreme Cour, US.
FILED
MAR 6 - 206

OFFICE OF THE CLERK

Nos. 14-556, 14-562, 14-671 and 14-574

Bn The
Supreme Court of the United States

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., Petitianers,
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 Write of Certiorari to the United States
Court of Appeals for the Sixth Circuit

BRIEF OF AMICI CURIAE CONFLICT OF LAWS
AND FAMILY LAW PROFESSORS IN SUPPORT
OF PETITIONERS

School Counsal of Record
hee Br JOHN 8. THROCKMORTON
Hempstead, NY 1 EmMILy H. Woop

Center
10th Floor
San Francisco, CA 94111
pe
gentry@aporter.com
Att For Amici Curi

Cantflict af Laws and Family Law Professors
WiLs0n-EPes Precnna Co., uc. — (202) 789-0006 - Wasranaron, D. C. 20002

i

TABLE OF CONTENTS

Page
IDENTITY AND INTEREST OF AMICI
CURIAE 1
SUMMARY OF ARGUMENT 1
ARGUMENT 5
I. BLANKET ANTI-RECOGNITION
LAWS ARE HISTORICALLY
UNPRECEDENTED. 5
A States Have Ssageentay 2 ¥
nized Marriages That Were
Where Celebrated. 5
B. The Four States Within The
Sixth Circuit ify Laws
Si Out Mar-

riages For Categorically Unequal
Treatment.

1 Kentucky.

2. Tennessee. 11
3. Michigan. 14
4. Ohio. 16

Il. THE ANTI-RECOGNITION LAWS AT
ISSUE DENY EQUAL PROTECTION. 18

A.

The Historically Unprecedented
Anti-Recognition Laws Single

Out Same-Sex Couples Foe Dis-
advantageous Treatment. 18

li

TABLE OF CONTENTS

Page
B. Blanket Non- ition Laws
Cannot Susvive Otos Constitutional
Scrutiny. 23
Ill, THE ANTI-RECOGNITION LAWS
UNCONSTITUTIONALLY
INTERFERE WITH THE
FUNDAMENTAL LIBERTY
INTEREST IN MARRIAGE 25
CONCLUSION 30

APPENDIX A A-1

TABLE OF AUTHORITIES
Page(s)

Cases

Atherton v. Atherton, 181 U.S. 155
(1901)

Bonds v. Foster, 36 Tex. 68 (1871)

Cam v. Sundquist, 926 S.W.2d 250
enn. Ct. . 1996), a ted on
ca ar SS a
. v. Morgan, W.
(Tenn. 2008) 12

C. v. Population Servs., Int, 431
Us. 678 (1977) 25

Cleveland Bd. of Educ. v. LaFleur, 414
U.S. 632 (1974) 25

Commonwealth v. Lane, 113 Mass. 458
(1873) 14

Courtright v. Courtright, 1891 WL 1022
(Ohio Com. Pl. 1891) 16, 17

DeBoer v. Snyder, 772 F.3d 388 (6th
Cir. 2014), cert. granted, 135 S. Ct.
1039 (2015) 29

Estate of Glover, 882 S.W.2d 789 (Tenn.
Ct. App. 1994) . 11

Estate of Lenherr, 314 A.2d 255 (Pa.
1974) 8

Estate of Loughmiller, 629 P.2d 156
(Kan. 1981) 5, 6

Estate of May, 114 N.E.2d 4 (N.Y. 1953)

iv

TABLE OF AUTHORITIES

Estate of Miller, 214 N.W. 428 (Mich.
1927)

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

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

Hardin v. Davis, 16 Ohio Supp. 19,
1945 WL 5519 (Ohio Com. PI. 1945)

Hoffman v. Hoffman, 146 S.W.2d 347
(Ky. 1940)

Holt v. Shelton, 341 F. Supp. 821 (M.D.
Tenn. 1972)

Hopkins Cnty. Coal Co. v. Williams, 292
S.W.1 (Ky. 1927)

Howard v. Central Nat? Bank of
Marietta, 152 N.E. 784 (Ohio Ct.
App. 1926)

Hutchins v. Kimmell, 31 Mich. 126,
1875 WL 3626 (1875)

Inhabitants of Medway v. Inhabitants
of Needham, 16 Mass. 157 (1819)

Keith v. Pack, 187 S.W.2d 618 (Tenn.
1945)

—_——. v. Jackson Iron Co., 43 N.W.
(Mich. 1889)

Lawrence v. Texas, 539 U.S. 558 (2003)

16

14

15
12, 24, 30

Vv

TABLE OF AUTHORITIES

Lightsey v. Lightsey, 407 S.W.2d 684
(Tenn. Ct. . 1966)
Lo v. Loughran, 292 U.S. 216
934)

Louisville Gas & Elec. Co. v. Coleman,
277 U.S. 32 (1928)

Loving v. Virginia, 388 U.S. 1 (1967)
Meet v. Mangrum, 220 S.W.2d 406
. 1949)

Maynard v. Hill, 125 U.S. 190 (1888)

Mazzolini v. Mazzolini, 155 N.E.2d 206
(Ohio 1958)

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

Mon ery v. Carr, 101 F.3d 1117
(6th Cir. 1996)

Moore v. City of East Cleveland, 431
U.S. 494 (1977)

Noble v. Noble, 300 N.W. 885 (Mich.
1941)

Peefer v. State, 182 N.E. 117 (Ohio Ct.
App. 1931)

7 = v. State, 10 S.W. 305 (Tenn.

People v. Schmidt, 579 N.W.2d 431
ich. Ct. App. 1998)

Page(s)

11,12

14, 15

vi

TABLE OF AUTHORITIES
Page(s)

Rhodes v. McAfee, 457 S.W.2d 522

(Tenn. 1970) 12
Robinson v. Commonwealth, 212

S.W.3d 100 (Ky. 2006) 9
Romer v. Evans, 517 U.S. 620 (1996) 3, 22, 23,30
Saenz v. Roe, 526 U.S. 489 (1999) 24
Shelby County v. Williams, 510 S.W.2d

73 (Tenn. 1974) 11
Slovenian Mut. Ben. Ass’n v. Kn

173 N.E. 630 (Ohio Ct. App. 193 17
State v. Kennedy, 76 N.C. 251 (1877)
State v. Ross, 76 N.C. 242 (1877)
Stevenson v. Gray, 56 Ky. 193 (1856)
Toler v. Oakwood Smokeless Coal

Corp., 4 S.E.2d 364 (Va. 1939) 7
Toth v. Toth, 212 N.W.2d 812 (Mich. Ct.

App. 1973) 14
Tryling v. Tryling, 53 S.W.2d 725 (Ky.

1932) 9
Turner v. Satley, 482 U.S. 78 (1987) 20

U.S. Dep’t of Agric. v. Moreno, 413 U.S.
528 (1973) 21

Vii

TABLE OF AUTHORITIES
Page(s)
United States v. Windsor, 133 S. Ct.
2675 (2013) 3, 4, 20, 21, 22,
23, 24, 26, 28, 29, 3
Williams v. North Carolina, 317 U.S.

287 (1942) 7
Zablocki v. Redhail, 434 U.S. 374 (1978) 20, 25
Constitutional Provisions
Ky. Const. §233A 10
Mich. Const. art. I, §25 15
Ohio Const. art. XV, §11 i8
Tenn. Const. art. XI, §18 13
Statutes and Rules

Sup. Ct. R
37 1
37.3(a) 1
37.6 1

H.B. No. 13, Ky. Legis. 258 (Ky. 1998),
codified as Ky. Rev. Stat. Ann.

§402.040 (West 2015) 9

H.B. No. 5662, Public Act No. 334
(Mich. 1996), codified as Mich.
Comp. Laws §551.271 (2015) 14

see

TABLE OF AUTHORITIES

H.B. No. 272, 2004 Ohio Laws File 61,
codified as Ohio Rev. Code Ann.
§3101.01(C) (West 2015)

H.B. No. 2907, Pub. Ch. 1031 (Tenn.
1996), codified as Tenn. Code Ann.
§36-3-113 (2015)

Ky. Rev. Stat. Ann. (West 2015)
§199.470
§311.631
§391.010
§402.040
§402.045

Mich. Comp. Laws (2015)
§551.271
§700.2102
§710.24

Ohio Rev. Code Ann. (West 2015)
§1337.16
§2105.06
§3101.01(C)
§3107.03

Tenn. Code Ann. (2015)
§31-2-104
§36-1-115
§36-3-113

Other Authorities

Fletcher W. Battershall, The Law of
Domestic Relations in the State of
New York (1910)

Page(s)

16

ix
TABLE OF AUTHORITIES
Page(s)

Joanna L. Grossman, Resurrecting
Comity: Revisiting the Problem of
Non-Uniform Marriage Laws, 84 OR.
L. REV. 433 (2005) 10, 11, 14, 19

Susan D. James, Lesbians Sue When
Partners Die Alone, ABC News
(May 20, 2009) 28

Andrew Koppelman, Interstate

taon of Same-Sex
ee me Unions: a Hon dbook ae
Judges, 153 U. Pa. L. Rev. 2143

(2005) 8
Andrew Koppelman, Same Sex,
Different States (2006) 8

Andrew Koppelman, Same-Sex
Marti. * dieies of Law, and Public
Policy, 6 Tex. L. Rev. 921 (1998) 7,18

~——- R. Long, Law of Domestic
elations ( (1905) 5,6

David Margolick, A Mixed Marri
25th Anniversary of Legality,
Times, June 12, 1992 7

Evan Puschak, NV Has oe Denies
ts of Domestic
NBC (Oct. 2, 2013, 10: 03. p.m.) 28

William M. Richman et al.,
Understanding Conflict Of Laws
§119 (4th ed. 2013) 5,8

TABLE OF AUTHORITIES
Page(s)

Steve Sanders, The Constitutional
Right to (Keep Your) Same-Sex
Marriage, 110 Mich. L. Rev. 1421
(2012) 26

James Schouler, Law of the Domestic
Relations (2d ed. 1874) 7

Eugene Scoles et al., Conflict Of Laws
4th ed. 2004)
$13.2
§13.9

Cavan Sieczkowski, —_ Arrested
at Missouri Hospital for Refusing to
Leave Sick Partner, Not Recognized
as Family, The Huffington Post
(Apr. 12, 2013, 2:33 p.m.) 28

Joseph William Singer, Same Sex
Marriage, Full Faith and Credit,

© ©

and the Evasion of Obligation,
1 Stan. J. C.R. & C.L. 1 (2005) 8, 24
Joseph Story, Commentaries on the
onflict of Laws §113 (8th ed. 1883) 5

Mark Strasser, The Privileges of
National Citizenship: On Saenz.
Same-Sex Couples, and the Right to
Travel, 52 Rutgers L. Rev. 553
(2000) 24

1 Chester G. Vernier, American Family
Laws §45 (1931) 10, 11, 14

xi
TABLE OF AUTHORITIES
Page(s)

Lois A. Weithorn, Can A Subsequent
C. in Law Void a Marriage that
Considering the Legal Effect of
ering the O
——- 8 on California’s
Existing Same-Sex Marriages, 60
Hastings L.J. 1063 (2009) 26

Tobias Barrington Wolff, Interest
Analysis in Interjurisdictional
Marriage Disputes, 153 U. Pa. L.
Rev. 2215 (2005) 23, 24

1
IDENTITY AND INTEREST OF AMICI
CURIAE

Pursuant to Rule 37 of this Court, Amici Curiae,
all scholars with expertise in family law, conflict of
laws, and state regulation of marriage, respectfully
submit this brief in support of Petitioners. Amici
support all of Petitioners’ arguments in their merits
briefs and submit this brief to provide the Court with
additional information about the states’ historical
recognition of marriages solemnized in sister states.
Appendix A sets forth a list of all the amici on whose
behalf this brief is submitted.’

SUMMARY OF ARGUMENT

The anti-recognition laws before the Court are
historically unprecedented. Even when many states
had anti-miscegenation laws, those states almost
always recognized interracial marriages validly for-
malized in sister states. That outcome flowed from
the touchstone of marriage recognition law: the
“place of celebration” rule, under which a marriage
valid where celebrated is valid everywhere. In so
ruling—as a matter of state law—courts recognized
that out-of-state marriages should be respected as a
matter of comity, as well as to avoid the impractical

‘Pursuant to this Court’s Rule 37.3(a), all ies have con-
sented to the of thisebrief. Letters evi evidencing such con-
sent have been with the Clerk of the Court. Further,
pursuant to Rule 37.6, no person other than Amici Curiae and
their counsel have participated in this brief or made a
monetary contribution intended to fund the paration or
submission of this brief. In connection with proceedings
before the trial court in Obergefell v. Hodges, te ge
» epee ny submitted an ~—_ —~ 2 eupeerntns i oy A

topics discussed within a v. sm :
1:13-cv-00501-TSB (S.D. Ohio) at Dkt. N

2

and chaotic results that would stem from having a
couple’s marital status change each time they cross a
state border.

The place of celebration rule was nominally sub-
ject to oft-recited exceptions that were not only nar-
row but also, more importantly, rarely applied.
These exceptions became nearly vestigial after the
demise of anti-miscegenation laws and the general
convergence of state rules about which individuals
and couples could and could not marry. This trend
coincided with social and technological developments
that made our nation’s population increasingly
mobile, which meant more married couples travelled
across state lines and moved from state to state. The
mobility of the population—sometimes by choice and
sometimes not, such as in cases of work reassign-
ments or the need to relocate due to lack of work—
made the portability of marriage all the more
important.

The respect each state provided to out-of-state
marriages provided stability and predictability to
families, promoted marital responsibility, facilitated
interstate travel, and protected private expectations.
It was widely understood that a contrary approach,
one that leaned toward denying recognition of valid
marriages celebrated in other states, would produce
devastating consequences affecting vital interests,
such as parentage of children, eligibility for spousal
benefits from private employers and public programs
like Social Security, property and inheritance rights,
medical decisions, and hospital visitation rights in
the event of medical emergencies.

All of this changed in the late twentieth century,
when the movement to afford same-sex couples mar-
riage equality came to the fore. In reaction to early

3

indications that at least some states might begin to
recognize marriages between individuals of the
same-sex, a number of states adopted statutory and
constitutional bans on the recognition of marriages
by same-sex couples (“the Anti-Recognition Laws”).
These widespread Anti-Recognition Laws are histori-
cally unprecedented in singling out a class of persons
for unequal treatment regarding recognition of their

marriages. Even when anti-miscegenation laws
existed in some states, few states categorically

refused to recognize interracial marriages validly
performed in other states.

The categorical restrictions on recognizing same-
sex marriages fundamentally altered the terrain of
marriage recognition law, which previously turned
on individualized determinations by courts. These
new statutes shifted decision-making power from
courts, where it had largely resided, to the legisla-
ture. And, contrary to many historical precedents,
the Anti-Recognition Laws draw no distinction
between marriages contracted in a particular state
to evade restrictions of the couple’s home state (“eva-
sive marriages”) and those contracted by residents of
another state without any evasive intent. Even
worse, the constitutional amendments enshrined the
rule of non-recognition into state constitutions in an
attempt to stem the tide of change and to thwart
judicial review by state courts.

Under Romer v. Evans, 517 U.S. 620 (1996), and
United States v. Windsor, 133 S. Ct. 2675 (2013),
these blanket prohibitions on the recognition of mar-
riages involving same-sex couples violate the Equal
Protection and Due Process Clauses of the Four-
teenth Amendment. In Windsor, this Court invali-
dated the portion of the federal Defense of Marriage

4

Act (“DOMA”), in which Congress denied federal
recognition to marriages by same-sex couples. The
Court deemed DOMA’s departure from Congress’s
long history and tradition of deferring to state-law
determinations of marital status a discrimination of
“unusual character” that warranted “careful
consideration” for constitutionality and raised a
strong inference of improper animus the Equal
Protection Clause forbids. 133 S. Ct. at 2693.
Because DOMA’s purpose and effect of imposing
disadvantage on same-sex married couples served no
legitimate purpose, DOMA ran afoul of equal protec-
tion principles. Id. The Anti-Recognition Laws now
before the Court suffer the same flaws. They were
adopted for no reason other than to disadvantage
same-sex married couples, and the states in question
have offered no legitimate reason—nor could any be
offered—to explain their deviation from the long
tradition of respecting out-of-state marriages.

The Anti-Recognition Laws also run afoul of the
Due Process Clause. Marriage, and the right to
make personal decisions concerning marriage, has
long been recognized as a fundamental liberty inter-
est. Windsor reconfirmed this robust constitutional
protection. Given the importance of this liberty
interest, laws that infringe on an individual’s right
to remain married are inherently suspect and must
be subjected to heightened scrutiny. Here, the Anti-
Recognition Laws at issue deprive these same-sex
couples of all of the rights and privileges connected
with marriage as soon as those couples cross the
state borders, rendering them legal strangers.
Because there is no legitimate justification for such
interference with the liberty interests of married
same-sex couples, the Anti-Recognition Laws violate
the Due Process Clause as well.

5

ARGUMENT
I.

BLANKET ANTI-RECOGNITION LAWS
ARE HISTORICALLY UNPRECEDENTED.

A. States Have Recognized Marriages

That Were Valid Where ted.

States have long applied a general rule that a
marriage valid where celebrated is valid everywhere.
See, e.g., Joseph Story, Commentaries on the
Conflict of Laws $113, at 187 (8th ed. 1883) (“[t}he
general principle certainly is ... that .. . marriage is
to be decided by the law of the place where it is cele-
brated”); FletcherW. Battershall, The Law of
Domestic Relations in the State of New York 7-8
(1910) (describing “the universal practice of civilized
nations” that the “permission or prohibition of
particular marriages, of right belongs to the country
where the marriage is to be celebrated”); William M.
Richman et al., Understanding Conflict Of Laws
§119 at 415 (4th ed. 2013) (noting the “overwhelming
tendency” in the United States to recognize the
validity of marriages valid where performed); see
also Estate of Loughmiller, 629 P.2d 156, 158 (Kan.
1981) (same); Estate of May, 114 N.E.2d 4, 6 (N.Y.
1953) (same). This rule, known as the “place of cele-
bration” rule or Jex loci celebrationis, is widely recog-
nized as a central element of American family law.

The general rule was traditionally subject to
exceptions for out-of-state marriages that violated
the state’s “positive law” (eg., a statute that
expressly bars extraterritorial recognition of a
particular type of marriage) or “natural law,”
sometimes described as “public policy.” See, e.z.,
Joseph R. Long, Law of Domestic Relations 87-89

6

(1905) (describing exceptions). The instances and
regularity of application of these exceptions has var-
ied between states. Many states have rarely, if ever,
applied either exception and, when they did, it was
generally in the context of a fact-specific analysis by
a court considering a particular request for
recognition.

Under that individualized process, state courts
frequently upheld marriages from other states that
could not have been celebrated in the forum state.
See, e.g., Estate of Loughmiller, 629 P.2d at 161
(upholding first-cousin marriage because it was not
an “odious” form of incest even though the parties
married in another state to evade the forum state’s
prohibition on their marriage). Indeed, this Court on
at least one occasion did the same, applying District
of Columbia law. Loughran v. Loughran, 292 U.S.
216, 222-23 (1934) (recognizing Florida marriage
despite D.C. statute prohibiting remarriage by
adulterer).

Even in the era of anti-miscegenation statutes,
which prohibited and sometimes criminalized
interracial marriages in certain states, courts in
states with race-based restrictions on marriage
almost uniformly recognized interracial marriages
validly performed in other states. See, e.g., Inhabit-
ants of Medway v. Inhabitants of Needham, 16
Mass. 157, 159 (1819) (upholding evasive, interracial
marriage from Rhode Island); State v. Ross, 76 N.C.
242, 246 (1877) (upholding interracial marriage from
South Carolina as a defense to criminal charges in
North Carolina of fornication and adultery); Bonds v.
Foster, 36 Tex. 68, 70 (1871) (validating interracial
marriage from Ohio despite Texas statute
criminalizing such marriages). In short, while many

7

courts “cited the public policy exception, many have
never actually used it to invalidate a marriage.”
Andrew Koppelman, Same-Sex Marriage, Choice of
Law, and Public Policy, 76 Tex. L. Rev. 921, 923
(1998).

Only a minority of decisions refused recognition to
out-of-state marriages that for one reason or another
could not have been formalized in the forum state.
See, e.g., State v. Kennedy, 76 N.C. 251, 252-53
(1877) (denying recognition but noting that courts in
Massachusetts and Kentucky had both refused to
apply the exception in similar circumstances); Toler
v. Oakwood Smokeless Coal Corp., 4 S.E.2d 364,
366-69 (Va. 1939). But it bears noting that one of
those minority decisions led to the landmark
decision in which this Court put an end to anti-
miscegenation laws. Loving v. Virginia, 388 U.S. 1,
2 (1967); see also David Margolick, A Mixed
Marriage’s 25th Anniversary of Legality, N.Y. Times,
June 12, 1992, at B20.

The liberal approach states generally employed
regarding recognition of marriages celebrated in
other states, even if those marriages could not have
been solemnised in the forum state, reflected
important concerns of practicality, fairness and pre-
dictability. One nineteenth-century scholar wrote
that the general principle that out-of-state mar-
riages would be respected reflected “public policy,
common morality, and the comity of nations.” James
Schouler, Law of the Domestic Relations 47 (2d ed.
1874). This Court in 1942 wrote that being married
in one state but not another is one of “the most per-
plexing and distressing complication|[s) in . . . domes-
tic relations.” Williams v. North Carolina, 317 U.S.
287, 299 (1942) (reversing state court order that

8

refused to recognize out-of-state divorce; quoting
Atherton v. Atherton, 181 U.S. 155, 162 (1901)).

Modern scholars agree that the general rule
“avoids the potentially hideous problems that would
arise if the legality of a marriage varied from state to
state.” Richman et al., supra, §119, at 415; see alsa
Eugene Scoles et al., Conflict Of Laws §13.2, at 559
(Ath ed. 2004) (a strong policy of marriage is to “sus-
tain its validity once the relationship is assumed to
have been freely created”); Andrew Koppelman,
Same Sex, Different States 17 (2006) (“[i]Jt would be
ridiculous to have people’s marital status blink on
and off like a strobe light” as they travel or move
across state lines). Such problems have only magni-
fied in modern times: “In an age of widespread travel
and ease of mobility, it would create inordinate
confusion and defy the reasonable expectations of
citizens whose marriage is valid in one state to hold
that marriage invalid elsewhere.” Cf Estate of
Lenherr, 314 A.2d 255, 258 (Pa. 1974) (marriage
valid in another state recognized even though forum
state law prohibited adulterers from marrying dur-
ing lives of their former spouses).

In the twentieth century, with the trend toward
uniformity in state marriage laws—including the
elimination of restrictions on interracial marriage—
the “public policy” exception was on the verge of
“becoming obsolete.” See Joseph William Singer,
Same Sex Marriage, Full Faith and Credit, and the
Evasion of Obligation, 1 Stan. J. C.R. & C.L. 1, 40
(2005); Andrew Koppelman, Interstate Recognition
of Same-Sex Marriages and Civil Unions: A Hand-
book for Judges, 153 U. Pa. L. Rev. 2143, 2148 (2005)
(public policy exception was becoming “archaic”).
Prior to the current controversy, in fact, the

9

tendency to recognize out-of-state marriages—even
evasive ones—was so strong that only in “an
exceptional case should} a _ court... refuse
recognition of a valid foreign marriage of one of its
domiciliaries even in the face of a local prohibition.”
Scoles et al., supra, $13.9, at 575. But the issue
reemerged in the late twentieth century, when
controversy over marriage by people of the same sex
reinvigorated attempts to invoke the exception.

B. The Four States Within The Sixth Circuit
Exemplify Laws Singling Out Same-Sex
Marriages For Categorically Unequal Treatment.

1. Kentucky.

Prior to the enactment of House Bill 13 in 1998,’
which purported to change the rules of marriage
recognition in anticipation of marriages by same-sex
couples, Kentucky had long followed the “place-of-
celebration rule.” Stevenson v. Gray, 56 Ky. 193,
222-23 (1856) (recognizing Tennessee marriage that
was technically incestuous and would have been void
if solemnized in Kentucky); Mangrum v. Mangrum,
220 S.W.2d 406 (Ky. 1949) (recognizing Mississippi
marriage between a thirteen-year-old and a sixteen-
year-old even though Kentucky imposed a parental
consent requirement for persons of that age);
Robinson v. Commonwealth, 212 S.W.3d 100, 104
(Ky. 2006) (recognizing Tennessee marriage between
a thirty-seven-year-old man and a fourteen-year-old
girl); Tryling v. Tryling, 53 S.W.2d 725, 727 (Ky.
1932) (recognizing Ohio common-law marriage);
Hoffman v. Hoffman, 146 S.W.2d 347, 350 (Ky. 1940)

HB. No. 13, Ky. Legis. 258 (Ky. 1998), codified as Ky. Rev.
Stat. Ann. §402.040 (West 2015).

10

(same). In other words, Kentucky adhered to the
principle that a “marriage, valid where it takes
place, is valid everywhere.” Hopkins Cnty. Coal Co.
v. Williams, 292 S.W. 1088, 1089 (Ky. 1927).

Kentucky was not among the minority of states
that prohibited so-called “evasive” marriages in
which a couple solemnized their marriage in another
state to avoid their home state’s prohibition of their
marriage. See also 1 Chester G. Vernier, American
Family Laws §45 (1931) (unlike some other states,
Kentucky never adopted a statute to expressly pre-
clude recognition of evasive marriages); see
Joanna L. Grossman, Hesurrecting Comity: Revisit-
ing the Problem of Non-Uniform Marriage Laws, 84
Or. L. Rev. 433, 464-65 (2005).

In 1998, however, Kentucky’s generous approach
changed when it singled out same-sex couples as
unworthy of the state’s longstanding deference to
— performed in other states. Ky. Rev. Stat.

Ann. §402.040 (West 2015) (marriages by same-sex
couples are “against Kentucky public policy”). To
drive the point home, Kentucky enacted another
statute prohibiting judicial consideration of out-of-
state marriages. Ky. Rev. Stat. Ann. §402.045 (West
2015) (“Any rights granted by virtue of the mar-
riage...shall be unenforceable in Kentucky
courts”). And, to top it off, in 2004 the Kentucky
Constitution was amended to categorically exclude
same-sex marriages from recognition. Ky. Const.
§233A (“Only a marriage between one man and one
woman shall be valid or recognized as a marriage in

Kentucky.”).

2. Tennessee.

Prior to the enactment of House Bill 2907 in
1996,’ Tennessee had long followed the place of
celebration rule—that “a marriage valid where cele-
brated is valid everywhere.” Farnham v. Farnham,
323 S.W.3d 129, 134 (Tenn. Ct. App. 2009) (quoting
Pennegar v. State, 10 S.W. 305, 306 (Tenn. 1889)).
Consistent with the general rule, Tennessee courts
routinely acknowledged out-of-state marriages that
could not have been formalized in Tennessee. See
Farnham, 323 S.W.3d at 140 (recognizing Florida
marriage that was bigamous because final divorce
decree from prior marriage had not yet been issued
but was valid under Florida law as “marriage by
estoppel”); Keith v. Pack, 187 S.W.2d 618, 619 (Tenn.
1945) (recognizing Georgia marriage of a thirteen-
year-old even though that was too young to be mar-
ried in Tennessee); Shelby County v. Williams, 510
S.W.2d 73, 74 (Tenn. 1974) (recognizing Mississippi
common-law marriage although Tennessee law did
not allow for common-law marriage); Estate of
Glover, 882 S.W.2d 789, 789-90 (Tenn. Ct. App.
1994) (recognizing Alabama common-law marriage);
Lightsey v. Lightsey, 407 S.W.2d 684, 690 (Tenn. Ct.
App. 1966) (recognizing Georgia common-law
marriage).

Like Kentucky, Temmessee never adopted a
statute to expressly preclude recognition of evasive
marriages. See Vernier, supra, §45; Grossman,

supra, at 464-65 (discussing marriage evasion laws).
In fact, Temmessee courts repeatedly held that

*H.B. No. 2907, Pub. Ch. 1031 (Tenn. 1996), codified as
Tenn. Code Ann. §36-3-113 (2015).

12

evasive, prohibited marriages would be recognized as
long as valid where celebrated. See, e.g., Keith, 187
S.W.2d at 618-19 (underage marriage valid even
though “[nJo reason is apparent why these parties
went to Georgia to contract their marriage except
that the girl was not qualified under the laws of
Tennessee by reason of her age to enter into such a
contract”); Pennegar, 10 S.W. at 308 (prohibited
marriages from other states can be recognized even
when the parties married elsewhere “for the purpose
of avoiding our own laws in matters of form,
ceremony, or qualification”).

Tennessee typically denied recognition to out-of-
state marriages only when such marriages violated
“settled public policy regarding public morals or good
order in society,” such as those marriages declared
criminal. See, e.g., Rhodes v. McAfee, 457 S.W.2d
522, 524 (Tenn. 1970) (refusing to give effect to out-
of-state marriage between former stepfather and
stepdaughter where such marriage constituted a
felony in Tennessee and, in any event, had not been
validly celebrated in Mississippi in the first
instance). But this rule cannot support Tennessee’s
singling out of same-sex marriages for non-recogni-
tion because the state does not and could not crimi-
nalize a marriage or sexual relationship between
people of the same-sex solely based on the gender or
sexual orientation of the parties. See Lawrence v.
Texas, 539 U.S. 558 (2003); Campbell v. Sundquist,
926 S.W.2d 250, 262 (Tenn. Ct. App. 1996) (“an
adult’s right to engage in consensual and
noncommercial sexual activities in the privacy of
that adult’s home is a matter of intimate personal
concern which is at the heart of Tennessee’s protec-
tion of the right to privacy .. .”), abrogated on other

13

grounds by Colonial Pipeline Co. v. Morgan, 263
S.W.3d 827 (Tenn. 2008).

In 1996, Tennessee carved out an exception to its
deference to marriages of sister states for marriages
by same-sex couples. Tenn. Code Ann. §36-3-113
(2015). It declared that this new exception serves
Tennessee’s “long-standing public policy . . . to recog-
nize the family as essential to social and economic
order and the common good and as the fundamental
building block of our society.” Jd. Consequently,
marriages of same-sex couples were uniquely singled
out in Tennessee for categorical non-recognition.
And, in an even stronger statement of disapproval,
bans on both the celebration and recognition of mar-
riages by same-sex couples were enshrined into the
Tennessee Constitution in a 2006 amendment.
Tenn. Const. art. XI, $18. This amendment was
designed to preclude not only judicial consideration
as to the validity of a particular marriage, but also
judicial consideration of the validity of the non-
recognition rule itself. Jd. (“Any policy or law or
judicial interpretation, purporting to define marriage
as anything other than the historical institution and
legal contract between one (1) man and one (1)
woman, is contrary to the public policy of this state
and shall be void and unenforceable in Tennessee. If
another state or foreign jurisdiction issues a license
for persons to marry and if such marriage is prohib-
ited in this state by the provisions of this section,
then the marriage shall be void and unenforceable in
this state.”).

14

3. Michigan.

Prior to the enactment of House Bill 5662 in
1996,‘ Michigan had long followed the place of
celebration rule. See Hutchins v. Kimmell, 31 Mich.
126, 1875 WL 3626, at *3 (1875) (“a marriage valid
where it is celebrated, is valid everywhere”); see also
Estate of Miller, 214 N.W. 428, 429 (Mich. 1927)
(recognizing marriage of two first cousins); Toth v.
Toth, 212 N.W.2d 812, 813 (Mich. Ct. App. 1973)
(same); Noble v. Noble, 300 N.W. 885, 887 (Mich.
1941) (recognizing Indiana marriage of a seventeen-
year-old girl to a nineteen-year-old boy, despite
couple’s failure to comply with parental consent
provisions of Indiana law); People v. Schmidt, 579
N.W.2d 431, 434 (Mich. Ct. App. 1998) (recognizing
common-law marriage under Alabama law).

Michigan also has never adopted a statute
expressly to preclude recognition of evasive
marriages. See Vernier, supra, §45; Grossman,
supra, at 464-65. In fact, Michigan courts have held
repeatedly that evasive marriages can be recognized
as long as they were valid where celebrated. See,
e.g., Estate of Miller, 214 N.W. at 429 (Michigan
recognizes a marriage if it was valid where
celebrated, even if the parties “have gone abroad for
the purpose of evading our laws”) (quoting
Commonwealth v. Lane, 113 Mass. 458, 464 (1873));
Noble v. Noble, 300 N.W. at 886 (underage couple
had travelled to Indiana “to avoid Michigan law”).

*H.B. No. 5662, Public Act No. 334 (Mich. 1996), codified as
Mich. Comp. Laws §551.271 (2015).

15

Before 1996, Michigan typically denied recogni-
tion only to out-of-state marriages deemed “contrary
to the law of nature,” a rule invoked for polygamy or
marriages of siblings. See, e.g., Estate of Miller, 214
N.W. at 429 (public policy exception to the place of
celebration rule applies only where the Legislature
“has clearly enacted that such marriages out of the
state shall have no validity here”); but see Kobogum
v. Jackson Iron Co., 43 N.W. 602, 605 (Mich. 1889)
(recognizing bigamous marriage because it was valid
under law of Indian tribe).

In 1996, the Michigan Legislature departed from
the state’s traditional approach of judging the valid-
ity of a marriage by the law of the place of celebra-
tion by enacting an amendment to its marriage
recognition statute that invalidated marriages
between members of the same sex no matter where
those marriages took place. See People v. Schmidt,
579 N.W.2d at 435 904 Legislature enacted a law to

“refuse to recognize... same-sex marriage”). That
amendment created an 1 exception to the longstanding
rule of deference to marriages of sister states for
marriages by same-sex couples. Mich. Comp. Laws
§551.271 (2015).

With this change, marriages by same-sex couples
became the only ones expressly singled out by
Michigan law for categorical non-recognition. And,
like Kentucky and Tennessee, Michigan piled on in
2004 by enshrining the categorical ban into its
constitution. Mich. Const. art. 1, $25 (“To secure and
preserve the benefits of marriage for our society and
for future generations of children, the union of one
man and one woman in marriage shall be the only
agreement recognized as a marriage or similar union
for any purpose.”).

16

4. Ohio.

Prior to the enactment of House Bill 272 in 2004,°
Ohio had long followed the place of celebration rule.
As early as 1891, an Ohio court noted that “[tjhe
validity of a marriage depends upon the question,
whether it was valid where celebrated. If valid
there, it is valid everywhere.” Courtright v.
Courtright, 1891 WL 1022, at *2 (Ohio Com. PI.
1891). This rule has been applied to give effect to
marriages that were otherwise prohibited by Ohio
law, but valid where celebrated. See, e.g., Peefer v.
State, 182 N.E. 117, 122 (Ohio Ct. App. 1931) (recog-
nizing an underage marriage solemnized in
Kentucky); Courtright v. Courtright, 1891 WL 1022,
at *3-4 (same); Howard v. Central Nat? Bank of
Marietta, 152 N.E. 784, 787-88 (Ohio Ct. App. 1926)
(recognizing common-law marriage established in
Pennsylvania); Mazzolini v. Mazzolini, 155 N.E.2d
206, 208-09 (Ohio 1958) (recognizing marriage
between first cousins entered into in Massachusetts);
Hardin v. Davis, 16 Ohio Supp. 19, 1945 WL 5519, at
*3 (Ohio Com. Pl. 1945) (recognizing marriage by
proxy performed in Mexico).

Ohio has followed its place of celebration rule
even when the parties married out-of-state marriage
specifically to evade Ohio marriage restrictions.
Courtright, 1891 WL 1022, at *2 (marriage between
Ohio residents valid even though “the parties went
out of the state for the purpose of evading the [mar-
riage] laws of this state.”); Hardin v. Davis, 1945 WL
5519, at *3 (“a marriage so celebrated in conformity

°H.B. No. 272, 2004 Ohio Laws File 61, codified as Ohio Rev.
Code Ann. §3101.01(C) (West 2015).

17

with the local law will be recognized, notwithstand-
ing any evasion of the law pertaining to marriage
ceremonies of the state in which the parties are
domiciled”). Ohio courts have emphasized that “it is
the policy of the law to sustain marriages wherever
possible.” Hardin, 1945 WL 5519, at *6.

While Ohio courts have acknowledged certain
exceptions to the place of celebration rule—
specifically, for marriages that were incestuous,
polygamous, contrary to the laws of nature, or which
the legislature has expressly prohibited (Courtright,
1891 WL 1022, at *2; Mazzolini, 155 N.E.2d at 208-
09, Ohio courts have not in fact applied a blanket
prohibition against recognizing those prohibited out-
of-state marriages. For example, in Slovenian Mut.
Ben. Ass’n v. Knafelj, 173 N.E. 630, 631-32 (Ohio Ct.
App. 1930), the husband had a wife confined to an
insane asylum at the time he married his second
“wife.” Although void under Ohio law, the court rec-
ognized the second “wife’s” marriage and allowed her
to collect on insurance proceeds on the grounds that
she was a dependent of the husband and was una-
ware of his prior wife. Id. Similarly, although first
cousins are prohibited from marrying in Ohio, Ohio
courts have stated that they would recognize such
marriages if celebrated in another state where such
marriages are allowed. Id. at 632.

In what by then was a familiar pattern, Ohio in

ane created an exception to its longstanding prac-
tice of deference to marriages of sister states for

marriages by same-sex couples. The Ohio Legisla-
ture adopted a provision declaring that
{aJny marriage between persons of the same sex
is against the strong public policy of this state.
Any marriage between persons of the same sex

Rev. Code Ann. §3101.01(C) (West 2015))

With this change, only same-sex marriages were sin-
gled out for a rule of categorical non-recognition.
And, to make an even stronger statement of disap-
proval, the ban on recognizing marriages by same-
sex couples was enshrined into the Ohio Constitu-
tion that same year. Ohio Const. art. XV, §11 (“Only
a union between one man and one woman may be a
marriage valid in or recognized by this state and its
political subdivisions.”).

IL.

THE ANTI-RECOGNITION LAWS AT
ISSUE DENY EQUAL PROTECTION.

A. The U Anti-
py me ny A Jato Sex Cou a
Disedvan

The categorical tng a anil any individual-
ized consideration regarding the recognition of out-
of-state marriages between individuals of the same
sex are historically unprecedented. See, e.g.,
Andrew Koppelman, Same-Sex Marriage, Choice of
Law, and Public Policy, 76 Tex. L. Rev. 921, 929-30
(1998) (noting that “[bjlanket non-recognition of
same-sex marriage... would be an extraordinary
rule. There is no evidence that any of the
legislatures that recently acted gave any thought to
how extraordinary it would be”). As already shown,

19

even interracial marriages were not categorically
denied effect in most states that banned such
marriages before such bans owere ruled
unconstitutional in Loving v. Virginia, 388 U.S. 1
(1967). In other words, same-sex married couples
are subject to even more discrimination in states
that do not permit same-sex marriage than were
interracial couples during the heyday of anti-
miscegenation statutes.

The new rules of blanket non-recognition fly in
the face of the tolerant approach that governed
generations of marriages, even during periods of
extreme controversy among states about eligibility to
marry, such as during the era of anti-miscegenation
statutes. Tolerance of disfavored out-of-state mar-
riages, in the name of comity, uniformity, and porta-
bility of marital status, was an important and
widespread value, which was honored by a strong

general rule of marriage recognition. See Grossman,
supra, at 471-72.

More specifically, the Anti- Recognition Laws
implemented three key changes to marriage recogni-
tion law that are applicable only to same-sex cou-
ples: (1) denial of an individualized fact-based analy-
sis of each out-of-state marriage in favor of a cate-
gorical ban subject to no exceptions; (2) drawing no
distinction between evasive marriages by residents
and non-evasive marriages by non-residents who
traveled through or moved to the prohibiting state;
and (3) barring judicial consideration of each mar-
riage’s validity by application of a blanket ban
through statute and state constitutional
amendment.

While the four states of the Sixth Circuit have
rejected those values categorically for marriages

20

between persons of the same sex, they continue to
adhere to the place of celebration rule and its very
narrow exceptions for al/ other prohibited marriages.
See, supra, Section I(B). This two-track approach for
marriage recognition—one applicable to opposite-sex
couples and another to same-sex couples—violates
equal protection. Marriage laws must conform to the
mandates of the United States Constitution,
including guarantees of equal protection and due
process. See, e.g., Loving v. Virginia, 388 U.S. 1
(1967) (invalidating Virginia’s miscegenation ban for
failure to comply with equal protection and due
process requirements of federal constitution);
Zablocki v. Redhail, 434 U.S. 374 (1978); Turner v.
Safley, 482 U.S. 78 (1987); see also Holt v. Shelton,
341 F. Supp. 821, 822-23 (M.D. Tenn. 1972) (“it now
seems settled beyond peradventure that the right to
marry is a fundamental one.... Any such
infringement is constitutionally impermissible
unless it is shown to be necessary to promote a
compelling state interest.”).

Most recently, in United States v. Windsor, this
Court unequivocally affirmed that state laws regard-
ing marriage are “subject to constitutional guaran-
tees” and “must respect the constitutional rights of
persons.” 133 S. Ct. 2675, 2691, 2692 (2013). The
four states’ refusal to recognize marriages by same-
sex couples from other states violates those constitu-
tional standards.

In Windsor, this Court invalidated Section 3 of the
federal Defense of Marriage Act (“DOMA”), which
denied federal recognition to marriages by same-sex
couples celebrated under state law. The Court held
that this categorical non-recognition provision vio-

21

lated the due process and equal protection guaran-
tees of the Fifth Amendment. 133 S. Ct. at 2696.

DOMA’s rejection of “the long-established precept
that the incidents, benefits, and obligations of mar-
riage are uniform for all married couples within each
State” represented an “unusual deviation from the
usual tradition of recognizing and accepting state
definitions of marriage.” Id. at 2692-93. Except for
marriages subject to DOMA, the federal government
deferred to state law determinations of marital
status when implementing important rights and
obligations such as Social Security, taxation, and
family and medical leave. By enacting DOMA,
however, Congress singled out one type of marriage
for non-recognition—regardless of the particular law
at issue or any particular federal policy and
regardless of the particular couple’s need for, or
expectation of, recognition. Never before had
Congress taken such a drastic measure with respect
to marital status. Windsor, 133 S. Ct. at 2690.

Indeed, the text, structure, and history of DOMA
made clear that its “avowed purpose and practical
effect” was “to impose a disadvantage, a separate
status, and so a stigma upon all who enter into
same-sex marriages made lawful by the unques-
tioned authority of the States.” Jd. at 2693. Both
the law’s structure and the legislative history made
clear that DOMA was enacted from a bare desire to
harm an unpopular minority group, something the
United States Constitution forbids. Id. (citing U.S.
Dep't of Agric. v. Moreno, 413 U.S. 528 (1973)). “[Nlo
legitimate purpose overcomes the purpose and effect
to disparage and to injure those whom the State, by
its marriage laws, sought to protect in personhood
and dignity.” Id. at 2696.

22

“Discriminations of an unusual character espe-
cially suggest careful consideration to determine
whether they are obnoxious to the constitutional pro-
vision.” Romer v. Evans, 517 U.S. 620, 633 (1996)
(quoting Louisville Gas & Elec. Co. v. Coleman, 277
U.S. 32 (1928)). In Romer, the Supreme Court
invalidated Colorado’s Amendment2, which
amended the state Constitution to prohibit any
special protections for gays and lesbians. The
provision, the majority wrote, is not “directed to any
identifiable legitimate purpose or discrete objective.
It is a status-based enactment divorced from any
factual context from which we could discern a
relationship to legitimate state interests; it is a
classification of persons undertaken for its own sake,
something the Equal Protection Clause does not
permit.” 517 U.S. at 635.

Rather than serving a “proper legislative end,”
Colorado classified homosexuals in order to “make
them unequal to everyone else.” Id. “This,” the
Court concluded, “Colorado cannot do.” Id.

In DOMA, the Court saw a similar constitutional
defect. Congress’s sudden departure from its usual
recognition of state marital status laws was, indeed,
a discrimination of “an unusual character.”
Windsor, 133 S. Ct. at 2693. The unusual character
of the discrimination was “strong evidence of a law
having the purpose and effect of disapproval of that
class.” Id.

The categorical state bans on recognition now
before the Court suffer a similar constitutional
defect. Those bans came about amid a national
panic over the possibility that same-sex marriages
would be legalized in some states and foisted upon
other states through marriage recognition law. But,

23

just as this Court concluded with respect to DOMA,
the “interference with the equal dignity of same-sex
marriages ... was more than an incidental effect of
Ps wa statute. It was its essence.” Windsor, 133 S.
Ct. at 2693. The “avowed purpose and practical
effect” of each of the Anti-Recognition Laws is to dis-
advantage, burden and stigmatize a particular
category of people and their families. Its means and
end are one in the same, for the “purpose of disad-
vantaging the group burdened by the law.” Homer,
517 U.S. at 633.

B. Blanket Non-Recognition Laws Cannot Survive

Constitutional Scrutiny.

Even if the Anti-Recognition Laws under review
were not so obviously rooted in impermissible
animus, and unconstitutional for that reason alone,
no constitutionally permissible justification exists to
justify the blanket non-recognition of marriages by
same-sex couples. Although traditional rules of mar-
riage recognition nominally permitted states to
refuse recognition to out-of-state marriages that
violated their strong public policy (a right rarely
exercised, see Section I(A), supra), the most common
reasons for refusal are no longer valid given develop-
ments in constitutional jurisprudence. Three types
of interests were commonly invoked in defense of a
claimed public policy exception to marriage recogni-
tion: (1) “a desire to exclude certain sexual couplings
or romantic relationships” from the state; (2) “a
desire to express the moral disapproval” of the ng
tionship, and (3) “a desire to dissuade couples in the
disfavored relationship from migrating to the state
in the first place.” Tobias Barrington Wolff, Interest
Analysis in Interjurisdictional Marriage Disputes,

24

153 U. Pa. L. Rev. 2215, 2216 (2005). None of these
reasons survives modern constitutional standards.

Lawrence v. Texas, 539 U.S. 558 (2003), rules out
reliance on excluding same-sex relationships as a
legitimate state interest. There, the Court identified
a liberty interest in private and consensual sexual
relationships, regardless of the gender of the parties.
Gays and lesbians, like everyone else, have the right
to make decisions about intimate relationships with-
out interference from the state. Lawrence also
explained that moral repugnance is an insufficient
basis upon which to infringe an important aspect of
the right to privacy. Id. at 577-78; see also Wolff,
supra, at 2231; Singer, supra, at 23-24. And, of
course, states may not seek to dissuade interstate
travel without running afoul of the right to travel
that the federal Constitution assures. See, e.z.,
Saenz v. Roe, 526 U.S. 489, 192-96 (1999) (invalidat-
ing California law that forced new residents to wait
a year for a higher level of benefits); Mark Strasser,
The Privileges of National Citizenship: On Saenz,
Same-Sex Couples, and the Right to Travel, 52
Rutgers L. Rev. 553 (2000).

The federal Constitution prohibits a state, just as
Congress is restrained, from “identify[ing] a subset
of state-sanctioned marriages and mak[ing] them
unequal” as well as from telling “those couples, and
all the world, that their otherwise valid marriages
are unworthy of... recognition.” Windsor, 133 S.
Ct. at 2694. Equal protection demands no less.

25

ITT.

THE ANTI-RECOGNITION LAWS
UNCONSTITUTIONALLY INTERFERE
WITH THE FUNDAMENTAL LIBERTY

INTEREST IN MARRIAGE.

While this Court has never directly addressed the
question of whether there is a fundamental liberty
interest that attaches to the status of marriage, the
conclusion that such a liberty interest exists follows
naturally from this Court’s prior decisions upholding
the extensive freedoms that attach to decisions
regarding marital relationships. “[F]reedom of per-
sonal choice in matters of marriage and family life is
one of the liberties protected by the Due Process
Clause of the Fourteenth Amendment.” Cleveland
Bd. of Educ. v. LaFleur, 414 U.S. 632, 639-40 (1974);
see also Meyer v. Nebraska, 262 U.S. 390, 399 (1923)
(the right “to marry, establish a home and bring up
children” is protected by the Due Process Clause);
Carey v. Population Servs., Intl, 431 U.S. 678, 684-
85 (1977) (“{wJhile the outer limits of this aspect of
privacy have not been marked by the Court, it is
clear that among the decisions that an individual
may make without unjustified government
interference are personal decisions relating to
marriage ...”) (internal quotation marks omitted);
see also Zablocki v. Redhail, 434 U.S. 374, 397 n.1
(1978) (Powell, J., concurring) (“[T]here is a sphere of
privacy or autononfy surrounding an _ existing
marital relationship into which the State may not
lightly intrude.”).

The right to make personal decisions with respect
to marital relationships is rendered meaningless if
states can refuse to recognize disfavored classes of
marriages without a constitutionally permissible

26

basis. While the majority of spouses can be assured
that their personal decision to enter into a marital
relationship will remain recognized, this is not the
case for legally married same-sex spouses in states
with Anti-Recognition Laws. Those laws take away
the status of being married to same-sex married cou-
ples who move or travel to states where those laws
are in effect. As a result, legally married spouses
find themselves stripped of marital rights and con-
verted into legal strangers simply by crossing state
lines. See Steve Sanders, The Constitutional Right
to (Keep Your) Same-Sex Marriage, 110 Mich. L.
Rev. 1421, 1450-51 (2012).

The consequences are far reaching. Whether a
couple is considered married controls a wide range of
issues including “housing, taxes, criminal sanctions,
copyright.” Windsor, 133 S. Ct. at 2694-95; see also
Sanders, supra, at 1450 (“property rights are poten-
tially altered, spouses disinherited, children put at
risk, and financial, medical, and personal plans and
decisions thrown into turmoil”). “[{N]ullification of a
valid marriage when both partners wish to remain
legally married constitutes the most extreme form of
state interference imaginable in the marital relation-
ship.” Lois A. Weithorn, Can A Subsequent Change
in Law Void a Marriage that Was Valid at its Incep-
tion? Considering the Legal Effect of Proposition 8
on California’s Existing Same-Sex Marriages, 60
Hastings L.J. 1063, 1125 (2009).

Here, the laws in each of the states within the
Sixth Circuit, as in all states, provide married cou-
ples with comprehensive. protections and
responsibilities. In Kentucky, for instance, those
protections include the right to a share of a
decedent’s estate (Ky. Rev. Stat. Ann. §391.010

27

(West 2015)); the right to make medical decisions in
the absence of an advance medical directive or
surrogate decision (id. §311.631); the right to adopt
children as a couple (id. §199.470); and many rights
with respect to divorce and custody matters (see
generally Title XXXV of Kentucky Revised Statutes).
The other three states within the Sixth Circuit grant
similarly important and substantive rights to
married couples but deny those rights to same-sex
couples validly married in other states. See, e.g., the
right to a share of a decedent’s estate (Tenn. Code
Ann. §31-2-1C 4 (2015); Mich. Comp. Laws §700.2102
(2015); Ohio Rev. Code Ann. §2105.06 (West 2015)):
the right to adopt children as a couple (Tenn. Code
Ann. §36-1-115 (2015); Mich. Comp. Laws $710.24
(2015); Ohio Rev. Code Ann. §3107.03 (West 2015));
the right to make medical decisions in the absence of
an advance medical directive or surrogate decision
(Tenn. Code Ann. §36-1-115 (2015); Ohio Rev. Code
Ann. §1337.16 (West 2015)).

Without the protection of a legally recognized
marriage, couples of the same sex risk being denied
the right to participate fully in society as a couple.
See, e.g., Obergefell Pet. Brief at 6-12 (detailing diffi-
culties and impact of Ohio’s refusal to recognize Peti-
tioners’ marriages); Tanco Pet. Brief at 4-6. The
difficulties experienced by the Petitioners with
respect to obtaining death certificates, birth
certificates, and the recognition of adoptions, as well
as their challenges in obtaining health insurance
and securing their property rights, are only some of
the many hurdles that same-sex couples face as a
result of the non-recognition of their marriages. For
example, as alluded to in the Bourke petitioners’
brief, same-sex couples continue to report being
denied hospital visitation rights on the grounds that

28

they do not qualify as “family.” See, e.g., Cavan
Sieczkowski, Gay Man / Arrested at Missouri Hospital
for Refusing to Leave Sick Partner, Not Recognized
as Family, The Huffington Post (Apr. 12, 2013,
2:33 p.m.), http-//Awww.huffingtonpost.com/2013/04/
11/gay-man-arrested-missouri-hospital_n_ 3060488.
htm! (gay man removed from partner’s hospital room
on grounds he was not “family”). As a result of the
non-recognition of these couples’ relationships, they
have been denied access to each other during such
traumatic medical events as miscarriages and the
final moments of life. See, e.g., Evan Puschak, NV
Hospital Denies Rights of Domestic Partners,
MSNBC (Oct.2, 2013, 10:03p.m.), http//Awww.
msnbc.com/the-last-word/nv-hospital-denies-rights-
domestic-pa (lesbian denied access to her domestic
partner who was experiencing a miscarriage because
she did not have power of attorney); Susan D. James,
Lesbians Sue When Partners Die Alone, ABC News
(May 20, 2009), http://abcnews.go.com/Health/story?
id=7633058 (lesbian and children denied access to
dying legal spouse because hospital refused to recog-
nize the family). When recognition is denied to legal
same-sex marriages solemnized in other states, not
only is the status of being married denied, but the
very safety, security, and support that attaches to
that status is put into jeopardy.

“State laws defining and regulating marriage, of
course, must respect the constitutional rights of per-
sons.” Windsor, 133 S. Ct. at 2691. Each state that
has enacted an Anti-Recognition Law has opted to
select a disfavored class of people whose marriages
will be nullified within that state. See, e.g., Section
I(B), supra. Heightened scrutiny must be used in
determining whether the State’s action in unila-
terally voiding a marriage, against the will of either

29

spouse, comports with the requirements of due
process. Moore v. City of East Cleveland, 431 U.S.
494, 499 (1977) (When the government “undertakes
such intrusive regulation of the family .. . the usual
judicial deference to the legislature is inappropri-
ate.”); Sanders, supra, at 1452-53. When a law
imposes a “direct and substantial” burden on an
existing marital relationship, the law cannot be
upheld “unless it is supported by sufficiently
important state interests and is closely tailored to
effectuate only those interests.” Montgomery v.
Carr, 101 F.3d 1117, 1124 (6th Cir. 1996) (citation
and internal quotation marks omitted); see also
Griswold v. Connecticut, 381 U.S. 479, 485-86 (1965)
(applying heightened constitutional scrutiny in
striking down law barring use of contraceptives by
married couples). The Court should therefore apply
a heightened standard of review in analyzing
whether Anti-Recognition Laws comport with the
requirements of Due Process.

In support of Anti-Recognition Laws, numerous
state interests have been advanced. These include
concerns about reproduction and childrearing, main-
taining traditions in the form of a “man-woman” cou-
ple, and allowing states more time to assess the
possible repercussions of permitting couples who are
of the same sex to marry. See, e.g., DeBoer v.
Snyder, 772 F.3d 388 (6th Cir. 2014), cert. granted,
135 S. Ct. 1039, 1040; 1041 (2015). Each of these
justifications for stripping couples of the same sex
(and only same-sex couples) of their marriages has
been considered and rejected by this Court in
connection with its decision in Windsor. See 133 S.
Ct. at 2696. And, to the extent that these Anti-
Recognition Laws are justified on the grounds of
history, tradition, and moral disapproval, those

30

rationales cannot survive constitutional scrutiny.
See Windsor, 133 S. Ct. at 2695; Lawrence, 539 U.S.
at 571; Romer, 517 U.S. at 634-35. Because there is
not a constitutionally sufficient justification for the
serious harms inflicted by the Anti-Recognition
Laws, these laws unconstitutionally deprive married
same-sex couples of their liberty interests in their
existing marriages. Such an unjustified deprivation
of fundamental liberties cannot be tolerated.

CONCLUSION

For the foregoing reasons, this Court should hold
that the state non-recognition laws before it violate
equal protection and due process. Same-sex couples
should not be summarily stripped of a marriage, “the
most important relation in life” (Maynard v. Hill,
125 U.S. 190, 205 (1888)), simply by crossing state
lines.

Respectfully,
JOANNA L. GROSSMAN ARNOLD & PORTER LLP
SIDNEY & WALTER SIBEN SEAN M. SELEGUE
DISTINGUISHED PROFESSOR TRENTON H. NORRIS
OF FAMILY LAW MARJORY A. GENTRY
Hofstra Law School Counsel of Record
121 Hofstra Universi JOHN S. THROCKMORTON
Hempstead, NY 1154 EMILY H. Woop
Three Embarcadero Center
10th Floor
San Francisco, CA 94111
Telephone: 415.471.3100
marjory.gentry@aporter.com

Attorneys For Amici Curiae
Conflict of Laws = and Somily Law Petuows

March 6, 2015.

35068334F

APPENDIX

App. A-1

APPENDIX A

Amici Curiae are scholars with a wide range of
expertise relating to family law, conflict of laws, and
state regulation of marriage. Their expertise thus
bears directly on the issues before the Court in this
case. These Amici are listed below. Their institu-
tional affiliations are listed for identification pur-
poses only.

Susan Frelich Appleton

Vice Dean and

Lemma Barkeloo & Phoebe Couzins Professor of Law
Washington University School of Law

Katharine T. Bartlett
A. Kenneth Pye Professor of Law
Duke University Law School

Sara R. Benson
Lecturer in Law
University of Illinois College of Law

Brian H. Bix

Frederick W. Thomas Professor of
Law and Philosophy

University of Minnesota

June Carbone
Robina Chair of Law, Science and Technology
University of Minnesota Law School

J. Herbie DiFonzo

Professor of Law

Maurice A. Deane School of Law at
Hofstra University

| cr a

App. A-2

Maxine Eichner
Reef C. Ivey Il Professor of Law
UNC-Chapel Hill School of Law

Ann Laquer Estin
Aliber Family Chair
University of Iowa College of Law

Lawrence M. Friedman
Marion Rice Kirkwood Professor of Law
Stanford Law School

Jennifer S. Hendricks
Associate Professor
University of Colorado Law School

Suzanne A. Kim
Associate Dean and Professor of Law
Rutgers University, School of Law-Newark

Kevin Noble Maillard
Professor of Law
Syracuse University College of Law

Barbara Stark
Professor of Law
Hofstra Law School

Bela August Walker
Associate Professor of Law
Roger Williams University School of Law

Rhonda Wasserman

Professor of Law

Buchanan, Ingersoll & Rooney Faculty Scholar
University of Pittsburgh School of Law

App. A-3

Verna Williams
Judge Joseph P. Kinneary Professor of Law
University of Cincinnati College of Law

Jennifer Wriggins
Sumner T. Bernstein Professor of Law
University of Maine School of Law

Marcia Yablon-Zug
Associate Professor of Law
University of South Carolina School of Law

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0307%3A044. Public record. Not legal advice.