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

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

———_—— ——

|

gu The

Supreme Court of the Gnited States

¢

JAMES OBERGEFELL, et al.,

Petitioners,

V.

RICHARD HODGES, DIRECTOR,

OHIO DEPARTMENT OF HEALTH, et al.

[Additional Captions On Inside Cover]

°

On Writs Of Certiorari To The

United States Court Of Appeals

For The Sixth Circuit

¢

BRIEF OF AMICI CURIAE LIBERTY SCHOLARS

AND THE SAINT THOMAS MORE SOCIETY

OF DALLAS SUPPORTING AFFIRMANCE

°

DAVID R. UPHAM

Counsel of Record

UNIVERSITY OF DALLAS

1845 East Northgate Drive

Irving, TX 75062-4736

(972) 721-5186

davidrupham@yahoo.com

—_——— ; ——— —— = ———

COCKLE LEGAL BRIEPS (800) 225-6964

WWW _.COCKLELEGALBRIEFS COM

¢

VALERIA TANCO, et al.,

Petitioners,

v.

BILL HASLAM, GOVERNOR OF TENNESSEE, et al.

«

APRIL DeBOER, et al.,

Petitioners,

Vv.

RICK SNYDER, GOVERNOR OF MICHIGAN, et al.

o

GREGORY BOURKE, et al.,

Petitioners,

v.

STEVE BESHEAR, GOVERNOR OF KENTUCKY, et al.

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...................c.ccceeeeeeees ill

INTRODUCTION AND INTERESTS OF AMICI

III diniessancssnssconsienmnienpmtantiqneamniaiiaddiaiaian 1

SUMMARY OF ARGUMENT .....................ceceeeee 2

ITE conerseceneneessssetsinintingnineiialidite 5

I. Lawrence represented an organic devel-

opment of precedent in the Meyer-

Griswold-Casey line of decisions ............... 5

A. In particular, the Meyer-Casey prece-

dents all involved (1) the abridge-

ment of personal liberty, (2) by

criminal statutes, (3) the enforcement

of which was found to have violated

our common-law tradition ................... 6

B. Lawrence was consistent with this

long line of precedents...................:..0+ 11

II. Traditional marriage laws are thoroughly

consistent with the Mever-Lawrence

precedents, for such laws (1) abridge no

personal liberty, (2) impose no criminal

liability, and (3) are an integral part of

our common-law tradition ......................++. 13

A. Gender-diverse marriage laws nei-

ther directly nor indirectly impair

any personal liberty .......................06-+. 13

B. Gender-diverse marriage laws impose

no criminal liaDility ......ccccccoccccccccsescesss 16

ITI.

li

TABLE OF CONTENTS ~— Continued

Page

C. Gender-diverse marriage laws, with

offspring as one of the main purposes,

are endorsed by the common law and

our entire legal tradition.....................

Traditional marriage laws involve the

sort of governmental promotion endorsed

in the Meyer-Lawrence precedents............

Conversely, same-sex marriage might

conflict with the Meyer-Lawrence prece-

dents, for the conferral of the presump-

tion of paternity on a _ birthmother’s

same-sex partner might abridge the con-

stitutional rights of natural parents, as

vindicated in Meyer and its progeny .........

A. The Constitution creates a strong

presumption of the child’s entrust-

ment to her natural mother and fa-

B. Traditional marriage carries a com-

plementary presumption of paternity ....

C. Same-sex marriage may create a con-

flict between these two presumptions...

CONCLUSION......... peevieunpaenenaimnestnscnsemenssoevasece

16

22

24

24

27

29

33

ill

TABLE OF AUTHORITIES

Page

CASES

Adoptive Couple v. Baby Girl, 133 S. Ct. 2552

er een 25, 26

Arkansas Dep't of Human Servs. v. Cole, 380

RE eee 15

Baehr v. Lewin, 852 P.2d 44 (Haw. 1993) .................. 18

Baity v. Cranfill, 91 N.C. 293 (1884) ....................2..-- 10

Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971) ....17, 18

Baker v. Nelson, 409 U.S. 810 (1972)................2.c0cc0000- 2

Bonds v. Foster, 36 Tex. 68 (1872)...............cccccccceeeeuee 17

Bowers v. Hardwick, 478 U.S. 186 (1986).............. 5,13

Buck v. Bell, 274 U.S. 200 (1927)...............ccceeeceeeeeee 5,6

Burroughs v. Burroughs, 4 F.2d 936 (D.C. Cir.

Si siniinseantclahicldeiasidndededeidiipanenimtenegaiiatiiaidaainiamamaianbietiapanaaia 19

Carey v. Population Services Int'l, 431 U.S. 678

RE eee anne ey ee an 7

Center for Reproductive Law and Policy v.

Bush, 304 F.3d 183 (2d Cir. 2002) ................2......... 22

Chapsky v. Wood, 26 Kan. 650 (1881)........................ 15

Citizens United v. FEC, 558 U.S. 310 (2010)............. 14

Davis v. Berry, 216 F. 413 (S.D. Iowa 1914)................ 6

District of Columbia v. Heller, 554 U.S. 570

It cinsiociipachinipedecesecnnsidintiadntdaldadbimedieeleiniiipeisinebeenasiil 20

Eisenstadt v. Baird, 405 U.S. 438 (1972)..................... 7

Furman v. Georgia, 408 U.S. 238 (1976) ................... 12

iV

TABLE OF AUTHORITIES — Continued

Page

Goodridge v. Dep’t of Pub. Health, 798 N.E.2d

ee 17

Great Atlantic & Pacific Tea Co. v. Supermar-

ket Corp., 340 U.S. 147 (1950) ...............cccccececeeeeees 20

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

Hisquierdo v. Hisquierdo, 439 U.S. 572 (1979) ........... 2

Hodgson v. Minnesota, 497 U.S. 417 (1990)........ 26, 27

In re Adoption of Walton, 259 P.2d 881 (Utah

ST crasecciicitcnennceienaiidiinicnniiitaat itil siitaasmnasielieatadaa 31

In re Burrus, 136 U.S. 586 (1890)...................0....22.-e0e- 2

In re Marriage of Ramirez, 81 Cal. Rptr. 3d 180

Pies NEA TIITITED intctntinsinseniitedatsanianntiiuebiiepegeiiionntasenidte 18

Kennedy v. Meara, 56 S.E. 243 (Ga. 1906)................... 9

Labine v. Vincent, 401 U.S. 532 (1971)....................... 2

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

Loving v. Virginia, 388 U.S. 1 (1967)................. passim

Maher v. Roe, 432 U.S. 464 (1977)..............ccccceeeeeeees 22

May v. Anderson, 345 U.S. 528 (1953)....................... 26

McLaughlin v. Florida, 379 U.S. 184 (1964)....... 12, 13

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

Michael H. v. Gerald D., 491 U.S. 110 (1989)......27, 29

Milwaukee Indus. Sch. v. Supervisor of Mil-

waukee County, 40 Wis. 328 (1876).......................-.. 8

Murphy v. Ramsey, 114 U.S. 15 (1885)........................ 2

Vv

TABLE OF AUTHORITIES — Continued

Page

Nguyen v. INS, 533 U.S. 53 (2001) ..................ceeeeeeee 28

Norwood v. Harrison, 413 U.S. 455 (1973)................ 22

Nugent v. Powell, 33 P. 23 (Wyo. 1893) .....................4+. 9

Olmstead v. United States, 277 U.S. 438 (1928).......... 6

Parham v. J. R., 442 U.S. 584 (1979)......................04 25

Pearson v. Pearson, 51 Cal. 120 (18785)..............00...... 17

People ex rel. O'Connell v. Turner, 55 Ill. 280

Saimin eaten 8

Pierce v. Society of Sisters, 268 U.S. 510 (1925) .... passim

Planned Parenthood of Southeastern Pa. v.

Casey, 505 U.S. 833 (1992) .................cceeeeeeeees passim

Pollard v. Lyon, 91 U.S. 225 (1876) ......................00 13

Robertson v. State, 42 Ala. 509 (1868) ....................... 10

Roe v. Wade, 410 U.S. 113 (1973)................. 7,9, 11, 22

Rosenberger v. Rector and Visitors of Univ. of

TE SENN amEE Dem 23

Santosky v. Kramer, 455 U.S. 745 (1982)............ 26, 27

Scheinberg v. Smith, 659 F.2d 476 (5th Cir.

TEESE cee er See eene e 18

Skinner v. Oklahoma ex rel. Williamson, 316

TEAS Ne a eR 18

Smith v. Bd. of Examiners of Feeble-Minded, 88

NS ER See 6

State v. Bailey, 10 Ohio Dec. Reprint 455

(Toledo Police Ct. 1884)............0.ccccceccceceececceceeeeeecees 17

vi

TABLE OF AUTHORITIES ~- Continued

Page

T v. M, 242 A.2d 670 (N.J. Super. Ct. Ch. Div.

rT iicienesiecesnitnintede antecedents ih asap canal 18

Traxel v. Granville, 530 U.S. 57 (2000).......... 8, 25, 26, 29

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

a iti ileal deriiaeiaiaecanal 20, 21, 25, 26

Wendel v. Wendel, 30 A.D. 447 (N.Y. App. Div.

II dconcunenenennenpesmemensevanessenmneneinenninbninaneeennpesnenen 19

Williams v. Smith, 131 N.E. 2 (Ind. 1921)................... 6

Zerk v. Zerk, 44 N.W.2d 568 (Wis. 1950).................... 18

CONSTITUTIONAL PROVISIONS

pO een 18

Sips GIT, SII os crnintteieetnmtnninedamnanniinnnseteneninnmmnesemmneittd 19

STATUTES

, 5 | TSN aa eae Nee 28

gg gS EEE ene 28

TREATISES

JAMES SCHOULER, A TREATISE ON THE LAW OF

THE DOMESTIC RELATIONS (2d ed. 1874) .................. 10

SAINT GEORGE TUCKER, BLACKSTONE’S COMMEN-

iit lila lteter 17

vii

TABLE OF AUTHORITIES — Continued

Page

SCHOLARLY AUTHORITIES

David R. Upham, Interracial Marriage and the

Original Understanding of the Privileges or

Immunities Clause, 42 HASTINGS ConsT. L.Q.

STII intnitiiiameemncieinininnnmianninniibeiniiinmmbiniiiien 10, 11

Perry Dane, Natural Law, Equality, and Same-

Sex Marriage, 62 BUFFALO L. REV. 291 (2014)....... 24

OTHER AUTHORITIES

EDMUND BURKE, REFLECTIONS ON THE REVOLU-

ED Te I Cr Fe cncccccccctccccctcceencdseccncssocessosesesss 33

Gallup Politics, In U.S., Record-High Say Gay,

Lesbian Relations Morally OK, May 20, 2013,

http:/Awww.gallup.com/poll/162689/record-high-

say-gay-lesbian-relations-morally.aspx.................. 28

11 OXFORD ENGLISH DICTIONARY (2d ed. 1989)......... 25

Patricia A. Cain, Contextualizing Varnum v.

Brien: A “Moment” in History, 13 J. GENDER

ee Se Be GD Hererctnitrnccstncscnnnionsneinnminnianese 17

Wendy Wang & Kim Parker, Record Share of

Americans Have Never Married, PEW ReE-

SEARCH TRENDS (Sept. 24, 2014), http://www.

pewsocialtrends.org/2014/09/24/record-share-

of-americans-have-never-married/ .................0.0.000. 15

1

INTRODUCTION AND

INTERESTS OF AMICI CURIAE'

Amici curiae “Liberty Scholars” are professors whose

teaching and research interests include the American

constitutional tradition of liberty. Amici are concerned

that the holding urged by Petitioners will do substan-

tial harm to the integrity and coherence of that

tradition, as developed by this Court’s jurisprudence.

Liberty Scholars include the following: (1) Teresa

Stanton Collett, Professor, the University of St.

Thomas School of Law; (2) Lynne Marie Kohm, Pro-

fessor and John Brown McCarty Professor of Family

Law, Regent University School of Law; and (3) D.

Brian Scarnecchia, Associate Professor, Ave Maria

School of Law.

Amicus curiae the Saint Thomas More Society of

Dallas is an organization of Roman Catholic attor-

neys. Amicus likewise cherishes our tradition of

liberty, and is concerned that the Petitioners’ request

will undermine the law’s traditional protections for

the relation between parent and offspring.

In particular, Amici file this brief to explain and

defend the principles of Mever v. Nebraska and its

progeny, up through and including Lawrence v. Texas.

Amici submit that a decision compelling same-sex

' This brief is filed with the consent of all parties. Amici

and undersigned counsel have authored this brief in whole, and

no other person or entity has funded its preparation or submis-

sion.

2

marriage would do violence to the liberty jurispru-

dence of the Meyer-Lawrence tradition.

Amici urge the Court to reaffirm our Constitu-

tion’s tradition of liberty, and thus affirm the decision

below.

.

SUMMARY OF ARGUMENT

Two decades after the adoption of the Fourteenth

Amendment, this Court stated unanimously that “no

legislation” was more “necessary” to the foundation of

a free society and “social and political improvement”

than laws reflecting “the idea of the family, as consist-

ing in and springing from the union for life of one

man and one woman in the holy estate of matrimony.”

Murphy v. Ramsey, 114 U.S. 15, 45 (1885). A century

later, this Court unanimously affirmed the male-

female nature of marriage, by summarily rejecting

the claim that the Amendment required the states to

recognize same-sex unions as “marriages.” Baker v.

Nelson, 409 U.S. 810 (1972); see also Labine v. Vin-

cent, 401 U.S. 532, 552-53 (1971) (Brennan, J., dis-

senting) (stating, in a Fourteenth Amendment case,

that it is “important not to obscure the fact that the

formality of marriage primarily signifies a relation-

ship between husband and wife”); Hisquierdo v.

Hisquierdo, 439 U.S. 572, 581 (1979) (indicating that

“marriage” means “the domestic relations of husband

and wife”) (quoting Jn re Burrus, 136 U.S. 586, 593-94

(1899)).

3

Yet now Petitioners and supporting amici ask

this Court to disavow these and countless other

precedents. They argue that times have changed, and

that this Court should too. In urging an undeniable

revolution against precedent, they rely heavily on a

few recent precedents, including Lawrence v. Texas,

539 U.S. 558, 581 (2003).

In Lawrence, however, this Court expressly

denied that its holding involved “public conduct” or

“whether the government must give formal recogni-

tion to any relationship.” Jd. at 578. Lawrence, then,

said nothing favoring the contention that the Four-

teenth Amendment compels the states publicly to

issue marriage licenses to persons of the same sex,

and thereby grant a “formal recognition” to certain

relationships.

Petitioners, however, insist that Lawrence effec-

tively did involve such “public conduct” and such

“formal recognition.” They effectively agree with

Justice Scalia’s dissent, in which he alleged that the

“principle and logic” of Lawrence could well lead to

the “judicial imposition of [same-sex] marriage.”

Lawrence, 539 U.S. at 604. As to the majority’s dis-

claimer, he was skeptical: “Do not believe it.” Id.

? Amici note that the question before the Court is only

tangentially related to sexual orientation, for the Petitioners are

asking this Court to endorse same-sex marriage, without

discrimination as to the sexual orientation or private activity of

the parties to such a contract.

4

Amici submit respectfully that Justice Scalia was

clearly mistaken, and that the Court’s disclaimer in

Lawrence was not only credible but entirely persua-

sive. The alleged extension of Lawrence that Justice

Scalia feared, and the petitioners here desire, would

be no extension at all. Rather, it would do violence to

the “principle and logic” of Lawrence.

In particular, Lawrence represented an organic

development of a century-old line of precedents

stretching back to Meyer v. Nebraska, 262 U.S. 390

(1923), and beyond. The Meyer-Lawrence family of

cases involved (1) the abridgement of personal liberty,

(2) by criminal laws, (3) the enforcement of which this

Court found to have violated rights long recognized at

common law. But the holding sought by Petitioners

would invalidate laws having none of these features,

and would thus be foreign and opposed to, the Meyer-

Lawrence line of decisions. Rather than a develop-

ment of common-law principles, the proposed holding

would represent a direct repudiation of them. Indeed,

by claiming the presumption of paternity for persons

incapable of being a child’s father, Petitioners are

seemingly asking this Court to contradict the central

right vindicated in Meyer: the presumptive right and

duty of natural parents to the care and education of

their offspring.

5

ARGUMENT

Il. Lawrence represented an organic devel-

opment of precedent in the Meyer-

Griswold-Casey line of decisions.

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

Court reversed as unconstitutional a conviction under

Texas’s anti-sodomy statute. To reach that conclusion,

the Court relied on a long line of precedents. Indeed,

the Court began the opinion with a citation to Meyer

v. Nebraska, 262 U.S. 390 (1923), and Pierce v. Society

of Sisters, 268 U.S. 510 (1925), followed by an elabo-

rate discussion of Meyer’s more recent progeny, be-

ginning with Griswold v. Connecticut, 381 U.S. 479

(1965) and extending to Planned Parenthood of

Southeastern Pa. v. Casey, 505 U.S. 833 (1992).

Lawrence, 539 U.S. at 564-66, 574.

Lawrence thus was based on precedent. To be

sure, the Court expressly overturned one precedent,

Bowers v. Hardwick, 478 U.S. 186 (1986). But the

Court did not launch a revolution. Rather, the Court

held that Bowers was an aberrational decision, at

odds with both prior and subsequent precedent in the

Meyer-Griswold-Casey line: “Bowers was not correct

when it was decided, and it is not correct today. It

ought not to remain binding precedent.” Lawrence,

539 U.S. at 578.”

* Perhaps this Court’s most notorious due-process decision

is also its most aberrational, anti-precedential decision. Buck v.

Bell, 274 U.S. 200 (1927). As courts before 1922 seemed to

(Continued on following page)

6

A. In particular, the Meyer-Casey prece-

dents all involved (1) the abridgement

of personal liberty, (2) by criminal

statutes, (3) the enforcement of which

was found to have violated our com-

mon-law tradition.

The forerunners to Lawrence all involved three

main features. First, in each case, the Court invali-

dated the abridgement of a personal liberty — that is,

the power of individuals to act or refrain in a certain

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

majority of this Court affirmed the right of parents to

delegate their “natural duty” and educational right to

a private teacher by “engagling] him so to instruct

their children.” Jd. at 400. In Pierce v. Society of

Sisters, 268 U.S. 510 (1925), a unanimous court

reaffirmed Meyer and recognized that liberty included

the parental right to withhold their children from

public schools and send them instead to sectarian

schools. Jd. at 534-35. Four decades later, a unani-

mous Court again expressly reaffirmed Meyer and

acknowledge, state destruction of bodily integrity, without

criminal law or procedure, was alien to due process. Smith v. Bd.

of Examiners of Feeble-Minded, 88 A. 963, 966 (N.J. 1913); Davis

v. Berry, 216 F. 413, 416-19 (S.D. Iowa 1914); Williams v. Smith,

131 N.E. 2, 2 (Ind. 1921). A year after joining Justice Holmes’s

opinion in Buck, Justice Brandeis celebrated the decision

precisely because Virginia had met “modern conditions” by

adopting coercive procedures that “a century ago, or even half a

century ago, probably would have been rejected as arbitrary and

oppressive.” Olmstead v. United States, 277 U.S. 438, 472 (1928)

(Brandeis, J., dissenting) (quotations and citations omitted).

7

held that constitutional liberty encompassed the right

of a man and woman, regardless of race, to contract a

marriage and subsequently perform that agreement

by cohabitation and otherwise. Loving v. Virginia, 388

U.S. 1, 7, 12 (1967). In Griswold v. Connecticut, 381

U.S. 479 (1965), and subsequent cases, through

Planned Parenthood of Southeastern Pa. v. Casey, 505

U.S. 833 (1992), this Court repeatedly cited Meyer

and repeatedly upheld (though over repeated dissent)

the right to the use of contraception and abortion,

and more generally, the liberty to decide “whether to

bear or beget a child.” Eisenstadt v. Baird, 405 U.S.

438, 453 (1972); see also Griswold, 381 U.S. at 482,

486; Roe v. Wade, 410 U.S. 113, 152-53, 154 (1973);

Carey v. Population Services Int'l, 431 U.S. 678, 685

(1977); Casey, 505 U.S. at 848.

Second, all the cases involved the actual or

prospective enforcement of criminal statutes. See,

e.g., Meyer, 262 U.S. at 397 (recounting the plaintiff-

in-error’s conviction under Nebraska’s law against

foreign-language instruction); Griswold, 381 U.S. at

480 (detailing appellants’ conviction under Connecti-

cut’s anti-contraception law); Casey, 505 U.S. at 844-

45 (noting petitioners’ suit to enjoin enforcement of

Pennsylvania’s Abortion Control Act).*

‘ In Loving, the Court’s reliance on the Equal Protection

Clause, as well as the Due Process Clause, 388 U.S. at 11-12,

implicated the unconstitutionality of any law invalidating as

well as prohibiting interracial marriage.

8

Third, in each of those cases, actual or prospec-

tive statutory enforcement was found to violate

liberties deeply rooted in our common-law tradition.

In Meyer, the Court set forth the general rule: that

the “liberty” secured by the Fourteenth Amendment

incorporated “generally those privileges long recog-

nized at common law as essential to the orderly

pursuit of happiness by free men.” 262 U.S. at 399

(emphasis added). Meyer applied this principle by

endorsing the traditional rights of parents to educate

their offspring.

Contrary to Justice Scalia’s suggestion in Troxel

v. Granville, 530 U.S. 57, 91-92 (2000) (Scalia, J.,

dissenting), Meyer was not part of any substantive

due process revolution. There was abundant early

precedent supporting the contention that “due process

of law” incorporates a strong presumption favoring

natural parents’ custodial and educational authority,

much as due process incorporates a stronger pre-

sumption of innocence in criminal cases.’

* People ex rel. O'Connell v. Turner, 55 Ill. 280, 284-88

(1870) (holding that to coercively transfer a child from his

father’s custody to a reform school would violate due process

absent a finding of the child’s criminal liability or the father’s

“gross misconduct or almost total unfitness”); Milwaukee Indus.

Sch. v. Supervisor of Milwaukee County, 40 Wis. 328, 338-39

(1876) (holding that a Wisconsin statute depriving a parent of

custody did not violate due process, because the deprivation

required proof of a “total failure of the parent to provide for the

child” and the parent, after a temporary failure, could recover

custody upon showing he was “able and willing to resume the

(Continued on following page)

9

Accordingly, Meyer’s progeny continued to look

back to our common-law tradition. To cite the most

prominent cases, Griswold celebrated the “right of

privacy older than the Bill of Rights — older than our

political parties, older than our school system.” 381

U.S. at 486.

In Roe, the Court similarly found that both at

common law and under antebellum statutes, “a

woman enjoyed a substantially broader right to

terminate a pregnancy than she does in most States

today.” 410 U.S. at 140. The Court proceeded to

invalidate the statute that abridged that traditional

right. Jd. at 164. Even if Roe’s historical claim and

decision were erroneous, the case followed the pattern

of its predecessors: the abridgement of an alleged

traditional liberty by modern criminal statutes.*

Loving also vindicated our common-law tradition.

The Court alluded to Meyer in declaring that “the

freedom to marry has long been recognized as one of

nurture and education of the child”); Nugent v. Powell, 33 P. 23,

48 (Wyo. 1893) (holding that adoption proceedings that perma-

nently transferred a child were satisfied because they required

proof of both the mother’s consensual relinquishment and the

non-consenting father’s “abandonment”); Kennedy v. Meara, 56

S.E. 243, 247-48 (Ga. 1906) (affirming that the parent has not

only a duty to educate the child, but also a property interest in

the child’s services, the deprivation of which required a showing,

after notice and hearing, that the parent had “by his conduct,

forfeit{ed) his right to the custody of his minor child”).

* Amici disagree with the historical claim and resulting

decision in Roe, and with the reaffirmation of Roe in Casey.

10

the vital personal rights essential to the orderly

pursuit of happiness by free men.” The Court’s con-

spicuous reluctance to mention the “common law”

was unnecessary, for the right to marry, regardless of

race, was indeed a right long recognized at common

law — a liberty abridged by some states’ racial-

apartheid statutes. See, e.g., JAMES SCHOULER, A

TREATISE ON THE LAW OF THE DOMESTIC RELATIONS 29

(2d ed. 1874) (noting that “race, color, and social rank

do not appear to constitute an impediment to mar-

riage at the common law, nor is any such impediment

now recognized in England. But by local statutes in

some of the United States, inter-marriage has long

been discouraged between persons of (different)

races.”) (emphasis added).’

Parenthetically, Amici note that this Court’s oft-

cited statement in Casey as to the “tradition” favoring

racial-endogamy rules was mistaken. 505 U.S. at 847-

48. Such statutes not only abridged the common law,

but were inconsistent with the original understanding

* Authorities endorsing such laws had candidly noted they

were in derogation of common law. Robertson v. State, 42 Ala.

509, 512 (1868) (Byrd, J., concurring) (citing Alabama’s racial-

endogamy statute as evidence that the legislature had restricted

the full common-law liberty to marry); Baity v. Cranfill, 91 N.C.

293, 295 (1884) (contrasting the common law’s nullification of

certain immoral marriages with North Carolina’s statutory

nullification of interracial marriages). See generally, David R.

Upham, Interracial Marriage and the Original Understanding of

the Privileges or Immunities Clause, 42 Hastincs Const. L.Q.

213, 218-22 (2015).

11

of the Fourteenth Amendment.” Further, contrary to

the Court’s claim that “interracial marriage was

illegal in most States in the 19th century,” Casey, 505

ere non-existent or unenforced in a clear majority of

the states, and a super-majority of the ratifying

states, in large measure because Republican officials

deemed such laws inconsistent with the Amendment,

the Civil Rights Act of 1866, or both.”

B. Lawrence was consistent with this

long line of precedents.

In each of these three respects, Lawrence fol-

lowed its predecessors. First, the case involved per-

sonal liberty. The Court cited (or alluded) to all the

Meyer-Griswold-Loving-Roe-Casey cases in vindicat-

ing a personal freedom: adults’ freedom from criminal

liability in their “private sexual conduct.” 539 U.S. at

564-66, 573-74, 578.

Second, Lawrence likewise involved the abridge-

ment of liberty by a criminal prosecution. 539 U.S. at

563 (discussing petitioners’ conviction under Texas’s

anti-sodomy law).

Third, Lawrence found that such criminal en-

forcement violated principles long-recognized at com-

mon law. Like its predecessors, Lawrence renewed

* Upham, Interracial Marriage, at 252-72.

* Upham, Interracial Marriage, at 258-72.

12

our common-law liberty tradition against legal inno-

vation. The Court emphasized that recent anti-

sodomy statutes had introduced a novel discrimina-

tion targeting same-sex relations. 539 U.S. at 569.

Further, the Court explained that laws against cer-

tain sexual acts, however traditional, were tradition-

ally unenforced against private conduct by consenting

adults. Jd. The absence of enforcement was glaringly

conspicuous given the undoubted prevalence of such

conduct, whether marital or otherwise. As the Court

suggested, due process effectively precluded such

enforcement, for where the conduct was private

and consensual, prosecution would have required a

violation of traditional procedural rights, including

testimonial privileges and/or the freedom from unrea-

sonable intrusions into the home. Id. at 569-70.

Further, we might add, where prosecutions did not

involve such unlawful procedures, their extreme

rarity might have implicated other traditional princi-

ples of due process. See, e.g., Furman v. Georgia, 408

U.S. 238, 309-10 (1976) (Potter, J., concurring).

Lawrence, therefore, stands for the same principles

as its forerunners, stretching back to Meyer, and be-

yond: the Fourteenth Amendment prohibits the states

from making or enforcing criminal law so as to abridge

personal liberties long recognized at common law.

To be sure, the common law and related statutes

incorporated a declaratory prohibition on nonmarital

sex — prohibitions endorsed with no dissent by this

Court in McLaughlin v. Florida, 379 U.S. 184, 193

(1964) (characterizing “premarital and extramarital”

sex as “illicit”); accord, Griswold, 381 U.S. at 498

13

(Goldberg, J., concurring). And consistent with

Justice White’s uncontroverted opinion for the

McLaughlin Court, the Lawrence Court disavowed

any effort to find a “right to engage” in any private

nonmartial act. 539 U.S. at 567.

The Lawrence Court overturned, instead, Justice

White’s opinion for a sharply-divided Bowers Court,

which had endorsed the criminal enforcement of such

law against consenting adults. This enforcement

violated privacy and other procedural liberties long

recognized at common law and our broader tradition.

Constitutional liberty encompassed adults’ freedom

from criminal liability in their consensual, “private

sexual conduct.” 539 U.S. at 578.

Il. Traditional marriage laws are thoroughly

consistent with the Meyer-Lawrence prec-

edents, for such laws (1) abridge no per-

sonal liberty, (2) impose no criminal

liability, and (3) are an integral part of

our common-law tradition.

A. Gender-diverse marriage laws neither

directly nor indirectly impair any per-

sonal liberty.

The laws at issue in this case plainly discrimi-

nate on multiple bases: not only (1) gender diversity

"” See also, Pollard v. Lyon, 91 U.S. 225, 227-28 (1876)

(characterizing fornication and adultery as “[bJeyond all doubt,

offences [that] involve moral turpitude”).

14

(not sex or sexual orientation), but also (2) number

(two and only two persons), and (3) natural person-

hood (artificial persons are not able to contract valid

marriage, Citizens United v. FEC, 558 U.S. 310

(2010), notwithstanding). Yet these discriminations in

no way abridge anyone’s personal liberty. The laws do

not define permissible private conduct but permissi-

ble governmental conduct: the state executive and

judicial authorities must reserve the status, benefits,

and presumptions. of “marriage” to just one among

the countless diversity of free associations that per-

sons may enter under our Constitution.

At one time, theoretically, the lack of governmen-

tal “marriage” might have indirectly abridged per-

sonal liberty by exposing an unmarried couple to

criminal liability for their private conduct. But Law-

rence held that, as to consenting adults, all enforce-

ment of such criminal law was unconstitutional.

Accordingly, none of the Petitioners here claim

that traditional-marriage laws subject them to any

direct or indirect impairment of their personal liberty

(e.g., to engage in private conduct). Petitioners cite

substantial hardship as to the loss of certain marital

benefits, but no abridgement of liberty. See, e.g., Brief

for Petitioners Obergefell et al., at 6-12."

" The only arguable liberties involved here are the auto-

matic right to parental authority over one's partner’s offspring,

and the right to adopt others’ offpsring. These “liberties,”

however, are far from personal, for they involve at least three

(Continued on following page)

15

Indeed, in our time, the lack of any governmental

“marriage” license poses little to no obstacle to our

fellow citizens’ personal freedom. In recent decades,

more Americans have chosen alternatives, whether

remaining single, participating in casual relations,

entering nonmarital cohabiting relationships, etc.”

Such trends plainly confirm what is apparent from

the Petitioners’ silence: individuals, regardless of

other parties: the non-consenting child. a natural parent, and, in

case of adoption, the government. In sharp contrast, in Meyer

and Pierce, the transfers at issue did not involve the govern-

ment, and as to the child, represented mere temporary and

revocable delegations to private-school teachers. Our common

law recognized no right to irrevocable transfer of what was an

inalienable trust. “A child is not in any sense like a horse or any

other chattel, subject matter for absolute and irrevocable gift or

contract. The father cannot by merely giving away his child

release himself from the obligation to support it nor be deprived

of the right to its custody.” Chapsky v. Wood, 26 Kan. 650, 652

(1881). Irrevocable transfers, like statutory adoptions, presup-

posed not the parent’s consensual delegation but the parent’s

death, other inability, or forfeiture (by abandonment, abuse,

etc.), in which fact the state acquiesced, assumed the parental

role, and then transferred that office to other adults, designated

as “parents by adoption.”

Further, adoption rights can be distinguished from mar-

riage, as a state may both retain traditional marriage and allow

unmarried persons to adopt. See, e.g., Arkansas Dep't of Human

Servs. v. Cole, 380 S.W.3d 429, 443 (Ark. 2011) (holding that a

state law preventing an unmarried cohabiting couple from

adopting children violated the fundamental right to privacy

implicit in the Arkansas Constitution).

* Wendy Wang & Kim Parker, Record Share of Americans

Have Never Married, PEW RESEARCH TRENDS (Sept. 24, 2014), http://

www.pewsocialtrends.org/2014/09/24/record-share-of-americans-

have-never-married/.

16

marital] status, are free from not only criminal liabil-

ity, but other restrictions on their power to choose

whatever relationships suit them.

B. Gender-diverse marriage laws impose

no criminal liability.

Unlike the Meyer-Lawrence line of precedents,

this case does not involve criminal] law or liability.

Among Petitioners’ list of concerns, there is no mention

of any deprivation of bodily liberty by imprisonment

or deprivation of property by punitive fine. Instead,

Petitioners seek from this Court a variety of im-

portant civil benefits and burdens, including, inter

alia, marriage’s legal presumptions (as to offspring,

property, etc.), adoption rights, as well as the status

of governmental “marriage.” See, e.g., Brief for Peti-

tioners Obergefell et al., at 6-12.

C. Gender-diverse marriage laws, with

offspring as one of the main purposes,

are endorsed by the common law and

our entire legal tradition.

Unlike the Meyer-Lawrence cases, the present

controversy involves law that is plainly consistent

with the common law, and indeed, our entire legal

tradition. Before 1970, there does not seem to be any

evidence that anyone anywhere seriously denied that

“marriage” was a male-female arrangement. Accordingly,

17

before 1973, no state deemed it necessary to adopt a

statutory definition of marriage as “male-female.””

Such laws were as unnecessary then as laws prevent-

ing inter-corporate marriages are today. Marriage, at

that time, had always been as much male-female, as

marriage requires natural persons today.“

“ Patricia A. Cain, Contextualizing Varnum v. Brien: A

“Moment” in History, 13 J. GENDER RACE & Just. 27, 30 (2009)

(noting that in 1973, “Maryland became the first state to clarify”

its marriage statute in this way).

'* While gender diversity was definitional, racial homogenei-

ty was regulatory. Consequently, statutory silence therefore has

had exactly the opposite effect. All authorities agreed that such

silence implied the validity of interracial marriages, but the

utter invalidity of same-sex marriages. Compare, e.g., Goodridge

v. Dep't of Pub. Health, 798 N.E.2d 941, 952 (Mass. 2003)

(unanimously holding that “marriage” under Massachusetts

statutory law is male-female because “[t]he everyday meauing of

‘marriage’ is ‘the legal union of a man and woman as husband

and wife’”) (citations and quotations omitted), and Baker v.

Nelson, 191 N.W.2d 185, 186 (Minn. 1971) (unanimously affirm-

ing the same), with Bonds v. Foster, 36 Tex. 68, 69 (1872)

(holding an interracial marriage valid because the prohibitory

statute had been abrogated by the Fourteenth Amendment), and

Pearson v. Pearson, 51 Cal. 120, 125 (1875) (holding valid such a

marriage because when contracted, the prohibitory statute had

not yet been adopted). As to interracial marriage, even statutory

illegality did not imply invalidity. See, e.g., 2 SAINT GEORGE

TUCKER, BLACKSTONE’S COMMENTARIES, App. G, at 58 (1803)

(noting that in Virginia, interracial marriage remained valid,

though statutorily illicit); State v. Bailey, 10 Ohio Dec. Reprint

455, 455 (Toledo Police Ct. 1884) (stating that Ohio’s statutory

prohibition had “nothing to do with the validity of the marriage:

we know of no law which invalidates it”).

18

And before 1993, no American judge challenged

the constitutionality of gender diversity as a prereq-

uisite for marriage.” Accordingly, before the 1990s, no

state deemed it necessary to adopt a constitutional

definition of marriage,” for the traditional definition

had seemed safe from judicial invalidation as uncon-

stitutional.

Furthermore, with seeming unanimity, authori-

ties concurred that one of the chief purposes of this

male-female arrangement was the reproduction and

education of offspring. See, e.g., Baker v. Nelson, 191

N.W.2d 185, 186 (Minn. 1971) (citing Skinner v.

Oklahoma ex rel. Williamson, 316 U.S. 535, 541

(1942) to claim that marriage is “a union of man and

woman, uniquely involving the procreation and

rearing of children within a family”); Scheinberg v.

Smith, 659 F.2d 476, 483 (5th Cir. 1981) (noting that

“one of the primary purposes of marriage [is] the

bringing forth and nurturing of children”); Zerk v.

Zerk, 44 N.W.2d 568, 570 (Wis. 1950) (holding that

“[p]rocreation of children is one of the important ends

of matrimony”).”

Baehr v. Lewin, 852 P.2d 44, 60-64 (Haw. 1993) (opinion of

Levinson, J.) (discussing the uniformly contrary precedents from

the 1970s and citing no judicial precedent in direct support).

"* See, e.g., ALASKA CONST. art. I, § 25 (1998).

'" See also, among many other authorities, Jn re Marriage of

Ramirez, 81 Cal. Rptr. 3d 180, 185 (Ct. App. 2008) (identifying

“the sexual, procreative or child-rearing aspects of marriage” as

“vital” to the relationship); T v. M, 242 A.2d 670, 674 (NJ.

(Continued on following page)

19

Most notably, marriage’s procreative purpose was

affirmed often in the very cases holding that sterility

was no impediment to marital validity. See, e.g.,

Burroughs v. Burroughs, 4 F.2d 936, 937 (D.C. Cir.

1925) (affirming “the general rule that mere barren-

ness is not a ground for the annulment of a marriage,

though the prime object of marriage is thus defeat-

ed”).

To be sure, marriage serves other purposes, much

like any human enterprise, like a for-profit corpora-

tion, or a dinner party, or a Constitution. See, e.g.,

U.S. Const. pmbl. (enumerating six purposes). But

marriage’s procreative-educational purpose seems the

only way to make intelligible the main definitional

discriminations of marriage: not only (1) sex diversity,

but also (2) number, and (3) natural-personhood.

Conversely, the definition has never been tightly

coextensive with its purpose. But such a discrepancy

between primary purpose and broader definition is

ubiquitous in the law. Consider, for instance, our

Constitution’s Second Amendment and the Patent

and Copyright Clause. Both involve rights with

Super. Ct. Ch. Div. 1968) (noting that “(t]he begetting of children

is truly an important end of marriage”).

** See also, Wendel v. Wendel. 30 A.D. 447, 452 (N.Y. App.

Div. 1898) (“[W]Jhile the policy of the law undoubtedly contem-

plates the possibility, and the probability, of issue, it cannot be

held as a matter of law that the physical incapacity to conceive

is a bar to entering the marriage state.”).

20

definitions made intelligible by narrower express

purposes.”

Both marriage’s traditional male-female defini-

tion and its traditional procreative-educational pur-

pose were noted by this Court in United States v.

Windsor, 133 S. Ct. 2675 (June 26, 2013). The Court

affirmed that “many citizens” once deemed same-sex

" In his dissent in Lawrence, Justice Scalia argued that

marriage’s alleged procreative purposes could not justify the

male-female definition “since the sterile and the elderly are

allowed to marry.” 539 U.S. at 606. But this objection seems

answered by his opinion for the Court in District of Columbia v.

Heller, 554 U.S. 570 (2010), where he indicated that a legal

definition logically serves a legal purpose even though the

definition is over-inclusive relative to the purpose. The right to

bear arms is logically reserved to only a portion of humanity,

“members of the political community,” id. at 580, because the

chief (but not sole) purpose of the right is to promote that

community's best security — a well-regulated militia staffed by a

subset of those members. Jd. at 599. Similarly, the Copyright

and Patent Clause serves the express purpose of progress in the

arts and science, though its definition is over-inclusive, granting

rights in some mere novelties that are not necessarily improve-

ments. But see Great Atlantic & Pacific Tea Co. v. Supermarket

Corp., 340 U.S. 147, 154-55 (1950) (Douglas, J., concurring)

(advocating restricting patents to instances where the invention

satisfies the constitutional purpose of scientific progress). In all

these instances, definitional overbreadth may very well serve

the purposes, whether militias, progress in arts and sciences, or

offspring; more precise distinctions would involve costly and

obtrusive governmental interference and micromanagement. As

to marriage, blanket age discrimination might inexpensively

serve this purpose, but such a rule would be grossly over-

inclusive as to men, and, as applied only to women, nakedly

discriminatory as to gender.

21

marriage unthinkable because “marriage between a

man and a woman no doubt had been thought of by

most people as essential to the very definition of that

term,” id. at 2689. In enumerating marriage’s role,

the Court listed first the “[{p]rotection of offspring”

and next “property interests, and the enforcement of

marital responsibilities,” id. at 2691 (citations omit-

ted).

Indeed, the Windsor Court’s qualifiers of “most”

and “many” seem inapposite: for both marriage’s

traditional definition and purpose seem unanimously

supported by legal authority before 1993. Counsel for

Amici is aware of no authority to the contrary.”

* In their amicus brief, various historians of marriage, and

the American Historical Association, present no evidence

indicating that anyone, anywhere denied (1) that marriage, by

definition, involved discrimination on the basis of (a) sex diversi-

ty, (b) number, and (c) natural personhood, or (2) that marriage’s

chief purposes included offspring. Instead the historians limit

their arguments to rebutting the strawman that marriage is

solely for reproduction and to asserting the obvious fact that the

regulations of marriage have varied, and that its various other

purposes (political, economic, etc.) have been emphasized and

deemphasized over time. See generally, Brief of Historians of

Marriage and the American Historical Association as Amici

Curiae in Support of Petitioners. Indeed, to say that “marriage”

changes over time and place requires first that “marriage” has a

stable meaning. It is this very meaning that makes “marriage”

an intelligible thing to be compared across time and culture.

22

III. Traditional marriage laws involve the

sort of governmental promotion endorsed

in the Meyer-Lawrence precedents.

Traditional marriage laws surely promote one

particular way of life: two-person, gender-diverse

domesticity. This Court has expressly upheld such

governmental promotion as consistent with the

Meyer-Lawrence line of cases.

Since Meyer, this Court has consistently denied

that each “liberty” must entail a corresponding

“equality,” so as to prohibit governmental promotion

of one permitted choice over another. So, for example,

although Pierce secured the right of parents to send

their children to private schools, “it has never been

held” that this liberty entitles private schools to

“some share of public funds allocated for education”

Norwood v. Harrison, 413 U.S. 455, 462 (1973).

Similarly, while Roe recognized the right to abortion,

the states need not subsidize abortion equally with

childbirth. Maher v. Roe, 432 U.S. 464, 475-77 (1977);

accord Center for Reproductive Law and Policy v.

Bush, 304 F.3d 183, 198 (2d Cir. 2002) (opinion of

Sotomayor, J.) (“The Supreme Court has made clear

that the government is free to favor the anti-abortion

position over the pro-choice position, and can do so

with public funds.”).

Similarly, the states may lawfully prefer gender-

diverse monogamy in their marriage laws, but must

not prohibit alternative personal relationships. In

sum, the Meyer-Lawrence holdings permit the states

23

to promote one choice, e.g., nonsectarian education,

live childbirth, and traditional marriage, but forbid

the states to criminalize the alternatives.”'

Indeed, the states retain a similar freedom as to

enumerated rights. No court, it seems, has endorsed

or even entertained the conclusion that the right to

bear arms compels the states to fund some gun-buy

programs equally with gun-buy-back programs. Every

“free exercise” right does not entail a corresponding

“non-establishment” right, forbidding the government

from speaking and spending so as to “endorse” one

particular use of that freedom. Cf Rosenberger v.

Rector and Visitors of Univ. of Va., 515 U.S. 819, 841

(1995) (affirming that the Establishment Clause

forbids “government speech endorsing religion”)

(citation omitted).

Further, the “marriage equality” holding sought

here would be grossly under-inclusive relative to the

generous liberty recognized in Lawrence. Neither the

facts of the case nor the Court opinion suggested that

liberty must involve an enduring formal relationship

betwec., only two natural persons. The vindicated

liberty encompassed a much broader diversity of

conduct, whether same-sex or otherwise.

“ Loving was no exception. Rather than deriving an

equality from a liberty, the Court found in the Fourteenth

Amendment's equality mandate the first, and independent

ground for the ruling: the Amendment’s “broader, organic

purpose” of a multiracial republic prohibited marital-apartheid

laws and similar forms of racial discrimination. 388 U.S. at 9.

24

IV. Conversely, same-sex marriage might

conflict with the Meyer-Lawrence prece-

dents, for the conferral of the presumption

of paternity on a birthmother’s same-sex

partner might abridge the constitutional

rights of natural parents, as vindicated in

Meyer and its progeny.

Petitioners have expressly asked this Court to

hold that the states must extend all the aspects of

“marriage” to same-sex couples, including the pre-

sumption of paternity.” Amici submit that such a

holding may conflict with the natural-parental pre-

sumption that this Court has long held to be essential

to due process of law. This issue is a difficult one, and

cannot be adequately briefed here, but Amici submit

a brief sketch of the apparent conflict.

A. The Constitution creates a strong pre-

sumption of the child’s entrustment to

her natural mother and father.

Meyer's progeny included not the only criminal

cases sketched above, but a substantial number of

civil cases concerning child custody. See, of most

= Petitioners thus seek a “marriage” more comprehensive

than that granted in most European jurisdictions, where

legislatures have carefully withheld this presumption. Perry

Dane, Natural Law, Equality, and Same-Sex Marriage, 62

BuFFALO L. REV. 291, 357 n.174 (2014) (noting that unlike

American jurisdictions, “many of the foreign countries that now

recognize same-sex marriage have been more hesitant to extend

the presumption of parentage along with it”).

25

recent prominence, Troxel v. Granville, 530 U.S. 57,

65 (2000) (opinion of O’Connor, J.) (citing Meyer to

celebrate parental rights to offspring as “perhaps the

oldest of the fundamental liberty interests recognized

by this Court”); id. at 77 (Souter, J., concurring); id.

at 80 (Thomas, J., concurring) (citing Pierce). Most

recently, Justice Sotomayor emphasized this principle

just a day before the decision in Windsor. Joined by

Justices Ginsburg and Kagan, she reminded her

colleagues that our Constitution and broader legal

tradition mandate a strong preference for the rela-

tionship between a child and her natural parents.”

Adoptive Couple v. Baby Girl, 133 S. Ct. 2552, 2582

(June 25, 2013) (Sotomayor, J., dissenting). She

highlighted, inter alia, the Court’s decisions in Troxel

and Parham v. J. R., 442 U.S. 584 (1979), in which,

she explained, the Court had rightly held that the

Due Process Clause incorporated “the presumption

that a natural parent will act in the best interests of

*™ The word “natural parent” is something of a redundancy.

Parent is derived from the Latin verb parere (to bring forth,

produce, or beget), so a parent is one who preduces or brings

forth something - in this case, offspring. 11 OxrorD ENGLISH

DICTIONARY 222 (2d ed. 1989). In recent times, guardians who

adopt children are deemed, as a matter of law, to be parents.

This usage is so widespread and the custom so well established.

that we frequently speak of adoptive parents as “parents”

simply.

26

his child.” Adoptive Couple, 133 S. Ct. at 2582 & 2583

n.14 (emphasis added).”

This constitutional presumption, she wrote,

reflects the recognition that the child and her natural

parents have a priceless interest in their relationship.

On the one hand, the “‘natural parent’s desire for and

right to the companionship, care, custody, and man-

agement of his or her children ... is an interest far

more precious than any property right.’” On the other

hand, the child has a reciprocally precious right;

indeed, to foreclose “a newborn child’s opportunity to

‘ever know his natural parents’ [is] a ‘los[s] [that]

cannot be measured.’” Id. at 2574-75, 2582 (quoting

Santosky v. Kramer, 455 U.S. 745, 758-59, 760-71

n.11 (1982)) (emphasis added); accord May v. Ander-

son, 345 U.S. 528, 533 (1953). See also, Hodgson v.

Minnesota, 497 U.S. 417, 485 (1990) (Kennedy, J.,

dissenting) (endorsing the “fundamental liberty

interest of natural parents in the care, custody, and

management of their child” (citations and quotations

omitted )); but see Troxel, 530 U.S. at 98 (Kennedy, J.,

dissenting) (noting as a “principal concern” that this

natural-parental presumption would wrongly priori-

tize “the conventional nuclear family [as] the visita-

tion standard for every domestic relations case”).

* Because federal law on marriage does not concern child

custody, the Court had no need to consider presumptive parental

rights in Windsor.

27

This presumption is rebuttable. The termination

of a parent’s rights to his or her “natural child” re-

quires “clear and convincing evidence” of parental

neglect. Santosky, 455 U.S. at 748; see also, Hodgson,

497 U.S. at 483 (Kennedy, J., dissenting) (“Absent a

showing of abuse or neglect, [the natural parent} has

the paramount right to the custody and control of his

minor children, and to superintend their education

and nurture.”). What is most significant, however, is

that Meyer and its progeny endorse the presumption

favoring the natural parent.

B. Traditional marriage carries a com-

plementary presumption of paternity.

Marriage, both at common law and under our

statutes, involves the presumption of paternity — that

any child born to a woman is likewise the offspring of

her husband. Under traditional (gender-diverse)

marriage, this presumption complements the consti-

tutional presumption in at least three ways.

First, as a factual matter, the presumption is

true in the vast majority of cases: the husband is the

father.”

*® Michael H. v. Gerald D., 491 U.S. 110, 113 (1989) (plurali-

ty op.) (“The facts of this case are, we must hope, extraordi-

nary.”).

28

Second, the presumption itself, coupled with law

and opinion’s persistent disapproval of adultery,”

serves, via a self-fulfilling prophesy,” to make the

presumption true in even more cases.

Third, the legal presumption of paternity effec-

tively incorporates a sufficient rebuttal to the consti-

tutional presumption: the father’s adultery itself is

strong evidence of his intent to abandon the resulting

offspring.”

For these reasons, Amici submit, this Court

reached the right conclusion in upholding the consti-

tutionality of the paternal presumption, even as the

justices were divided as to how and whether the

* See, e.g., UTaH Cope § 76-7-103 (prohibiting adultery);

Tex. FAM. Cope § 6.003 (allowing a spouse to divorce on the sole

basis of the other spouse’s adultery). Despite remarkable

increases, in the last decade, in the number of Americans

approving of same-sex conduct, non-marital sex, non-marital

procreation, and polygamy, a stable 90% of Americans continue

to disapprove of adultery. Gallup Politics, In U.S., Record-High

Say Gay, Lesbian Relations Morally OK, May 20, 2013,

http://www.gallup.com/poll/162689/record-high-say-gay-lesbian-

relations-morally.aspx.

* As Justice O’Connor once noted, the law’s expectations as

to the weakness of fathers’ bonds with their offspring can

become a noxious “self-fulfilling prophesy.” Nguyen v. INS, 533

U.S. 53, 89 (2001) (O’Connor, J., dissenting). Conversely, the

law’s presumption of paternity functions in a similar fashion,

but here this self-fulfilling expectation has the beneficial effect

of strengthening the father’s bond with home and child.

* This intent cannot be imputed to the mother who carries

the resulting child to term.

29

constitutional parental presumption requires that the

marital paternal presumption be rebuttable, Michael

H. v. Gerald D., 491 U.S. 110 (1989).

C. Same-sex marriage may create a con-

flict between these two presumptions.

Under same-sex marriage, however, the pre-

sumption of paternity would not complement the

constitutional parental presumption, but conflict with

it. First and foremost, in excusive, same-sex relation-

ships, the presumption of paternity (now dubbed

“parentage”) would be always false. Every child born

in such a marriage would be falsely, but legally,

presumed to be the child of her mother’s partner, and

to have no father at all. The veil here would be an

untruth.

In Troxel, the Supreme Court held that the states

cannot create presumptions “opposite” to the pre-

sumption of natural-parental trusteeship. 530 U.S. at

63 (O’Connor, J., plurality opinion). In that case, the

Court struck down Washington’s decision to grant

partial custody to a child’s grandparents without

respecting the mother’s constitutional right to pre-

sumptive custody. The Court indicated that no matter

how strong and deep the relationship between grand-

parent and grandchild,” the states may not reassign

*” The familial relationship between the two women (moth-

er and grandmother), no matter how deep and important, is

likewise insufficient to create presumptive custodial rights in

(Continued on following page)

30

the custody of children from parents to grandparents

or any other adults without first rebutting the strong

presumption in favor of the child’s natural father and

mother.

The new presumption of parentage, requested by

Petitioners, would seem to be an “opposite” presump-

tion. What the states could not do in favor of the

grandfather or grandmother — the mother’s parents —

states cannot do in favor of the mother’s same-sex

partner. The Constitution does not permit the re-

definition of “marriage” so as to redefine “parent” and

thus manufacture a presumption in direct conflict

with the Constitution’s presumption favoring the

natural parent.

But in this case, Petitioners effectively ask this

Court to order the states to do precisely what the

Constitution forbids: to issue marriage licenses that

will impair or destroy the child’s presumptive, consti-

tutional right to her mother and father. The careful

procedural safeguards of adoption — designed to

provide evidence of deliberate intentional relin-

quishment” — will be swept away in favor of an

the grandmother. The most common form of same-sex parenting

in the United States involves a mother and grandmother.

” The Utah Supreme Court eloquently explained how

adoption procedures serve to protect the parental presumption:

“Courts have not hesitated to build a strong fortress around the

parent-child relation, and have stocked it with ammunition in

the form of established rules that add to its impregnability. To

sever the relationship successfully, one must have abandoned

the child, and such abandonment [of] all correlative rights and

(Continued on following page)

31

automatic presumption of “parentage” in a non-

parent — simply by the issuance of the marriage

license.

Instead, the child born into a same-sex marriage

would have no presumptive right to her father. To be

sure, in case of the merely anonymous sperm donor,

the father may properly be said to have forfeited his

duty and right by abandonment. But not al) fathers to

children in same-sex households will be mercenary or

anonymous. Able, willing, loving fathers will be shut

out by force of the marriage licenses that the states

will now be compelled to issue.

This child’s presumptive relation to her mother

would also be impaired. In any custody dispute

between the mother and her partner, the law will

treat both equally, and impute to the mother, simply

by requesting the marriage license, an irrevocable

consent to share custody of future children with her

partner. Indeed, frequently if not usually, the courts

duties incident to the relation — must be with a specific intent so

to do — an intent to sever ship. Such intent must be proved by

him who asserts it, by proof that not only preponderates, but

which must be clear and satisfactory, — something akin to that

degree of proof necessary to establish an offense beyond a

reasonable doubt, or, as one authority puts it ‘bv clear and

indubitable evidence.’ ... Ofttimes it is pointed ov: that aban-

donment, within the meaning of adoption statues, must be

conduct evincing ‘a settled purpose to forego all parental duties

and relinquish all parental claims to the child.’” Jn re Adoption

of Walton, 259 P.2d 881, 883 (Utah 1953) (citations omitted).

32

will decide that her co-parent should have primary

custody.”

Such forfeiture, by a quasi-Rumpelistiltskin

contract covering future offspring, is utterly alien to

due process of law. Unlike the mother who relin-

quishes her child to adoptive parents, the alleged

consent here would not necessarily be specific, delib-

erate, or, in many cases, even conscious (the future

mother will not be thinking of future offspring and

custody disputes).

Lawrence v. Texas cannot justify such a conclu-

sion. The Meyer-Lawrence line of cases began with

the constitutional rights of the parent-offspring

relationship. Petitioners’ request seemingly under-

mines that foundation.

It seems, then, that the real danger is the precise

opposite of what Justice Scalia feared. Lawrence’s

principle and logic do not support the judicial imposi-

tion of same-sex marriage. Rather, the judicial impo-

sition of same-sex marriage might endanger the very

precedents that constitute Lawrence’s principle and

logic.

* In such disputes, the equality in law will frequently be an

inequality in fact. The woman who has undertaken to bear and

often nurse a child typically must temporarily sacrifice her

activity in the labor market; to the extent she may be thus

poorer than her former partner, she will typically lack equal

legal representation.

33

CONCLUSION

In safeguarding and renewing the American

Constitution’s tradition of liberty, this Court has both

reaffirmed and developed judicial precedent. The

Court has thus followed a policy best described by a

famous Irish Englishman:

A spirit of innovation is generally the result

of a selfish temper and confined views. Peo-

ple will not look forward to posterity, who

never look backward to their ancestors. Be-

sides, the people of England well know, that

the idea of inheritance furnishes a sure prin-

ciple of conservation, and a sure principle

of transmission without at all excluding a

principle of improvement. It leaves acquisi-

tion free; but it secures what it acquires.”

Amici ask this Court to preserve our tradition of

liberty, as developed in Meyer and subsequent prece-

dents — to look forward to our posterity by looking

backwards to our ancestors. This tradition — this

policy — has allowed for both preservation and im-

provement, for sustainable progress.

*“ EDMUND BURKE, REFLECTIONS ON THE REVOLUTION IN

FRANCE 47-48 (1793).

34

We ask the Court to disavow judicial innovation,

affirm its own precedents, and affirm the decision

below.

Respectfully submitted,

DAVID R. UPHAM

Counsel of Record

UNIVERSITY OF DALLAS

1845 East Northgate Drive

Irving, TX 75062-4736

(972) 721-5186

davidrupham@yahoo.com