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

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| APR J - 2015

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

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an The

Supreme Court of the Anited States

JAMES OBERGEFELL, et al.,

Petitioners,

RICHARD HODGES, DIRECTOR,

OHIO DEPARTMENT OF HEALTH, et al.,

Respondents.

—_ ¢

On Writs Of Certiorari To The

United States Court Of Appeals

For The Sixth Circuit

BRIEF OF THE LIGHTED CANDLE SOCIETY

AMICUS CURIAE, IN SUPPORT OF

RESPONDENTS AND URGING AFFIRMANCE

JOHN L. HARMER GEORGE M. WEAVER

THE LIGHTED CANDLE SociIETY Counsel of Record

818 Connecticut Ave., N.W. HOLLBERG & WEAVER, LLP

Ste. 1100 2921 Piedmont Rd., N.E.

Washington, D.C. 20006 Suite C

Atlanta, GA 30305

(404) 760-1116

gweaver@hw-law.com

[Additional Captions Listed On Inside Cover]

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COCKLE LEGAL BRIEFS (800) 725-8964

WWW COCKLELEGALBRIEFS COM

VALERIA TANCO, et al.,

Petitioners,

Vv.

WILLIAM EDWARD “BILL” HASLAM,

GOVERNOR OF TENNESSEE, et al.,

Respondents.

APRIL DEBOER, et al.,

Petitioners,

RICK SNYDER,

GOVERNOR OF MICHIGAN, et. al.,

Respondents.

GREGORY BOURKE, et al.,

Petitioners,

Vv.

STEVE BESHEAR,

GOVERNOR OF KENTUCKY, et al.,

Respondents.

QUESTIONS PRESENTED

1) Does the Fourteenth Amendment require a state

to license a marriage between two people of the same

sex?

2) Does the Fourteenth Amendment require a state

to recognize a marriage between two people of the

same sex when their marriage was lawfully licensed

and performed out-of-state?

INTERESTS OF AMICUS CURIAE

TABLE OF CONTENTS

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SUMMARY OF ARGUMENT .................00:2ccceeeeeees

ITT.

THE ISSUE BEFORE THIS COURT IS

WHETHER THERE IS A RATIONAL BA-

SIS FOR LAWS DEFINING MARRIAGE

AS OPPOSITE-SEX IN NATURE...............

THE RATIONAL BASES FOR LAWS DE-

FINING MARRIAGE AS OPPOSITE-SEX

IN NATURE ALSO SUPPORT STATE POL-

ICTES AGAINST RECOGNITION OF OUT-

OF-STATE SAME-SEX MARRIAGES. ........

THE EDUCATIONAL EFFECT OF MAR-

RIAGE LAWS FURNISHES A STRONG

RATIONAL BASIS FOR LAWS DEFIN-

ING MARRIAGE AS OPPOSITE-SEX IN

B. States Could Rationally Decide that

Changing the Definition of Marriage

Would Deliver an Unwanted Educa-

tional Message to All Citizens, Includ-

ing Young Children, that Opposite-Sex

Marriage is No Longer the Preferred

Context for Family Formation..............

VIII.

ili

TABLE OF CONTENTS -— Continued

Page

STATES COULD RATIONALLY DECIDE

THAT PRESERVING THE DEFINITION

OF MARRIAGE AS OPPOSITE-SEX PRO-

TECTS THE RIGHTS OF PARENTS TO

SUPERVISE THE DEVELOPMENT OF

STATES COULD RATIONALLY DECIDE

THAT THE OPPOSITE-SEX DEFINITION

OF MARRIAGE SHOULD BE PRESERVED

IN ORDER TO PREVENT FURTHER RE-

STATE MARRIAGE DEFINITION LAWS

ARE NOT UNCONSTITUTIONAL AS PROD-

SPENT CRI sticnncctenccnassaccescvmescsvince

JUDICIAL REDEFINITION OF MAR-

RIAGE TO ELIMINATE ITS OPPOSITE-

SEX NATURE HAS A DESTABILIZING

EFFECT ON THE LAW ...................ccesceeenes

SOREN siclinsnicnisitdeniiriattanneneicionniiadnetinaiininiion

TABLE OF AUTHORITIES

CASES

Baehr v. Levin, 852 P.2d 44 (Haw. 1993) ..................... 7

Baskin v. Bogan, 766 F.3d 648 (7th Cir. 2014)....31, 36, 37

Bd. of Trustees of Univ. of Ala. v. Garrett, 531

ee aE oicsiclesiinaseieernmmnnndnbinndnnenesitiiintndnnssnininenses 34

Bolger v. Youngs Drug Products, 463 U.S. 60

SITET Ackiinsnidnndneendantineedehieenscnitniienindsindmeninieememnoanie 28

Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014)....9, 25, 36

Citizens for Equal Prot. v. Bruning, 455 F.3d

IR, a ctaduieueiuibeneainaneiins a 31

FCC v. Beach Communications, Inc., 508 U.S.

EAS SES ey cece ee 10

Dred Scott v. Sanford, 60 U.S. 393 (1856)................. 27

Fields v. Palmdale School District, 427 F.3d

I sc eminiemumeniiition 21

Ginsberg v. New York, 390 U.S. 629 (1968) .....3, 17, 28

Goodridge v. Department of Public Health, 440

Mass. 309, 798 N.E.2d 941 (2003)..................000000000. 7

Graham v. Connor, 490 U.S. 386 (1989).................... 34

Griswold v. Connecticut, 381 U.S. 479 (1965) ......... 4,5

Heller v. Doe, 509 U.S. 312 (1993) ..........................0.. 10

In re Marriage of J.B. and H.B., 326 S.W.3d

ne, SII ciscticnicinteencernbedinnenenricitiinenaiionsinet 31

Kadrmas v. Dickinson Pub. Sch., 487 U.S. 450

ERR SPE ae eres meee Pan eae aa ae 10

TABLE OF AUTHORITIES — Continued

Page

Kitchen v. Herbert, 755 F.3d 1193 (10th Cir.

PEED nensndcharsisapiicneniatannanpabeenseniaaeeminnabtiinnnemuniens passim

Latta v. Otter, 771 F.3d 456 (9th Cir. 2014)......... 22, 25

Lawrence v. Texas, 539 U.S. 558 (2003)..................... 33

Loving v. Virginia, 388 U.S. 1 (1967)..................... 9, 22

Massachusetts v. United States Dep’t of HHS,

Se SIE Oe Ce GE BE actcccntcesnesccescnconicccnncnscusonen 33

Maynard v. Hill, 125 U.S. 190 (1888)......................0... 5

Meyer v. Nebraska, 262 U.S. 390 (1923).................... 28

Moragne v. States Marine Lines, Inc., 398 U.S.

STI TTTTTI issuiihceishacotiheeneleiehhasaaienibabisidineiapiitiiataibabaianaindnini 16

Morse v. Frederick, 551 U.S. 393 (2007) .................... 21

Murphy v. Ramsey, 114 U.S. 15 (1885)..........0......2..2... 5

Nevada v. Hall, 440 U.S. 410 (1979)..............2..ccc eee 11

Palko v. State of Connecticut, 302 U.S. 319

(1937), overruled on other grounds, Benton v.

Maryland, 395 U.S. 784 (1969) .............ccceessseseseeeeees 8

Parker v. Hurley, 514 F.3d 87 (1st Cir. 2008) ............ 21

Perry v. Brown, 671 F.3d 1052 (2012), rev’d on

other grounds, 133 S.Ct. 2652 (2013)............... 31, 33

Rochin v. People of California, 342 U.S. 165

rT sncisdinsinenienasicadidhtemddnaceciebineduaaaaitiiadiagtirieaiidiniiatdaienmiienaiil 8

Roe v. Wade, 410 U.S. 113 (1973).........000....... 27, 34, 35

Romer v. Evans, 517 U.S. 620 (1996)................. passim

Skinner v. Oklahoma, 316 U.S. 535 (1942) ....00.....0..... 5

TABLE OF AUTHORITIES — Continued

Page

Snyder v. Commonwealth of Massachusetts, 291

ES eae ek 8

Standhardt v. Superior Court of Ariz., 77 P.3d

ee es Cr I Meier ettctnieneciitcceninscnnsncensensonsnavs 31

Turner v. Safley, 482 U.S. 78 (1987) ................cccceceeeeee 9

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

SEE RAT ie ee 7, 8, 36, 37

Vacco v. Quill, 521 U.S. 793 (1997) ................ccceceeeeees 30

Washington v. Glucksberg, 521 U.S. 702 (1997)....2, 8, 17

Whitewood v. Wolf, 992 F. Supp. 2d 410 (M.D.

Pe See iiscnndicnanisnctinnetiiontbininnecctitiinaninrtumninnnsaccesesid 6

Zablocki v. Redhail, 434 U.S. 374 (1978)................. 5,9

CONSTITUTION

BPs GINO, GUIROUIEL, TEEY ccccscccssesscsssecsscssocssecceneses passim

STATUTES

nS TTT Wicca icinecheeetaaeileeelilaadnpsineatlaeniasaigabamnscahiiaiia 7

I taal ication iattieeml diate 13

Defense of Marriage Act ....................:.ccceceeeeeeees 5, 7,35

OTHER AUTHORITIES

T. Aquinas, 28 Summa Theologiae (Blackfriars

Be Miceviteenniaceninitnainnintntncidingianenianinnintimnaciideiin 15

Vii

TABLE OF AUTHORITIES — Continued

J. Bentham, An Introduction to the Principles

of Morals and Legislation (1948)....................0e00000- 16

Harold J. Berman, Law and Revolution: The

Formation of the Western Legal Tradition

ES ES ee oe Tae 25

John A. Bozza, Judges, Crime Reduction, and

the Role of Sentencing, 45 No. 1 Judges’ J. 22

IRS CEE Se Seen ener er eRe ane er 18

Robert Cooter, Three Effects of Social Norms on

Law: Expression, Deterrence, and Internali-

zation, 79 Or. L. Rev. 1 (2000)................cccccceceeeeeeees 18

Drucilla Cornell, Fatherhood and Its Discon-

tents: Men, Patriarchy, and Freedom, Lost

Fathers: The Politics of Fatherlessness in

America, ed. Cynthia Daniels (St. Martin’s

i eeteaaeeieneeiieubil 29

William Walter Davies, ed., The Codes of Ham-

murabi and Moses (Jennings and Graham:

SEINE RESO RIC ESS SO NRA eee ae ee 15

Patrick Devlin, The Enforcement of Morals

EEA Dee Re ee 25

Dhammika Dharmapala and Richard H. Mc-

Adams, The Condorcet Jury Theorem and

the Expressive Function of Law: A Theory of

Informative Law, 5 Am. L. & Econ. Rev. 1

REESE SRLS ncn ee Ro Der REE oS ao 18

TABLE OF AUTHORITIES — Continued

Christopher L. Eisgruber, Is the Supreme Court

an Educative Institution?, 67 N.Y.U. L. Rev.

ERR creer oe ROC e ae eee nO 19

Geoffrey A. Fowler, Gay Marriage Gets First

Ballot Wins, The Wall Street Journal (Nov. 7,

2012), p. Al7 (available at: http-//online.wsj.

com/article/SB10001424052970204755404578

102953841743658.html]) (visited March 9, 2015)........ 6

L. Fuller, Positivism and Fidelity to Law — A

Reply to Professor Hart, 712 Harv. L. Rev.

SE LTE SaaS ee ee ee 16

L. Fuller, The Morality of Law (196A4)................:.00000 16

Maggie Gallagher, (How) Will Gay Marriage

Weaken Marriage As A Social Institution: A

Reply to Andrew Koppelman, 2 U. St. Thomas

i Aa TT inicisicaieisinsnushiiinciidenembinniniaéniedenianitidiinauneseones 18

William M. Gaylin, The Prickly Problems of Por-

nography, Book Review, 77 Yale L.J. 579 (1968) ....... 17

Ruth Bader Ginsburg, Some Thoughts on Au-

tonomy and Equality in Relation to Roe uv.

Wade, 63 N.C. L. Rev. 375 (1985) ...............cccsssessers 35

G. Hegel, Philosophy of Right (T. Knox trans.

1942 & photo reprint 1949) .............ccccceseeeeeeeeee 15, 16

Thomas Hobbes, The English Works of Thomas

Hobbes (W. Molesworth ed. 1966)....................0...004 16

Tsachi Keren-Paz, Private Law Redistribution,

Predictability, and Liberty, 50 McGill L.J.

a adenadiamaneneniaaaasaaa 18

TABLE OF AUTHORITIES ~ Continued

Amir N. Licht, Social Norms and the Law: Why

Peoples Obey the Law, 4 Review of Law and

BRINN Fe CD kvcccccscccocccocececsseneseiesstennnens

Goodwin Liu, Pamela S. Karlan & Christopher

H. Schroeder, Keeping Faith with the Consti-

Sanbtats CEAERIIG, Te Pecccsscensccessccnsessiossasisemmnnmiaess

Richard H. McAdams, The Origin, Development,

and Regulation of Norms, 96 Mich. L. Rev.

Be CY P ecevencecascatsincsesssninscseniasmanimmiaianiianiinls

Christine McNiece Metteer, Some “Incest” Is

Harmless Incest: Determining the Fundamen-

tal Right to Marry of Adults Related by Affinity

Without Resorting to State Incest Statutes, 10

Kan. J.L. & Pub. Pol’y 262 (2000) .....................

Martha L. Minow, Redefining Families: Who’s

In and Who's Out?, 62 U. Colo. L. Rev. 269 (1991)...

Basil Mitchell, Law, Morality and Religion

CEPT, TING Pcceressnssnsssnnsenesnsccinemmmansieasiaiaiae

Michael J. New, “How Surveys Overstate Support

for Same Sex Marriage,” Catholic Vote (avail-

able at http://www.catholicvote.org/how-surveys-

overstate-support-for-same-sex-marriage/) (visited

BEDE. Bi, TIED cncccsscescecsccnscesnsenneiedanenateamnennmts

Joycelyn M. Pollock, Criminal Law (Anderson

Publishing, 2013) .............ce-coccececcssoscossssesseseseee:

John W. Ragsdale, Jr., Possession: An Essay on

Values Necessary for the Preservation of Wild

Lands and Traditional Tribal Cultures, 40

Urban Lawyer 903 (2008)....................ccccccceeeee ee

TABLE OF AUTHORITIES — Continued

Page

Restatement (First) of Conflict of Laws §134............. 12

Restatement (First) of Conflict of Laws §612............. 11

Restatement (Second) of Conflict of Laws §90........... 11

Restatement (Second) of Conflict of Laws §283.......... 12

Monte Neil Stewart, Genderless Marriage, In-

stitutional Realities, and Judicial Elision, 1

Duke J. of Const. L. & Pub. Pol’y 1 (2006)............. 26

Monte Neil Stewart, Judicial Redefinition of

Marriage, 21 Can. J. Fam. L. 11 (2004)................. 23

Cass R. Sunstein, Foreword: Leaving Things

Undecided, 110 Harv. L. Rev. 4 (1996) ................... 19

Cass R. Sunstein, On the Expressive Function

of Law, 144 U. Pa. L. Rev. 2021 (1996) .................. 19

Lynn D. Wardle, The Impacts on Education of

Legalizing Same-Sex Marriage and Lessons

from Abortion Jurisprudence, 2 BYU Educ. &

TE CET 20

http//en. wikipedia.org/wiki/Same-sex_marriage_

legislation_in_the_United_States (visited March

STII litical rat nennnindanmtipendnguemnnienenamebenneneets 39

http://www.pollingreport.com/civil.htm (visited

iin ot eiretrenrnctniiatadnsnnnnntanetincweneest 6

Ellen Willis, contribution to Can Marriage be

Saved? A forum, Nation 16-17 (July 5, 2004)........ 27

Hope Yen, More Couples Who Become Parents

are Living Together But Not Marrying, Data

Show, Wash. Post (Jan. 7, 2014) ................002..eeeee 38

INTERESTS OF AMICUS CURIAE'

The Lighted Candle Society is a not-for-profit cor-

poration based in Washington, D.C. and qualified as

tax-exempt under the Internal Revenue Code.

It was founded in 1998 by the Honorable John L.

Harmer, former Lieutenant Governor and State Sen-

ator of California, and the Honorable Edwin Meese

III, former Attorney General of the United States.

Harmer is chairman and Harmer and Meese serve as

trustees.

The purposes of the Lighted Candle Society are

to encourage the enforcement of obscenity laws and

support traditional values, including male-female

marriage and family. The Lighted Candle Society re-

gards these values as foundational to the survival

and health of American society.

SUMMARY OF ARGUMENT

Opposite-sex marriage is an essential foundation

of our civilization. The recent movement to redefine

' The parties have consented to the filing of this brief, and

their letters of consent are on file with the Clerk. No counsel for

a party authored the brief in whole or in part, or made a mone-

tary contribution intended to fund the preparation or submis-

sion of the brief. No person other than amicus and its members

made such a monetary contribution. In this brief, citations and

internal quotation marks are omitted unless otherwise indi-

cated.

marriage to eliminate its opposite-sex nature threat-

ens this foundation.

In this appeal from a Sixth Circuit decision, re-

ported at 772 F.3d 388, Petitioners contend that the

opposite-sex definition of marriage contained in the

state constitutional provisions adopted by substantial

majorities of voters in Kentucky (74%), Michigan (59%),

Ohio (62%), and Tennessee (80%), id. at 397-98, vio-

late the Fourteenth Amendment to the U.S. Constitu-

tion, even though neither that Amendment nor any

other part of the Constitution mentions marriage or

prescribes any definition of that institution. Petitioners

contend that all state constitutional provisions and

other laws defining marriage as opposite-sex, and the

views of voters, should be simply swept away by

judicial edict.

This Court has repeatedly emphasized that no

right can be considered fundamental unless it is

“deeply rooted in this Nation’s history and tradition”

and basic to our civil and political institutions. Wash-

ington v. Glucksberg, 521 U.S. 702, 720-21 (1997).

Same-sex marriage cannot be considered a fun-

damental right because, unlike opposite-sex mar-

riage, it is not deeply rooted in this nation’s history

and is not basic to our civil and political institutions.

Thus, a compelling state interest is not required for

the state definitions of marriage at issue to be up-

held.

The opposite-sex definition of marriage satisfies

the rational basis test of equal protection or due proc-

ess review. The Lighted Candle Society emphasizes

three rational bases. These and those presented in

other briefs supporting affirmance are sufficient,

however, to satisfy even strict scrutiny.

These rational bases apply not only to state laws

such as those at issue here but also to the prerogative

of states to decline to recognize same-sex marriages

licensed in other states. Neither the Full Faith and

Credit Clause nor the Equal Protection Clause re-

quires a state to license or permit activities that vi-

olate its own legitimate public policies. 772 F.3d at

418-19.

First, the educational effect of law furnishes a

strong rational basis for respecting and counting as

constitutional state marriage definition laws. Law

has an inevitable educational effect and changing

the law to erase the opposite-sex nature of marriage

will necessarily require that even small children be

taught that same-sex marriage is a “good thing,”

which voters and legislatures in most states have de-

clined to do. Any change in these laws should be

made through the political branches.

Second, a related rational basis for marriage def-

inition laws flows from the states’ substantial interest

in protecting the rights of parents to supervise the

development of their children. See Ginsberg v. New

York, 390 U.S. 629, 639 (1968). Parents who do not

want their children to be taught that same-sex mar-

riage is a good thing and a status to which they

should aspire have a right to ask the states to respect

their desires regarding their children’s upbringing.

A third rational basis is that imposing same-sex

or genderless marriage at the constitutional level

will unavoidably create strong pressure to redefine

marriage further. This will include removal of the

traditional understanding of marriage as involving

two persons. Redefinition will also bring challenges

against iaws forbidding incestuous marriage.

Some courts have erroneously concluded, borrow-

ing language from Romer v. Evans, 517 U.S. 620

(1996), that laws defining marriage as opposite-sex in

nature are invalid because they are based on “ani-

mus.” But the simple restatement of the traditional

opposite-sex nature of marriage can hardly, after

6,000 years of recorded history, be found unconstitu-

tional merely by reciting this pejorative label.

Moreover, judicial redefinition of marriage usurps

power from the political branches. This practice

threatens democratic principles.

ARGUMENT

1. IMPORTANCE OF OPPOSITE-SEX MAR-

RIAGE.

The Court has often recognized the paramount

importance of male-female or opposite-sex marriage

to the survival of our society. At the time of these

cases, same-sex marriage had not even been seriously

proposed. In Griswold v. Connecticut, 381 U.S. 479

(1965), the Court said: “Marriage is a coming together

for better or for worse, hopefully enduring, and inti-

mate to the degree of being sacred.” Jd. at 486. In

Skinner v. Oklahoma, 316 U.S. 535 (1942), the Court

recognized, in an obvious reference to opposite-sex

marriage: “Marriage and procreation are fundamen-

tal to the very existence and survival of the [human]

race.” Id. at 541. See also Zablocki v. Redhail, 434

U.S. 374, 386 (1978) (marriage is the “relationship

that is the foundation of the family in our society”

and the “decision to marry and raise the child in a

traditional family setting” is entitled to constitutional

protection); Maynard v. Hill, 125 U.S. 190, 211

(1888); Murphy v. Ramsey, 114 U.S. 15, 45 (1885) (“no

legislation can be supposed more wholesome and nec-

essary in the founding of a free, self-governing com-

monwealth . than that which seeks to establish it

on the basis of the idea of the family, as consisting in

and springing from the union for life of one man and

one woman... the sure foundation of all that is

stable and noble in our civilization”).

The current debate over the nature of marriage

has been fueled by strategic lawsuits before lower

court judges friendly to the redefinition of mar-

riage, President Obama’s reversal in May 2012 of his

previously-stated opposition to same-sex marriage,

and U.S. Attorney General Holder’s refusal to defend

the federal Defense of Marriage Act (DOMA) and co-

ordinated attacks on state marriage definition laws.

Only since 2009 has any state legislature or popular

referendum supported the redefinition of marriage to

eliminate its opposite-sex nature.’

* Public opinion has apparently grown more accepting of

same-sex marriage, as evidenced by popular votes in November

2012 in Maryland, Maine, Minnesota, and Washington. In more

than 30 states, previous ballot measures preserved the tradi-

tional opposite-sex nature of marriage. Geoffrey A. Fowler, Gay

Marriage Gets First Ballot Wins, Wall St. J. (Nov. 7, 2012), p. A17

(available at: http-://online.wsj.com/article/SB1000142405297020

4755404578 102953841743658. html) (visited March 9, 2015).

Because the pronouncements of judges heavily influence

public opinion, it is impossible to know where public opinion

would be today if some judges had not improperly injected them-

selves into the debate — attempting to delegitimize the definition

of marriage as opposite-sex. For example, U.S. District Judge

John E. Jones in Whitewood v. Wolf, 992 F. Supp. 2d 410 (M.D.

Pa. 2014), struck down Pennsylvania marriage definition laws

and expressed contempt for laws defining marriage as opposite-

sex in nature, saying “it is time to discard them into the ash

heap of history.” Jd. at 431.

The results of public opinion polls probing support for

redefining marriage are also influenced by the wording of the

questions. See Michael J. New, “How Surveys Overstate Support

for Same Sex Marriage,” Catholic Vote (available at http://www.

catholicvote.org/how-surveys-overstate-support-for-same-sex-marriage’)

(visited March 13, 2015). Support for same-sex marriage also

drops when respondents are asked how marriage should be “de-

fined.” See http://www. pollingreport.com/civil.htm (visited March

13, 2015).

The dissenting judge in the present case says that court

decisions redefining marriage in a majority of states show that a

“tipping point” has been reached in public opinion. 772 F.3d at

435. This is nonsense on stilts. It’s as if someone appropriated

all the cars in a neighborhood, forcing everyone to ride bikes,

and then announced that the increase in bike riding had created

a tipping point against cars.

The first modern court decision supporting the

redefinition of marriage was Baehr v. Levin, 852 P.2d

44 (Haw. 1993). The Hawaii Supreme Court ruled

that, in order to limit marriage to opposite-sex cou-

ples, the state was required to show “compelling state

interests” and that “the statute is narrowly drawn.”

Id. at 67. Since then a number of courts have ruled

that, as a constitutional matter (state or federal,

depending on the case), states must license same-sex

marriages. The first was the Supreme Judicial Court

of Massachusetts. Goodridge v. Department of Public

Health, 798 N.E.2d 941 (Mass. 2003).

This Court held in United States v. Windsor, 133

S.Ct. 2675 (2013) that Section 3 of federal DOMA,

which defined “marriage” as “only a legal union be-

tween one man and one woman and husband and

wife,” 1 U.S.C. §7, “violate[d] basic due process and

equal protection principles” when applied to override

the New York state redefinition of marriage. Jd. at

2693. Although the Court included blunt dictum char-

acterizing the federal DOMA as an expression of “ani-

mus,” the Court emphasized that “({t]his opinion and

its holding are confined to those lawful marriages”

sanctioned in states where same-sex marriage is le-

gal. Id. at 2696.

Windsor has unleashed an avalanche of attacks

on state marriage definition laws and many lower

federal courts have used its dictum as justification to

strike down laws defining marriage as opposite-sex.

This includes the Fourth, Seventh, Ninth, and Tenth

Circuits, together with a number of district courts.

These courts have convinced themselves that, al-

though Windsor held that New York was entitled to

respect from the federal government for its redefini-

tion of marriage, now post-Windsor the states must

redefine marriage. In other words, many lower courts

have reached the absurd conclusion that the holding

of Windsor was not that New York could redefine

marriage but that in fact it would have acted uncon-

stitutionally had it failed to do so.

I. THE ISSUE BEFORE THIS COURT IS

WHETHER THERZE IS A RATIONAL BA-

SIS FOR LAWS DEFINING MARRIAGE AS

OPPOSITE-SEX IN NATURE.

This Court has repeatedly emphasized that no

liberty or right can be considered fundamental unless

it is, “objectively” speaking, “deeply rooted in this

Nation’s history and tradition,” and “implicit in the

concept of ordered liberty,” such that “neither liberty

nor justice would exist if they were sacrificed.”

Glucksberg, 521 U.S. at 720-21 (1997). See also Palko

v. State of Connecticut, 302 U.S. 319, 325 (1937),

overruled on other grounds, Benton v. Maryland, 395

U.S. 784 (1969); Snyder v. Commonwealth of Massa-

chusetts, 291 U.S. 97, 105 (1934); Rochin v. People of

California, 342 U.S. 165, 169 (1952). Identification of

fundamental rights requires “careful description of the

asserted fundamental liberty interest.” Glucksberg,

§21 U.S. at 720-21.

Same-sex marriage cannot credibly be considered

a fundamental right inasmuch as it is not deeply

rooted in this nation’s history and not basic to our

civil and political institutions. Some lower courts have

simply glided over the obvious difference in the

opposite-sex definition of marriage, which certainly

represents a fundamental right, and redefinition of

marriage as genderless. In none of the precedents

cited by these courts, Loving v. Virginia, 388 U.S. 1

(1967) (right to inter-racial marriage); Zablocki, 434

U.S. 374 (right of persons with unpaid child-support

to marry); and Turner v. Safley, 482 U.S. 78 (1987)

(right of prisoners to marry), was marriage redefined

to be genderless or anything other than opposite-sex

in nature. There was no suggestion in any of these

cases that marriage should be redefined as proposed

in the present cases. These lower courts’ fallacy is

akin to inferring from the fact that copper conducts

electricity (opposite-sex marriage is fundamental) to

the conclusion that all matter conducts electricity

(every relationship is fundamental).

As a result of erroneously concluding that the

Constitution delivers a fundamental right to same-

sex marriage, several courts have applied “strict scru-

tiny” and concluded that state laws defining marriage

as opposite-sex are unconstitutional because they

are not “narrowly tailored to serve a compelling

state interest.” See, e.g., Kitchen v. Herbert, 755 F.3d

1193, 1218-19 (10th Cir. 2014); Bostic v. Schaefer, 760

F.3d 352, 376 (4th Cir. 2014).

If a state law does not burden a fundamental

right or employ a suspect criterion, it satisfies the

Fourteenth Amendment so long as it “bear{s) a ra-

tional relationship to a legitimate governmental

purpose.” Romer, 517 U.S. at 635. It is not required

that the law actually has been enacted on the basis of

the legitimate interest. In fact, it is usually impossi-

ble to establish the “motive” for a law when numerous

legislators are involved or, millions of people have

cast ballots in voter initiatives.

A law satisfies rational basis review if it is sup-

ported by a “reasonably conceivable state of facts.”

Heller v. Doe, 509 U.S. 312, 320 (1993). See also FCC

v. Beach Communications, Inc., 508 U.S. 307, 313

(1993) (a law “must be upheld against equal protec-

tion challenge if there is any reasonably conceivable

state of facts that could provide a rational! basis for

the classification”). Rational basis review is not lim-

ited to “explanations of the statute’s rationality that

may be offered by the litigants or other courts.”

Kadrmas v. Dickinson Pub. Sch., 487 U.S. 450, 463

(1988).

lil. THE RATIONAL BASES FOR LAWS DE-

FINING MARRIAGE AS OPPOSITE-SEX

IN NATURE ALSO SUPPORT STATE POL-

ICIES AGAINST RECOGNITION OF OUT-

OF-STATE SAME-SEX MARRIAGES.

The rational bases supporting the opposite-sex

definition of marriage apply not only to state laws

such as those at issue here but also to the prerogative

of states to decline recognition of same-sex marriages

licensed in other states or jurisdictions.

As the Sixth Circuit held in the present cases,

neither the Full Faith and Credit nor the Equal

Protection Clause requires a state to license or permit

activities that violate its own legitimate public poli-

cies. 772 F.3d at 418-19. With respect to the Full

Faith and Credit Clause, the Sixth Circuit quoted

Nevada v. Hall, 440 U.S. 410 (1979), in which this

Court ruled: “The Clause does not require a State to

apply another State’s law in violation of its own

legitimate public policy.” Jd. at 422.

Federalism does not require all states to license

the same activities. A moment’s reflection is sufficient

to establish the point. Some states permit assisted

suicide, a few allow recreational use of marijuana,

and several allow casino gambling. Only Nevada (in

some counties) licenses prostitution. It cannot be

seriously argued that the inability to operate a broth-

el in Arizona under a Nevada business license vio-

lates either the Full Faith and Credit or the Equal

Protection Clause.

The Sixth Circuit cited the Restatements for the

proposition: “States often have refused to enforce all

sorts of out-of-state rules on the grounds that they

contradict important local policies.” 772 F.3d at 419

(citing Restatement (First) of Conflict of Laws §612;

Restatement (Second) of Conflict of Laws §90).

As the Sixth Circuit recognized, what is even

“more telling” is the Restatements’ summary of law

regarding recognition of marriages performed in one

state that violate the strong public policy of a another

state. The court summarized the Restatement rule:

“States in many instances have refused to recognize

marriages performed in other States on the grounds

that these marriages depart from cardinal principles

of the State’s domestic-relations laws.” 772 F.3d at

419 (citing Restatement (First) of Conflict of Laws

§134; Restatement (Second) of Conflict of Laws

§283).

Thus, if laws defining marriage as opposite-sex in

nature express the legitimate public policy of a state,

it is not required by either the Full Faith and Credit

or the Equal Protection Clause to recognize a same-

sex marriage legally performed or created in another

state or jurisdiction.

IV. THE EDUCATIONAL EFFECT OF MAR-

RIAGE LAWS FURNISHES A STRONG

RATIONAL BASIS FOR LAWS DEFINING

MARRIAGE AS OPPOSITE-SEX IN NA-

TURE.

A. The Law Has an Inevitable Educational

Effect.

When laws are enacted and promulgated that say

“x is permitted” and “y is not permitted,” those sub-

ject to the laws are thus instructed or taught that x is

proper conduct and y is not. The law teaches that

there is no reason to avoid x, but y should be avoided.

The educational effect addressed here is the ed-

ucational impact that a law (particularly a new one)

has as a result of its very enactment. It is not that a

new law will be used as an occasion by teachers and

other authority figures to teach persons to act in ac-

cordance with it. Rather, the effect in question is that

the law itself, apart from any instruction based on the

law, will have an educational effect.

Because almost every law has an educational ef-

fect, countless instances exist. Taking only one, the

Sarbanes-Oxley Act was enacted by Congress in 2002,

making it illegal for an employer or supervisor to

retaliate against an employee for providing informa-

tion or assisting in an investigation regarding alleged

securities fraud. 18 U.S.C. §1514A. One effect of the

enactment and promulgation of this law has been to

instruct employers and supervisors not to engage in

retaliation.

The educational effect is especially strong where

the law is seen as carrying a moral imperative. Laws

of this type have traditionally been described as reg-

ulating “mala in se,” whereas other laws have been

described as regulating “mala prohibita.”

* Joycelyn M. Pollock, Criminal Law §1.8 (Anderson Pub-

lishing, 2013).

Legal theorists have long recognized that law has

an educational effect and even encouraged lawmakers

to use this effect to teach proper conduct to their

citizens. In the Nichomachean Ethics, Aristotle urged

that “the legislator makes the citizens good by habit-

uating them” and “habituation is what makes the

difference between a good political system and a bad

one.™ In the same work, he added that “legislators

should urge people towards virtue and exhort them to

aim at what is fine ... , but should impose corrective

treatments and penalties on anyone who disobeys or

lacks the right nature.”

The educationai effect is implicit in promulga-

tion, which is a necessary element of law. In order for

a command to be considered law, it must be promul-

gated or disseminated to those who are governed by

it. Promulgation gives citizens the opportunity to

learn what the law provides and conform to it. There-

fore, practices such as the Roman emperor Caligula’s

posting of severe tax statutes in minute letters in

high places “so that [they] should be read by as few as

possible™ have been condemned.

* Aristotle, Nicomachean Ethics, bk. ii, ch. 2, $2.1 (1985 ed.)

(trans. T. Irwin).

* Id. at bk. x, ch. 9, 914.22.

* Dio’s Roman History 357 (59.28.11) (E. Cary trans. 1924).

St. Thomas Aquinas, who believed that promul-

gation is essential to law, wrote:

[Ljaw is laid on subjects to serve as a rule

and measure. This means that it has to be

brought to bear on them. Hence to have bind-

ing force, which is an essential property of a

law, it has to be applied to the people it is

meant to direct. This application comes

about when their attention is drawn to it by

the fact of promulgation. Hence this is re-

quired in order for a measure to possess the

force of law.’

Ancient lawgiver Hammurabi says in his famous

Code: “[Ljet the oppressed, who have a lawsuit, come

before my image as king of righteousness. Let him

read the inscription on my monument, and under-

stand my precious words.” Hammurabi then adds

that, when the oppressed is informed of the law he

will “discover his rights, and. his heart be made

glad.”

More recent thinkers have argued similarly.

Hegel insisted in his Philosophy of Right that law

must be made universally known: “If laws are to have

a binding force, it follows that, in view of the right of

self-consciousness’ . they must be made universally

" T Aquinas, 28 Summa Theologiae 15-16 (Q 90, Art. 4)

(Blackfriars ed. 1966).

* William Walter Davies, ed., The Codes of Hammurabi and

Moses 108 (Jennings and Graham: 1905).

known.” According to Thomas Hobbes, a law must

“declar{e] publicly and plainly.” Hobbes also said

that statute books should be circulated as widely as

the Bible so that all who could read could have a

copy." And, according to Jeremy Bentham, persons

should not be punished for the violation of a law “not

sufficiently promulgated.””

The educational effect of the law is also implicit

in stare decisis. Under this doctrine, courts follow

precedent in order that people may order their affairs

based on what they understand the law to be. Obvi-

ously, stare decisis assumes that citizens will en-

deavor to obey or follow the law as they understand

it. In Moragne v. States Marine Lines, Inc., 398 U.S.

375 (1970), the Court stated the rationale for stare

decisis: “the desirability that the law furnish a clear

guide for the conduct of individuals, to enable them to

plan their affairs with assurance against untoward

surprise.” Id. at 403.

* G. Hegel, Philosophy of Right 9215 (T. Knox trans. 1942 &

phote reprint 1949). See also id. 211.

6 The English Works of Thomas Hobbes 26-28 (W. Moles-

worth ed. 1966).

" Id.

“% J. Bentham, An Introduction to the Principles of Morals

and Legislation 173 (c_XIII §3, VIII.2) (1948). See aiso L. Fuller,

The Morality of Law 19-51 (1964); Fuller, Positivism and Fi-

delity to Law — A Reply to Professor Hart, 712 Harv. L. Rev. 630,

651-52 (1958).

In other contexts the Court has also recognized

the educational influence of the law. In Glucksberg,

the Court refused to read into the Constitution a

“right to die.” The Court held: “If physician-assisted

suicide were permitted, many might resort to it to

spare their families the substantial financial burden

of end-of-life health-care costs.” 521 U.S. at 732. In

other words, the Court acknowledged that creating a

right to physician-assisted suicide might have the

educational effect of causing an increase in such

suicides.

In Ginsberg, 390 U.S. 629, the Court upheld laws

against the distribution to minors of materials ob-

scene for them. The Court quoted with approval Dr.

William Gaylin of the Columbia University Psycho-

analytic Clinic: “To openly permit [pornography] im-

plies parental approval and even suggests seductive

encouragement. If this is so of parental approval, it is

equally so of societal approval — another potent in-

fluence on the developing ego.” Id. at 642-43 n.10

(quoting William M. Gaylin, The Prickly Problems of

Pornography, Book Review, 77 Yale L.J. 579, 592-93

(1968)).

Modern legal scholars have also discussed the

educational effect of the law. John Ragsdale recog-

nizes: “Novel or innovative law, in place long enough

without displacement or wholesale evasion, may have

an educational effect and inculcate new values or

interpretations.”” Another commentator acknowledg-

es that tort law educates as to proper conduct: “Tort

law . . establishes the appropriate standard for be-

haviour, serves as a reason for action for the subjects

of a legal norm, and has symbolic and educational

effects... ”"

In one incisive article, scholars discuss the “edu-

cational effect” of the law, using as examples smoking

bans, helmet laws, and regulations against fireworks.

They recognize that this educational effect can lead

“individuals to change their own primary behavior.””

Many other scholarly articles also acknowledge the

educational effect of the law.”

"* John W. Ragsdale, Jr., Possession: An Essay on Values

Necessary for the Preservation of Wild Lands and Traditional

Tribal Cultures, 40 Urban Lawyer 903, 908 (2008).

“ Tsachi Keren-Paz, Private Law Redistribution, Predicta-

bility, and Liberty, 50 McGill L.J. 327, 348 (2005).

‘** Dhammika Dharmapala and Richard H. McAdams, The

Condorcet Jury Theorem and the Expressive Function of Law: A

Theory of Informative Law, 5 Am. L. & Econ. Rev. 1, 5-6 (2003).

* E.g., Maggie Gallagher, (How) Will Gay Marriage Weaken

Marriage As A Social Institution: A Reply to Andrew Koppelman,

2 U. St. Thomas L.J. 33, 51 (2004) (“Laws do more than incentiv-

ize or punish. ... They educate directly and indirectly.”); Amir

N. Licht, Social Norms and the Law: Why Peoples Obey the Law,

4 Review of Law and Economics 716, 725, 740 (2008) (“a law-

abiding society may indeed need the law to support a social

norm through its expressive function”); Richard H. McAdams,

The Origin, Development, and Regulation of Norms, 96 Mich. L.

Rev. 338, 397-98 (1997); John A. Bozza, Judges, Crime Reduc-

tion, and the Role of Sentencing, 45 No. 1 Judges’ J. 22, 28

(2006); Robert Cooter, Three Effects of Social Norms on Law:

(Continued on following page)

B. States Could Rationally Decide that

Changing the Definition of Marriage

Would Deliver an Unwanted Educa-

tional Message to All Citizens, Includ-

ing Young Children, that Opposite-Sex

Marriage is No Longer the Preferred

Context for Family Formation.

What will kindergarteners be taught? This is a

critical issue in the same-sex marriage debate. But it

is seldom mentioned.

In kindergarten, five-year-old children discuss

what marriage is and what a family is. The teacher

guides their discussion and helps them understand

these concepts.

Through the educational effect of their decisions,

courts play a substantial role in writing the school

curriculum. This educational impact is especially

strong when the law is suddenly changed to protect

behavior or create a status not previously recognized,

as has occurred in some jurisdictions with same-sex

marriage.

If marriage is legally redefined to eliminate the

opposite-sex element and perhaps eventually to mean

Expression, Deterrence, and Internalization, 79 Or. L. Rev. 1, 4,

11 (2000); Cass R. Sunstein, On the Expressive Function of Law,

144 U. Pa. L. Rev. 2021, 2024-25 (1996); Cass R. Sunstein, Fore-

word: Leaving Things Undecided, 110 Harv. L. Rev. 4 (1996);

Christopher L. Eisgruber, Js the Supreme Court an Educative

Institution?, 67 N.Y.U. L. Rev. 961, 962 (1992).

any relationship among consenting adults regardless

of gender or number, the content of these kindergar-

ten discussions will necessarily change. The law will

teach the redefinition of marriage not only in schools,

but also on every street corner and level of society.

Professor Lynn D. Wardle makes the point: “As a

matter of elementary legal analysis, if the meaning of

marriage changes, education laws and policies that

require or allow teaching about marriage, family life,

and marital sexuality compel that the curriculum

change also.””

In states where same-sex marriage or its equiv-

alent is legal (or supported by education policy-

makers), this very message is now being delivered

to five-year-olds. Johnny is being taught that before

he marries a girl, he may want to consider marrying

another boy. Susie is being taught that before she

marries a boy, she may want to marry another girl.

The lesson is that marrying someone of the same

gender is a “good thing.” In states where same-sex

marriage has been legalized, schools now teach

children this lesson in elementary grades using books

like “King and King,” in which a boy marries another

boy, and “Heather has Two Mommies,” in which a

girl has lesbian parents. Because the redefinition

process does not logically stop at same-sex marriage

" Lynn D. Wardle, The Impacts on Education of Legalizing

Same-Sex Marriage and Lessons from Abortion Jurisprudence, 2

BYU Educ. & L.J. 593, 595 (2011).

between two persons, the message will naturally

evolve into questions about polygamy and polyamory.

In jurisdictions where the law has changed, usu-

ally by judicial decree, courts have ruled that parents

cannot opt their children out of these “same-sex mar-

riage is a good thing” lessons. These decisions against

opting out are unsurprising. After all, the educational

effect of the law cannot be avoided.

In Parker v. Hurley, 514 F.3d 87 (1st Cir. 2008),

the First Circuit overruled objections to the use,

without prior notice to parents, of “King and King”

in public elementary schools in Massachusetts. Re-

flecting the inevitable educational effect from laws

redefining marriage, the court ruled: “Given that

Massachusetts has recognized gay marriage under its

state constitution, it is entirely rational for its schools

to educate their students regarding that recognition.”

Id. at 95.

A Ninth Circuit emphasized that the parental

right to control children’s upbringing “does not extend

beyond the threshold of the school door.” Thus, “The

constitution does not vest parents with the authority

to interfere with a public school’s decision as to how it

will provide information to its students or what infor-

mation it will provide, in its classrooms or otherwise.”

Fields v. Palmdale School District, 427 F.3d 1197,

1206-07 (9th Cir. 2005). See also Morse v. Frederick,

551 U.S. 393, 419-20 (2007) (Thomas, J., concurring).

But the American people have the right to decide

not to deliver to kindergarteners this message rede-

fining marriage. It is astounding that courts are

asked to rule that the citizens of the United States

must deliver to their kindergarteners the message

that same-sex marriage is a “good thing” and equally

desirable with opposite-sex marriage. But that is pre-

cisely what a change in the law will mandate. The

Ninth Circuit cements this point. Having ruled that

same-sex Marriage is somehow incorporated into the

Constitution, it then logically holds that society can-

not express an “official message of support ... in fa-

vor of opposite-sex marriage.” Latta v. Otter, 771 F.3d

456, 476 (9th Cir. 2014). That is indeed a drastic and

totalitarian result but the inevitable effect of deci-

sions creating a constitutional right to same-sex mar-

riage.

Of course, there are some messages that the

Constitution does not allow even a majority of citi-

zens to deliver through the educational effect of the

law. For instance, the Reconstruction Amendments do

not allow the political branches to enact laws teach-

ing that one race is superior to another. This explains

why the Court’s decision was eminently correct in

Loving, 388 U.S. 1, holding laws prohibiting interra-

cial marriage unconstitutional. These laws had noth-

ing to do with the definition of marriage. They did not

define marriage as only between people of the same

race, so that allowing interracial marriage redefined

the institution. Rather, anti-miscegenation laws were

instances of blatant racial discrimination and rightly

struck down.

It is impossible to know the precise effects of

teaching every five-year-old child that same-sex

marriage is a good thing and they should aspire to it.

But society is warranted in being concerned about the

effects on our crumbling society when Johnny has

four fathers and no mother at all — after surrogate

motherhood, followed by divorce and remarriage of

his male same-sex parents. As one scholar has said,

the redefinition of marriage “will radically transform

.. the old institution and make it into a profoundly

different institution, one whose meanings, value, and

vitality are speculative.””

If the people of this country want to embark into

uncharted territory by recognizing same-sex marriage

{and even plural marriage), they certainly may do so.

But this change should come through the political

branches, operating under democratic principles, and

not be mandated by courts under the pretense of

constitutional construction.

Supporters of the redefinition of marriage as-

sume that the meaning of marriage can simply be

shifted to include same-sex relationships. But there is

no evidence this can be done without destroying the

institution.

* Monte Neil Stewart, Judicial Redefinition of Marriage, 21

Can. J. Fam. L. 11, 84 (2004).

Many lower courts and commentators have asked

how imposing same-sex marriage will harm opposite-

sex marriage. This is a fair question.

In Kitchen, the Tenth Circuit “emphatically”

assured that “it is wholly illogical to believe that state

recognition of the love and commitment between

same-sex couples will alter the most intimate and

personal decisions of opposite-sex couples.” 755 F.3d

at 1223. The court added: “We cannot imagine a sce-

nario under which recognizing same-sex marriages

would affect the decision of a member of an opposite-

sex couple to have a child, to marry or stay married to

a partner, or to make personal sacrifices for a child.”

Id. at 1224.

It seems unlikely that many adults presently in

opposite-sex marriages will suddenly abandon them,

in favor of same-sex marriages. The harm the Lighted

Candle Society is primarily concerned about is not

to individual, presently-constituted opposite-sex mar-

riages but rather to the institution of marriage and

its future. This is where the educational effect of the

law comes into play.

If children are taught starting in kindergarten

that marriage is not opposite-sex in nature and that

same-sex relationships (and, by extension in the fu-

ture, polygamous/polyamorous ones) are fully equiv-

alent and desirable to opposite-sex marriage, the

states may reasonably be concerned that the institu-

tion of marriage will be irreparably damaged and

perhaps destroyed. The assurances of courts such as

the Fourth, Ninth, and Tenth Circuits that there will

be no harm to opposite-sex marriage are naive and

hollow. See Bostic, 760 F.3d at 381; Latta, 771 F.3d

475-76; Kitchen, 755 F.3d at 1223.

States could rationally decide to withhold the

term “marriage” from same-sex relationships because

they wish to convey the message to their citizens,

particularly children, that opposite-sex marriage re-

mains the preferred context for family formation.

Legal scholars have recognized that the law may

properly be used to protect institutions considered

critical to the survival of society. According to Basil

Mitchell, “The function of the law is not only to pro-

tect individuals from harm, but to protect the essen-

tial institutions of society. These functions overlap,

since the sorts of harm an individual may suffer are

to some extent determined by the institutions he lives

under.””

Monte Neil Stewart demonstrates that a social

institution comprises a complex network of “shared

' Basil Mitchell, Law, Morality and Religion 134 (Oxford,

1967). See also Patrick Devlin, The Enforcement of Morals 22

(Oxford, 1965) (“But the true principle is that the law exists for

the protection of society. It does not discharge its function by

protecting the individual from injury, annoyance, corruption,

and exploitation; the law must protect also the institutions and

the community of ideas, political and moral, without which

people cannot live together.”); Harold J. Berman, Law and Rev-

olution: The Formation of the Western Legal Tradition, 556 (Har-

vard, 1983) (“Law is also an expression of moral standards as

understood by human reason.”).

meanings.” And to transform marriage into a gen-

derless creature would effectively deinstitutionalize

it. As Stewart says, “A social institution defined at its

core as the union of any two persons is unmistakably

different from the historic marriage institution be-

tween a man and a woman.” Indeed, persons of

the same gender, due to lack of biological complemen-

tarity, cannot form a union akin to that of a man and

woman (which may, of course, result in a child).

Deinstitutionalization of traditional marriage is

precisely what many proponents of same-sex mar-

riage want. Professor Ellen Willis says,

Marriage ... should not have legal status. . ..

Feminism and gay liberation have already

seriously weakened marriage as a trans-

mission belt of patriarchal, religious values;

conferring the legitimacy of marriage on ho-

mosexual relations will introduce an implicit

revolt against the institution into its very

heart, further promoting the democratization

and secularization of personal and sexual

life. . Legalizing same-sex marriage would

be an improvement over the status quo. But

let’s see it for what it is — a step toward the

* Monte Neil Stewart, Genderless Marriage, Institutional

Realities, and Judicial Elision, 1 Duke J. of Const. L. & Pub.

Pol'y 1, 8 (2006).

* Id. at 20.

more radical solution of civil unions, not vice

versa.

The apparent goal is to fashion a substitute along the

lines of polyamory.”

The radical nature of petitioners’ demands that

genderless marriage be imposed nationwide as consti-

tutional law cannot be overstated. Experience cer-

tainly shows, and state law reflects, real differences

between men and women and between mothers and

fathers. For this Court to decree that there are no

differences and that a mother-mother or father-father

home is the same as a mother-father home would

enshrine Queer Critical Theory (which says there are

no real differences) into the Constitution. This would

be a species of injustice to which American law has

not descended since Roe v. Wade, 410 U.S. 113 (1973)

and Dred Scott v. Sanford, 60 U.S. 393 (1856).

Courts should not sacrifice their credibility in

order to serve the agenda of those who seek to de-

institutionalize marriage. If deinstitutionalization of

marriage is what society wants, it should accomplish

it through the political branches. It should not be

imposed by judicial fiat.

* Ellen Willis, contribution to Can Marriage be Saved? A

forum, Nation 16-17 (July 5, 2004).

” See Martha L. Minow, Redefining Families: Who's In and

Who's Out?, 62 U. Colo. L. Rev. 269, 278 (1991) (“I favor func-

tional definitions of families that expand beyond reference to bi-

ological or formal marriage or adoptive relationship because the

people involved have chosen family-like roles.”).

V. STATES COULD RATIONALLY DECIDE

THAT PRESERVING THE DEFINITION

OF MARRIAGE AS OPPOSITE-SEX PRO-

TECTS THE RIGHTS OF PARENTS TO

SUPERVISE THE DEVELOPMENT OF

THEIR CHILDREN.

States have a substantial interest in protecting

the rights of parents to supervise development of

their children. In Ginsberg v. New York, 390 U.S. 629

(1968), the Court recognized that the right of parents

to “direct the rearing of their children is basic in the

structure of our society.” Id. at 639. The Court added:

“The legislature could properly conclude that parents

and others, teachers for example, who have this pri-

mary responsibility for children’s well-being are en-

titled to the support of laws designed to aid discharge

of that responsibility.” Jd. Moreover, in Bolger uv.

Youngs Drug Products, 463 U.S. 60 (1983), the Court

described the governmental interest in “aiding par-

ents’ efforts to discuss birth control with children” as

“substantial.” Jd. at 73. See also Meyer v. Nebraska,

262 U.S. 390, 401-02 (1923).

As shown, due to the educational effect of the

law, changing the legal definition of marriage as pro-

posed by petitioners will inevitably teach all children

that same-sex marriage is fully equivalent to, and

equally desirable with, opposite-sex marriage. We

know from ballot initiatives that most voters in the

United States do not want their children to be taught

this lesson.

Court decisions like those of the Fourth, Seventh,

Ninth, and Tenth Circuits force the message of the

equivalence and desirability of same-sex marriage

into every home in this country. The result is that

parents lose the ability to raise their children as they

see fit, not as the government or judges want. Again,

this message is not merely what is taught in school. It

is essentially the lesson the law delivers — both inside

and outside of school. This loss of parental influence

over the upbringing of their children is of profound

concern to this amicus.

VL STATES COULD RATIONALLY DECIDE

THAT THE OPPOSITE-SEX DEFINITION

OF MARRIAGE SHOULD BE PRESERVED

IN ORDER TO PREVENT FURTHER RE-

DEFINITION.

The corollaries of redefining marriage to elimi-

nate its opposite-sex nature will certainly include

plural and incestuous marriage. Challenges are al-

ready being presented by supporters of plural mar-

riage.“ The drive for plural marriage will necessarily

include opposite-sex, same-sex, and bisexual varieties.

In other words, polygamy will morph into polyamory.

* Drucilla Cornell, Fatherhood and Its Discontents: Men,

Patriarchy, and Freedom, Lost Fathers: The Politics of Father-

lessness in America, ed. Cynthia Daniels 199 (St. Martin’s Press,

1998) (arguing that adults should be allowed to “choose consen-

sual polygamy” including same-sex polygamy).

Challenges to laws forbidding incestuous mar-

riage have also been advanced.” If the gender ele-

ment of marriage is eliminated, logic will dictate a

constitutional right for adult relatives also to marry.

Inevitable pressure to expand a right is one good

reason not to recognize the right. For example, the

Court in 1997 cited as one reason not to recognize

a constitutional right to physician-assisted suicide

“avoiding a possible slide towards euthanasia.” The

Court labeled this as one of several “valid and im-

portant public interests [that] easily satisfy the

constitutional requirement that a legislative classifi-

cation bear a rational relation to some legitimate

end.” Vacco v. Quill, 521 U.S. 793, 808-09 (1997).

Amicus submits that this is particularly important

where the right has little connection to the text of the

Constitution and thus no ascertainable boundaries.

States could rationally decide that preserving the

opposite-sex definition of marriage is necessary in

order to avoid further redefinition of marriage and

erosion of the institution.

* Christine McNiece Metteer, Some “Incest” Is Harmless

Incest: Determining the Fundamental Right to Marry of Aduits

Related by Affinity Without Resorting to State Incest Statutes, 10

Kan. J.L. & Pub. Pol’y 262, 271 (2000) (“Individuals denied mar-

riage under the incest statutes may therefore find themselves

disenfranchised in the same manner as homosexual! partners

who are denied the right to marry and cohabitants who choose

not to marry.”).

Vil. STATE MARRIAGE DEFINITION LAWS

ARE NOT UNCONSTITUTIONAL AS PROD-

UCTS OF “ANIMUS.”

Laws that express and preserve the values and

standards of society cannot be dismissed simply by

reciting the pejorative term “animus.” One can al-

ways label others’ standards as expressing animus.

Laws against prostitution, sale of heroin, and dis-

charge of pollution cannot be found unconstitutional

as based on animus towards those who perform these

activities simply because one has a libertarian view

and dislikes such laws.

Some courts have denigrated state laws defining

marriage as opposite-sex in nature as based on ani-

mus. Baskin v. Bogan, 766 F.3d 648, 666 (7th Cir.

2014); Perry v. Brown, 671 F.3d 1052, 1082, 1085

(2012), rev’d on other grounds, 133 S.Ct. 2652 (2013).

These courts borrow the term from Romer v. Evans,

517 U.S. 620 (1996), in which the Court struck Colo-

rado Amendment 2.

Other courts have expressly rejected Romer-

based challenges to the traditional definition of mar-

riage. See, e.g., In re Marriage of J.B. and H.B., 326

S.W.3d 654, 680 (Tex. Ct. App. 2010); Citizens for

Equal Prot. v. Bruning, 455 F.3d 859, 868 (8th Cir.

2006); Standhardt v. Superior Court of Ariz., 77 P.3d

451, 464-65 (Ariz. Ct. App. 2003).

In Romer, the Court held Colorado Amendment 2

unconstitutional under the Equal Protection Clause of

the Fourteenth Amendment. The Court summarized

Amendment 2 as not only rescinding local ordinances

banning certain discrimination based on sexual orien-

tation, but also “prohibit[ing] all legislative, executive

or judicial action at any level of state or local gov-

ernment designed to protect ... homosexuals or gays

and lesbians.” 517 U.S. at 624.

Thus, Amendment 2 inserted into the Colorado

Constitution a prohibition on measures that in the

future entitled any “homosexual, lesbian, or bisexual!”

to “any moral status, quota preferences, protected

status or claim of discrimination.” Jd. at 624. This

Court agreed with the Colorado Supreme Court that

Amendment 2 “prohibit[ed] any government entity

from adopting .. protective statutes, regulations, or-

dinances, or policies in the future unless the state

constitution is first amended to permit such mea-

sures.” Jd. at 627; see also id. at 630. The Court

repeatedly described the Colorado Amendment in

apocalyptic terms: “unprecedented,” “[s)weeping and

comprehensive,” “far reaching,” “severe,” and “broad.”

Id. at 627, 629-30, 632-33. Obviously, the preser-

vation by state law of the traditional opposite-sex

nature of marriage bears no resemblance to the

uncharted impact of Colorado Amendment 2.

The equal protection sin of Amendment 2 iden-

tified in Romer was that it closed off homosexuals

and bisexuals from normal access to the law-making

apparatus in Colorado that all other citizens enjoyed.

Only homosexuals and bisexuals were required to resort

to the super-majoritarian mechanism of constitutional

amendment to pursue their interests. According to

the Court, “The resulting disqualification of a class of

persons from the right to seek specific protection from

the law is unprecedented in our jurisprudence.” Jd. at

633.

In the California Proposition 8 case, the Ninth

Circuit erroneously dismissed Proposition 8 as moti-

vated by denigration of “the worth and dignity of gays

and lesbians as a class” or “disapproval of a class of

people.” Perry, 671 F.3d at 1094. This mischaracter-

ized state laws defining marriage as opposite-sex in

nature. They do not express disapproval of homosex-

uals as persons but express disapproval only of con-

sidering same-sex relationships to be marriage. The

First Circuit has recognized that “preserviing]) the

heritage of marriage as traditionally defined over

centuries of Western civilization is not the same

as ‘mere moral disapproval of an excluded group.’”

Massachusetts v. United States Dep't of HHS, 682

F.3d 1, 16 (1st Cir. 2012) (quoting Lawrence v. Texas,

539 U.S. 558, 585 (2003) (O’Connor, J., concurring in

judgment)).

Moreover, as the dissent by Judge Smith in the

Proposition 8 case recognized, even if some voters or

other persons involved in the adoption of a law are

motivated by “animus,” the law may still be valid if it

also is supported by a rational basis. The dissent

cited a decision in which the Court said that while

“negative attitudes and fear often accompany irra-

tional biases, their presence alone does not a consti-

tutional] violation make.” Perry, 671 F.3d at 1104

(quoting Bd. of Trustees of Univ. of Ala. v. Garrett,

531 U.S. 356, 357 (2001)). See also Graham v. Connor,

490 U.S. 386, 397-98 (1989) (“[T]he subjective motiva-

tions of the individual officers .. has no bearing on

whether a particular seizure is ‘unreasonable’ under

the Fourth Amendment.”).

VUL. JUDICIAL REDEFINITION OF MARRIAGE

TO ELIMINATE ITS OPPOSITE-SEX NA-

TURE HAS A DESTABILIZING EFFECT

ON THE LAW.

Court decisions redefining marriage to eliminate

its opposite-sex nature have a destabilizing effect on

the law. When public policy is made by the political

branches, all views are considered and a compro-

mised result is reached reflecting all input. Moreover,

unlike judge-made policy, politically-made policy cre-

ates no doctrinal imperative for the creation of new or

expanded rights.

Inappropriate judicial usurpation of political

power undermines our democratic processes by re-

ducing respect for the law. It has wisely been said

that “the voice of the judiciary on constitutional ques-

tions must ultimately draw its authority from the

public’s acceptance of its institutional role.” If this is

so, judicial redefinition of marriage and decisions like

Roe v. Wade threaten the authority of the courts.

* Goodwin Liu, Pamela S. Karlan & Christopher H. Schroeder,

Keeping Faith with the Constitution 24 (Oxford, 2010).

Since Roe was handed down, there has been a

growing backlash against it. There are annual mas-

sive protests in multiple cities and there have been

repeated efforts to overturn Roe.

When Roe was decided, the political branches

were in the process of modifying abortion laws. As

Justice Ginsburg has said, “The political process was

moving in the early 1970s, not swiftly enough for ad-

vocates of quick, complete change, but majoritarian

institutions were listening and acting. Heavy-handed

judicial intervention was difficult to justify and ap-

pears to have provoked, not resolved, conflict.””

Creating a constitutional right to same-sex mar-

riage again subverts the process of democratic change

and could create another backlash. Impatience with

the slow pace of legislative change does not warrant

the creation of a new previously-unknown constitu-

tional right and judicial deconstruction of a bedrock

institution of our society.

Several lower courts have been strongly influ-

enced by the Supreme Court’s thesis in Windsor that

the federal DOMA, by defining marriage as opposite-

sex in nature, “humiliates tens of thousands of children

now being raised by same-sex couples” by making “it

even more difficult for the children to understand the

integrity and closeness of their own family and its

* Ruth Bader Ginsburg, Some Thoughts on Autonomy and

Equality in Relation to Roe v. Wade, 63 N.C. L. Rev. 375, 385-86

(1985).

concord with other families in their community and

in their daily lives.” Windsor, 133 S.Ct. at 2694. The

Court offered no support for this statement. Never-

theless, the Fourth, Seventh, and Tenth Circuits

quoted it in their decisions. Bostic v. Schaefer, 760

F.3d 352, 383 (4th Cir. 2014); Baskin, 766 F.3d at 659;

Kitchen, 755 F.3d at 1207, 1215.

In striking down the marriage definition laws of

Wisconsin and Indiana, the Seventh Circuit pressed

the humiliation thesis, offering the following sce-

nario:

Consider now the emotional comfort that

having married parents is likely to provide to

children adopted by same-sex couples. Sup-

pose such a child comes home from school

one day and reports to his parents that all

his classmates have a mom and a dad, while

he has two moms (or two dads, as the case

may be). Children, being natural conform-

ists, tend to be upset upon discovering that

they’re not in step with their peers. If a

child’s same-sex parents are married, how-

ever, the parents can tell the child truthfully

that an adult is permitted to marry a person

of the opposite sex, or if the adult prefers as

some do a person of his or her own sex, but

that either way the parents are married and

therefore the child can feel secure in being

the child of a married couple. Conversely,

imagine the parents having to tell their child

that same-sex couples can’t marry, and so the

child is not the child of a married couple, un-

like his classmates.

Baskin, 766 F.3d at 663-64. In effect the Seventh

Circuit said that a child’s being able to tell his/her

peers that the same-sex adults in his/her home are

married is consolation for the child not being able to

say that he/she has both a mother and a father. Just

as the Supreme Court cited no support for its humili-

ation thesis in Windsor, the Seventh Circuit offered

none for this hypothetical.

In his dissent in Kitchen, Judge Kelly questioned

the Windsor humiliation thesis. He incisively noted:

The Court’s conclusion that children raised

by same-gender couples are somehow stig-

matized seems overwrought when one con-

siders that 40.7% of children are now born

out of wedlock. Of course, there are numer-

ous alternative family arrangements that ex-

ist to care for these children. We should be

hesitant to suggest stigma where substantial

numbers of children are raised in such envi-

ronments. Moreover, it is pure speculation

that every two-parent household, regardless

of gender, desires marriage.

755 F.3d at 1239 n.4.

Out-of-wedlock births and unmarried cohabita-

tion have exploded in this country. “Demographers

say the cohabiting trend among new parents is likely

to continue. Social stigma regarding out-of-wedlock

births is loosening... ."” Many modern opposite-sex

celebrity couples openly cohabit and have children

outside of wedlock, without any apparent stigma or

humiliation. Moreover, it could well be that many

children of unmarried couples would be more embar-

rassed and humiliated if their parents were married.

In effect, with this unsupported humiliation

thesis, some courts have inserted themselves into the

culture as “National Psychologist” — purporting, with-

out evidence, to divine the psychological effect of the

traditional opposite-sex definition of marriage on chil-

dren living in households with same-sex adults. What

is even more embarrassing is that this amateur psy-

chology passes for constitutional law.

Speaking of the “humiliation” of children, what

about the humiliation of voters? We do not know how

many children, if any, are actually humiliated be-

cause the adults in their homes are not married. But

we do know that millions of voters have been humili-

ated by the contempt of some federal courts for their

views. Of course, behind every statute preserving the

opposite-sex definition of marriage that has been

adopted by Congress or a state legislature, stand mil-

lions of voters. But consider only the states that have

adopted constitutional amendments by popular refer-

enda. In those 31 states, some 41,065,837 citizens of

* Hope Yen, More Couples Who Become Parents are Living

Together But Not Marrying, Data Show, Wash. Post (Jan. 7,

2014).

the United States have voted during 1998-2012 to

define marriage as opposite-sex in nature (58% of

those voting). This includes Hawaii, which gave the

legislature authority to define marriage as opposite-

sex.”

These millions of voters have been told by a

number of federal courts that their vigorous efforts to

make democracy work and the countless hours they

have invested in expressing their views and or-

ganizing are worthless. And the courts have also said

that these voters are irrational, believing in the his-

torical opposite-sex definition of marriage without

any rational basis. Further, as discussed earlier, some

courts have branded voters who support the male-

female definition as infected with “animus” or hatred.

Here’s a question for the courts. How much

public opinion do judges think they can ignore and

ridicule without destroying the legitimacy of the

judiciary and even destabilizing the democratic basis

of this republic?

Our President and other leaders make somber

pronouncements and send our young soldiers to fight

in distant parts of the globe in order, we say, to secure

the rights of other people to “self-determination.” But

in the United States apparently self-determination

does not count for much. When the United States is

* http://en. wikipedia org/wiki/Same-sex_marriage_legislation_

in_the_United_States (visited March 9, 2015).

finally swept into the dust bin of history, one of the

primary reasons will likely be judicial usurpation of

power from the political branches and disregard for

the right of self-determination.

Why are well-meaning judges willing to usurp

power from the political branches and disregard

the public’s right to self-determination? Apparently,

they have bought into the false analogy to the

civil rights movement, in which courageous judges

finally overturned laws and practices infected with

racial discrimination. But those judges were applying

previously-ignored textual provisions of constitutions

and laws (themselves majoritarian products — show-

ing that majorities should not always be distrusted)

that forbade race discrimination. There is no analogy

to the temptation of judges to substitute their social

views, without a clear constitutional command, for

the policy choices of the people.

Some say the “arc of history” bends toward same-

sex marriage and polyamory. But, after only 10 years

of experience in redefining marriage into a genderless

phenomenon in some states (against 6,000 years of

recorded history under the opposite-sex definition),

we do not know that. History documents many now-

disfavored practices that were at one time thought

inevitable and on the “right side of history.” These

include National Socialism, Marxism, nuclear power,

and racial eugenics. A much better prediction is that

the arc of history bends toward the right of citizens to

self-determination and freedom in making their own

public policy choices, without interference by an

autocratic judiciary or other rulers.

The Lighted Candle Society is frightened for the

future of marriage, family, and our democratic sys-

tem. They are all at risk.

CONCLUSION

The decision of the Sixth Circuit should be af-

firmed and state laws defining marriage as opposite-

sex in nature upheld as constitutional.

Respectfully submitted,

JOHN L. HARMER GEORGE M. WEAVER

THE LIGHTED CANDLE SOCIETY Counsel of Record

818 Connecticut Ave., N.W. HOLLBERG & WEAVER, LLP

Ste. 1100 2921 Piedmont Rd., N.E.

Washington, D.C. 20006 Suite C

Atlanta, GA 30305

(404) 760-1116

gweaver@hw-law.com

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