Amicus Curiae Brief — Tanco v. Haslam, 135 S. Ct. 1040 (2015) (No. 14-562)
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QFFICE OF THE CLERK
SUPREME COURT, U.S.
Supreme Court of the Ani
°
JAMES OBERGEFELL, ET AL..,
Petitioners,
Vv.
RICHARD HODGES, DIRECTOR,
OHIO DEPARTMENT OF HEALTH, ET AL.,
Respondents.
[Additional Case Captions Listed On Inside Front Cover]
+
On Writs Of Certiorari To The
United States Court Of Appeals
For The Sixth Circuit
°
BRIEF OF EARL M. MALTZ; GEORGE W. DENT, JR.;
CHRISTOPHER WOLFE; AND THE MARRIAGE
LAW FOUNDATION AS AMICI CURIAE
IN SUPPORT OF RESPONDENTS
¢
HERBERT G. GREY
4800 SW Griffith Drive, Suite 320
Beaverton, OR 97005-8716
503-641-4908
herb@greylaw.org
Counsel for Amici Curiae
COCELE LEGAL BRIEFS (800) 226-4064
WWW COCKLELEGALBRIEFS COM
VALERIA TANCO, ET AL.,
Petitioners,
v.
WILLIAM EDWARD “BILL” HASLAM, ET AL..,
Respondents.
>
APRIL DEBOER, ET AL..,
Petittoners,
v.
RICHARD SNYDER, ET AL..,
Respondents.
4
GREGORY BOURKE, ET AL.,
Petitioners,
Vv.
STEVE BESHEAR,
Respondents.
QUESTIONS PRESENTED
Does the Fourteenth Amendment require a State
to license a marriage between two people of the
same sex?
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?
ll
TABLE OF CONTENTS
QUESTIONS PRESENTED
INTEREST OF AMICI CURIAE
SUMMARY OF ARGUMENT
A FUNDAMENTAL RIGHT TO SAME-SEX
MARRIAGE WOULD SERIOUSLY DEPART
FROM THIS COURT’S PRECEDENTS BE-
CAUSE IT LACKS ANY HISTORICAL FOUN-
DATION
A. SUBSTANTIVE DUE PROCESS RE-
QUIRES AN HISTORICAL FOUNDA-
TION EVEN IF GLUCKSBERG DOES
NOT CONTROL
MARRIAGE BETWEEN A MAN AND A
WOMAN IS AMONG THE MOST DEEPLY-
ROOTED INSTITUTIONS IN ANGLO-
AMERICAN LAW
THE SAME 50-YEAR PERSPECTIVE THAT
INFLUENCED LAWRENCE SHOWS THAT
SAME-SEX MARRIAGE HAS BEEN
WIDELY AND SPECIFICALLY REJECTED
BY THE AMERICAN PEOPLE
CONCLUSION
ili
TABLE OF AUTHORITIES
Page
CASES:
A. v. A., 43 A.2d 251 (Del. Super. 1945) ..................... 26
Allen v. Baker, 86 N.C. 91 (1882) ........0......0c cece cece eee ee 23
Askew v. Dupree, 30 Ga. 173 (1860)..................0.000022. 19
Atherton v. Atherton, 181 U.S. 155 (1901)................. 22
Baehr v. Lewin, 852 P.2d 44 (Haw. 1993)...........0..0.... 29
Baehr v. Miike, No. 20371, 1999 Haw. LEXIS
Se I Oe as osssnsenenbenooeniensastaiie 29
Baker v. Baker, 13 Cal. 87 (1859)......0....0..c cece ccc eee 21
Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971)......... 28
Baker v. Nelson, 409 U.S. 810 (1972)..........000...c cee 28
BMW of N. Am., Inc. v. Gore, 517 U.S. 559
I ialiaeisthdeaeaieechleneatteniiiiaaaeiernnacatia tii ataatiadh alii iene 5
Carmichael v. State, 12 Ohio St. 553 (1861).............. 19
Church of Lukumi Babalu Aye, Inc. v. City of
Hialeah, 508 U.S. 520 (19938)......................-.sececcoceee 9
Cnty. of Sacramento v. Lewis, 523 U.S. 833
dea ee la 5,8
Collins v. City of Harker Heights, 503 U.S. 115
EEE rane See ane mT enema 6
Compassion in Dying v. Washington, 79 F.3d
aaa atc 10
Davis v. Davis, 106 A. 644 (N.J. Ch. 1919) ......0.0....... 25
De Burgh v. De Burgh, 250 P.2d 598 (Cal. 1952).......25
iV
TABLE OF AUTHORITIES — Continued
Page
Dist. Atty’s Office v. Osborne, 557 U.S. 52
ahaa aa a a 4,6
Goodridge v. Dep't of Pub. Health, 798 N.E.2d
SS een ee ene 32
Griswold v. Connecticut, 381 U.S. 479 (1965)...... 5, 6, 7
Grover v. Zook, 87 P. 638 (Wash. 1906)...................... 25
Hamaker v. Hamaker, 18 Ill. 137 (1856).................... 21
Head v. Head, 2 Ga. 191 (1847).......... 0c. cc cece cee eeeeeeeee 21
Heup v. Heup, 72 N.W.2d 334 (Wis. 1969) ................. 26
Hollingsworth v. Perry, 570 U.S. ___, 133 S. Ct.
al 2, 35
Howay v. Howay, 264 P.2d 691 (Idaho 1953)............. 26
In re Oldfteld’s Estate, 156 N.W. 977 (Iowa
BERRA Ue ete URS SES JT ee a ee er ae 26
In re Rash’s Estate, 53 P. 312 (Mont. 1898)............... 26
In re St. Clairs Estate, 28 P.2d 894 (Wyo. 1934)........ 26
Inhabitants of Town of Milford v. Inhabitants of
Town of Worcester, 7 Mass. 48 (1810)............... 18, 19
Jackman v. Rosenbaum Co., 260 U.S. 22 (1922)......... 6
Jones v. Hallahan, 501 S.W.2d 588 (Ky. 1973) ....28, 31
Kennedy v. Kennedy, 134 So. 201 (Fla. 1931)............ 26
Kerrigan v. Dep't of Pub. Health, 957 A.2d 407
RE RR ae aa en ee eee 33
TABLE OF AUTHORITIES — Continued
Page
Lewis v. Ames, 44 Tex. 319 (1875) ...................ccceeceeees 22
Loving v. Virginia, 388 U.S. 1 (1967) ......c.cccce0e0es. 7, 8,9
Mahnken v. Mahnken, 82 N.W. 870 (N.D. 1900) .......26
Matchin v. Matchin, 6 Pa. 332 (1847) .........0..0.0. cc e.. 19
McDonald v. Chicago, 561 U.S. __.,, 130 S. Ct.
EERE, EET OE a ee 4
Meyer v. Nebraska, 262 U.S. 390 (1923) .............. 4,8,9
Michael H. v. Gerald D., 491. U.S. 110 (1989) .....6, 7, 9, 36
Mirizio v. Mirizio, 150 N.E. 605 (N.Y. Ct. App.
I Ea ns 26
Moore v. City of East Cleveland, 431 U.S. 494
SITET T Dininciineuailaihitiabiasianiianintdadiiiiipianambadunnenhineninedaineadsigeneneainn 6,9
Murphy v. Ramsey, 114 U.S. 15 (1885)...................... 22
O’Connor v. O'Connor, 253 N.E.2d 250 (Ind.
ERE SESE oh Ee ee ee ee TEL vee eS 25
Planned Parenthood v. Casey, 505 U.S. 833
ETT ee ee a a ee 7
Poe v. Ullman, 367 U.S. 497 (1961).............. 4,5, 10, 37
Reno v. Flores, 507 U.S. 292 (1993)................. cece cece eee: 6
Reynolds v. Reynolds, 85 Mass. 605 (1862)................ 20
Reynolds v. United States, 98 U.S. 145 (1879).....21, 22
Roche v. Washington, 19 Ind. 53 (1862) ..................... 11
Singer v. Hara, 522 P.2d 1187 (Wash. App.
TN all 28
Sissung v. Sissung, 31 N.W. 770 (Mich. 1887)........... 21
vi
TABLE OF AUTHORITIES — Continued
Page
Skinner v. State of Okl. ex rel. Williamson, 316
I a al 24
Snyder v. Massachusetts, 291 U.S. 97 (1934) .............. 4
State v. Bittick, 15 S.W. 325 (Mo. 1891)..................... 22
Turner v. Safley, 482 U.S. 78 (1987).................-2-.2200-+ 4
United States v. Windsor, 570 U.S. __, 133
a tiled 2, 33
Varnum v. Brien, 763 N.W.2d 862 (2009)................... 33
Washington v. Glucksberg, 521 U.S. 702
EE Ss ee eee nea ree 3, 4,5, 10
Wills v. Willis, 82 S.E. 1092 (1914)............... 0... cece cee eee: 26
Woods v. Moten, 30 So. 324 (Ala. 1901)...................... 20
Wray v. Wray, 19 Ala. 522 (1851).....................c0seeeeeees 21
Zablocki v. Redhail, 434 U.S. 374 (1978)................000.. Me
Zoglio v. Zoglio, 157 A.2d 627 (D.C. 1960)................. 26
CONSTITUTIONAL PROVISIONS:
FRAME OF GOVERNMENT OF PENNSYLVANIA — 1682
art. 19, reprinted in 3 THE FEDERAL AND
STATE CONSTITUTIONS, COLONIAL CHARTERS,
AND OTHER ORGANIC LAWS OF THE UNITED
ES Ne Re: a 15
SS emer 29
A Ee ave eee eee 34
vii
TABLE OF AUTHORITIES — Continued
MAGNA CARTA art. 7 (1215), reprinted in J.C.
HOLT, MAGNA CARTA (2d ed. 1992)...............2.....
Beso. Coser. art. 7 § B6.....20...ccce0-<--0s- RE RE Ry er ve
Miss. CONST. art. 12 § 22 (1868), reprinted in 3
THE FEDERAL AND STATE CONSTITUTIONS, Co-
LONIAL CHARTERS, AND OTHER ORGANIC LAWS
OF THE UNITED STATES (2d ed. 1872) ..................
ns I cis
TEx. CONST. art. 12 § 27 (1868), reprinted in 3
THE FEDERAL AND STATE CONSTITUTIONS, Co-
LONIAL CHARTERS, AND OTHER ORGANIC LAWS
OF THE UNITED STATES (2d ed. 1872)..................
THE FUNDAMENTAL CONSTITUTIONS FOR THE
PROVINCE OF EAST NEW JERSEY IN AMERICA,
ANNO DoMmINI 1683, art. 20, reprinted in 5
THE FEDERAL AND STATE CONSTITUTIONS, Co-
LONIAL CHARTERS, AND OTHER ORGANIC LAWS
OF THE UNITED STATES (1909)................cc.cceeeeeee-
es ls GE CIT seintrivcsimesecnesreneuninniinniedsin passim
STATUTORY PROVISIONS
Acts and Orders of 1647, Marriage, reprinted
in COLONIAL ORIGINS OF THE AMERICAN CON-
STITUTION: A DOCUMENTARY HISTORY (Donald
RN RD eA
vill
TABLE OF AUTHORITIES — Continued
Page
An Act Concerning Marriages, §3 (1741),
reprinted in 1 THE PUBLIC ACTS OF THE GEN-
ERAL ASSEMBLY OF NORTH CAROLINA (Francois-
pe | ee eee 16, 31
An Act Concerning Marriages, ch. 23, §1
(1738-1741), reprinted in 1 LAWS OF THE
STATE OF NORTH CAROLINA (Hen. Potter et al.
las et ncinshhaieisnpadeitontnittiaieamapentadniiutiientetinaetaninmbinats 17
An Act for Regulating the Solemnization of
Marriages, ch. 41, § 1 (1798), reprinted in 2
THE STATUTE LAW OF KENTUCKY, 1798-1801
An Act for the Better Observing the Lord’s Day
Called Sunday, the 30th of January, the 29th
of May the 22nd of September; And Also, for
the Suppressing Prophaness, Immorality &
Divers Other Vicious & Enormous Crimes,
ch. 7, § 15 (1715), reprinted in 23 THE STATE
RECORDS OF NORTH CAROLINA (Walter Clark
Ss I tide datieiledanbonmnnbbdindiandtiniemedeiauamniadpiaindammentian 15
An Act Regulating Marriages, §1 (1820),
reprinted in 1 LAWS OF THE TERRITORY OF
TEI ciiesiiienieiciiiartapiingiteienieiaiennbinatnniiiciadanbiadiie 16, 30
An Act Regulating Marriages, ch. 6, § 1 (1803),
reprinted in 1 THE STATUTES OF OHIO AND OF
NORTHWESTERN TERRITORY (Salmon P. Chase
RRS RES ea8 P eeret e e e e 16
An Act Regulating of Marriages (1779), reprint-
ed in VERMONT STATE PAPERS (William Slade
a a a 17
ix
TABLE OF AUTHORITIES — Continued
Page
An Act to Ascertain the Ways and Means by
which Persons May Gain a Settlement in
Any Town or District Within this State, So as
to Entitle Them to Support Therein, If They
Shall Be Poor and Unable to Support Them-
selves, § 1 (1796), reprinted in THE LAWS OF
THE STATE OF NEw HAMPSHIRE (1815)..................... 17
An Act to Authorize and Confirm Marriages in
Certain Cases, ch. 35, art. 3 (1783), reprinted
in 11 THE STATUTES AT LARGE (William Waller
isons naereneneitaacnaianinlintiiteniantenininbiiina 17
An Act to Prevent Incestuous Marriages and to
Regulate Divorces § 2, reprinted in THE LAwS
OF THE STATE OF NEW HAMPSHIRE (1815) ................ 17
An Act to Prevent Incestuous Marriages, Laws
of New Hampshire (1759), reprinted in ACTS
AND LAWS OF HIS MAJESTY’S PROVINCE OF NEW
HAMPSHIRE, IN NEW ENGLAND (1761)...................... 15
Edmunds Anti-Polygamy Act of 1882, 22 Stat.
ITT ecstatic dinitrate eneaatinnnieeeeil 21
Edmunds-Tucker Act of 1887, 24 Stat. 635 ............... 21
Ky. Rev. Stat. §§ 402.005, 402.020, 402.045 .............. 31
Marriages and Married Persons § 3, reprinted
in THE COLONIAL LAWS OF MASSACHUSETTS
eee ne nee neem ern ED 15
I, IIS IIL Ts ccnsicincinheninieibiatinieenincinligiteliateie 31
es aa RI Or IIE (a nrcinnnceinstentasiesimeianieinnieonniiscsietien 31
Morrill Anti-Bigamy Act of 1862, 12 Stat. 501
Xx
TABLE OF AUTHORITIES — Continued
Page
Ohio Rev. Code § 3101.01(A)(1)..................2 cece eee eee 33
Poland Act of 1874, 18 Stat. 253 2.0.0.0... ccc eee ee eee eee 21
Tom, Coan © BR encccccccscivccettesnmetssstiainaial 31
Utah Enabling Act of 1894, 28 Stat. 107................... 21
LEGISLATIVE MATERIALS:
118 Cong. Rec. § 4389 (daily ed. Mar. 21, 1972)........ 29
KENTUCKY LEGISLATIVE RESEARCH COUNCIL,
PROPOSED MARRIAGE AMENDMENT, 2004.................. 34
S. Debate, 108th Cong., 2nd Sess. (2004).................. 34
OTHER AUTHORITIES:
1 WILLIAM BLACKSTONE, COMMENTARIES ............--000-e0 14
2 BRACTON ON THE LAWS AND CUSTOMS OF
ENGLAND (George Woodbine ed., Samuel E.
TD GR. g TERED cecsnctscnnstnnssccimesiagmataiaieeinaes 13
2 JAMES KENT, COMMENTARIES ON AMERICAN
Bel Fe Ge OE, Be ccciccccetsntdcsendememiadineaaainane 23
2 MODEL PENAL CODE AND COMMENTARIES
bk De ee Ee 32
2 THE DIGEST OF JUSTINIAN 199, 23.2.1 (Alan
eG Ee. Ie iciccisnnoticniceincnsindecdadduntnieadinaiededtomeeans 12
A. PARLETT LLOYD, A TREATISE ON THE LAW OF
I Cee cccndernctsaiatitiandidinaietmaaiiilieimmeiall 24
ANDREW HORNE, THE MIRROUR OF JUSTICES, ch.
5, § 1 (W.H. of Gray’s Inn trans., 1768).................. 13
xi
TABLE OF AUTHORITIES — Continued
CYNTHIA B. PATTERSON, THE FAMILY IN GREEK
LL ee 12
Davip E. Kyvic, ExpLicir & AUTHENTIC ACTs:
AMENDING THE U.S. CONSTITUTION 1776-1995
EDWARD COKE, THE REPORTS, reprinted in 1 THE
SELECTED WRITINGS AND SPEECHES OF SIR
EDWARD COKE (Steve Sheppard ed., 2003) ............. 13
Fowler Group to Have Bus Tour Promoting
Marriage Amendment, THE CHATTANOOGAN,
ea ee 35
FRANK KEEZER, THE LAW OF MARRIAGE AND
ES AA aaa Cea 26, 27
Frederic William Maitland, Magistri Vacarii
Summa de Matrimonio, in 3 THE COLLECTED
PAPERS OF FREDERIC WILLIAM MAITLAND
a 11
Hendrik Hartog, Marital Exits and Marital
Expectations in Nineteenth Century America,
EE | 18
JAMES SCHOULER, LAW OF THE DOMESTIC RELA-
Le 26, 27
JOEL PRENTISS BISHOP, COMMENTARIES ON THE
LAW OF MARRIAGE AND Drvorce § 29, 225 (1st
eee 19, 24
JOHN AYLIFFE, PARAGON JURIS CANONICI
ER ee 14
xi
TABLE OF AUTHORITIES — Continued
JOHN BOUVIER, INSTITUTES OF AMERICAN LAW
§§ 235-36 (Daniel A. Gleason ed., 1882)................. 24
JOHN FRASER MACQUEEN, THE RIGHTS AND
LIABILITIES OF HUSBAND AND WIFE (3d ed.
JOHN WITTE JR., FROM SACRAMENT TO CON-
TRACT: MARRIAGE, RELIGION, AND LAW IN THE
WESTERN TRADITION (2d ed. 2012).............0000.00000000. 12
JOSEPH R. LONG, TREATISE ON THE LAW OF
DOMESTIC RELATIONS § 3 (1905) .................2eccceceeeees 26
KENTUCKY BAR ASSOCIATION, Hot Topics IN
DISSOLUTION OF MARRIAGE ACTS — THE STATUS
OF SAME SEX MARRIAGE AND DIVORCE (2014)....32, 34
MICHAEL L. SATLOW, JEWISH MARRIAGE IN AN-
EE AAC ae ae ee 12
Musonius Rufus, Fragment 13A, What is the
Chief End of Marriage?, in MUSONTUS RUFUS:
THE ROMAN SOCRATES (Cora E. Lutz, ed. &
GE EE ee eo 12
Note, The Legality of Homosexual Marriage, 82
eee nets CTE TEI UTITIDY ancesciilsithcinienishinicieemartaiiiadeinieitibcieinaitionnis 29
Ruth Bader Ginsburg, Ratification of the Equal
Rights Amendment: A Question of Time, 57
Se eis es ee iiitencinsininrittitaitnsiisitnintinaiaailiemicinieanai 29
SENATE FISCAL AGENCY, NOVEMBER 2004 BALLOT
LE ARR I Ree PE Ae Oe, OE NE 33
Xiii
TABLE OF AUTHORITIES — Continued
SIR FREDERICK POLLOCK & FREDERIC WILLIAM
MAITLAND, 2 THE HISTORY OF ENGLISH LAW
BEFORE THE TIME OF EDWARD I (Liberty Fund
ies FREED cneveensscnscsssnsrenecensscnsstncesvtesenscsennatensscnnes
St. AUGUSTINE, ADULTEROUS MARRIAGES, bk. II,
ch. 12, reprinted in THE FATHERS OF THE
CHURCH: ST. AUGUSTINE TREATISES ON MAR.
RIAGE AND OTHER SUBJECTS (Charles T. Wil-
cox trans., 1995)
STORY, COMMENTARIES ON THE CONFLICTS OF LAW
ee ee Gy Be rsesesecnnnscsccnssneecenseranesenttnaniene
THE OHIO BALLOT BOARD, OHIO ISSUES REPORT:
STATE ISSUE BALLOT INFORMATION FOR THE
NOVEMBER 2, 2004 GENERAL ELECTION .............
THEODORE F. T. PLUCKNETT, A CONCISE HISTORY
OF THE COMMON LAW (5th ed. 2001)..................
THOMAS AQUINAS, OF GOD AND HIS CREATURES
(Joseph Rickaby ed. & trans., 1905).................
ZEPHANIAH SWIFT, 1 A SYSTEM OF THE LAWS OF
CONNECTICUT (1795)
SECRETE EEE EEE EEE EE EEE EEE RHEE HEE ER RHC HHS
Page
1
INTEREST OF AMICI CURIAE
Amici are distinguished scholars of constitutional
history. Their decades of research and teaching
convince them that American history offers no sup-
port for construing the Fourteenth Amendment as a
mandate for same-sex marriage. Their names and
affiliations (for identification purposes only) follow:
Earl M. Maltz, Distinguished Professor, Rutgers
School of Law-Camden.
George W. Dent, Jr., Professor of Law, Case
Western Reserve University School of Law.
Christopher Wolfe, Professor, University of
Dallas.
These scholars are joined by the Marriage Law
Foundation, which has consistently sought to explain
and defend the nearly universal understanding of
marriage as an institution uniting a husband and a
wife.
* The parties have consented to the filing of this brief and
letters indicating their consent are on file with the Clerk. No
counsel for any party authored this brief in whole or in part, and
no person or entity other than amici and their counsel made any
monetary contribution intended to fund the preparation or
submission of this brief.
2
SUMMARY OF ARGUMENT
A fundamental right to same-sex marriage would
be unprecedented because it lacks an historical
foundation. Historical support is a necessary condi-
tion of substantive due process. Relevant precedents
show that the Court has required some historical
support before venturing to recognize a new substan-
tive right under the Due Process Clause.
Marriage between a man and a woman is among
the most deeply rooted institutions in Anglo-American
law. Legal authorities stretching from the English
common law to the late twentieth century agree that
marriage refers solely to man-woman unions and that
its core purpose is to establish a stable institution for
the protection of children. State laws like Michigan’s
and the other respondent States’ are consistent with
this longstanding tradition affirming conjugal mar-
riage.
Same-sex marriage was repeatedly rejected
during the same half-century period that governed
Lawrence v. Texas, 539 U.S. 563 (2003). Its current
recognition by a majority of States is the result of
lower court decisions issued since Hollingsworth v.
Perry, 570 U.S. __, 133 S.Ct. 2652 (2013), and
United States v. Windsor, 570 U.S. __, 133 S. Ct.
2675 (2013) — not voluntary changes made by the
people and their elected representatives.
The living tradition of American law refutes
petitioners’ due process claim. Without an historical
3
foundation, petitioners’ due process claim should be
denied.
°
ARGUMENT
A FUNDAMENTAL RIGHT TO SAME-SEX
MARRIAGE WOULD SERIOUSLY DEPART
FROM THIS COURT’S PRECEDENTS BE-
CAUSE IT LACKS ANY HISTORICAL FOUN-
DATION.
A. SUBSTANTIVE DUE PROCESS REQUIRES
AN HISTORICAL FOUNDATION EVEN IF
GLUCKSBERG DOES NOT CONTROL.
Petitioners argue that State laws like Michigan’s
deprive them of “the fundamental right to marry,”
which they say consists of “[t]he ability freely to
choose one’s spouse.” 14-571 Br. Pets. at 21, 56. Amici
add that “neither history nor tradition should save
laws prohibiting same-sex marriage.” Brief for Pro-
fessors Laurence H. Tribe & Michael C. Dorf as Amici
Curiae Supporting Petitioners at 15, Obergefell v.
Hodges, Nos. 14-556, 14-562, 14-571, 14-574 (Tribe
Brief). We disagree.
Petitioners’ substantive due process claim is
controlled by Washington v. Glucksberg, 521 U.S. 702
(1997). A correct application of its “established meth-
od of substantive due process analysis,” id. at 720,
denies that marrying a person of the same sex is a
fundamental right, see Brief for Scholars of History
and Related Disciplines as Amici Curiae Supporting
4
Respondents. Failure to satisfy Glucksberg should
dispose of petitioners’ due process claim.
Glucksberg is a landmark decision that retains
precedential force. See McDonald v. Chicago, 561 U.S.
__., 130 S. Ct. 3020, 3036 (2010); Dist. Atty’s Office v.
Osborne, 557 U.S. 52, 62 (2009). Even if Glucksberg
were not controlling, historical inquiry would remain
a necessary element of substantive due process
analysis.
History did not suddenly become an element of
substantive due process analysis in Glucksberg. For
decades substantive due process was closely tied to
history. Meyer v. Nebraska, 262 U.S. 390 (1923), led
the way by holding that due process “denotes .
those privileges long recognized at common law as
essential to the orderly pursuit of happiness by free
men.” Id. at 399 (emphasis added). Justice Cardozo,
writing for the Court, added that due process extends
only to liberties “so rooted in the traditions and
conscience of our people as to be ranked as funda-
mental.” Snyder v. Massachusetts, 291 U.S. 97, 105
(1934).
Justice Harlan’s dissent in Poe v. Ullman, 367
U.S. 497 (1961), laid out a flexible and contextually-
sensitive approach to substantive due process. He
described “the due process of law” as a balance be-
tween “liberty and the demands of organized society.”
Id. at 542 (Harlan, J., dissenting). While resisting
any rigid “formula,” other than “judgment and
5
restraint,” he placed history at the center of his
constitutional framework:
The balance of which I speak is the balance
struck by this country, having regard to what
history teaches are the traditions from which
it developed as well as the traditions from
which it broke. That tradition is a living
thing. A decision of this Court which radical-
ly departs from it could not long survive,
while a decision which builds on what has
survived is likely to be sound.
Id. For Justice Harlan, this concept of a living tradi-
tion supplied the baseline against which to measure a
law to determine whether it offended due process.
History figured, too, in his separate opinion in
Griswold v. Connecticut, 2981 U.S. 479 (1965). There
Justice Harlan explained that “[jludicial self-
restraint” demanded “continual insistence upon
respect for the teachings of history....” Jd. at 501
(Harlan, J., concurring in the judgment).
Members of the Court, writing more recently,
have highlighted the importance of history for sub-
stantive due process. See, e.g., BMW of N. Am., Inc. v.
Gore, 517 U.S. 559, 587 (1996) (Breyer, J., con-
curring); Cnty. of Sacramento v. Lewis, 523 U.S. 833,
858 (1998) (Kennedy, J., concurring); Glucksberg,
521 U.S. at 767 (Souter, J., concurring in the judg-
ment).
History has been deemed so vital to substantive
due process claims that the absence of supporting
6
historical evidence has doomed them. See Collins v.
City of Harker Heights, 503 U.S. 115, 126 (1992);
Reno v. Flores, 507 U.S. 292, 303 (1993); Osborne, 557
U.S. at 702. These decisions reflect Justice Holmes’s
insight that “[i]f a thing has been practised for two
hundred years by common consent, it will need a
strong case for the Fourteenth Amendment to affect
it.” Jackman v. Rosenbaum Co., 260 U.S. 22, 31
(1922).
The Court’s “continual insistence upon respect for
the teachings of history” serves to enhance “[jjudicial
self-restraint.” Griswold, 381 U.S. at 501. Substan-
tive due process has been “a treacherous field,” in
part because of the risk of subjectivity “when the
judicial branch gives enhanced protection to certain
substantive liberties without the guidance of the
more specific provisions of the Bill of Rights.” Moore
v. City of East Cleveland, 431 U.S. 494, 503 (1977)
(plurality op.). As the Court has acknowledged,
“guideposts for responsible decision-making in this
unchartered area are scarce and open-ended.” Collins,
503 U.S. at 125. Hard experience — exemplified by the
Lochner era — has made the Court “reluctant to
expand the concept of substantive due process.” Jd.
It has tended, instead, to approach novel claims with
“the utmost care.” Jd. That is why, “liln an attempt to
limit and guide interpretation of the Clause,” an
asserted liberty interest must “be an interest tradi-
tionally protected by our society.” Michael H. v. Ger-
ald D., 491 U.S. 110, 122 (1989) (footnote omitted).
7
Insisting that an asserted liberty interest boast
some historical support does not entail a particular
level of generality. Petitioners need not frame their
interest at “the most specific level at which a relevant
tradition protecting, or denying protection to, the
asserted right can be identified.” Jd. at 127-28 n.6; see
Planned Parenthood v. Casey, 505 U.S. 833, 847-48
(1992). But they must show that an asserted right to
substantive protection under the due process clause is
sufficiently rooted in historical practice to avoid the
risk of outright subjectivity. Granting that much does
not dictate “a single mode of historical analysis.”
Michael H., 491 U.S. at 132 (O’Connor, J., concurring
in part).
Respecting history as a necessary element of
substantive due process does not pre-commit the
Court to a mode of analysis that would have preclud-
ed the outcomes in Griswold or Loving, or even Law-
rence.
Certainly, Justice Harlan found adequate histori-
cal support for the right to be free of arbitrary imposi-
tions on the marital relationship. See Griswold, 381
U.S. at 500-01 (Harlan, J., concurring in the judg-
ment).
Loving did not disregard history. It vindicated
“(tlhe clear and central purpose of the Fourteenth
Amendment. ___ to eliminate all official state sources
of invidious racial discrimination in the States.”
Loving v. Virginia, 388 U.S. 1, 11 (1967). Whatever
historical evidence Virginia and other States offered
8
50 years ago as a pretext for “measures designed to
maintain White Supremacy,” id. at 11, could not
justify laws that flagrantly contradicted the constitu-
tional text. Loving did not signal the abandonment of
history as an element of substantive due process, as
later decisions establish.
Lawrence (to the extent it counts as a substantive
due process case) did not reject historical inquiry
either. It conceded that “history and tradition are the
starting point but not in all cases the ending point of
the substantive due process inquiry.” 539 U.S. at 572
(quoting Lewis, 523 U.S. at 857 (Kennedy, J., concur-
ring)). While focusing on “our laws and traditions in
the past half century,” id. at 571-72, the Court did not
recognize a right to intimate autonomy lacking in
historical support.
In short, this Court has consistently held that
recognizing a substantive due process right requires
an historical foundation. A sufficient nexus between
an asserted liberty interest and the actual traditions
and practices of American law constrains the exercise
of judicial discretion in an area where objective
guideposts are otherwise scarce. By “historical foun-
dation” we do not mean a search for evidence of
original understanding only. It suffices to view peti-
tioners’ due process claim from the perspective of
Justice Harlan’s living tradition of American law.
Turning to this case, the right-to-marry decisions
directly rely on the history and traditions surround-
ing marriage. Meyer recognized that, among the
9
rights “long recognized at common law,” was the right
“to marry, establish a home and bring up children.”
262 U.S. at 399. Succeeding decisions affirming the
right to marry relied on Meyer as critical precedent.
See Loving, 388 U.S. at 7; Zablocki v. Redhail, 434
U.S. 374, 384 (1978); see also Turner v. Safley, 482
U.S. 78, 95 (1987) (citing Loving and Zablocki).’
These and other decisions proclaim that “the Consti-
tution protects the sanctity of the family precisely
because the institution of the family is deeply rooted
in this Nation’s history and tradition.” Moore, 431
U.S. at 503 (footnote omitted and emphasis added);
see also Michael H., 491 U.S. at 122 n.2. (“This insist-
ence that the asserted liberty interest be rooted in
history and tradition is evident, as elsewhere, in our
cases according constitutional protection to certain
parental rights.”).
Amici argue that petitioners’ due process claim
depends on whether the right to marry is given “a
narrowed definition.” Tribe Br. at 7. In particular,
they insist that petitioners’ asserted liberty interest
should not be denied “simply because there is no
longstanding tradition protecting same-sex marriage.
There is undoubtedly a longstanding tradition
* Amici misconceive Zablocki and Turner. See Tribe Br. at 8.
Neither decision involved the wholesale redefinition of marriage.
Both turned, instead, on the requirement of narrow tailoring.
See Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508
U.S. 520, 578 (1993) (Blackmun, J., concurring) (reading
Zablocki as a case of underinclusiveness).
10
protecting marriage, and under this Court’s cases,
that suffices.” Jd. This line of argument boldly seeks
to revive the discredited theory of substantive due
process holding that “earlier legislative or judicial
recognition of the right or interest is not a sine qua
non.” Compassion in Dying v. Washington, 79 F.3d
790, 805 (9th Cir. 1995) (Reinhardt, J.), rev’d,
Glucksberg, 521 U.S. 702. But a history-free version
of substantive due process would contradict the
Court’s post-Lochner efforts to constrain its exercise.
Even if Glucksberg does not control, petitioners’
due process claim still requires some historical sup-
port. The Court should determine, with respect to
marriage, “what history teaches are the traditions
from which it developed as well as the traditions from
which it broke.” Poe, 367 U.S. at 542 (Harlan, J.,
dissenting). Our research concludes that (1) marriage
between a man and a woman is deeply rooted in
Anglo-American law; and (2) during the past half
century same-sex marriage has been generally reject-
ed. The asserted liberty to marry a person of the
same sex stands outside the living tradition of Ameri-
can law.
B. MARRIAGE BETWEEN A MAN AND A
WOMAN IS AMONG THE MOST DEEPLY-
ROOTED INSTITUTIONS IN ANGLO-
AMERICAN LAW.
In 1862 — during the same decade the Fourteenth
Amendment was adopted — the Indiana Supreme
11
Court asked: “What, then, constitutes the thing called
a marriage? .. It is the union of one man and one
woman.” That same conception of marriage fills the
pages of English and American history. No brief could
adequately capture the wealth of historical evidence
affirming the character and purposes of traditional
marriage. But as the following research illustrates,
traditional marriage is among the Nation’s most
firmly established institutions.
1. Marriage is expressed as the union of a man
and a woman in the earliest records of English law.
Anglo-Saxon law evinces the opposite-sex character of
marriage.’ Vacarius, a twelfth-century teacher of
Roman law in England, explained marriage as “the
mutual delivery (traditio) of man and woman each to
each. The man delivers himself as husband, the
woman delivers herself as wife.” This precept of
Roman law is a reminder that the Anglo-American
conception of marriage “inherited from ancient
Greece and Rome the idea that marriage is a union of
a single man and a single woman who unite for the
* Roche v. Washington, 19 Ind. 53, 57-59 (1862).
* See THEODORE F. T. PLUCKNETT, A CONCISE HISTORY OF THE
COMMON LAW 648 (5th ed. 2001).
* See Frederic William Maitland, Magistri Vacarii Summa
de Matrimonio, in 3 THE COLLECTED PAPERS OF FREDERIC
WILLIAM MAITLAND 93 (H.A.L. Fisher ed., 1911) (quoting
Vacarius).
12
purposes of mutual love and friendship and mutual
procreation and nurture of children.”
Maitland depicted the twelfth- and thirteenth-
century “essentials of a valid marriage” as “the con-
sent to be husband and wife and the sexual union.”
During that same period, the Magna Carta used
* Jounn Wrirre Jr, From SACRAMENT TO CONTRACT: MAR-
RIAGE, RELIGION, AND LAW IN THE WESTERN TRADITION 17 (2d ed.
2012); accord 2 Tue Dicest or JUSTINIAN 199, 23.2.1 (Alan
Watson ed., 1985) (“Marriage is the union of a man and a
woman, a partnership for the whole life involving divine as well!
as human law.”); St. AUGUSTINE, ADULTEROUS MARRIAGES, bk. II,
ch. 12, reprinted in THe FATHERS OF THE CHURCH: ST. AUGUSTINE
TREATISES ON MARRIAGE AND OTHER SUBJECTS 116-17 (Charles T.
Wilcox trans., 1995); THomas Aquinas, OF GOD AND His CREA.
TURES (Joseph Rickaby ed. & trans., 1905) (“Matrimony, then, as
consisting of the union of male and female, intending to beget
and educate offspring for the worship of God, is a Sacrament of
the Church... .”); Musonius Rufus, Fragment 13A, What is the
Chief End of Marriage?, in MUSONIUS RUFUS: THE ROMAN
SocraTes 89 (Cora E. Lutz, ed. & trans., 1947) (“The husband
and wife .. should come together for the purpose of making a
life in common and of procreating children, and furthermore of
regarding all things in common between them. .. .”); MICHAEL L.
SATLOW, JEWISH MARRIAGE IN ANTIQUITY 39 (2001) (for Hellenistic
Jewish writers and Palestinian rabbis, the reasons to marry are
“remarkably close to those articulated by the stoics: it is a man’s
duty to marry in order to create a household, an essential goal of
which is the reproduction of children”); see also CYNTHIA B.
PATTERSON, THE FAMILY IN GREEK HisToRY 16-17, 23-27 (1998)
(ancient Greek culture tolerated homosexual conduct while
restricting marriage between husband and wife).
’ Sm FREDERICK POLLOCK & FREDERIC WILLIAM MAITLAND, 2
Tue History or ENGLISH LAW BEFORE THE TIME OF EDWARD I
384 (Liberty Fund ed., 2010), http-/oll.libertyfund.org/titles/
2314.
13
gendered terms in delimiting legal rights associated
with marriage.” Bracton wrote that “[f]rom [the
jus gentium] comes the union of man and woman,
entered into by the mutual consent of both, which is
called marriage. .. From that same law there also
comes the procreation and rearing of children.”
Andrew Horne also stated that “a contract of mar-
riage is good by the consent of the wills of men and
wid
women.
Marriage remained largely unchanged by the
seventeenth century. Lord Coke’s Reports contain a
Latin reference translated as “the union of husband
and wife .. [is] by the law of nature.” John Ayliffe
noted that “[mJarriage is a lawful coupling and
joining together of Man and Woman in one individual
State or Society of Life.””
* MaGna Carta art. 7 (1215), reprinted in J.C. HOLT, MAGNA
Carta 453 (2d ed. 1992) (“After her husband’s death, a widow
shall have her marriage portion and her inheritance at once and
without any hindrance... .”).
* 2 BRACTON ON THE LAWS AND CUSTOMS OF ENGLAND 27
(George Woodbine ed., Samuel E. Thorne trans., 1968), available
at http-//bracton.law.harvard.edu/.
"” ANDREW HorRNE, THE MIRROUR OF JUSTICES, ch. 5, § 1, at
234 (W.H. of Gray’s Inn trans., 1768).
" Epwarp CoKE, THE REPORTS, reprinted in 1 THE SELECTED
WRITINGS AND SPEECHES OF SrR EDWARD COKE 198 & nn. 135-36
(Steve Sheppard ed., 2003) (editor’s translation).
* JOHN AYLIFFE, PARAGON JuRIS CANONICI ANGLICANI 359
(1726).
—_———
14
Blackstone’s Commentaries, so influential among
American lawyers at the Founding, conceived of
marriage in similar terms. Among “[t]he three great
relations in private life,” he placed “[t]hat of husband
and wife; which is founded in nature, but modified in
civil society: the one directing man to continue and
multiply his species, the other prescribing the man-
ner in which that natural impulse must be confined
and regulated.”” Blackstone further explained that
“the establishment of marriage in all civilized states
is built on this natural obligation of the father to
provide for his children; for that ascertains and
makes known the person who is bound to fulfill this
obligation.””
2. Colonial laws were no less uniform in their
conception of marriage as the relation of a man and a
woman. An early Rhode Island act spoke of a “con-
tract or agreement between a Man and a Woman to
owne each other as Man and Wife” creating a “lawfull
* 1 WILLIAM BLACKSTONE, COMMENTARIES *410.
“ Id. at *435 (citation omitted); accord JOHN FRASER
MACQUEEN, THE RIGHTS AND LIABILITIES OF HUSBAND AND WIFE 1-
2 (3d ed. 1885) (“The Contract of Marriage, by which man and
woman are conjoined in the strictest society of life till death or
divorce shall separate them, is the most ancient, the most
important, and the most interesting of the domestic relations.”).
15
marriage” before witnesses.” A Pennsylvania law
prescribes the solemnization of marriage “by taking
one another as husband and wife, before credible
witnesses.” New Jersey’s 1683 constitution referred
to marriage as “taking one another as husband and
wife.” Other legal measures regulating life in the
American colonies were premised on marriage as an
opposite-sex union.”
” Acts and Orders of 1647, Marriage, reprinted in COLONIAL
ORIGINS OF THE AMERICAN CONSTITUTION: A DOCUMENTARY HISTORY
178-79 (Donald S. Lutz ed., 1998), http:/(f-oll.s3.amazonaws.com/
titles/694/Lutz_0013_EBk_v6.0.pdf.
“ FRAME OF GOVERNMENT OF PENNSYLVANIA — 1682 art. 19,
reprinted in 3 THE FEDERAL AND STATE CONSTITUTIONS, COLONIAL
CHARTERS, AND OTHER ORGANIC LAWS OF THE UNITED STATES 1525
(2d ed. 1872).
" Toe FUNDAMENTAL CONSTITUTIONS FOR THE PROVINCE OF
East NEW JERSEY IN AMERICA, ANNO DOMINi 1683, art. 20,
reprinted in 5 THE FEDERAL AND STATE CONSTITUTIONS, COLONIAL
CHARTERS, AND OTHER ORGANIC LAWS OF THE UNITED STATES 2581
(1909).
* See, e.g., Marriages and Married Persons § 3, reprinted in
THE COLONIAL LAWS OF MASSACHUSETTS 101 (1890) (prohibiting
“young men” from seeking to “draw away the affections of young
Maidens, under pretence of purpose of Marriage, before their
Parents have given way and allowance in that respect”); An Act
to Prevent Incestuous Marriages, Laws of New Hampshire
(1759), reprinted in ACTS AND LAws OF His MAJESTY’S PROVINCE
OF NEw HAMPSHIRE, IN NEW ENGLAND 50-51 (1761) (directing
that “no man shall marry any woman within the degrees
hereafter nam’d in this act”); An Act for the Better Observing
the Lord’s Day Called Sunday, the 30th of January, the 29th of
May the 22nd of September; And Also, for the Suppressing
Prophaness, Immorality & Divers Other Vicious & Enormous
Crimes, ch. 7, § 15 (1715), reprinted in 23 THE STATE RECORDS OF
(Continued on following page)
16
3. States during the revolutionary era and
immediately after were no less committed to the
traditional institution of marriage.
Each of the State respondents has marriage laws
dating from the 1700s and 1800s. In Tennessee, a law
enacted in 1741 while under the government of North
Carolina, referred to a minister joining parties to a
marriage “together as man and wife.”” A Kentucky
law enacted in 1798, prohibited ministers from cele-
brating “the rites of matrimony between any persons,
or join{ing) them together as man and wife, without
lawful license.” While still a territory, Michigan
enacted a law authorizing “male persons of the age of
eighteen years, and female persons of the age of
fourteen years .. [to] be joined in marriage.™ An
Ohio statute of 1803 is virtually identical.”
NORTH CAROLINA, 1715-1716, at 5-6 (Walter Clark ed., 1904)
(framing a criminal offense in terms of a “man or woman” who
“live together as Man & Wife”).
” An Act Concerning Marriages, § 3 (1741), reprinted in 1
THE PUBLIC ACTS OF THE GENERAL ASSEMBLY OF NORTH CAROLINA
41 (Francois-Xavier Martin ed., 1804).
” An Act for Regulating the Solemnization of Marriages, ch.
41, § 1 (1798), reprinted in 2 THE STATUTE LAW OF KENTUCKY,
1798-1801, at 64-65 (1810).
* An Act Regulating Marriages, § 1 (1820), reprinted in 1
LAWS OF THE TERRITORY OF MICHIGAN 646, 646 (1871).
= An Act Regulating Marriages, ch. 6, § 1 (1803), reprinted
in 1 THE STATUTES OF OHIO AND OF NORTHWESTERN TERRITORY 354
(Salmon P. Chase ed., 1833).
17
When Virginia experienced a shortage of certified
clergy, the Commonwealth adopted a statute declar-
ing “good and valid in law” all marriages made “open-
ly and solemnly” where the relationships “have been
consummated by the parties cohabiting together as
husband and wife.”” North Carolina and Vermont
marriage solemnization laws from that period simi-
larly referred to marriage as “joinling] them together
as man and wife”™ and “join[ing] any man or woman
together in marriage.””
New Hampshire law dealt with the character of
marriage obliquely. It prohibited “any man or woman”
within certain degrees of consanguinity from “inter-
marryling])” and indicated that “[a] married woman
shall have settlement of her husband.””
* An Act to Authorize and Confirm Marriages in Certain
Cases, ch. 35, art. 3 (1783), reprinted in 11 THE STATUTES AT
LARGE 282 (William Waller Hening ed., 1823).
* An Act Concerning Marriages, ch. 23, § 1 (1738-1741),
reprinted in 1 LAWS OF THE STATE OF NORTH CAROLINA 129 (Hen.
Potter et al. eds., 1821).
* An Act Regulating of Marriages (1779), reprinted in
VERMONT STATE PAPERS 292 (William Slade ed., 1823).
* An Act to Prevent Incestuous Marriages and to Regulate
Divorces § 2, reprinted in THE LAWS OF THE STATE OF NEW
HAMPSHIRE 336 (1815).
* An Act to Ascertain the Ways and Means by which
Persons May Gain a Settlement in Any Town or District Within
this State, So as to Entitle Them to Support Therein, If They
Shall Be Poor and Unable to Support Themselves, § 1 (1796),
reprinted in THE LAWS OF THE STATE OF NEW HAMPSHIRE 336
(1815).
—_——————e
18
The first published legal treatise in the United
States described marriage — the “connexion between
husband and wife” — as “the most important, and
endearing relation, that subsists between individuals
of the human race.”” This treatise explained that
“[t]his connexion between the sexes, has been main-
tained in all ages, and in all countries; tho the rights
and duties of it have been various, as well as the
modes and ceremonies, by which it is contracted.””
4. Nineteenth century authorities, before and
after adoption of the Fourteenth Amendment, reaf-
firmed prior understandings concerning marriage and
its key purposes.”
In 1805, a Massachusetts court described mar-
riage as “an engagement, by which a single man and
a single woman, of sufficient discretion, take each
other for husband and wife.” The court further
explained that the purpose of marriage is to “regu-
late ... the intercourse between the sexes; and to
* ZEPHANIAH Swirt, 1 A SYSTEM OF THE LAWS OF
CONNECTICUT 183 (1795).
* Id.
” See generaily Hendrik Hartog, Marital Exits and Marital
Expectations in Nineteenth Century America, 80 GEO. L.J. 95, 97
(1991) (For “the lawmakers and the theologians who constructed
the nineteenth century marriage ceremony .. marriage was
created by the contract of a woman and a man.”).
“ Inhabitants of Town of Milford v. Inhabitants of Town of
Worcester, 7 Mass. 48, 52 (1810).
19
multiply, preserve, and improve the species.”” A
Pennsylvania court explained that “the paramount
purposes of the marriage — the procreation and
protection of legitimate children, the institution of
families, and the creation of natural relations among
mankind; from which proceed all the civilization,
virtue, and happiness to be found in the world.””
This understanding of marriage appears in
decisions issued near the Civil War. An 1860 Georgia
decision described marriage “‘a civil status, existing
in one man and one woman, legally united for life for
those civil and social purposes, which are based in the
distinction of sex.’”“* An 1861 Ohio decision ruled that
“‘(mJarriage, in its origin, is a contract of natural law;
it may exist between two individuals of different
sexes, although no third person existed in the
world.’””
California laws of this period “did not expressly
state that marriage could be entered into only by a
man and a woman, [but] the statutes clearly were
intended to have that meaning and were so under-
stood.” The same was true of laws in Florida, Iowa,
and Kansas.
- os
* Matchin v. Matchin, 6 Pa. 332, 337 (1847).
“ Askew v. Dupree, 30 Ga. 173, 176-77 (1860) (quoting JoEL
PRENTISS BisHoP, COMMENTARIES ON THE LAW OF MARRIAGE AND
Divorce § 29 (1st ed. 1852)).
* Carmichael v. State, 12 Ohio St. 553, 555-56 (1861).
20
Following the Civil War, former slave States took
steps to accord legal recognition to the family re-
lationships of African-Americans. Alabama enacted a
law declaring “to be man and wife” freed slaves “now
living together recognizing each other as man and
wife.”” A Texas constitutional provision adopted in
1868 speaks of persons who “lived together as hus-
band and wife, and both of whom, by the law of
bondage were precluded from the rites of matrimony,
and continued to live together until the death of one
of the parties, shall be considered as having been
legally married.” Mississippi's 1868 Constitution
similarly referred to persons “cohabitating as hus-
band and wife” as being held “for all purposes in law,
as married.”™
Judicial opinions articulated the link between
marriage and procreation. An 1862 Massachusetts
case held that “one of the leading and most important
objects of the institution of marriage under our laws
is the procreation of children, who shall with certain-
ty be known by their parents as the pure offspring of
their union.”” Other courts were no less forthright in
* See Woods v. Moten, 30 So. 324, 325 (Ala. 1901).
* Tex. Const. art. 12 § 27 (1868), reprinted in 3 THE
FEDERAL AND STATE CONSTITUTIONS, COLONIAL CHARTERS, AND
OTHER ORGANIC LAWS OF THE UNITED STATES 1819 (2d ed. 1872).
* Miss. Const. art. 12 § 22 (1868), reprinted in 3 THE
FEDERAL AND STATE CONSTITUTIONS, COLONIAL CHARTERS, AND
OTHER ORGANIC LAWS OF THE UNITED STATES 1094 (2d ed. 1872).
” Reynolds v. Reynolds, 85 Mass. 605, 610 (1862). See also
Ledoux v. Her Husband, 10 La. Ann. 663, 664-65 (1855).
21
identifying procreation as a central purpose of mar-
riage.“
Adoption of the Fourteenth Amendment did not
disturb the universal understanding of marriage as
the union of a man and a woman for the protection of
their children. Any doubt on that score ought to be
resolved by the federal government’s campaign to
extirpate the practice of polygamy in U.S. territo-
ries." Harsh enforcement of that federal policy was
determined by this Court to be consistent with the
national government's authority: “Upon [marriage]
society may be said to be built, and out of its fruits
spring social relations and social obligations and
duties, with which government is necessarily re-
quired to deal.””
” Head v. Head, 2 Ga. 191, 205 (1847); Wray v. Wray, 19 Ala.
522, 525 (1851); Hamaker v. Hamaker, 18 Ill. 137, 141 (1856);
Baker v. Baker, 13 Cal. 87, 103 (1859); Sissung v. Sissung, 31
N.W. 770, 772 (Mich. 1887).
“ Congress passed five statutes to repress the development
of polygamy as a recognized marriage system in the United
States: the Morrill Anti-Bigamy Act of 1862, 12 Stat. 501; the
Poland Act of 1874, 18 Stat. 253; the Edmunds Anti-Polygamy
Act of 1882, 22 Stat. 30; the Edmunds-Tucker Act of 1887, 24
Stat. 635; and the Utah Enabling Act of 1894, 28 Stat. 107. The
Morrill Anti-Bigamy Act, approved by Congress in 1862 and
signed by President Abraham Lincoln, criminalized attempts to
engage in polygamy in federal territories. These measures
sought to establish heterosexual monogamy as the single form of
marriage legally permitted in the territories.
“ Reynolds v. United States, 98 U.S. 145, 165 (1879).
22
Drawing on themes expressed in Reynolds, this
Court extolled traditional marriage. It portrayed
marriage as “the union for life of one man and one
woman in the holy estate of matrimony; the sure
foundation of all that is stable and noble in our
civilization; the best guaranty of that reverent moral-
ity which is the source of all beneficent progress in
social and political improvement.™ In another deci-
sion, this Court again declared, “A husband without a
wife, or a wife without a husband, is unknown to the
law.”
Reconstruction era decisions confirmed the same
conception of marriage and its essential purposes.
Texas law defined marriage as a “mutual agreement
of a man and woman to live together in the relation
and under the duties of husband and wife.” Missouri
law understood marriage in similar terms, as “the
civil status of one man and one woman .. united by
contract and mutual consent for life, for the discharge
of the duties legally incumbent on those whose
association is founded on the distinction of sex.” The
North Carolina Supreme Court added that the “legit-
imate[] objects sought to be attained by. agree-
ments to marry” include “the gratification of the
“ Murphy v. Ramsey, 114 U.S. 15, 45 (1885).
“ Atherton v. Atherton, 181 U.S. 155, 162 (1901).
“ Lewis v. Ames, 44 Tex. 319, 341-42 (1875).
“ State v. Bittick, 15 S.W. 325, 327 (Mo. 1891).
23
natural passions rendered lawful by the union of the
parties; and the procreation of children.””’
Nineteenth-century treatise writers warmed to
these themes. Chancellor Kent wrote that “[t]he
primary and most important of the domestic rela-
tions, is that of husband and wife.”“ Calling it “one of
the chief foundations of social order,” he credited
marriage with “a great share of the blessings which
flow from refinement of manners, the education of
children, the sense of justice, and the cultivation of
the liberal arts."“ Justice Story similarly explained
that marriage “may exist between two individuals of
different sexes” and that it “[uJpon it the sound
morals, the domestic affections, and the delicate
relations and duties of parents and of children essen-
tially depend.”” Joel Prentiss Bishop, nineteenth-
century America’s leading expert on family law, he
described marriage as “a civil status, existing in one
man and one woman legally united for life for those
“ Allen v. Baker, 86 N.C. 91, 97 (1882).
* 2 JAMES KENT, COMMENTARIES ON AMERICAN LAw 75 (2d ed.
1832); accord ZEPHANIAH SwiFT, 1 A SYSTEM OF THE LAWS OF
CONNECTICUT 183 (1795).
* 2 KENT, COMMENTARIES 75.
*” Story, COMMENTARIES ON THE CONFLICTS OF LAW § 200
(4th ed. 1852).
24
civil and social purposes which are based in the
distinction of sex.””
Interestingly, Bishop rejected same-sex marriage
as void: “Marriage between two persons of one sex
could have no validity, as none of the ends of matri-
mony could be accomplished thereby. It has always,
therefore, been deemed requisite to the entire validity
of every marriage . . that the parties should be of
different sex.”” Agreeing with Bishop, another com-
mentator said that “[a] wedding ceremony, civil or
religious, uniting persons of the same sex, is of course
void ab initio, and no legal proceedings are necessary
to annul it.””
7. State laws from the first half of the twentieth
century rested on the universal belief that marriage
brings together a man and a woman for the purpose
of procreation.
This Court’s holding that “[mJarriage and procre-
ation are fundamental to the very existence and
survival of the race,”“ mirrored State court decisions
* Joe. PrENTiss Bishop, COMMENTARIES ON THE LAW OF
MARRIAGE AND DIVORCE § 29 (1st ed. 1852); accord JOHN BOUVIER,
INSTITUTES OF AMERICAN LAW §§ 235-36 (Daniel A. Gleason ed.,
1882).
* BISHOP, COMMENTARIES ON THE LAW OF MARRIAGE AND
Drvorce_, at § 225.
* A. PARLETT LLOYD, A TREATISE ON THE LAW OF Divorce 18
(1887).
* Skinner v. State of Okl. ex rel. Williamson, 316 U.S. 535,
541 (1942).
25
of that day. The Washington Supreme Court held that
“[ojne of the most important functions of wedlock is
the procreation of children. Offspring are the natural
result, and ofttimes the chief purpose, of marriage.””
A New Jersey court made the same point.” A 1952
decision by the California Supreme Court explored
this connection between marriage and procreation:
The family is the basic unit of our society, the
center of the personal affections that ennoble
and enrich human life. It channels biological
drives that might otherwise become socially
destructive; it ensures the care and educa-
tion of children in a stable environment; it
establishes continuity from one generation to
another; it nurtures and develops the indi-
vidual initiative that distinguishes a free
people. Since the family is the core of our so-
ciety, the law seeks to foster and preserve
marriage.”
* Grover v. Zook, 87 P. 638, 639-40 (Wash. 1906).
* Davis v. Davis, 106 A. 644, 645 (N.J. Ch. 1919) (“Procrea-
tion, if not the sole, is at least an important, reason for the
existence of the marriage relation.”).
” De Burgh v. De Burgh, 250 P.2d 598, 601 (Cal. 1952);
accord O’Connor v. O’Connor, 253 N.E.2d 250, 258 (Ind. 1969)
(“Marriage is the basic unit of our society. . . . [I]t encourages the
exercise of intimate affections on a most personal basis; children
are theoretically provided with a stable enviromment... .”).
26
Numerous other courts linked marriage with bearing
and rearing children.”
Twentieth-century treatises reiterated the same
understanding of marriage and its basic purposes.
Schouler explained that “(t]he word ‘marriage’ signi-
fies.. that act by which a man and woman unite for
life, with the intent to discharge towards society and
one another those duties which result from the rela-
tion of husband and wife.”” Keezer agreed: “A legal
marriage is a union of a man and a woman in the
lawful relation of husband and wife, whereby they
can cohabit and rear legitimate children.”
Like Bishop, these early twentieth century
authorities on domestic relations denied the validity
of same-sex marriage. Schouler explained that “in
order to constitute a perfect matrimonial union, the
“ See, e.g., In re Rash’s Estate, 53 P. 312, 313 (Mont. 1898);
Mahnken v. Mahnken, 82 N.W. 870, 872 (N.D. 1900); Wills v.
Wills, 82 S.E. 1092, 1093-94 (1914); In re Oldfield’s Estate, 156
N.W. 977, 982-83 (lowa 1916); Mirizio v. Mirizio, 150 N.E. 605,
607 (N.Y. Ct. App. 1926); Kennedy v. Kennedy, 134 So. 201, 203-
04 (Fla. 1931); In re St. Clairs Estate, 28 P.2d 894, 897 (Wyo.
1934); A. v. A., 43 A.2d 251, 252 (Del. Super. 1945); Howay v.
Howay, 264 P.2d 691, 695-97 (Idaho 1953); Zoglio v. Zoglio, 157
A.2d 627, 628 (D.C. 1960); Heup v. Heup, 72 N.W.2d 334, 336
(Wis. 1969).
* JAMES SCHOULER, LAW OF THE DOMESTIC RELATIONS § 11
(1905); accord JosEPpH R. LONG, TREATISE ON THE LAW OF DOMES.
TIC RELATIONS § 3 (1905) (“Marriage is the civil status of a man
and a woman legally united as husband and wife.”).
* FRANK KEEZER, THE LAW OF MARRIAGE AND Divorce § 8
(1906).
27
contracting parties should be two persons of the
opposite sexes.” Keezer, in turn, pointed out that
“[t]here can be no marriage between any two persons
of the same sex, and no kind of an attempted solem-
nization of such a marriage can be legal or valid.”
This historical narrative shows that marriage
conceived as the exclusive relationship of a man and
a woman is among the most deeply rooted institu-
tions in our legal tradition. In those few instances
when same-sex marriage was addressed family law
experts like Bishop dismissed it as void. From early
English law until the mid-twentieth century, the
historical record affirms the traditional understand-
ing of marriage while mentioning same-sex marriage
rarely. More recent history demonstrates that the
demands for same-sex marriage have been repeatedly
and insistently rejected.
C. THE SAME 50-YEAR PERSPECTIVE THAT
INFLUENCED LAWRENCE SHOWS THAT
SAME-SEX MARRIAGE HAS BEEN WIDE-
LY AND SPECIFICALLY REJECTED BY
THE AMERICAN PEOPLE.
Lawrence v. Texas held that “our laws and tradi-
tions in the past half century are of most relevance”
in explaining why the Fourteenth Amendment’s
protection of liberty encompasses a right to intimate
* SCHOULER, LAW OF THE DoMESTiC RELATIONS at § 18.
“ KEEZER, THE LAW OF MARRIAGE AND Drvorce at § 30.
28
autonomy. 539 U.S. at 571-72. The same historical
time frame that justified the voiding of State anti-
sodomy laws supports the validity of State marriage
laws. The history of the past half century shows that
the Nation has affirmatively rejected numerous
efforts to redefine marriage. Traditional marriage has
been generally reaffirmed even while ancient pro-
scriptions against sodomy have dropped away and
gay people have obtained new-found legal protection,
respect, and dignity.
In Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971),
two men petitioned the Minnesota Supreme Court, to
compel the State to grant them a marriage license.
The court denied their due process and equal protec-
tion claims, emphasizing the purpose of marriage as
“the procreation and rearing of children.” Jd. On
appeal, the Court dismissed the case “for want of a
substantial federal question.” Baker v. Nelson, 409
U.S. 810 (1972). No Member of the Court entered a
dissent.
Shortly after Baker, similar challenges in Ken-
tucky and Washington were likewise dismissed. Jones
v. Hallahan, 501 S.W.2d 588, 590 (Ky. 1973); Singer v.
Hara, 522 P.2d 1187 (Wash. App. 1974).
Also in the 1970s, same-sex marriage figured
among the reasons why the federal Equal Rights
Amendment failed to gain adoption. Opponents
alleged that ERA would “sanction homosexual mar-
riage and child-rearing.” Davip E. Kyvic, Exp.icir &
AUTHENTIC ACTS: AMENDING THE U.S. CONSTITUTION
29
1776-1995, at 411 (1996). Proponents took that
charge seriously. The Amendment’s chief Senate
sponsor declared that the ERA “would not prohibit a
State from saying that the institution of marriage
would be prohibited to men partners .. [or] from two
women partners.™ Before joining the bench, Justice
Ginsburg wrote that although, “[s]ome legislators .
have explained ‘nay’ votes on the ground that the
ERA would authorize homosexual marriage,” she
insisted that “[t]he congressional history is explicit
that the ERA would do no such thing.”™
National debate over same-sex marriage was
rekindled in 1993, when the Hawaii Supreme Court
ruled that State law invalidly “denie[d] same-sex
couples access to the marital status and its concomi-
tant rights and benefits.” Baehr v. Lewin, 852 P.2d 44,
67 (Haw. 1993). The court remanded for a determina-
tion whether Hawaii marriage laws satisfied strict
scrutiny. Jd. at 68. Before that remand could be
carried out, the State adopted a constitutional
amendment allocating authority over the definition of
marriage to the legislature, which reaffirmed the
traditional definition of marriage. Haw. Const., art. I
§ 4. Baehr thus became moot. Baehr v. Miike, No.
“ Note, The Legality of Homosexual Marriage, 82 YALE L.J.
573, 584 & n. 50 (1973) (quoting 118 Cong. Rec. § 4389 (daily ed.
Mar. 21, 1972)).
“ Ruth Bader Ginsburg, Ratification of the Equal Rights
Amendment: A Question of Time, 57 Tex. L. Rev. 919, 937 (1979).
30
20371, 1999 Haw. LEXIS 391 at *2 (Dec. 9, 1999)
(unpublished).
Hawaii's experience made the prospect of same-
sex marriage realistic. Many States responded by
amending their laws to codify the conventional defini-
tion of marriage. As the decision below held, these
laws cannot be fairly characterized as rooted in
animus or bigotry. See Pet. App. 42a-43a. They placed
no new burdens or conditions on gay people. They
reflected, instead, a felt need to reaffirm the essential
nature of marriage as a man-woman institution and
resolve ambiguities in their State laws to shore them
up against potential legal challenge. Each of the
respondent States participated in this nationwide
controversy over same-sex marriage.
In Michigan, “state law has defined marriage as
a relationship between a man and a woman since its
territorial days.” 14-556 Pet. App. 16a.° But Hawaii’s
experience prompted Michigan to amend its law in
1996. That law was intended to clarify the historic
understanding of marriage and its purposes: “Mar-
riage is inherently a unique relationship between a
man and a woman. As a matter of public policy, this
state has a special interest in encouraging, support-
ing, and protecting that unique relationship in order
* See An Act Regulating Marriages § 1 (1820), supra note
32 (“[MJale persons of the age of eighteen years, and female
persons of the age of fourteen years, not nearer of kin than first
cousins, and not having a husband or wife living, may be joined
in marriage.”).
ee
31
to promote, among other goals, the stability and
welfare of society and its children.” Mich. Comp.
Laws § 551.1; see id. § 551.2.
Also in 1996, Tennessee passed a statute affirm-
ing” that marriage was reserved for a man and a
woman. State public policy was declared to be that
“the historical institution and legal contract solemniz-
ing the relationship of one (1) man and one (1) woman
shall be the only legally recognized marital contract
in this state in order to provide the unique and exclu-
sive rights and privileges to marriage.” Tenn. Code
§ 36-3-113(a).
Kentucky responded similarly in 1998. It adopted
statutes defining marriage as one man and one
woman and articulating objectives much like Michi-
gan’s. See Ky. Rev. Stat. §§ 402.005, 402.020. 402.045.
By reaffirming traditional marriage,” Kentucky
“ See An Act Concerning Marriages § 3 (1741), supra note
30 (“[N}o Minister or Ministers, Justice or Justices of the peace,
within any of the parishes of this government, shall] celebrate
the rites of matrimony between any persons, or join them
together as man and wife, without license first had and obtained
for that purpose... .”).
” See An Act for Regulating the Solemnization of Marriag-
es, ch. 41, § 1 (1798), supra note 20 (“[N]o minister shall cele-
brate the rites of matrimony between any persons, or join them
together as man and wife, without lawful license... .”); see also
Jones, 501 S.W.2d at 589 (Early on, Kentucky defined marriage
as “the union of a man and a woman.”).
32
evidently intended to remove any doubt resulting
from judicial developments in Hawaii.”
In 2003, Lawrence held that the Fourteenth
Amendment protects the liberty of “adult persons in
deciding how to conduct their private lives in matters
pertaining to sex.” 539 U.S. at 572. But the Court
reassured the country that its holding did “not in-
volve whether the government must give formal
recognition to any relationship that homosexual
persons seek to enter,” id. at 578 — much less same-
sex marriage. This distinction between homosexual
conduct and marriage mirrored the approach taken
by the authors of the Model Penal Code.”
Within months of the decision in Lawrence, the
Massachusetts Supreme Judicial Court held that
denying marriage to same-sex couples violated the
State constitution. See Goodridge v. Dep't of Pub.
Health, 798 N.E.2d 941 (Mass. 2003). The Common-
wealth issued licenses for its first same-sex marriages
the following year. Goodridge is the milestone. Before
it no State authorized the marriage of two men or
two women. Even abroad, no foreign nation allowed
“ See KENTUCKY BAR ASSOCIATION, Hot Topics In DISSOLU-
TION OF MARRIAGE AcCTs — THE STATUS OF SAME SEX MARRIAGE AND
Divorce (2014) (stating that Kentucky was one of 27 States that
passed legislation prohibiting same-sex marriage in reaction to
the Hawaii case).
” 2 MODEL PENAL CODE AND COMMENTARIES § 213.2, Com-
ment (1980) (“[L]egal marriage can exist only between man and
woman.”).
33
same-sex marriage until the Netherlands did in 2000.
See Windsor, 133 S. Ct. at 2715 (Alito, J., dissenting).
After Massachusetts took that initial step, other
State courts and legislatures soon followed.”
The Hawaii and Massachusetts decisions also
raised the widespread concern that “the courts would
seize control over an issue that people of good faith
care deeply about.” 14-556 Pet. App. 42a. Events in
Massachusetts drove other States to enact laws
intended to prevent their own State courts from
redefining marriage.
Michigan voters approved a_ constitutional
amendment in 2004. Its stated purpose was “[t]o
secure and preserve the benefits of marriage for our
society and for future generations of children.” MICH.
ConstT. art. I § 25. Official voter guidance indicated
that the amendment’s proponents believed that
“amending the Constitution is necessary to avert a
judicial interpretation of law allowing same-sex
marriage, as occurred last year in Massachusetts.””
Ohio responded as well. In 2004, the legislature
enacted a statute proclaiming that “[a] marriage may
only be entered into by one man and one woman.”
Ohio Rev. Code § 3101.01(A\(1). That same year the
” Kerrigan v. Dept of Pub. Health, 957 A.2d 407 (Conn.
2008); Varnum v. Brien, 763 N.W.2d 862 (lowa 2009).
" SENATE FISCAL AGENCY, NOVEMBER 2004 BALLOT PROPOSAL
04-2, available at http://www.senate.michigan.gov/sfa/publications
%5Cballotprops*®5C proposal04-2. pdf.
34
people of Ohio adopted a marriage amendment.
Voters were told that approving the amendment was
necessary “to preserve in Ohio law the universal,
historic institution of marriage as the union of one
man and one woman” and to “prohibit[] judges in
Ohio from anti-democratic efforts to redefine mar-
riag e.””
2004 also marked the year that Kentucky voters
approved a State constitutional amendment defining
marriage as being between a man and a woman. See
Ky. Const. § 233A. The official voter guide cited
Massachusetts too. “Since the Massachusetts ruling,
a national debate has emerged regarding marriage
and whether marriage should be defined — in state
constitutions and the U.S. Constitution even if it is
defined in statute — as a union between one man and
one woman.” The amendment’s co-sponsor, State
senator Gary Tapp, declared that “this pro-marriage
constitutional amendment will solidify existing law so
that even an activist judge cannot question the defi-
nition of marriage according to Kentucky law.””
* THe Onto BaLLot BoarD, Ono Issues REPORT: STATE
ISSUE BALLOT INFORMATION FOR THE NOVEMBER 2, 2004 GENERAL
ELECTION, at 4, http://www.sos.state.oh.us/sos/upload/elections/
2004/OIR2004. pdf.
* KENTUCKY LEGISLATIVE RESEARCH COUNCIL, PROPOSED
MARRIAGE AMENDMENT, 2004, available at http://rc.ky.gov/Ircpubs/
2004_const_amendment_1.pdf.
* KENTUCKY BAR ASSOCIATION, supra note 99, at 15 (quoting
S. Debate, 108th Cong., 2nd Sess. (2004)).
35
Tennessee’s marriage amendment was passed in
2006. See TENN. CONST. art. XI § 18. While campaign-
ing for its passage, Senate sponsor David Fowler said
that it was needed to “removi(e] the definition of
marriage from the reach of activist judges by protect-
ing it in the safety of our state Constitution.””
In 2008, California rejected same-sex marriage in
a popular initiative known as Proposition 8. Chal-
lenged as unconstitutional, that measure eventually
wound its way to this Court in Hollingsworth, 133
S. Ct. at 2652. Although the validity of Proposition 8
was squarely presented, the Court concluded that it
could not reach that question because the official
proponents lacked standing. See id. at 2668.
Since 1998, every State but New Mexico and
Rhode Island directly considered whether to redefine
marriage. As of 2013, when Hollingsworth was
decided, 39 States had expressly rejected same-sex
marriage, with 30 embodying their opposition in
constitutional amendments adopted in statewide
elections.”
* Fowler Group to Have Bus Tour Promoting Marriage
Amendment, THE CHATTANOOGAN, Oct. 27, 2006, available ai
http://www.chattanooganoogan.com/2006/10/27/95482/F owler-Group-
To-Have-Bus-Tour-Promoting.aspx.
** States reaffirming traditional marriage include Alabama,
Alaska, Arizona, Arkansas, California, Colorado, Delaware,
Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Kansas,
Kentucky, Louisiana, Michigan, Minnesota, Mississippi, Mis-
souri, Montana, Nebraska, New Jersey, Nevada, North Carolina,
(Continued on following page)
36
These amendments, understood in their histori-
cal context, were not the fitful product of a “campaign
of fear and misrepresentation.” 14-556 Br. Pets. at 6.
Voters did nothing untoward by “codif[ying] a long-
existing widely held social norm already reflected in
state law.” Pet. App. 42a. State laws challenged here
reaffirm the same husband-wife conception of mar-
riage recognized in this Court’s decisions as a funda-
mental right. Those laws are fully consistent with the
Due Process Clause, whose central aim is “to prevent
future generations from lightly casting aside im-
portant traditional values.” Michael H., 491 U.S. at
122 (footnote omitted).
But a sea change has brought same-sex marriage
to many States over their objections. By some esti-
mates, court decisions issued since 2013 have forced
21 States to accept same-sex marriage. But these
lower court decisions do not evince a shift in the
living tradition of American law. A fair assessment of
traditions that the American people have accepted or
rejected must discount those instances where the
people themselves had no part in abandoning tradi-
tional marriage.
North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, South
Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West
Virginia, Wisconsin, and Wyoming. See Brief for National Ass’n
of Evangelicals et al. as Amici Curiae Supporting Petitioners at
la-13a, Hollingsworth v. Perry, No. 12-144 (containing a verba-
tim transcription of State provisions defining marriage in
traditional opposite-sex terms).
37
History teaches that marriage between a man
and a woman is one of the traditions from which the
country has developed. It also teaches that marriage
so understood has not been one of those “traditions
from which [the country] broke.” Poe, 367 U.S. at 542
(Harlan, J., dissenting). To the contrary, same-sex
marriage is not merely a new phenomenon. Petition-
ers assert a liberty interest that the country as a
whole has rejected.
There is no historical foundation for a liberty
interest in marrying a person of the same sex. It
follows that the Fourteenth Amendment guarantee of
“due process of law” does not include such a right.
—_ «
CONCLUSION
For each of the foregoing reasons, the judgment
of the court of appeals should be affirmed.
Respectfully submitted,
HERBERT G. GREY
4800 SW Griffith Drive, Suite 320
Beaverton, OR 97005-8716
503-641-4908
herb@greylaw.org
Counsel for Amici Curiae
April 3, 2015
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.