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

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Supreme Court, US.

FILED

MAR 6 - 2015

Nos. 14-556, 14-562, 14-571, 14-57

Bn the Supreme Court of the Gnited

JAMES OBERGEFELL, et al., Petitioners,

RICHARD HODGEs, Suen, Ox10 DEPARTMENT

oF HEALTH, et al., Respondents.

VALERIA TANCO, et al., Petitioners,

Brit Has_aM, GOVERNOR OF Suenenn, et al., Respondents.

Apri. DeBoer, et al., Petitioners,

Rick SNYDER, GOVERNOR OF siediin et al., Respondents.

Grecory BouRKE, et cl., Petitioners,

STEVE BESHEAR, GOVERNOR 17 ene et al., Respondents.

On Writs of Certiorari to the United States

Court of Appeals for the Sixth Circuit

Brief of Massachusetts, California, Connecticut, Delaware,

Washington as Amici Curiae in Support of Petitioners

Maura HEALEY

Attorney General

JONATHAN B. Mit_ER*

GeNEVIEVE C. NADEAU

AMANDA R. MANGASER

Assistant Attorneys General

COMMONWEALTH OF MASSACHUSETTS

Office of the Attorney General

One Ashburton Place

Boston, MA 02108

(617)727-2200

Jonathan. Miller@state.ma.us

(Counsel continued on inside cover) “Counsel of Record

Becker Gallagher - Cincinnati, OH - Washington, D.C.- 800.890.5001!

Kamala D. Harris

Attorney Genera! of California

1300 I Street, Suite 125

P.O. Box 944255

Sacramento, California 94244

George Jepsen

Attorney General of Connecticut

55 Elm Street

Hartford, Connecticut 06106

Matthew P. Denn

Attorney General of Delaware

Carvel State Building, 6th Floor

820 North French Street

Wilmington, Delaware 19801

Kari A. Racine

Attorney General for the

District of Columbia

One Judiciary Square

441 4th Street, N.W.

Washington, D.C. 20001

Lisa Madigan

Attorney General of Illinois

100 W. Randolph Street

12th Floor

Chicago, Illinois 60601

Tom Miller

Attorney General of lowa

1305 E. Walnut Street

Des Moines, Iowa 50319

Janet T. Mills

Attorney General of Maine

Six State House Station

Augusta, Maine 04333

Brian E. Frosh

Attorney General of Maryland

200 Saint Paul Place

Baltimore, Maryland 21202

Joseph A. Foster

Attorney General of

New Hampshire

33 Capitol Street

Concord, New Hampshire 03301

Hector H. Balderas

Attorney General of

New Mexico

P.O. Drawer 1508

Santa Fe, New Mexico 87504

Eric T. Schneiderman

Attorney General of New York

120 Broadway, 25th Floor

New York, New York 10271

Ellen F. Rosenblum

Attorney General of Oregon

1162 Court St. N.E.

Salem, Oregon 97301

Kathleen G. Kane

Attorney General of

Pennsylvania

16th Floor, Strawberry Square

Harrisburg, Pennsylvania 17120

Peter F. Kilmartin

Attorney General of

Rhode Island

150 S. Main Street

Providence, Rhode Island 02903

William H. Sorrell

Attorney General of Vermont

109 State Street

Montpelier, Vermont 05609

Robert W. Ferguson

Attorney General of Washington

1125 Washington Street SE

P.O. Box 40100

Olympia, Washington 98504

TABLE OF CONTENTS

TABLE OF AUTHORITIES .................. ill

INTERESTS OF AMICI CURIAE .............. 1

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

a Ae ea ek aa a oO 'ahie aok We be ee a

I. STATE INTERESTS IN MARRIAGE ARE

ADVANCED BY INCLUDING SAME-SEX

a PPT eee TTT Ce eee 4

II. NO LEGITIMATE STATE INTEREST

JUSTIFIES EXCLUDING SAME-SEX

COUPLES FROM MARRIAGE ........... 7

A. Excluding Same-Sex Couples from

Marriage Harms Their Children ....... 8

B. “Responsible Procreation” Does Not

Justify Restricting Marriage to Different-

EE sat’ na ada ne ne eee 13

C. Federalism Considerations Do Not Justify

Discrimination .................ee.. 15

D. Tradition Alone Cannot Save

Discriminatory Laws ................ 18

lil. EQUALITY DOES NOT THREATEN THE

INSTITUTION OE MARRIAGE ......... 19

A. Allowing Same-Sex Couples to Marry

Does Not Fundamentally Alter the

Institution of Marriage .............. 20

B. Allowing Same-Sex Couples to Marry

Does Not Threaten States’ Ability to

Regulate Marriage ................. 24

IV. NON-RECOGNITION INFLICTS UNIQUE

INJURIES ON MARRIED SAME-SEX

COUPLES NATIONWIDE .............. 27

A. Singling Out Same-Sex Couples for Non-

Recognition Stigmatizes Them and Their

ER Sa ee Pe oes ee ee 28

B. The Practical Consequences of Non-

Recognition Are Substantial .......... 32

DE cCectvntehickeseusbeaenae oes 38

lll

TABLE OF AUTHORITIES

CASES

Baker v. State,

744 A.2d 864 (Vt. 1999) .................... 5

Bishop v. United States ex rel. Holder,

962 F. Supp. 2d 1252 (N.D. Okla. 2014) ...... 21

Board of Trustees of University of Alabama ov.

Garrett,

aes De 14

Boddie v. Connecticut,

a rr 21

Christiansen v. Christiansen,

253 P.3d 153 (Wyo. 2011) ...........2000.. 36

City of Cleburne v. Cleburne Living Center,

Ds scee ss bane beens a 40 passim

DeBoer v. Snyder,

772 F.3d 388 (6th Cir. 2014) ............... 16

DeBoer v. Snyder,

973 F. Supp. 2d (E.D. Mich. 2014) ........ 7,11

DiStefano v. DiStefano,

401 N.Y.S.2d 636 (N.Y. App. Div. 1978) ...... 10

Eisenstadt v. Baird,

ee ED cnc cconseedsecveed aes 13

Goodridge v. Department of Public Health,

798 N.E.2d 941 (Mass. 2003) ...... 5, 6, 8, 13, 20

Griswold v. Connecticut,

Be GP, SOOM occ ccc ccc ccccccncccers 13

Hall v. BNSF Railway Co.,

2014 WL 4719007 (W.D. Wash. Sept. 22,

PG sv ck wipe snuecés6eeeeeee ae 34

Heller v. Doe,

fis is | re 7,18

Johnson v. Robison,

3 Bie ls | er 7

Kitchen v. Herbert,

755 F.3d 1193 (10th Cir. 2014) ............. 28

Lapides v. Lapides,

vee FS ote ee) Pere 13

Lawrence v. Texas,

Pte re ee 19

Loving v. Virginia,

ee Wh BED 6 oc ccecescanéaxeue passim

In re Marriage Cases,

183 P.3d 384 (Cal. 2008) ..........2-0.. 5,13

In re Marriage of Cabalquinto,

669 P.2d 886 (Wash. 1983) ................ 10

In re Marriage of J.B. and H.B.,

326 S.W.3d 654 (Tex. App. 2010) ........... 36

Maynard v. Hull,

fet Bt | rr 4,5

Miller v. Lucks,

36 So. 2d 140 (Miss. 1948) ................. 20

Minnesota v. Clover Leaf Creamery Co.,

Se Et | reer eee ees oe

Nevada Department of Human Resources v. Hibbs,

i ED. cones cies ecececesseres ll

Perry v. Schwarzenegger,

704 F. Supp. 2d 921 (N.D. Cal. 2010) ... 6,11, 12

Plyler v. Doe,

Nee cc eee ecececee 22

Romer v. Evans,

Se EE PEED cc ccceccccceccese 15, 16, 19

Saenz v. Roe,

EE 35

Schuette v. Coalition to Defend Affirmative Action,

oe gee ee eeceeees 16

Sosna v. lowa,

ee cee c ct ecseeeeses 1

Stanley v. Illinois,

MID occ ccc ccccccccvececece 11

Succession of Caballero v. Executor,

Pr Cr CPCS cc cccecccecececenss 30

Troxel v. Granville,

SD MD no vccccccecccecscscsceces 11

Turner v. Safley,

Ss MEME cccecceccceceucecese 13, 21

U.S. Department of Agriculture v. Moreno,

ee ec cccccbececesese 16

United States v. Guest,

i eke eeeeee 35

United States v. Virginia,

ee 11

United States v. Windsor,

133 S. Ct. 2675 (2013) ................ passim

United States v. Yazell,

382 U.S. 341 (1966) ...................... 20

West Virginia State Board of Education v. Barnette,

nf ee ae ue 17

Whittington v. McCashkill,

rr rw case ee eeeuse 30

Zablockhi v. Redhail,

Tee i ae en eae 13, 21

STATUTES

a eaeend eae 30

i a ee el 28

rr, ec cdeeececebaeeeuee 33

a, ree . occcecccewesedtweses 34

eh, ca weedkeeeeeuaen 34

765 Ill. Comp. Stat. 305/4(cM(3) .... 2... 2 eee. 13

N.Y. Est. Powers & Trusts Law § 9-1.3(e) ....... 13

OTHER AUTHORITIES

Attorney General of Maryland, The State of

Marriage Equality in America (2015) ........ 16

Vill

Centers for Disease Control & Prevention, Births:

Final Data for 2013, Supplemental Tables, 64

National Vital Statistics Report No. 1, (Jan. 15,

re ee ee er ee 24

Centers for Disease Control & Prevention, National

Vital Statistics System, Divorce Rates by State:

1990, 1995, and 1999-2011 ................ 23

Centers for Disease Control & Prevention, National

Vital Statistics System, Marriage Rates by State:

1990, 1995, and 1999-2011 ............-.... 22

Centers for Disease Control & Prevention, National

Vital Statistics System, National Marriage and

Divorce Rate Trends ...................... 23

Constitutional Constraints on Interstate Same-Sex

Marriage Recognition, 116 Harv. L. Rev. 2028

a ee ee ie 30

Barbara J. Cox, Same-Sex Marriage and the Public

Policy Exception in Choice-of-Law: Does It Really

Exist?, 16 Quinnipiac L. Rev. 61 (1996) ...... 29

Alexis Dinno & Chelsea Whitney, Same Sex

Marriage and the Perceived Assault on Opposite

Sex Marriage, PloS ONE, Vol. 8, No. 6 (June 11,

Di. .citnbaeeeenaw as baeeaken ee tues 23

Larry Gordon, A Record Number of Out-of-State

Students Brings Wirelfall for UC System, L.A.

Times (Aug. 18, 2014, 1:11 AM) ............ 32

Vill

Mark L. Hatzenbuehler et al., Effect of Same-Sex

Marriage Laws on Health Care Use and

Expenditures in Sexual Minority Men: A Quasi-

Natural Experiment, 102 Am. J. Pub. Health 285

ES ere mer ere 6

Peter Hay et al., Conflict of Laws (5th ed. 2010) .. 31

Andrew Koppelman, Interstate Recognition of Same-

Sex Marriages and Civil Unions: A Handbook for

Judges, 153 U. Pa. L. Rev. 2143 (2005) ...... 29

Andrew Koppelman, Same-Sex Marriage and Public

Policy: The Miscegenation Precedents, 16

Quinnipiac L. Rev. 105 (1996) .............. 30

Mae Kuykendall, Equality Federalism: A Solution

to the Marriage Wars, 15 U. Pa. J. Const. L. 377

St ckiceGesess an eden eebkesenkeneekes 29

Brian McKenzie, Out-of-State and Long Commutes:

2011, U.S. Census Bureau (Feb. 2013) ....... 32

Christopher Ramos et al., The Effects of Marriage

Equality in Massachusetts: A Survey of

the Experiences and Impact of Marriage on

Same-Sex Couples, The Williams Institute, May

ee ee a ee ee eee eae Y

Restatement (Second) of Conflict of Laws

I a ae ae tae 29, 30

William M. Richman et al., Understanding Conflict

SL SD .skcccecsveceaeusbesens 28

Carmen Solomon-Fears, Congressional Research

Service, R43667, Nonmarital Births: An

PET 656660406660 00646 eseee002% 24

U.S. Census Bureau, Calculating Migration

Expectancy Using ACS Data ............... 32

U.S. Census Bureau, Characteristics of Same-Sex

Couple Households: 2013 .................. 22

U.S. Department of Health and Human Services,

AFCARS Report No. 21 (Sept. 29, 2014)...... 12

Richard G. Wight et al., Same-Sex Legal Marriage

and Psychological Well-Being: Findings from the

California Health Interview Survey, 103 Am. J.

PU MD POGUES 6 oc ccc ctessevivescn 6

INTERESTS OF AMICI CURIAE

Amici States Massachusetts, California,

Connecticut, Delaware, the District of Columbia,’

Illinois, lowa, Maine, Maryland, New Hampshire, New

Mexico, New York, Oregon, Pennsylvania, Rhode

Island, Vermont, and Washington file this brief in

support of petitioners as a matter of right pursuant to

Supreme Court Rule 37.4.

We submit this brief to support the right of same-

sex couples to marry, to refute arguments made in

defense of exclusionary marriage laws, and to

demonstrate the harm that gay and lesbian couples

suffer when their marriages are not recognized across

state lines. Amici States have experienced the positive

results of marriage equality. The institution of

marriage is strengthened. Families are healthier and

more secure when they share in the benefits,

protections, and obligations that attend marriage.

Communities are enriched when all citizens have an

equal opportunity to participate in civic life.

Amici States recognize, of course, that domestic

relations are “a virtually exclusive province of the

States.” Sosna v. Iowa, 419 U.S. 393, 404 (1975). In

fact, two terms ago, many of us joined an amicus curiae

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

(2013), arguing that Congress had no authority to

define marriage for purposes of federal 'aw. But we

also understand and embrace the constitutional

guarantees of equal protection and due process that

' The District of Columbia, which sets its own marriage rules, is

referred to as a State for ease of discussion.

circumscribe our police powers. Thus, based on our

common goals of protecting families, strengthening

communities, and eliminating discrimination, we join

in asking this Court to reverse the decision of the court

of appeals.

SUMMARY OF ARGUMENT

All States agree that marriage is a core building

block of society. Al! States implement policies that

encourage individuals to get and stay married in

recognition of the fact that marriage provides stability

for families, households, and the broader community;

children are better off when raised by parents in loving,

committed relationships; and state resources are

conserved when spouses provide for each other and

their children. On all of these points—and many

more—al] States are in accord. Amici States differ

with respondents on whether including same-sex

couples in marriage advances legitimate governmental

interests. Based on our experience, we know that it

does.

The justifications offered for excluding same-sex

couples from marriage do not survive even the most

deferential constitutional scrutiny. Children suffer

when their families are denied the benefits,

protections, and status afforded to married couples.

The ability or desire to procreate has never been a

prerequisite to marriage, and many couples who will

not have children are permitted to wed. Different- and

same-sex couples alike also model long-term,

committed partnerships heading stable families. The

remaining justifications for excluding same-sex

couples—respecting the democratic process and

preserving tradition—cannot sustain discriminatory

laws on their own.

Concerns about the consequences of marriage

equality are also unfounded. Permitting same-sex

couples to wed does not threaten the institution or

States’ ability to regulate. Pure speculation that the

place of marriage in our society will be

undermined—measured by fewer different-sex

marriages, more divorces, or more children raised in

nonmarital households—is flatly contradicted by the

experience of Amici States. By any measure, civil

marriage has flourished in States with marriage

equality. It is likewise untrue that including same-sex

couples weakens States’ authority to impose reasonable

regulations on marriage that do advance important

governmental interests. The validity of other

regulations does not depend on States’ ability to

discriminate based on the gender or sexual orientation

of the spouses.

The fact that marriages of same-sex couples are not

uniformly recognized throughout the country also

inflicts significant harms. The practical consequences

and indignities that result from non-recognition affect

major life decisions by same-sex couples and their

families, including about education, employment, and

residency. These couples are also forced to incur

expense and undergo cumbersome—and sometimes

humiliating—legal procésses to obtain protections their

marriages should already afford. Given States’ near-

universal acceptance of all other marriages that are

valid where celebrated, the categorical non-recognition

of same-sex marriages has the purpose and effect of

codifying—for its own sake—a second-tier status that

our Constitution does not permit.

Marriage is a central organizing feature of our

society, conferring exclusive rights, protections, and

obligations on married couples and their families.

States promote marriage to ensure long-lasting bonds

between spouses and to provide a solid foundation for

the families they form together. Marriage is also an

immensely personal commitment involving the most

intimate and private aspects of life. Given the legal

and personal significance of the relationship, this Court

has repeatedly affirmed the fundamental nature of the

right to marry. Likewise, the Court has protected the

freedom to marry the partner of one’s choice and the

equal dignity of all married couples. Thus, the

Constitution’s guarantees of equal protection and due

process require equal marriage rights for same-sex

couples nationwide.

ARGUMENT

I. STATE INTERESTS IN MARRIAGE ARE

ADVANCED BY INCLUDING SAME-SEX

COUPLES

Well over a century ago, this Court described

marriage as “a great public institution, giving

character to our whole civil polity.” Maynard v. Hill,

125 U.S. 190, 213 (1888) (internal quotation marks

omitted). States have long valued marriage for its

many benefits to individuals, households, and the

community at large, and therefore have combined the

personal commitment inherent in marriage with

publicly recognized rights and obligations. Though the

legal contours of civil marriage have changed

significantly since Maynard was decided, the central

role of marriage in our society has remained fixed.

In the United States, civil marriage has always

been authorized and regulated by state governments in

the exercise of their police powers to serve many ends.

In early America, the household formed by marriage

was understood as a governable, political subgroup

(organized under male heads) and a form of efficient

governance. Asa political unit, the household included

not only the married couple and their children, but also

extended family. The household later took on

particular significance as an economic sub-unit of state

governments, responsible for supporting all of its

members.

Today, marriage continues to serve as a basic

building block of society. Among other things, it

creates economic and health benefits, stabilizes

households, forms legal bonds between parents and

children, assigns providers to care for dependents, and

facilitates property ownership and inheritance.

Marriage thus provides stability for individuals,

families, and the broader community. Baker v. State,

744 A.2d 864, 889 (Vt. 1999). States encourage

marriage because these private relationships assist in

maintaining public order. Goodridge v. Dep’t of Public

Health, 798 N.E.2d 941, 954 (Mass. 2003).

The security of marital households creates a safety

net that ensures that family members have support in

a time of crisis, and limits the public’s liability to care

for the vulnerable. Jn re Marriage Cases, 183 P.3d 384,

423-24 (Cal. 2008). Marriage also provides couples

with greater freedom to make decisions about

education and employment, knowing that if one spouse

provides the primary economic support, the other will

be protected, even in the event of divorce or death. As

a result, married couples can specialize their labor and

invest in each other’s education and career, which has

long-term benefits for both the couple and the State.

Married people also enjoy better physical and

psychological health and greater economic prosperity

than unmarried persons.” Perry v. Schwarzenegger,

704 F. Supp. 2d 921, 962-63 (N.D. Cal. 2010).

In sum, States favor—and therefore encourage—

marriage over transient relationships because

marriage promotes stable family bonds, fosters

economic interdependence and security, and enhances

the well-being of both the partners and their children.*

Goodridge, 798 N.E.2d at 954. All of these interests

are furthered by allowing same-sex couples to marry,

because same-sex couples are similarly situated to

different-sex couples in all relevant respects. They

* Recent studies show that the availability of marriage to same-sex

couples lessens psychological distress among gay, lesbian, and

bisexual adults. See Richard G. Wight et al., Same-Sex Legal

Marriage and Psychological Well-Being: Findings from the

California Health Interview Survey, 103 Am. J. Pub. Health 339

(2013). Marriage equality also has led to decreased medical care

visits, mental health visits, and mental health care costs for gay

men. Mark L. Hatzenbuehler et al., Effect of Same-Sex Marriage

Laws on Health Care Use and Expenditures in Sexual Minority

Men: A Quasi-Natural Experiment, 102 Am. J. Pub. Health 285

(2012).

* Testimonials illustrating the positive effects of equality

experienced by same-sex couples and their families are collected at

https://www.facebook.com/events/1593045484264322.

form households, raise families, and support one

another in all of the same ways.

Thus, this is not a case where the “inclusion of one

group promotes a legitimate governmental purpose,

and the addition of other groups would not.” Johnson

v. Robison, 415 U.S. 361, 383 (1974). Instead, the

categorical exclusion of same-sex couples irrationally

undermines the governmental interests otherwise

advanced by marriage and harms the families who are

left out.

Il. NO LEGITIMATE STATE INTEREST

JUSTIFIES EXCLUDING SAME-SEX

COUPLES FROM MARRIAGE

Exclusionary laws fail to advance any legitimate

state interest in marriage. Rather, prohibiting same-

sex couples from marrying works against legitimate

state interests, including promoting the well-being of

children. To the extent States have an interest in

“responsible procreation,” it is not reasonably tethered

to the exclusion of same-sex couples, and the remaining

rationalizations for exclusionary laws—respecting the

democratic process and preserving tradition—do not

independently justify the exclusions. Accordingly, laws

restricting marriage to different-sex couples cannot

survive any level of constitutional scrutiny.* See Heller

v. Doe, 509 U.S. 312, 321 (1993) (“[E]ven the standard

of rationality . .. must find some footing in the realities

of the subject addressed .. . .”); City of Cleburne v.

* For the reasons set forth in petitioners’ briefs, see, e.g., DeBoer

Br. 50-56, Amici States contend that laws that discriminate on the

basis of sexual orientation should be subject to heightened

scrutiny.

Cleburne Living Ctr., 473 U.S. 432, 446 (1985) (“The

State may not rely on a classification whose

relationship to an asserted goal is so attenuated as to

render the distinction arbitrary or irrational.”).

A. Excluding Same-Sex Couples from

Marriage Harms Their Children

All States share a paramount concern for the

healthy upbringing of children and promote marriage

in large part for that reason. Marriage improves the

quality of children’s lives in many ways:

[Mjarital children reap a measure of family

stability and economic security based on their

parents’ legally privileged status that is largely

inaccessible, or not as readily accessible, to

nonmarital children. Some of these benefits are

social, such as the enhanced approval that still

attends the status of being a marital child.

Others are material, such as the greater ease of

access to family-based State and Federal

benefits that attend the presumptions of one’s

parentage.

Goodridge, 798 N.E.2d at 956-57. Marriage improves

children’s well-being by honoring their parents’

relationships and strengthening their families through,

for example, enhanced access to medical insurance, tax

benefits, estate and homestead protections, and the

application of predictable custody, support, and

visitation rules. Jd. at 955-56. Children whose parents

are married simply have a better chance of living

healthy, financially secure, and stable lives.

Even putting these particular rights and protections

aside, the very status of marriage is beneficial. Indeed,

parties and experts on both sides of this debate

acknowledge that children benefit when their parents

are able to marry. Studies have confirmed this view.

For example, a Massachusetts Department of Public

Health survey found that the children of married same-

sex couples “felt more secure and protected” and saw

“their families as being validated or legitimated by

society or the government.”

The reverse is also true—excluding same-sex

couples from marriage harms their children. As the

Court recognized in Windsor:

The differentiation [between relationships]

demeans the couple .. . [aJnd it humiliates tens

of thousands of children now being raised by

same-sex couples. The law in question makes it

even more difficult for children to understand

the integrity and closeness of their own family

and its concord with other families in their

community and in their daily lives.

Windsor, 133 S. Ct. at 2694 (citation omitted). Thus,

exclusionary marriage laws do not encourage biological

parents to raise their children together, but instead

make it more difficult for a different set of

° Christopher Ramos et al., The Effects of Marriage Equality in

Massachusetts: A Survey of the Experiences and Impact of

Marriage on Same-Sex Couples, The Williams Institute, May 2009,

at 9, http://williamsinstitute.law.ucla.edu/wp-content/uploads/

Ramos-Goldberg-Badgett-MA-Effects-Marriage-Equality-May-

2009. pdf.

parents—same-sex couples—to provide their children

with stable homes.*®

Certain arguments in support of exclusionary

marriage laws rely on the premise that different-sex

couples make for better parents. The experience of

Amici States and scientific consensus make clear that

such arguments lack any basis. For many years, Amici

States have protected the rights of gay men and

lesbians to be parents.’ It has been our experience that

same-sex and different-sex parents provide equally

loving and supportive households for their children.

This experience is confirmed by scientific studies,

which establish that children raised by same-sex

couples fare as well as children raised by different-sex

couples, and that gay and lesbian parents are equally

fit and capable. The nation’s most respected

psychological and child welfare groups agree that

same-sex parents are as effective as different-sex

parents.” In addition, the two federal courts to have

° Many children raised by same-sex parents are raised by one

biological parent and his/her partner. Refusing to allow these

couples to marry will not increase the likelihood that the biological

parent will marry his/her donor or surrogate.

" See, e.g., DiStefano v. DiStefano, 401 N.Y.S.2d 636, 637 (N.Y.

App. Div. 1978) (“homosexuality, per se, did not render [anyone]

unfit as a parent”); Jn re Marriage of Cabalquinto, 669 P.2d 886,

888 (Wash. 1983) (“homosexuality in and of itself is not a bar to

custody or to reasonable rights of visitation”).

* These organizations include the American Academy of Pediatrics,

the American Academy of Child and Adolescent Psychiatry, the

American Psychiatric Association, the American Psychological

Association, the Psychological Association, the American

considered expert testimony both reached the same

conclusion about the competence and ability of gay

couples to raise children. See DeBoer v. Snyder, 973 F.

Supp. 2d. 757, 770-72 (E.D. Mich. 2014) (finding “no

logical connection between banning same-sex marriage

and providing children with an ‘optimal environment’

or achieving ‘optimal outcomes”); Perry, 704 F. Supp.

2d. at 980 (“Children raised by gay or lesbian parents

are as likely as children raised by heterosexual parents

to be healthy, successful and well-adjusted. The

research supporting this conclusion is accepted beyond

serious debate in the field of developmental

psychology.”).

Claims that children need “traditional” male and

female parental role models, or that they necessarily

benefit from being raised by two biological parents,

similarly lack foundation. Such views are disconnected

from the “changing realities of the American family,”

Troxel v. Granville, 530 U.S. 57, 64 (2000) (plurality

opinion), and reflect precisely the type of effort to codify

gender-based stereotyping that this Court has

repeatedly rejected.” Moreover, the combination of

Psychoanalytic Association, the National Association of Social

Workers, the Child Welfare League of America, and the North

American Council on Adoptable Children.

° See, e.g., Nevada Dep't of Human Res. v. Hibbs, 538 U.S. 721,

733-35 (2003) (finding unconstitutional codifications of stereotypes

about women’s greater suitability for or inclination to assume

childcare responsibility); United States v. Virginia, 518 U.S. 515,

533-34 (1996) (rejecting “overbroad generalizations about the

different talents, capacities, or preferences of males and females”);

Stanley v. Illinois, 405 U.S. 645, 656-57 (1972) (striking down

statute that presumed unmarried fathers to be unfit custodians).

factors that affect children’s well-being—including the

parents’ relationship, their commitment to their

children, and the social and economic resources

available to the family—applies equally to children of

same-sex and different-sex parents and regardless of

whether one or both of the parents are biological

parents.'® Perry, 704 F. Supp. 2d at 980-81.

Withholding the protections of marriage from the

children of gay and lesbian parents does not promote

any cognizable state interest. Instead, it is in the

States’ interest, and to the benefit of all children, to

promote the well-being of all these families alike.”

'° Exclusionary laws also limit unnecessarily the number of

households where adults can raise children together. For example,

some States only permit co-adoption by legally married adults.

Given the number of children under state supervision (nearly

400,000 nationwide), all States benefit from expanding the pool of

willing and supportive parents. See U.S. Dep’t of Health & Human

Servs., AFCARS Report No. 21 (Sept. 29, 2014),

http://www.acf.hhs.gov/programs/cb/resource/afcars-report-21.

'' In Loving, the Court rejected similar arguments made in support

of anti-miscegenation laws based on a concern for the well-being of

children “who become the victims of their intermarried parents.”

Brief for Appellee, Loving v. Virginia, 388 U.S. 1 (1967) (No. 395),

1967 WL 113931, at *47-48. The basic argument made here—that

children reared in families without both of their biological parents

are “disadvantaged”—is not as extreme in its terms, but likewise

attempts to justify discrimination based on a misguided view of

children’s best interests.

B. “Responsible Procreation” Does Not

Justify Restricting Marriage to

Different-Sex Couples

The suggestion that the government's primary

interest in marriage stems from the biological

potential to conceive a child is wrong. This focus on

procreation unfairly “singles out the one unbridgeable

difference between same-sex and opposite-sex couples,

and transforms that difference into the essence of legal

marriage.” Goodridge, 798 N.E.2d at 962. It is also at

odds with the full history of marriage in our country.

The potential to conceive has never been a

prerequisite for marriage. In re Marriage Cases, 183

P.3d at 431. Nor has the inability to conceive been

grounds for voiding a marriage. See, e.g., Lapides v.

Lapides, 171 N.E. 911, 913 (N.Y. 1930). Even States

that presume infertility beyond a certain age for

purposes of allocating property do not disqualify the

infertile from marriage. See, e.g., N.Y. Est. Powers &

Trusts Law § 9-1.3(e) (women over age 55); 765 IIl.

Comp. Stat. 305/4(c\(3) (any person age 65 or older).

Individuals who are not free to share physical intimacy

with a spouse (prisoners, for example) have the right to

marry. Turner v. Safley, 482 U.S. 78 (1987). Even

parents who are “irresponsible” about their obligations

to their children can marry. Zablocki v. Redhail, 434

U.S. 374 (1978). Moreover, this Court has recognized

the autonomy to make personal choices about marriage

and about procreation as distinct rights. See, e.g.,

Eisenstadt v. Baird, 405 U.S. 438, 453 (1972) (“If the

right of privacy means anything, it is the right of the

individual, married or single, to be free from

unwarranted governmental intrusion into matters so

fundamentally affecting a person as the decision

whether to bear or beget a child.”); Loving v. Virginia,

388 U.S. 1, 12 (1967); Griswold v. Connecticut, 381 U.S.

479, 485-86 (1965).

Exclusionary marriage laws are also irrationally

under-inclusive. Insofar as excluding same-sex couples

from marriage is intended to promote “responsible

procreation,” these laws do so in a manner that

“[makes)} no sense in light of how [they] treat[] other

groups similarly situated in relevant respects.” Bd. of

Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 366 n.4

(2001) (citing Cleburne, 473 U.S. at 447-50). Many

different-sex couples either cannot procreate or choose

not to, yet all States allow these couples to marry. If

States licensed marriage solely to further an intevest in

protecting children conceived in sexual intimacy, then

States would not permit marriages where one or both

spouses are incapable of or unwilling to conceive or

bear children. Instead, States license marriage to

advance many important governmental interests, and

thus allow couples to marry irrespective of their ability

or intent to procreate.

Some theorize that extending marriage to include

different-sex couples who lack the ability or desire to

procreate nonetheless helps to preserve an essential

social paradigm that encourages _ responsible

procreation by promoting the “optimal” or “ideal”

family structure. Even accepting the premise, it does

not follow that allowing same-sex couples to marry will

diminish the example that married different-sex

couples set for their unmarried counterparts. Both

different- and same-sex married couples can and do

model committed, exclusive relationships, and both

establish stable families based on mutual love and

support. Moreover, the modeling theory is “so

attenuated” from the asserted interest in responsible

procreation that it is arbitrary and irrational.

Cleburne, 473 U.S. at 446.

C. Federalism Considerations Do Not

Justify Discrimination

Principles of federalism do not require the Court to

refrain from deciding the questions presented or to

conclude that these marriage laws are constitutional.

To be sure, the deference afforded States in the

exercise of our traditional authority over domestic

relations is critical to the balance struck by our federal

system. But state authority is bound by constitutional

guarantees. Insofar as some suggest that enactments

of state voters and legislatures regarding marriage

should be afforded some additional measure of

deference in the rational basis analysis, this Court’s

decisions instruct otherwise.

The Court has made clear that the electorate may

not, by any means, authorize government action that

violates the Fourteenth Amendment, and that state

and local governments “may not avoid the strictures of

[the Equal Protection] Clause by deferring to the

wishes or objections of some fraction of the body

politic.” Cleburne, 473 U.S. at 448. In addition,

notwithstanding the deference typically afforded under

rational basis review, this Court has expressed

skepticism where state laws, like these, target a

particular group for exclusion or disfavored treatment.

See Windsor, 133 S. Ct. at 2694 (laws whose “principle

purpose is to impose inequality” raise “a most serious

question under the [Constitution]”); Romer v. Evans,

517 U.S. 620, 633-35 (1996) (“status-based enactment”

at issue required “careful consideration” to determine

whether it was “obnoxious to the constitutional

provision”) (citing U.S. Dept. of Agriculture v. Moreno,

413 U.S. 528, 534 (1973)).

It is no answer to suggest, as the court of appeals

did, that the laws at issue in Cleburne and Romer were

novel and thus less deserving of deference. DeBoer v.

Snyder, 772 F.3d 388, 408 (6th Cir. 2014). Recent

marriage bans, including the four at issue here, are

also unusual. The bans either were unnecessary

because they simply reinforced an exclusion that was

already firmly entrenched in state law, or they reflect

efforts by state voters and legislatures to make

marriage restrictions explicit for the first time. In

addition, as set forth in Part IV, infra, these bans are

unusual in that they categorically disregard marriages

lawfully licensed by other States. Moreover, the

deference traditionally accorded to States on this

subject is not proper when in so many States the

political process leading to these bans was tainted by

fear, prejudice, and misinformation. Att’y Gen. of Md.,

The State of Marriage Equality in America (2015)

(surveying the political experiences of States with

statutory and constitutional bans on same-sex

marriage). Even if these “new” bans instead were

motivated by “fear that the courts would seize control

over an issue that people of good faith care deeply

about,” DeBoer, 772 F.3d at 408, that does not

distinguish them from other laws this Court has found

to serve no other purpose than to inflict harm. It is the

role of the courts to make constitutional judgments,

and a desire to avoid those judgments is not a

legitimate state interest, particularly when it comes to

protecting minority rights.

The Court’s decision in Schuette v. Coalition to

Defend Affirmative Action, 134 S. Ct. 1623 (2014), does

not change the analysis. The will of the electorate is

subject to the same constitutional guarantees and

protections that circumscribe the power of state

legislatures (and other state actors). Despite the

substantial freedoms inherent in self-governance,

“fundamental rights may not be submitted to vote; they

depend on the outcome of no elections.” W. Va. State

Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943); see

also Schuette, 134 S. Ct. at 1667 (Sotomayor, J.,

dissenting) (“some things the Constitution forbids even

a majority of citizens to do”). Moreover, Schuette put a

very different question before the Court than do these

cases. As Justice Kennedy explained in announcing

the judgment of the Court, Schuette was not about “the

constitutionality, or the merits, of race-conscious

admissions policies in higher education.” Id. at 1630;

accord id. at 1640 (Scalia, J., concurring). Rather, the

question was whether, under the circumstances of the

case, “sensitive” policy determinations about race-

conscious admissions could be committed to the voters

rather than state and other governmental entities. Jd.

at 1629-30 (Kennedy, J.); see also id. at 1638 (“This

case is not about how the debate . .. should be resolved.

It is about who may resqlve it.”). Here, the question is

'? A majority of the justices did not necessarily view the state

constitutional amendment at issue as excluding or inflicting harm

on certain citizens as compared to others. 134 S. Ct. at 1637-38;

see also id. at 1639-48 (Scalia, J., concurring), 1649-51 (Breyer, J.,

concurring).

not whether voters are permitted to define marriage,

but rather whether it is rational for a

State—regardless of the process or mechanism used to

enact the law—to exclude an entire class of citizens

from marriage.

Finally, the Court’s ruling in Windsor, that the

federal government may not define marriage to exclude

same-sex couples for purposes of federal .aw, does not

foreclose a ruling that exclusionary state-level

definitions are also unconstitutional Nothing in

Windsor disturbed this Court’s authority to determine

whether state marriage laws conflict with the

Constitution. Windsor simply resolved a dispute about

Congress’s authority to define marital status and

affirmed long-standing precedent that marriage policy

should be left exclusively to the States. Indeed, in

discussing States’ traditional authority over marriage,

the Court repeatedly reminded that state power is

“subject to constitutional guarantees.” Windsor, 133

S. Ct. at 2692. These constitutional guarantees compel

the conclusion that same-sex couples must be included

in the institution of marriage.

D. Tradition Alone Cannot Save

Discriminatory Laws

The Constitution also cannot countenance

preserving laws that discriminate against same-sex

couples solely for tradition’s sake. While it is true that,

until relatively recently, States licensed marriages only

between a man and a woman, this Court has made

clear that tradition alone cannot justify the

continuation of an irrational legal rule. Heller, 509

U.S. at 326 (“Ancient lineage of a legal concept does not

give it immunity from attack for lacking a rational

basis.”). Claims that preserving the historical

definition of marriage is necessary to avoid debasing

civil marriage attempt to preserve, for its own sake,

one long-held view of what marriage means. This

Court has rejected the argument that a prevailing

social or moral conviction, without more, justifies

upholding a law:

(T}he fact that the governing majority in a State

has traditionally viewed a particular practice as

immoral is not a sufficient reason for upholding

a law prohibiting the practice; neither history

nor tradition could save a law prohibiting

miscegenation from constitutional attack.

Lawrence v. Texas, 539 U.S. 558, 577-78 (2003)

(internal quotation marks omitted).

To survive constitutional scrutiny, marriage laws

must be reasonably tethered to a_ legitimate

governmental interest that is independent of the

disadvantage imposed on a particular group. See

Romer, 517 U.S. at 633 (discriminatory classification

must serve an “independent and legitimate legislative

end”); see also Lawrence, 539 U.S. at 582 (O’Connor, J.,

concurring). The marriage bans at issue here simply

are not. That they may continue a long tradition of

exclusion is not enough to sustain them.

It. EQUALITY DOES NOT THREATEN THE

INSTITUTION OF MARRIAGE

Amici States have seen only benefits from marriage

equality. Including same-sex couples does not

fundamentally alter the institution or threaten the oft-

cited markers of its strength—marriage, divorce, and

birth rates. Nor does equality threaten States’ ability

to otherwise regulate marriage.

A. Allowing Same-Sex Couples to Marry

Does Not Fundamentally Alter the

Institution of Marriage

Some argue that the extension of marriage to same-

sex couples amounts to a “redefinition” of marriage

that fundamentally alters the nature of the institution

by severing its connection to procreation. They worry

that this change will erode the role of marriage in our

society, causing fewer marriages and more children

raised by unmarried parents. These and other similar

concerns are unsupported by history, have no footing in

the actual experience of Amici States, and demean gay

and lesbian couples.

Over the last two centuries, societal changes have

resulted in corresponding changes to marriage

eligibility rules and our collective understanding of

marital roles by gradually removing restrictions on who

can marry and promoting spousal equality. See, e.g.,

Goodridge, 798 N.E.2d at 966-67 (“As a _ public

institution and a right of fundamental importance, civil

marriage is an evolving paradigm.”). Indeed, many

features of marriage taken for granted today were once

unthinkable. For example, until relatively recently,

wives ceded their legal and economic identities to their

husbands in marriage. See, e.g., United States v.

Yazell, 382 U.S. 341, 342-43 (1966) (applying law of

coverture). Divorce and remarriage were also difficult,

if not impossible, in early America. And fewer than 50

years ago, a third of the States continued to prohibit

and punish interracial marriages. Loving, 388 U.S.

at 6.

Civil marriage has endured as a bedrock institution

due to its ability to evolve in concert with social mores

and constitutional principles. This Court has

repeatedly intervened to remove barriers to marriage

because of its foundational position in our legal

system—including by protecting the rights of those

whom many have considered “undeserving” of the right

to marry (or remarry). See Turner, 482 U.S. 78

(protecting right of inmates to marry); Zablocki, 434

U.S. 374 (protecting right of persons with unfulfilled

child support obligations to marry); Boddie v.

Connecticut, 401 U.S. 371 (1971) (protecting right of

indigent spouses to obtain a divorce). Allowing same-

sex couples to wed is a movement toward equality—not

a “redefinition” of marriage—and is consistent with

prior decisions by this Court ensuring that individuals

have “freedom of choice in an area in which we have

held such freedom to be fundamental.” Zablocki, 434

U.S. at 387.

Moreover, the fear that allowing same-sex couples

to marry will fundamentally undermine marriage and

our social order—by causing fewer different-sex couples

to marry, more of them to divorce, or more children to

be raised in nonmarital households—is unwarranted.

“Marriage is incentivized for naturally procreative

couples to precisely the same extent regardless of

whether same-sex couples... are included.” Bishop v.

U.S. ex rel. Holder, 962 F. Supp. 2d 1252, 1291 (N.D.

Okla. 2014). These fears obscure the reality that many

gay and lesbian couples are already raising children,

and that allowing them to marry would, in fact, enable

more children to grow up in married households.”

In any event, the experience of Amici States should

put such fears to rest."*

Marriage Rates: In contrast to a pre-existing

national downward trend, overall marriage rates in

States that permit same-sex couples to wed have

improved. Marriage rates immediately increased in all

seven States for which data is available (Connecticut,

the District of Columbia, Iowa, Massachusetts, New

Hampshire, New York, and Vermont).”° In six of those

States, the marriage rate in 2011 remained at or above

the rate during the year preceding marriage equality.”

(For example, in Connecticut, the rate was 5.5

marriages per 1,000 people in the population in both

'S U.S. Census Bureau, Characteristics of Same-Sex Couple

Households: 2013, http://www.census.gov/hhes/samesex/.

'* Actual experience should carry substantially more weight in the

analysis than bare surmise and conjecture. See, e.g., Plyler v. Doe,

457 U.S. 202, 228-29 (1982) (rejecting unsupported hypothetical

justifications for law excluding undocumented children from public

schools); Minnesota v. Clover Leaf Creamery Co. , 449 U.S. 456, 464

(1981) (“[PJarties challenging legislation under the Equal

Protection Clause may introduce evidence supporting their claim

that it is irrational... .”).

'® Centers for Disease Control & Prevention (“CDC”), National

Vital Statistics System, Marriage Rates by State: 1990, 1995, and

1999-2011, http://www: cdc.gov/nchs/data/dvs/marriage_rates_90_

95_99-11.pdf [hereinafter CDC Marriage Rates].

'6 Id. The six States were Connecticut, the District of Columbia,

Iowa, Massachusetts, New York, and Vermont.

2007 and 2011). Nor have marriage equality States

seen a dramatic decrease in the rate at which different-

sex couples in particular marry. In some, the number

of different-sex marriages increased in the years

following the State’s recognition of same-sex

marriages.”’

Divorce Rates: Marriage equality States have not

experienced increased rates of divorce. Six of the seven

jurisdictions that permitted same-sex couples to marry

as of 2011 had a divorce rate that was at or below the

national average. Four of the ten States with the

lowest divorce rates in the country in 2011 were

marriage equality States.*®

Nonmarital Births: Marriage equality has not led to

an increase in nonmarital births. Massachusetts’s

nonmarital birth rate has been well below the national

average for years, including after same-sex couples

began to marry. In 2013, 12 of the 17 marriage

equality States had lower percentages of births to

? Alexis Dinno & Chelsea Whitney, Same Sex Marriage and the

Perceived Assault on Opposite Sex Marriage, PloS ONE, Vol. 8, No.

6 (June 11, 2013), http://journals.plos.org/plosone/article?id=

10.137 1/jjournal.pone.0065730.

*® CDC, National Vital Statistics System, Divorce Rates by State:

1990, 1995, and 1999-2011, http//www.cdc.gov/nchs/data/dvs/

divorce_rates_90_95_99-11.pdf; CDC, National Vital Statistics

System, National Marriage and Divorce Rate Trends,

http://www.cdc.gov/nchs/nvss/marriage_divorce_tables.htm. By

contrast, States that exclude same-sex couples from marriage have

some of the highest divorce rates in the country. Id.

unmarried mothers than the nationwide rate.’ Nor

has the national nonmarital birth rate spiked. To the

contrary, while the nonmarital birth rate increased six-

fold between 1940 and 2008, it fell from 51.8 births per

1,000 unmarried women in 2008 to 44.8 in 2013 (nearly

14%), a period during which a number of States first

allowed same-sex couples to wed.”

Thus, far from diminishing or fundamentally

altering the institution of marriage, Amici States’

experience with marriage equality suggests that the

institution is better off for it.

B. Allowing Same-Sex Couples to Marry

Does Not Threaten States’ Ability to

Regulate Marriage

Amici States are sensitive to federal incursions into

our traditional authority over the institution of

marriage. However, we reject the contention that the

constitutional obligation to license marriages between

same-sex and different-sex couples alike threatens our

ability to otherwise regulate marriage. States regulate

entry into and exit from marriage to further many

interests, none of which depends upon the ability to

also limit the right to marry based on the gender of the

spouses.

’’ CDC, Births: Final Data for 2013, Supplemental Tables, 64

National Vital Statistics Report No. 1, Table I-4 (Jan. 15, 2015),

http://www.cdc.gov/nchs/data/nvsr/nvsr64/nvsr64_01_ tables. pdf.

* Carmen Solomon-Fears, Cong. Research Serv., R43667,

Nonmarital Births: An Overview (2014).

States have legitimate interests in protecting public

health and welfare. In furtherance of these interests,

all States impose marriage regulations designed to

ensure consent and protect against abuse and coercion.

For example, to protect minors, all States impose

minimum age qualifications. Many States also require

third-party consent (often from a conservator or

guardian) before issuing marriage licenses where

mental capacity is at issue. In order to avoid a variety

of negative public health outcomes, States also prohibit

certain blood relatives from marrying.

Because of the significant benefits marriage accords

to individuals and society, see Part I, supra, States

have an interest in promoting the stability and

solemnity of the marital contract. States impose a

variety of regulations in furtherance of this interest.

For example, many States impose waiting periods

before applicants for a marriage license can actually

marry.” To ensure the mutuality of obligations

between spouses, States also deny marriage licenses

where a would-be spouse is already party to another

marriage.

None of these regulations is undermined by

marriage equality, because they are all rationally

related to legitimate state interests. Moreover, unlike

bans on marriage between same-sex spouses, and

consistent with the lessons of Loving, these regulations

do not draw upon inherent personal characteristics

that are otherwise unrelated to an individual’s

2! States likewise regulate divorce, including imposing residency

requirements and waiting periods.

qualification for or ability to consent to marriage.” In

Loving, the Supreme Court characterized Virginia’s

anti-miscegenation laws as “restling] solely upon

distinctions drawn according to race,” and proscribing

“generally accepted conduct if engaged in by members

of different races.” 388 U.S. at 11. Exclusionary

marriage laws similarly—and unconstitutionally—

restrict the right to marry by drawing distinctions

according to gender and using that personal

characteristic to define an appropriate category of

marital partners.”

It is no defense to argue that restrictive marriage

laws do not discriminate based on gender (or sexual

orientation) because, in theory, men and women

(including gay men and lesbians) have the same right

to marry. Opponents of marriage between same-sex

spouses are not the first to argue that “equal

application” of a law’s restrictions precludes a finding

of invidious discrimination. In Loving, the government

argued that because its anti-miscegenation laws

“ Age restrictions, for example, bear on consent and are

temporary. Consanguinity is not an inherent personal trait like

race or gender, but instead exists only when an individual is

considered in relation to a small number of other people. Marital

status is likewise alterable.

* Although Amici States contend that sexual orientation

discrimination, like gender discrimination, should be subject to

heightened scrutiny, see note 4, supra, the Court need not reach

that issue in order to identify a limiting principle. It is sufficient

to distinguish exclusionary marriage laws from other legitimate

regulations by the fact that they irrationally define and limit

marriage eligibility based on an otherwise irrelevant personal

characteristic (gender).

punished people of different races equally, those laws,

despite their reliance on racial classifications, did not

constitute discrimination based on race. 388 U.S. at 8.

In reality, anti-miscegenation laws were designed to

and did deprive a targeted minority of the full measure

of human dignity and citizenship by limiting marital

choices based on race. The laws at issue here would

achieve a similar result. Laws preventing same-sex

couples from marrying define and limit fundamental!

choice based on gender for no justifiable reason. This

is the essence of invidious discrimination.

Without any rational basis, restrictive marriage

laws prevent gay men and lesbians from fully realizing

what this Court described as “one of the vital personal

rights essential to the orderly pursuit of happiness by

free men.” Loving, 388 U.S. at 12. Under any standard

of review, this result is in clear conflict with our

Constitution.

IV. NON-RECOGNITION INFLICTS UNIQUE

INJURIES ON MARRIED SAME-SEX

COUPLES NATIONWIDE

The second question presented in_ these

cases—whether the Fourteenth Amendment requires

recognition of marriages between same-sex couples

lawfully licensed out-of-state—should be answered in

the affirmative as well. Without advancing any

legitimate state interest, categorical non-recognition

imposes practical and dignitary burdens on same-sex

couples (including those residing in Amici States) that

no other married couples are required to bear.

Historically, no other category of marriages has been

targeted for non-recognition in this way. As a result,

these laws have the purpose and effect of “impos|ing] a

disadvantage, a separate status, and so a stigma upon

all who enter into same-sex marriages made lawful by

the unquestioned authority of the States.” Windsor,

133 S. Ct. at 2693. Thus, even if it were the case that

States could refuse to license marriages between same-

sex couples, the categorical non-recognition of out-of-

state marriages is nonetheless unconstitutional.

A. Singling Out Same-Sex Couples for Non-

Recognition Stigmatizes Them and

Their Families

Today, States respect marriages validly licensed by

other States almost universally.** William M. Richman

et al., Understanding Conflict of Laws § 119 (4th ed.

2013). This is due not only to basic principles of

comity, but also to an understanding that marital

status is so fundamental that it should not change at

the state line. Kitchen v. Herbert, 755 F.3d 1193, 1213

(10th Cir. 2014) (“[T]he fundamental right to marry

necessarily includes the right to remain married.”)

(collecting authorities); see also Richman, supra § 119

(“[T]he validation rule confirms the parties’

expectations, it provides stability in an area where

stability (because of children and property) is very

important, and it avoids the potentially hideous

problems that would arise if the legality of a marriage

varied from state to state.”). A marriage license thus

** Section 2 of the Defense of Marriage Act, 28 U.S.C. § 1738C,

provides that no State is required to give effect to a same-sex

marriage performed in or licensed by another State. The existence

of this federal law does not change the constitutional analysis here,

because Congress cannot authorize States to violate the

Constitution.

“creates an instantly portable’ status” that

distinguishes marriage from many other licensed

activities. Mae Kuykendall, Equality Federalism: A

Solution to the Marriage Wars, 15 U. Pa. J. Const. L.

377, 425 (2012).

In cases challenging the validity of out-of-state

unions, state courts often recite the principle that

marriages should be recognized, if valid where

celebrated, unless doing so violates the clear public

policy of the forum. Restatement (Second) of Conflict

of Laws § 283(2) (1971). However, “the vast majority of

courts have not used a public policy exception to

invalidate their domiciliaries’ out-of-state marriages.”

Barbara J. Cox, Same-Sex Marriage and the Public

Policy Exception in Choice-of-Law: Does It Really

Exist?, 16 Quinnipiac L. Rev. 61, 67 (1996). While

States retain the authority to refuse recognition of

certain strongly disapproved marriages (subject to

constitutional guarantees), “the ‘overwhelming

tendency’ is to validate marriages ....” Andrew

Koppelman, ZJnterstate Recognition of Same-Sex

Marriages and Civil Unions: A Handbook for Judges,

153 U. Pa. L. Rev. 2143, 2148 (2005) (footnote

omitted).

Historically, interstate recognition has not been

uniform, but categorical non-recognition of classes of

marriages is highly unusual.” See id. at 2148-49; Cox,

supra, at 66-67. The analysis conducted by state courts

* To the extent there has been any uniformity in the case law, it

has been a rejection of international bigamous marriages. But no

State has ever sanctioned polygamy, making the comparison to

same-sex marriage attenuated.

usually has been case-specific, so as to weigh equities

and avoid unfair results. See Constitutional

Constraints on Interstate Same-Sex Marriage

Recognition, 116 Harv. L. Rev. 2028, 2036-37 (2003)

(“[CJourts have often been swayed to recognize

‘offensive’ marriages on equitable grounds when

nonrecognition would result in injustice.”).

Even when there was fierce disagreement between

States over interracial marriage, for example, statutory

prohibitions specifically denying recognition to out-of-

state interracial marriages were uncommon, see

Andrew Koppelman, Same-Sex Marriage and Public

Policy: The Miscegenation Precedents, 16 Quinnipiac L.

Rev. 105, 120 (1996), and state courts did recognize

some out-of-state unions. See, e.g., Whittington v.

McCaskill, 61 So. 236, 237 (Fla. 1913) (recognizing

validity of interracial marriage despite forum

prohibition where parties were previously domiciled

and married elsewhere); see also Miller v. Lucks, 36 So.

2d 140, 141-42 (Miss. 1948) (same); Succession of

Caballero v. Executor, 24 La. Ann. 573, 574 (1872)

(same). Thus, the current categorical refusal by some

States to recognize marriages between same-sex

couples validly licensed in other States is exceptional

as compared to both modern and historical norms.”

*° Outside the context of marriage, many other state-conferred

statuses are generally respected across State lines. For example,

corporations formed in one State are universally recognized in all

others. See Restatement (Second) of Conflict of Laws, supra § 297

(“Incorporation by one state will be recognized by other states.”).

Both States and the federal government ensure that parental

status is given effect across state lines. See Parental Kidnapping

Prevention Act, 28 U.S.C. § 1738A. In addition, when traveling, an

In addition to being unusual, categorical non-

recognition of same-sex marriages fails to advance any

legitimate state interest. To the extent that the

arguments in favor of withholding recognition of out-of-

state marriages rest on the same reasoning as

arguments concerning licensing of marriages, they

likewise do not stand up to scrutiny in this context. If

anything, disrespect for existing marital contracts is so

untethered from any legitimate state interest that it is

more suggestive of discriminatory motive. To the

extent that non-recognition is justified as furthering a

separate interest in avoiding so-called “evasive”

marriages, the categorical nature of the non-

recognition is so over-inclusive as to render it both

arbitrary and irrational.” See Cleburne, 473 U.S. at

446. State laws categorically barring recognition of

marriages between same-sex couples affect not only

couples who travel to get married, but also many

couples residing for long periods of time in the States

that licensed their marriages, including couples raising

families together. In addition, the unequal recognition

of same-sex marriages across the country itself suffers

from the constitutional infirmity of conferring a

“second-tier” status for its own sake. Windsor, 133

S. Ct. at 2694-95. The mere existence of state laws

singling out these marriages for non-recognition

individual’s state driver’s lic@nse generally is recognized as valid

throughout the country.

2? Several States have enacted general anti-evasion laws to prevent

their domiciliaries from crossing state lines to obtain marriage

licenses otherwise unavailable to them in their home States.

These laws are now disfavored. See Peter Hay et al., Conflict of

Laws § 13.13 (5th ed. 2010).

“instructs... all persons with whom same-sex couples

interact, including their own children, that their

marriage is less worthy than the marriages of others.”

Id. at 2696.

B. The Practical Consequences of Non-

Recognition Are Substantial

The categorical refusal by many States to recognize

out-of-state marriages between gay and lesbian couples

also imposes burdens on these couples that no other

married couples are required to bear.

Life today is rarely confined to one State. People

move residences approximately 12 times, on average,

over the course of their lives.” They travel throughout

the country and beyond. They often leave their home

States for work and school. In New York, for example,

approximately 234,000 residents commute to jobs in

other States.” This past fall, out-of-state students

comprised more than one-fifth of the University of

California’s entering class.* Individuals work in one

State for companies headquartered in another. Many

families also have members who reside in multiple

other States. Given this complex geography of modern

* U.S. Census Bureau, Calculating Migration Expectancy Using

ACS Data, https://www.census.gov/hhes/migration/about/cal-mig-

exp.html.

Census Bureau, 1 (Feb. 2013), http://www.census.gov/

hhes/commuting/files/2012/ACS-20. pdf.

*° Larry Gordon, A Record Number of Out-of-State Students Brings

Windfall for UC System, L.A. Times (Aug. 18, 2014, 1:11 AM),

http-//touch. latimes.com/#section/- 1/article/p2p-8 1109756.

lives, non-recognition profoundly affects married

couples nationwide. Below are some examples of the

harms.”*

Adoption: As a general matter, married same-sex

couples (even those living in marriage equality States)

go through adoption proceedings to ensure that both

spouses have legal rights regarding their children.

Many consider this necessary, even when children are

born into the marriage, because of the dangers that

may come to pass if a family relocates or travels to a

non-recognition State without both spouses established

as legal parents. For example, if a child is injured,

hospitals may refuse visitation to the non-legal parent.

In addition to the time and expense involved in the

adoption process, complications can still arise for these

families. If the adopted child was born in a non-

recognition State, then amendment of the birth

certificate to include both spouses is likely impossible.

As a result, parents must produce adoption papers

rather than a birth certificate in circumstances in

which they need to establish parentage. Beyond being

cumbersome, it requires them to identify themselves as

adoptive parents when they might otherwise have

chosen not to do so. Different-sex couples never face

this choice.

Employment Benefits: Many employers have self-

insured benefit plans that refuse coverage to same-sex

spouses. Because the Employee Retirement Income

Security Act (ERISA), 29 U.S.C. §§ 1001 ef seq.,

*! These harms are intensely personal. A number of individual

stories have been collected at https://www .facebook.com/events/

1593045484264322.

preempts state anti-discrimination laws, employers

have substantial leeway in defining eligibility for

benefits so long as they comply with federal law.

Relying on the argument that the lack of an explicit

prohibition on sexual orientation discrimination in

Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§§ 2000e et seq., permits differential treatment of same-

sex spouses, and the fact that federal law currently

does not require recognition of same-sex marriages,

some companies deem same-sex spouses ineligible for

coverage (even if the employee lives in a marriage

equality State).** This exclusion also extends to

Consolidated Omnibus Budget Reconciliation Act

(COBRA) benefits following the termination of

employment. 29 U.S.C. §§ 1161 et seg. In addition to

the overt discrimination involved in the explicit refusal

to recognize same-sex spouses, the inability to secure

coverage through an employer can impose a significant

financial burden on families, who must obtain

insurance coverage through other means. Requiring

recognition likely will end employers’ exclusion of

same-sex spouses from coverage.

Real Property: Couples who jointly own property in

non-recognition States are required to file income tax

returns separately, if they obtain income from the

properties. They are not permitted to own property as

tenants by the entirety (a status typically available to

lawfully married spouses), and in the case of divorce,

* See, e.g., Hall v. BNSF Ry. Co., No. C13-2160 RSM, 2014 WL

4719007, at *5(W.D. Wash. Sept. 22, 2014) (Delaware corporation

denied health insurance coverage to same-sex spouse of

Washington employee because “its plan defined marriage as

between one man and one woman”).

may experience difficulty disposing of or dividing the

property.

Relocation and Travel: For same-sex couples, non-

recognition can prove a significant impediment to

making important life decisions and to exercising their

fundamental right to move between States. See, e.g.,

Saenz v. Roe, 526 U.S. 489, 498 (1999) (“[T)he

‘constitutional right to travel from one State to another’

is firmly embedded in our jurisprudence.”) (quoting

United States v. Guest, 383 U.S. 745, 757 (1966)). The

portability (or lack thereof) of one’s marital status can

significantly influence a decision to relocate for a job,

educational opportunity, or familial need. Individuals

sometimes refuse transfers within their companies, if

it means moving to a non-recognition State. Graduate

students pursuing new careers often limit their job

searches in order to avoid the rejection of their

marriages. This hurts their careers and can negatively

impact employers who are seeking qualified candidates

from a national pool. In other circumstances, a sick

parent or relative may require care in another State,

but concern for loss of marital status may dissuade

individuals from relocating, potentially placing greater

stress on relatives or burdening the family’s financial

resources. In sum, many married couples refuse to

consider the possibility of relocating to a non-

recognition State due to the legal uncertainties it

creates and the personalkharm they suffer when their

marriages are rejected.

When same-sex couples do travel into non-

recognition States (even temporarily), they have many

concerns about how their lack of marital status might

affect them. For some couples, the fear of uncertain

status means avoiding non-recognition States

whenever possible. For others, it means cumbersome

planning and precautions. These concerns are

particularly acute in the healthcare context, including

decision-making and visitation, should one spouse fall

ill or be injured in a State that does not recognize his or

her marriage. Some couples fear traveling without

extensive documentation to establish their rights.

Divorce: There is also uncertainty as to what

happens to a married same-sex couple that wishes to

divorce when one or both spouses have relocated to a

State that does not honor the marriage in the first

place. State courts have reached varying conclusions

on whether they have jurisdiction to resolve such

matters. See, e.g., Christiansen v. Christiansen, 253

P.3d 153 (Wyo. 2011) (finding jurisdiction); Jn re

Marriage of J.B. & H.B., 326 S.W.3d 654 (Tex. App.

2010) (finding lack of jurisdiction). Though not a

preferred outcome, divorce allows for an orderly

dissolution of the union, divides marital assets, and can

protect children by protecting the role of each parent.

If this process is unavailable, both the spouses and

their children are harmed. No other group of married

couples suffers such uncertainty.

Death: If a same-sex spouse dies in a non-

recognition State, the surviving spouse is not listed on

the death certificate. This imposes dignitary harms on

the survivor, who suffers not only the loss of a spouse

but also the rejection of the marriage on official

documentation used in the administering of the

spouse’s estate. If the spouse’s death was caused by an

accident, the surviving spouse may be unable to secure

benefits or proceeds from a wrongful death action. In

another affront to the dignity of same-sex spouses, non-

recognition States also may refuse to honor their burial

wishes.**

In all of these ways, and more, the fact that many

States refuse to recognize marriages between gay and

lesbian couples inflicts a unique set of harms on these

couples nationwide, including those living in States

that honor their marriages.

x * *

Recognition, however, is not enough. Requiring

States to recognize (but not license) marriages between

same-sex couples would force many couples to choose

between leaving home to marry—and perhaps not

being able to celebrate their vows in front of their

friends, family, and community—or forgoing marriage

altogether. The choice alone is demeaning. And for

many couples who lack the financial and other

resources to leave home to get married, there really is

no meaningful choice at all. Thus, anything short of

full and equal marriage rights would perpetuate the

stigma and second-tier status that gay and lesbian

couples currently experience. The Court should answer

both questions presented here in the affirmative. The

time has come for marriage equality nationwide.

8 See, e.g., Complaint at 2-3, Taylor v. Brasuell, No. 1:14-CV-00273

(D. Idaho filed July 7, 2014) (describing denial of request for

interment of same-sex spouses’ ashes at Idaho State Veterans

Cemetery).

CONCLUSION

For the forgoing reasons, the Court should reverse

the judgment of the court of appeals.

Respectfully submitted,

MAURA HEALEY

Attorney General

JONATHAN B. MILLER*

GENEVIEVE C. NADEAU

Assistant Attorneys General

AMANDA R. MANGASER

Special Assistant Attorney General!

COMMONWEALTH OF MASSACHUSETTS

Office of the Attorney General

One Ashburton Place

Boston, MA 02108

(617) 727-2200

Jonathan. Miller@state.ma.us

* Counsel of Record

Dated: March 6, 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.