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

Supreme Coun. US

FILED

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

IN THE MAR 6 - 2015

Supreme Court of the Hnited States... - :

JAMES OBERGEFELL, ET AL., AND BRITTANI HENRY, eeinams

PETITIONERS,

Vv.

RICHARD HODGES, DIRECTOR, OHIO DEPARTMENT OF

HEALTH, ET AL., RESPONDENTS.

VALERIA TANCO, ET AL., PETITIONERS,

We

WILLIAM EDWARD “BILL” HASLAM, GOVERNOR OF

TENNESSEE, ET AL., RESPONDENTS.

APRIL DEBOER, ET AL., PETITIONERS,

Vv.

RICK SNYDER, GOVERNOR OF MICHIGAN, ET AL.,

RESPONDENTS.

GREGORY BOURKE, ET AL., AND TIMOTHY LOVE, ET AL.,

PETITIONERS,

Vv.

STEVE BESHEAR, GOVERNOR OF KENTUCKY, ET AL.,

RESPONDENTS.

On Writs of Certiorari to the United States

Court of Appeals for the Sixth Circuit

BRIEF OF AMICI CURIAE

NAACP LEGAL DEFENSE & EDUCATIONAL FUND,

INC. AND NATIONAL ASSOCIATION FOR THE

ADVANCEMENT OF COLORED PEOPLE

IN SUPPORT OF PETITIONERS

SHERRILYN IFILL JOHN PAUL SCHNAPPER-

Director-Counsel CASTERAS *

JANAI NELSON NAACP LEGAL DEFENSE &

CHRISTINA SWARNS EDUCATIONAL FUND, INC.

JIN HEE LEE 1444 I Street NW

RACHEL M. KLEINMAN Washington, DC 20005

NAACP LEGAL DEFENSE & 202-682-1300

EDUCATIONAL FUND, INC. jschnapper@naacpldf org

40 Rector Street, 5th Floor

New York, NY 10006

March 6, 2015 * Counsel of Record

[Additional Counsel On Inside Cover]

OE

MARSHALL W. TAYLOR

Interim General Counsel

KHYLA D. CRAINE

NAACP

4805 Mount Hope Drive

Baltimore, MD 21215

TABLE OF CONTENTS

TABLE OF AUTHORITIES ......................ceeeseeeees

INTEREST OF AMICI CURIAE ...............0.00.0000-

INTRODUCTION AND SUMMARY OF THE

STATE PROHIBITIONS AGAINST

MARRIAGE FOR SAME-SEX COUPLES

VIOLATE THE EQUAL PROTECTION

CLAUSE OF THE FOURTEENTH

FTEETE ccecestnncessceccescncssnnpsncsetnnsnannsereene 10

A. The Fourteenth Amendment's

Guarantee Of Equal Protection And The

Holding In Loving v. Virginia Apply

Beyond The Context Of Racial

ARI EE ao OE

B. The History Of Anti-Miscegenation

Laws Demonstrates How Exclusion

From Marriage Perpetuates A Caste

System In Violation Of Equal Protection

RISE aie a eae nee

C. State Prohibitions Against Same-Sex

Marriage Should Fall No Matter What

Level Of Constitutional Scrutiny Is

.THE THEORIES ADVANCED IN

SUPPORT OF THE BANS ON SAME-SEX

MARRIAGE WERE ALSO PRESSED AND

REJECTED REGARDING INTERRACIAL

10

EY CII Senecnensnnssnninisiremenenintneneininiie 20

i

A. Loving Rejected The Notion That

History And Tradition Justify

SE IIIIIII, : niccbndanddenintnientiediniintimédnmeaaes 21

B. Loving Rebuffed Arguments About The

Role Of Judicial Review. ............................ 25

C. Loving Did Not Link The Right To

Marry To The Ability To Procreate. .......... 27

D. Loving Rejected The Proposition That

Interracial Marriage Bans Applied

MITE dni cutniasdpeieitinsesadadiaauiiinninnicanniidinadiade 29

E. Loving Refused To Credit Theories That

Interracial Marriage Harmed Children

a surIIInITITITITIITINT,scsorsasisocslicccsiesebcrehinaebonnebentatecilaiiaionningibvcindiasinsioidaie 31

NEI <ctinsiicisisideischsshsnniestlaciccinieniitesinnilamntanbneinaiel 34

11]

TABLE OF AUTHORITIES

Cases

Baskin v. Bogan,

766 F.3d 649 (7th Cir. 2014)................... .....-Dassim

Bostic v. Schaefer, 760 F.3d 352

I ila a acticin passim

Bourke v. Beshear, 996 F. Supp. 2d 542 (W.D. Ky.

2014), rev'd sub nom. DeBoer v. Snyder,

772 F.3d 388 (Gth Cir. 2014).................................. 2

Brown v. Board of Education, 347 U.S. 483

ECan Se eee eee nee eee eee 1, 22, 32

City of Cleburne, Texas v. Cleburne Living

Center, 473 U.S. 432 (1985)............................. 9, 27

Conaway v. Deane, 932 A.2d 571 (Md. 2007)............. 2

Craig v. Boren, 429 U.S. 190 (1976).......................2. 11

DeBoer v. Snyder, 772 F.3d 388 (6th Cir.

ST nsiedeaiaseshisdinsniedelauidnabneigialaempniienedinanadgenpiausneniionil passim

Dred Scott v. Sanford, 60 U.S. 393 (1857)............... 15

Goodridge v. Department of Public Health,

798 N.E.2d 941 (Mass. 2003)...................2..... 23, 29

Frontiero v. Richardson, 411 U.S. 677 (1973).......... 11

Harper v. Virginia Board of Elections,

LE A nen 24

Heller v. Doe, 608 U.S. 312 (19GS8).........ccccccccccecccesces 24

Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006) ........ 2

In re Marriage Cases, 183 P.3d 384 (Cal. 2008) ........ 2

Jackson v. State, 72 So.2d 114, cert. denied,

348 U.S. 888 (1954)................... sailcenneiidbiahd Acieieiie steachandiiaie 9

1V

Kitchen v. Herbert, 755 F.3d

ee EN Ns I cccccrccccdcnssdidcanntssadteanies 2, 13, 26

Kitchen v. Herbert, 961 F. Supp. 2d 1181

TRE nee ae ane mee oD 30

Latta v. Otter, 771 F.3d 456 (9th Cir. 2014) ...2, 13, 24

Lawrence v. Texas, 539 U.S. 558 (2003)....6, 11, 23, 24

Lonas v. State, 50 Tenn. 287 (1871)......................... 31

Loving v. Commonwealth, 147 S.E.2d 78

SSS a one Re ene 7

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

Lucas v. Forty-Fourth General Assembly of

State of Colorado, 377 U.S. 713 (1964) .... .......... 27

McLaughlin v. Flordia, 379 U.S. 184 (1964) ......... 1,9

McLaurin v. Oklahoma State Regents for Higher

Education, 339 U.S. 637 (1950)..........................0e. 1

Missouri ex rel. Gaines v. Canada, 305 U.S. 337

TEESE ce ae ne De 1

Morgan v. Virginia, 328 U.S. 373 (1946) ................ 1-2

NAACP v. Alabama, 357 U.S. 449 (1958).................. 1

Naim v. Naim, 87 S.E.2d 749

EE SL ee ene passim

Nixon v. Condon, 286 U.S. 73 (1932) ...............0.02... 26

Oyama v. California, 332 U.S. 633 (1948) ............... 11

Pace v. Alabama, 106 U.S. 583 (1883) ..................... 16

Parents Involved in Community Schools v. Seattle

School District No. 1, 551 U.S. 701 (2007).......... 25

Perez v. Sharp, 198 P.2d 17 (Cal. 1948)................... 23

v

Perry v. Schwarzenegger, 591 F.3d 1147

Es Cie. SI vciccnctnsncnssceiccsidieeioumeasiensiaeetiaene 2

Perry v. Schwarzenegger, 704 F. Supp. 2d 921

COE. GHEE, TRUE ccconensssnccsniectiidiaammaaanes 22

Plessy v. Ferguson, 163 U.S. 537 (1896)................... 29

Romer v. Evans, 517 U.S. 620 (1996).............. S. 2. ae

Schuette v. Coal. To Defend Affirmative Action,

BIG TH GR. Fe Ce iccecscccscstesinnsentiansnas 27

Scott v. State, 39 Ga. 321 (1869) ........................2.000. 31

Shelley v. Kraemer, 334 U.S. 1 (1948).................2.22. 30

Sipuel v. Board of Regents of the University of

Oklahoma, 332 U.S. 631 (1948)................c.ccc eee ee eee 1

SmithKline Beechaum Corp. v. Abbot Labs,

740 F.3G 471 (Gta Ci. BOVE)... cccccccccccccscccccesesese. 18

State v. Brown, 108 So. 2d 233 (La. 1959)............... 32

State v. Jackson, 80 Mo. 175 (1883)......................... 31

Strauss v. Horton, 207 P.3d 48 (Cal. 2009)................ 2

Sweatt v. Painter, 339 U.S. 629 (1950) ................ 1, 30

Town of Huntington v. Huntington Branch

FERAL, GEO UTR. TB Ce cceccccccscccccensseccsscccestvenss 2

Turner v. Safley, 482 U.S. 78 (1987) ...................200-. 28

United States v. Carolene Products Co.,

ee rs Be Giicicicitnccieedteetamibiieen tea 26

United States v. Virginia (VM1]), 518 U.S. 515

SE nisccnscnnanetniiaikanidiiaiinaie: taksim anaes 11

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

eS EEO ES passim

v1

Windsor v. United States, 699 F.3d 169, 182

(2d Cir. 2012), affd on alternative grounds,

NR EEE 18-19

Zablocki v. Redhail, 434 U.S. 374 (1978)................. 12

Docketed Cases

Brenner v. Armstrong, appeal docketed, Nos. 14-

14061, 14-14066 (11th Cir. Sept. 5, 2014) ............ 2

De Leon v. Perry, appeal docketed, No. 14-20196

NS 2

Other Authorities

Jennifer Agiesta, Poll: Obama's approval ratings

stagnant despite economy, CNN, Feb. 19, 2015,

available at http://www.cnn.com/2015/02/19/

politics/poll-obama-approval-rating-economy/.... 23

Brief and Appendix on Behalf of Appellee, Loving v.

Virginia, 388 U.S. 1, Civ. No. 395, 1967 WL

eee passim

Bernard S. Cohen and Evan Wolfson, Loving

Equality, Huffington Post, May 25, 2011,

available at http://www.huffingtonpost.com/

bernard-s-cohen-and-evan-wolfson/loving-

EE Le 13

Aderson Bellegarde Francois, To “o into Battle with

Space and Time: Emancipated Slave Marriage,

Interracial Marriage, and Same-Sex Marriage,

13 J. Gender Race & Just. 105 (2009)............ 14-15

vii

Gallup, Jn U.S., 87% Approve of Black-White

Marriage, vs. 4% in 1958 (July 25, 2013),

available at http://www.gallup.com/poll/

169640/sex-marriage-support-reaches-

I cinccntiienntinnsnstensemmennentnoninnioaeaiis 9, 23, 24

Congressional Globe, 39th Congress, Ist Session

Le SOE I 29

John DeWitt Gregory & Joanna L. Grossman,

The Legacy of Loving, 51 How. L.J. 15 (2007) .... 16

Brief of Amicus Curiae Idaho Governor C.L. “Butch”

Otter, DeBoer v. Snyder, Nos. 14-556, 14-562,

14-571, 14-574 & 14-596

ok Seen 17, 28, 29

Hon. A. Leon Higginbotham, Jr., Shades of

En 15

Pamela S. Karlan, Foreword: Loving Lawrence,

102 Mich. L. Rev. 1447 (2004)............00.0.00.... 13, 16

Randall Kennedy, Jnterracial Intimacies (2003) ..... 16

R.A. Lenhardt, Beyond Analogy: Perez v. Sharp,

Antimiscegenation Law, and the Fight for Same-

Sex Marriage, 96 Calif. L. Rev. 839 (2008) ... 15, 23

Press Release, Congressman John Lewis, Rep. John

Lewis Says DOMA Decision Is A Victory for

Equality (June 27, 2013), available at https://

johnlewis. house.gov/press-release/rep-john-

lewis-says-doma-decision-victory-equality ......... 13

Mildred Loving, Loving for All, Address at the 40th

Anniversary of the Loving v. Virginia

Announcement (June 12, 2007), available at

http://www.freedomtomarry.org/page/-

/files/pdfs/mildred_loving-statement.pdf ............ 13

Vlll

Douglas Martin, Mildred Loving, Who Battled Ban on

Mixed-Race Marriage, Dies at 68, N.Y. Times,

SEE en oe 6

Phyl Newbeck, Virginia Hasn't Always Been for

Lovers: Interracial Marriage Bans and the Case

of Richard and Mildred Loving (2004) ............... 16

Brief of the National Association for the

Advancement of Colored People as Amicus Curiae,

Loving v. Virginia, 388 U.S. 1, Civ. No. 395,

1967 WL 113930 (Feb. 28, 1967)................ 8, 16, 32

Brief of NAACP Legal Defense and Educational

Fund, Inc. as Amicus Curiae, Loving v. Virginia,

388 U.S. 1, Civ. No. 395, 1967 WL 113930

I al 8, 18, 26, 33

Brief for Petitioners, DeBoer v. Snyder, No.

14-571 (U.S. Feb. 27, 2015) ................................. 25

Brief of Amici Curiae 76 Scholars of Marriage

Supporting Review and Affirmance, DeBoer v.

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

14-574 & 14-596 (U.S. Dec. 15, 2015) ........... 31, 34

Reva B. Siegel, Equality Talk: Antisubordination

and Anticlassification Values in Constitutional

Struggles over Brown, 117 Harv. L. Rev. 1470

ITs eesti eettea tatiana iatitinintamcsinliaeae 11, 18

Transcript of Oral Argument, Loving v. Virginia, 388

U.S. 1 (1967) (No. 395), available at

http://www.oyez.org/cases/1960-

BOGBVIGSS/IGSS BOG. ..2...ccccccceccccccccceccccsccce..-e-0e 7,8

Evan Wolfson, Loving v. Virginia — and Mrs. Loving —

Speak to Us Today, 51 How. L. J. 187

ST ntgrratinnisdintiidameleprapdetealpgmmpianpuniininmemamittins 13, 14

INTEREST OF AMICI CURIAE'

The NAACP Legal Defense and Educational Fund,

Inc. (LDF) is a non-profit legal organization that, for

more than seven decades, has fought to enforce the

guarantees of the United States Constitution against

discrimination. See, e.g., Brown v. Bd. of Educ., 347

U.S. 483 (1954); McLaurin v. Okla. State Regents for

Higher Educ., 339 U.S. 637 (1950); Sweatt v. Painter,

339 U.S. 629 (1950); Sipuel v. Bd. of Regents of Univ.

of Okla., 332 U.S. 631 (1948); Missouri ex rel. Gaines

v. Canada, 305 U.S. 337 (1938). Since its inception,

LDF has worked to eradicate barriers to the full and

equal enjoyment of social and political rights,

including those arising in the context of partner or

spousal relationships. See, e.g., Loving v. Virginia,

388 U.S. 1 (1967); McLaughlin v. Florida, 379 U.S.

184 (1964).

Founded in 1909 and incorporated by the State of

New York, the National Association for the

Advancement of Colored People (NAACP) is the

country’s largest and oldest civil rights organization.

The mission of the NAACP is to ensure the equality

of political, social, and economic rights of all persons,

and to eliminate racial hatred and_eé£i“—racial

discrimination. Throughout its history, the NAACP

has used the legal process to champion equality and

justice for all persons. See generally NAACP v

Alabama, 357 U.S. 449 (1958); Morgan v. Virginia,

1 Pursuant to Supreme Court Rule 37.6, counsel] for amici

curiae state that no counsel for a party authored this brief in

whole or in part, and that no person other than amici curiae, its

members, or its counsel made a monetary contribution to the

preparation or submission of this brief. All parties have

consented to the filing of this brief.

2

328 U.S. 373 (1946); and Town of Huntington v.

Huntington Branch NAACP, 488 U.S. 15 (1988).

Both groups were actively involved in opposing

bans on interracial marriage, and both filed amicus

curiae briefs in Loving v. Virginia, 388 U.S. 1 (1967).

Consistent with their opposition to all forms of

discrimination, LDF and NAACP have written or

joined as amici curiae in cases across the nation that

affect the rights of gays and lesbians, including

United States v. Windsor, 133 S. Ct. 2675 (2013);

Bourke v. Beshear, 996 F. Supp 2d 542 (W.D. Ky.

2014), rev'd sub nom. DeBoer v. Snyder, 772 F.3d 388

(6th Cir. Nov. 6, 2014), cert. granted 135 S. Ct. 1040

(Jan 16, 2015) (U.S. No. 14-571); Bostic v. Schaefer,

760 F.3d 352 (4th Cir. 2014); Baskin v. Bogan, 766

F.3d 648 (7th Cir. 2014); Latta v. Otter, 771 F.3d 456

(9th Cir. 2014); Perry v. Schwarzenegger, 591 F.3d

1147 (9th Cir. 2010); Kitchen v. Herbert, 755 F.3d

1193 (10th Cir. 2014); Romer v. Evans, 517 U.S. 620

(1996); Strauss v. Horton, 207 P.3d 48 (Cal. 2009); In

re Marriage Cases, 183 P.3d 384 (Cal. 2008);

Conaway v. Deane, 932 A.2d 571 (Md. 2007);

Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006). See

also De Leon v. Perry, appeal docketed, No. 14-50196

(5th Cir. Mar. 1, 2014) (ruling pending); Brenner v.

Armstrong, appeal docketed, Nos. 14-14061, 14-14066

(11th Cir. Sept. 5, 2014) (held in abeyance). Amici

curiae have a strong interest in the fair application of

the Fourteenth Amendment to the United States

Constitution, which provides critically important

protections for all Americans, and submit that their

experience and knowledge will assist the Court in

this case.

3

INTRODUCTION AND

SUMMARY OF THE ARGUMENT

In 1967, the Supreme Court faced the pivotal

question of whether state bans on interracial

marriage violated the Fourteenth Amendment. It

was a deeply controversial issue in an era of

significant racial strife. When Mildred Loving, an

African-American woman, and Richard Loving, a

white man, wed several years earlier, a staggering

96% of the country disapproved of interracial

marriages. Up to that point, state courts had almost

universally upheld bans on interracial marriage, and

the Supreme Court itself had declined to squarely

decide the issue just three years before. Yet, despite

strong opposition, in Loving v. Virginia the Supreme

Court unanimously held that banning interracial

marriage violated the central tenets of the Equal

Protection and Due Process Clauses of the

Fourteenth Amendment.

Today, this Court is presented with the opportunity

to affirm the right to marry in a case with important

parallels to Loving. It should hold that state bans on

same-sex marriage violate the Fourteenth

Amendment.

Loving is integral to the Court’s analysis of same-

sex marriage for two key reasons:

First, Loving’s principles and affirmative analysis

strongly favor strikimg down bans on same-sex

marriage. Loving held that “[t]he freedom to marry

has long been recognized as one of the vital personal

rights essential to the orderly pursuit of happiness”

and that “all the State’s citizens” possess a

fundamental right to marry. 388 U.S. at 12. That

reasoning applies with equal force here because

neither Loving nor this Court's Fourteenth

4

Amendment jurisprudence is limited to _ racial

discrimination. State prohibitions against same-sex

marriage plainly discriminate on the basis of sexual

orientation and sex and fall squarely within the

protections of the Equal Protection Clause. Loving’s

robust anti-subordination principle further makes

clear that state laws that exclude certain groups from

marriage effectuate a caste system that is contrary to

the principles of Equal Protection. Because state

bans of same-sex marriage relegate gay and lesbian

couples to a lower social status with a badge of

inferiority, they run afoul of the Equal Protection

Clause.

Second, Loving soundly rejected many of the

arguments that Respondents and their supporters

have repurposed and advanced today. Namely,

Loving rebuffed any claim that banning interracial

marriage was justified by tradition or the Framers’

original intent. The Court additionally rejected the

contention that it was beyond the role of the judiciary

to pass upon state laws that banned marriages.

Furthermore, the Court lent no credence to research

on the purported harm of interracial marriage to

children and society. Such discriminatory arguments

were, for generations, central to a system of

oppression that grew out of slavery and were

“designed to maintain White Supremacy.” Id. Yet,

today, nearly identical arguments decrying same-sex

marriage as harmful to children, families, and

heterosexual couples and norms, are mounted to

justify state bams on same-sex marriage. Louving’s

unanimous rejection of these sorts of theories is

directly applicable to this case.

Loving is certainly important in doctrinal terms,

but also because of how broadly and quickly the

decision was accepted and celebrated. Four decades

5

ago, the “tradition” of banning interracial marriage

seemed sacrosanct to the vast majority of Americans.

Yet, such intolerance is now widely seen for what it

truly was: racist, wrong, and unconstitutional.

Whereas 96% of Americans once disapproved of

interracial marriages, 87% of all Americans now

support them. The sanction of interracial marriage

has hardly destroyed the nation’s citizenry, as the

Virginia Supreme Court had crassly conjectured in

the Loving case. Rather, Loving has fostered

inclusion, helped bridge racial divides, and

strengthened the social fabric of our increasingly

diverse nation.

Loving’s principles already reverberate through the

sphere of same-sex marriage, in part because all

persons yearn and deserve to be treated with equal

dignity and respect, both individually and as married

couples. Before 2004, gays and lesbians could not

marry in any state in the United States. In recent

years, however, many states and courts have gained

“a mew perspective” on same-sex marriage. Windsor,

133 S. Ct. at 2689. What was unfathomable just a

decade ago is rapidly becoming familiar and accepted,

as discriminatory state ban after discriminatory state

ban is struck down across the country. Only 13

states currently prohibit same-sex marriage, which is

fewer than the 16 states that banned interracial

marriage when this Court decided Loving. Thus,

discriminatory marriage laws, however they are

couched, are neither etched in stone nor carved in the

Constitution.

Loving teaches that positive change is readily

possible — often more swiftly and thoroughly than

expected. Loving has helped this country make

considerable strides towards greater equality — even

6

as we still strive for further progress — and it should

guide the Court’s resolution of the case at bar.

ARGUMENT

Mildred Loving, an African-American woman, and

her husband Richard Loving, a white man, were

sleeping in their marital abode when three police

officers, acting on an anonymous tip, burst into their

Virginia home in the middle of the night, shone

flashlights in their eyes, and hauled them off to jail.

Mrs. Loving implored, “I’m his wife,” pointing to her

marriage certificate on the bedroom wall — but the

sheriff retorted, “that’s no good here.”2 After Mr.

Loving spent one night in jail, and Mrs. Loving spent

several more, the couple pled guilty to violating

Virginia’s “Racial Integrity Act,” and were banished

from the state for 25 years in return for a suspended

one-year jail term. At sentencing, the trial judge

proclaimed: “Almighty God created the races white,

black, yellow, malay and red, and he placed them on

separate continents .... The fact that he separated

the races shows that he did not intend for the races to

mix.” 388 U.S. at 3.

The Lovings challenged the constitutionality of the

state statute prohibiting their interracial marriage.

The Virginia Supreme Court, however, upheld the

law, relying primarily on an earlier decision, Naim v.

Naim, which held that states had a right to “preserve

. . racial integrity” and prevent a “mongrel! breed of

citizens,” “the obliteration of racial pride” and the

2 See Douglas Martin, Mildred Loving, Who Battled Ban on

Mixed-Race Marriage, Dies at 68, N.Y. Times, May 6, 2008, at

B7. The factual parallels to the persecution of gays and lesbians

are also striking. See, e.g., Lawrence v. Texas, 539 U.S. 558

(2003) (police burst into a home, acting on an anonymous tip,

and arrested two men for violating Texas’ anti-sodomy statute).

7

“corruption of blood [that would] weaken or destroy

its citizenship.” 87 S.E.2d 749, 756 (Va. 1955), cited

in Loving v. Commonwealth, 147 S.E.2d 78, 80 (Va.

1966). The Virginia Supreme Court also reasoned

that nothing in Brown v. Board “detracted in any way

from ... Plessy [v. Ferguson],” and that any contrary

ruling would constitute “judicial legislation in the

rawest sense.” 147 S.E.2d at 80, 82.

Before this Court, Virginia defended its ban on

interracial marriage on the basis of history and the

original intent of the drafters of the Fourteenth

Amendment. See Brief and Appendix on Behalf of

Appellee, Loving v. Virginia, 388 U.S. 1, Civ. No. 395,

1967 WL 113931 at *14-30 (March 20, 1967)

[hereinafter “Loving Virginia Br.”]. Virginia warned

that it was “not within the province of the court” to

question the scientific basis, “wisdom, propriety, or

desirability of preventing interracial alliances ... .”

Id. at *38. Virginia defended such bans on the

grounds that “intermarriage constitutes a threat to

society,” leads to higher rates of divorce and

separation, and is “wrong too because [it is] often

based on the mistaken premise [of] . . . universalism

and human brotherhood,” which is “utterly fantastic .

... if not absurd.” Jd. at *48 (citation and internal

quotations omitted). A race “need [not] offer

3 Naim involved the conviction of a Chinese and white couple,

notwithstanding Virginia’s representation to this Court in

Loving that “the intermarriage of whites and orientals . . . is not

a problem with which Virginia has faced and one which is not

required to adopt its policy forbidding interracial marriage too.”

Transcript of Oral Argument at 14, Loving v. Virginia, 388 U.S.

1 (1967) (No. 395).

8

apologies for their desire to perpetuate themselves,”

Virginia concluded. Jd.4

LDF and the NAACP filed amicus curiae briefs,

arguing that Virginia’s ban was flatly

unconstitutional. See generally Brief of NAACP

Legal Defense and Educational Fund, Inc. as Amicus

Curiae, Loving v. Virginia, 388 U.S. 1, Civ. No. 395,

1967 WL 113929 (Feb. 20, 1967); Brief of the

National Association for the Advancement of Colored

People as Amicus Curiae, Loving v. Virginia, 388 U.S.

1, Civ. No. 395, 1967 WL 113930 (Feb. 28, 1967)

[hereinafter “Loving LDF Br.” and “Loving NAACP

Br.,” respectively]. LDF urged the Court to apply

heightened scrutiny and noted that “state legislative

power over marriages is not omnipotent,” since the

“right to marry is a protected liberty under the

Fourteenth Amendment and is one of the ‘basic civil

rights of man.” Loving LDF Br. at *9 (citations

omitted). LDF also lambasted Virginia’s rationale for

the law as an “amalgam of superstition, mythology,

ignorance and pseudo-scientific nonsense summoned

up to support the theories of white supremacy and

racial ‘purity.” Id. at *9-11; see Loving NAACP Br. at

*7-15 (debunking concepts of racial purity, interracial

inferiority, and cultural implications). Likewise, the

NAACP stressed that “there is no rational or

scientific basis upon which a statutory prohibition

against marriage based on race or color alone can be

justified as furthering a valid legislative purpose,”

since the “right to marry is a civil right.” Loving

NAACP Br. at *5.

4 The book that Virginia relied upon as “definitive” also

broadly condemned interfaith marriage, an argument Virginia

made sure to preserve at oral argument. See Transcript of Oral

Argument, supra n.3, at 21.

9

The Supreme Court unanimously struck down

Virginia’s ban, notwithstanding its reluctance to

squarely decide the issue just a few years before.

Jackson v. State, 72 So.2 114, cert. denied, 348 U.S.

888 (1954); McLaughlin, 379 U.S. at 195 (declining to

“reach[} the question of the validity of the State’s

prohibition against interracial marriage”). Loving

made clear that “|[mJarriage is one of the ‘basic civil

rights of man,” and that to “deny this fundamental

freedom” on the basis of racial classifications violated

the Fourteenth Amendment. 388 U.S. at 12. The

Court also noted that a state’s power to regulate

marriage is “not unlimited.” Jd. at 7. Loving further

set forth an anti-subordination principle holding that

laws which exist solely to effectuate a caste system

cannot stand. To that end, Loving reasoned that

Virginia’s ban had “no legitimate overriding purpose

independent of invidious racial discrimination.”

Id. at 11.

In the years since Loving, none of the social or

genetic harms crudely predicted by Naim have come

to pass. Instead, public opinion on interracial

marr.age has shifted dramatically in favor of greater

acceptance, and our nation has become significantly

more inclusive. See Gallup, In U.S., 87% Approve of

Black-White Marriage, vs. 4% in 1958 (July 25, 2013)

[hereinafter “Gallup Poll”) (finding that only 4% of

Americans approved of interracial marriage in 1958 —

and therefore 96% disapproved — whereas precisely

96% of adults age 18-29 approved in 2013). See also

City of Cleburne, Tex. v. Cleburne Living Center, 473

U.S. 432, 465 (1985) (Marshall, J., concurring)

(“[W]hat was once a ‘natural’ and ‘self-evident’

ordering [of constitutional principles of equality] later

comes to be seen as an artificial and invidious

constraint on human potential and freedom.”).

10

The history and holdings of Loving and its progeny

are essential to this litigation. Thus, this brief first

explores Loving’s overarching principles and their

implications for state bans on same-sex marriage

(Section I). It then explains how Loving rejected and

debunked the repugnant theories that were espoused

by Virginia in defense of its anti-miscegenation law,

and demonstrates how the parallel arguments, which

are now presented in defense of bans on same-sex

marriages, must also be rejected (Section II).

Together, these aspects of Loving make clear that the

Fourteenth Amendment prohibits laws which deny

consenting adults the right to marry based on their

race, sexual] orientation, or sex.

I. STATE PROHIBITIONS AGAINST

MARRIAGE FOR SAME-SEX COUPLES

VIOLATE THE EQUAL PROTECTION

CLAUSE OF THE FOURTEENTH

AMENDMENT.

Loving has special salience today, both because of

its widespread acceptance and its direct application

to same-sex marriage bans. Understanding the full

import of Loving requires situating it in the broader

context of this Court's Equal _ Protection

jurisprudence.

A. The Fourteenth Amendment’s

Guarantee Of Equal Protection And

The Holding In Loving v. Virginia

Apply Beyond The Context Of Racial

Discrimination.

Although the Fourteenth Amendment was ratified

in the wake of the Civil War after a long struggle to

eradicate slavery, its reach is not hmited to racial

discrimination alone. Over time, the Supreme Court

made clear that, while the Fourteenth Amendment's

1]

anti-discrimination principles were first articulated

in cases involving racial discrimination, they are also

applicable to governmental classifications that

categorically exclude individuals from equal

participation in our country’s social and political

community based solely on their status as members

of certain groups.

The Court has held that the determination of

whether the Fourteenth Amendment governs a

particular governmental classification should involve

consideration of such factors as whether the

classification was predicated upon “social

stereotypes,” Craig v. Boren, 429 U.S. 190, 202 n.14

(1976), and/or whether it “create[s] or perpetuate[s]

the legal, social, and economic inferiority” of a group

that has been subjected to sustained discrimination,

United States v. Virginia (VMJD, 518 U.S. 515, 534

(1996). Relying on this analysis, the Court has held

that the Fourteenth Amendment protects against

governmental! classifications that discriminate based

not only on race, but also on such factors as national

origin, sexual orientation, and sex. See, e.g.,

Lawrence, 539 U.S. at 558 (sexual orientation); VMI,

518 U.S. 515 (1996) (sex); Romer, 517 U.S. at 620

(sexual orientation); Frontiero v. Richardson, 411

U.S. 677 (1973) (sex); Oyama v. California, 332 U.S.

633 (1948) (national origin). This interpretation of

the Fourteenth Amendments Equal Protection

Clause has been a critical component of our nation’s

ongoing effort to eliminate entrenched

discrimination. See Reva B. Siegel, Equality Talk:

Antisubordination and Anticlassification Values in

Constitutional Struggles over Brown, 117 Harv. L.

Rev. 1470, 1547 (2004) (“[C]loncerns about group

subordination are at the heart of the modern equal

protection tradition ... .”).

12

Consistent with this history and purpose, the

Loving decision’s interpretation of the 14th

Amendment transcended the factual confines of that

case. In the course of declaring anti-miscegenation

statutes unconstitutional, Loving expiained that

“[mJarriage is one of the basic civil rights of man” and

that “[t]he freedom to marry has long been recognized

as one of the vital personal rights essential to the

orderly pursuit of happiness.” 388 U.S. at 12 (citation

and internal quotation marks omitted). Loving,

therefore, supports the removal of discriminatory

barriers to marriage in the “pursuit of happiness,”

not limited to racial discrimination. Nowhere did

Loving limit or define marriage as_ exclusively

between a man and a woman.

Courts have appreciated the broader significance of

Loving. Justice Thurgood Marshall, LDF’s founder,

writing for the Court, declared that “[a]lthough

Loving arose in the context of racial discrimination,

prior and subsequent decisions of this Court confirm

that the right to marry is of fundamental importance

for all individuals.” Zablocki v. Redhail, 434 U.S. 374,

384 (1978). In Zablocki, which involved the right to

marry of so-called “deadbeat dads,” the Supreme

Court explained that Loving “could have rested solely

on the ground that the statutes discriminated on the

basis of race in violation of the Equal Protection

Clause,” but instead “went on to hold that the laws

arbitrarily deprived the couple of a fundamental

liberty protected by the Due Process Clause, the

freedom to marry.” Jd. at 383.

More recently, the Fourth, Seventh, Ninth, and

Tenth Circuits, which struck down same-sex

marriage bans on various grounds, all recognized the

importance of Loving. Bostic, 760 F.3d at 376 (citing

Loving as the “most notablf{e]” demonstration that the

13

“right to marry is an expansive liberty interest that

may stretch to accommodate changing societal

norms’); Baskin, 766 F.3d at 666 (holding that the

state’s position “runs head on into Loving [], since the

limitation of marriage to persons of the same race

was traditional in a number of states when the

Supreme Court invalidated it”); Latta, 771 F.3d at

476 (rejecting arguments about history and tradition

because the “anti-miscegenation laws struck down in

Loving were longstanding”); Kitchen, 755 F.3d at

1209 (citing Loving at length for the proposition that

it framed “the right to marry at a broader level of

generality than would be consistent” with the state’s

argument).

Legislators, practitioners, and scholars have

reached the same conclusion. Civil rights icon,

Congressman John Lewis, in condemning the Defense

of Marriage Act on the floor of Congress, harkened

back to Dr. Martin Luther King, Jr.’s declaration that

“[r]jaces do not fall in love and get married.

Individuals fall in love and get married.” See Press

Release, John Lewis, Rep. John Lewis Says DOMA

Decision Is A Victory for Equality (June 27, 2013)

(quoting floor statement from 1996). The Lovings’

attorney and even Mrs. Loving herself, in a rare

public statement shortly before she passed away,

recognized and supported Loving’s application to

same-sex marriage. Bernard S. Cohen & Evan

Wolfson, Loving Equality, Huffington Post, May 25,

2011; Mildred Loving, Loving for All, Address at the

40th Anniversary of the Loving v. Virginia

Announcement (June 12, 2007). See also Pamela S.

Karlan, Foreword: Loving Lawrence, 102 Mich. L.

Rev. 1447 (2004); Evan Wolfson, Loving v. Virginia —

and Mrs. Loving — Speak to Us Today, 51 How. L. J.

187 (2007).

14

The sole circuit to take an aberrant view of Loving

was the Sixth, in the case presently before the Court.

DeBoer, 772 F.3d at 411. Judge Sutton, writing for a

2-1 majority, cursorily discounted Loving on the

grounds that “it did not create a new definition of

marriage.” Id. Judge Sutton, therefore, concluded

that the laws of Kentucky, Michigan, Ohio, and

Tennessee (hereinafter “States’ Laws”) could

constitutionally ban same-sex marriage. Such an

unduly narrow reading of Loving fails. to

meaningfully grapple with the case’s overarching

principles, namely the fundamental right to marry

and the protection against subordination.

B. The History Of Anti-Miscegenation

Laws Demonstrates How Exclusion

From Marriage Perpetuates A Caste

System In Violation Of Equal

Protection Principles.

Loving recognized that anti-miscegenation laws

were more than just arbitrary restrictions on the

right to marry. They were also a vestige of slavery

and a central component of a broader system that

was “designed to maintain White Supremacy.” 388

U.S. at 11. Because enslaved people and, later,

interracial couples were denied the right to marry,

that history is critical to an understanding of how the

denial of the right to marry operates to perpetuate

and enforce a caste system. It also makes clear that

the full import of Loving is that the Equal Protection

Clause cannot tolerate a structure that subordinates

certain groups.

In the antebellum United States, virtually no state

offered enslaved persons the right to marry. Aderson

Bellegarde Francois, To Go into Battle with Space

and Time: Emancipated Slave Marriage, Interracial

Marriage, and Same-Sex Marriage, 13 J. Gender

15

Race & Just. 105, 142-43 (2009) (‘[P]rior to

Reconstruction no Southern state, with the arguable

exception of Tennessee, granted full legal] recognition

to marriage between slaves.” (footnote omitted)); see

also id. at 110-12 (“The idea that the freedom to

marry is a symbol of American freedom has roots in

the institution of slavery.”). With Emancipation

came greater marital rights, but not across racial

lines due to anti-miscegenation statutes.5 As Chief

Justice Taney explained in his infamous Dred Scott v.

Sandford decision, anti-miscegenation statutes:

show that a perpetual and impassable barrier

was intended to be erected between the white

race and the one which they had reduced to

slavery, and governed as subjects with absolute

and despotic power, and which they then looked

upon as so far below them in the scale of created

beings, that intermarriages between white

persons and negroes or mulattoes were regarded

as unnatural and immoral, and punished as

crimes, not only in the parties, but in the person

who joined them in marriage.

60 U.S. 393, 409 (1857); see also Hon. A. Leon

Higginbotham, Jr., Shades of Freedom 44 (1996)

(“Interracial marriages represented a _ potentially

grave threat to the fledgling institution of slavery.”).

Even after the adoption of the Fourteenth

Amendment, anti-miscegenation statutes were still

prevalent and upheld by the Supreme Court. In

1883, the Supreme Court held that _ anti-

5 The first statute in America expressly prohibiting interracial

marriage was enacted in the seventeenth century. See R.A.

Lenhardt, Beyond Analogy: Perez v. Sharp, Antimiscegenation

Law, and the Fight for Same-Sex Marriage, 96 Calif. L. Rev.

839, 870 (2008).

16

miscegenation statutes were not discriminatory

because they “appl{y] the same punishment to both

offenders, the white and the black,” Pace v. Alabama,

106 U.S. 583, 585 (1883). See also Naim, 87 S.E.2d at

756. This is perhaps unsurprising, given that “when

the Fourteenth Amendment was drawn up and

ratified, the vast majority of its supporters did not

envision it as a bar to antimiscegenation laws.”

Randall Kennedy, Jnterracial Intimacies 277 (2003).

Indeed, racial restrictions on marriage had a near

universal and defining feature: “Every state whose

black population reached or exceeded 5 percent of the

total eventually drafted and enacted _ anti-

miscegenation laws.” Id. at 219 (citation omitted). At

one point, approximately 40 of the 50 states

prohibited African Americans from marrying whites.

Loving NAACP Br. at *2.

Given the crucial role that anti-miscegenation laws

played in maintaining our nation’s racial caste

system, Loving became “one of the major landmarks

of the civil rights movement.” Phyl Newbeck,

Virginia Hasn't Always Been for Lovers: Interracial

Marriage Bans and the Case of Richard and Mildred

Loving xii (2004). Loving made clear that it was

unconstitutional to subordinate certain groups by

denying them the right to marry strictly on the basis

of their race. See 388 U.S. at 12. “Legalizing

interracial marriage was an essential step toward

racial equality.” John DeWitt Gregory & Joanna L.

Grossman, The Legacy of Loving, 51 How. L.J. 15, 52

(2007). See also Karlan, supra, at 1147 (“Loving

marked the crystallization, a dozen years after

Brown, of the antisubordination principle .. . .”).

Viewed in its full historical context, the holding in

Loving has _ powerful implications for the

constitutionality of bans on same-sex marriage. Like

17

the early laws designed to oppress African

Americans, the States’ Laws here consign lesbian and

gay couples to an unequal and inferior status by

denying them “a dignity and status of immense

import”: the status of state-sanctioned marriage.

Windsor, 133 S. Ct. at 2692; id. at 2693 (noting that

the federal Defense of Marriage Act was intended to

express “moral disapproval of homosexuality”). This

exclusion — which is premised on stereotypes and

moral condemnation of gays and lesbians as a group —

is both stigmatizing and demeaning, and perpetuates

the historical discrimination long suffered by lesbians

and gay people Moreover, this disapprobation

creates and perpetuates a social hierarchy that

disadvantages people based on their’ sexual

orientation. Opponents of same-sex marriage often

gild their arguments with the patina of tolerance, for

example, by framing the issue in “definitional” terms,

but stigma and scorn lie just beneath the surface.

Sometimes the disparagement is implied, other

times, it is manifest.’ Regardless, the message of

opponents is clear: gays and lesbians should not

6 While the African-American and gay and lesbian

communities certainly have _ different histories, these

distinctions do not undermine the reality that gays and lesbians

also face discrimination and exclusion. But see DeBoer, 772 F.3d

at 413-15 (reasoning that historical distinctions among these

groups prevent an inference _of prejudice against or a recognition

of disenfranchisement of gay and lesbian couples).

7 For example, Idaho claims that same-sex marriage erodes

family-centric “norms” and “places the law’s authoritative stamp

of approval on such child-rearing arrangement.” See Brief of

Amicus Curiae Idaho Governor C.L. “Butch” Otter, at 9, DeBoer

v. Snyder, Nos. 14-556, 14-562, 14-571, 14-574 & 14-596 (U.S.

Dec. 15, 2014). The subtext is unmistakable: gay and lesbian

couples are literally abnormal (i.e., outside the norm) and not

worthy of approval.

18

share in the rights of “traditional” marriage.

However, as detailed herein, this argument directly

contravenes Loving’s proscriptions that the Equal

Protection Clause prohibits classifications that

subordinate individuals based on certain

characteristics, see Siegel, supra, at 1504 & n.125

(citing Loving, 388 U.S. at 7, 11) — here, sexual

orientation.

C. State Prohibitions Against Same-Sex

Marriage Should Fall No Matter What

Level Of Constitutional Scrutiny Is

Applied.

It is well-settled that courts should apply a more

rigorous standard of review to government

classifications that categorically exclude individuals

from equal participation in our country’s social and

political community based solely on their status as

members of a certain group. See, e.g., Loving, 388

U.S. at 9; Loving LDF Br. at *6 (urging the

application of “rigid scrutiny”). A faithful application

of these principles reveals that more searching

judicial review applies to laws that burden lesbians

and gay men as a group. See SmithKline Beecham

Corp. v. Abbott Labs., 740 F.3d 471, 482 (9th Cir.

2014) (equal protection jurisprudence “refuses to

tolerate the imposition of a second-class status on

gays and lesbians”).

We urge the Court to take this path — or at least

leave it open. By virtually any measure, lesbians and

gay men have been subjected to the kind of systemic

discrimination that would trigger heightened

Fourteenth Amendment protection. See Windsor uv.

United States, 699 F.3d 169, 182 (2d Cir. 2012) (“It is

easy to conclude that homosexuals have suffered a

history of discrimination. . .. Ninety years of

discrimination is entirely sufficient ... .”), affd on

19

alternative grounds, 133 S. Ct. 2675 (2013). Indeed,

the lone detractors of marriage equality concede that

there is a shameful history of discrimination and

antagonism against gays and lesbians. See DeBoer,

772 F.3d at 413.

But even under a more relaxed standard of review,

the States’ Laws could not pass constitutional

muster. Several courts have recognized as much. See

e.g., Baskin, 766 F.3d at 656 (“discrimination against

same-sex couples is irrational”). Some states have

struggled to offer a legitimate justification for same-

sex marriage bans even under rational basis review

and have experimented with different theories, see

infra Section II.A-C. Many of these are so circuitous

and “full of holes that [they] cannot be taken

seriously.” Baskin, 766 F.3d at 656.

Regardless of the level of scrutiny, the States’ Laws

should be invalidated. They plainly burden lesbians

and gay men as a class, because they ban lesbian and

gay couples from marrying and, thus, exclude them

from “participating fully in our society, which is

precisely the type of segregation that the Fourteenth

Amendment cannot countenance.” Bostic, 760 F.3d at

384. Accordingly, Equal Protection principles govern

the constitutionality of laws denying the right to

marry to lesbian and gay couples who “aspire to

occupy the same status and dignity as that of a man

and woman in lawful marriage.” See Windsor, 133 S.

Ct. at 2689.8 Like any 8Sther law that demeans and

® The fact that some of the States’ Laws recognize marriages

of lesbian and gay couples who were legally married in other

jurisdictions does not alter the conclusion. The Lovings

themselves were married in the District of Columbia before

returning to Virginia, where they were convicted of violating

Virginia’s ban on marriage for interracial couples. Loving, 388

U.S. at 2-3. The Court in Loving struck down not only Virginia's

20

denigrates an entire class of people, the States’ Laws

here cannot be reconciled with the Fourteenth

Amendment or Loving.

II. THE THEORIES ADVANCED IN

SUPPORT OF THE BANS ON SAME-

SEX MARRIAGE WERE ALSO

PRESSED AND REJECTED

REGARDING INTERRACIAL

MARRIAGE BANS.

Respondents and their supporting amici curiae

have presented myriad arguments against the

straightforward recognition that banning same-sex

marriage violates the Fourteenth Amendment. The

primary theories include the following:

(1) heterosexual marriage is rooted in tradition and

supported by original intent; (2) the states should

decide this issue, not the courts; (3) heterosexual-only

marriage is needed to encourage “responsible

procreation”; (4) marriage bans apply “equally” to

(gay) men and (lesbian) women; and (5) same-sex

marriage harms families, children, and society. All of

these theories echo those advanced by proponents of

anti-miscegenation statutes and rejected by the

Supreme Court in Loving. The Sixth Circuit, and,

increasingly, the states, have narrowed their focus to

the first three theories, perhaps cognizant that the

statute imposing criminal punishment on interracial couples

who married, but also Virginia’s “comprehensive statutory

scheme aimed at prohibiting and punishing interracial

marriages,” a scheme that prohibited marriage for interracial

couples within Virginia and denied recognition to marriages of

interracial couples solemnized outside Virginia. See id. at 4, 12.

Loving thus applies with equal force to state laws that prohibit

recognition of lawful same-sex marriages celebrated outside the

state as it does to laws that prohibit celebration of those

marriages within the state.

21

logic of Plessy and the specter of gays and lesbians

harming children are unpersuasive and offensive.

A. Loving Rejected The Notion That

History And Tradition Justify

Discrimination.

Respondents and their amici curiae rely heavily on

history, tradition, and original intent to justify the

bans on same-sex marriage. The Sixth Circuit

stressed that heterosexual marriage is a “tradition

measured in millennia,” DeBoer, 772 F.3d at 396, and

that an originalist interpretation of the Constitution,

reinforced by tradition, confirms that marriage bans

are permissible, id. at 404.9

This type of argument is nothing new. In 1955, the

Virginia Supreme Court upheld a ban on interracial

marriage on the grounds that the institution of

marriage “may be maintained in accordance with

established tradition,” among other reasons. Naim,

87 S.E.2d at 756. In Loving, the trial court reasoned

that marriage for interracial couples was aberrant

and contrary to a proper understanding of the nature

of marriage. 388 U.S. at 3 (reciting the trial court’s

invocation of racialized Creation theory). Before the

Supreme Court, Virginia again appealed to tradition:

The Virginia statutes here under attack reflects

[sic] a policy which has obtained in this

Commonwealth for over two centuries.... They

have stood — confpatibly with the Fourteenth

Amendment, though expressly attacked

9 Other amici curiae argue that states have the right to define

certain terms and institutions as they long have — but this is

also a call] to tradition by another name. The same could have

been said about Loving: at one point, 40 states also had a

“tradition” of defining marriage to exclude interracial couples.

22

thereunder — since that Amendment was

adopted.

Loving Virginia Br. at *52. Indeed, such arguments

were broadly shared amongst proponents of anti-

miscegenation laws. Perry v. Schwarzenegger, 704 F.

Supp. 2d 921, 957 (N.D. Cal. 2010) (summarizing

racial restrictions on marriage).

In Loving, however, the Court directly rejected

claims that long-held’ beliefs about’ the

incompatibility of interracial relationships and the

traditional understanding of marriage (including

those held by the Framers of the Fourteenth

Amendment) should be controlling. See 388 U.S. at

9-10. Significantly, the Supreme Court declared anti-

miscegenation statutes unconstitutional in spite of

the fact that the majority of states ratifying the

Fourteenth Amendment had such laws in place as

recently as 1950. Loving Virginia Br. at *6; Loving

388 U.S. 9-10. The Court declared that these

historical justifications for the prohibitions on

interracial marriage were simply “not sufficient to

resolve the problem” at hand. 388 U.S. at 9 (citing

Brown, 347 U.S. at 489). Instead, the Court held

that, regardless of the precise intentions of the

Framers of the Fourteenth Amendment with respect

to interracial marriage, anti-miscegenation statutes

were inconsistent with the “broader, organic purpose”

of the Amendment, which was “to remove all legal

distinctions among ‘all persons born or naturalized in

the United States.” 388 U.S. at 9 (quoting Brown,

347 U.S. at 489).

Thus, in Loving, this Court was wholly undeterred

by the lack of tradition or precedent allowing

interracial marriage, as, in 1967, only a single court —

23

the Supreme Court of California'!® — had found anti-

miscegenation statutes to violate the Fourteenth

Amendment. Nor was the Court persuaded by the

widespread popular support for anti-miscegenation

statutes throughout the vast majority of our nation’s

history, as demonstrated by the fact that nearly three

in four Americans still opposed interracial marriage

one year after Loving was decided. See Gallup Poll,

supra. Despite this, “[nJeither the Perez court nor the

Loving Court was content to permit an

unconstitutional situation to fester because the

remedy might not reflect a broad social consensus.”

Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941,

958 n.16 (Mass. 2003).!!

Even beyond the context of Loving, this Court has

refused to credit the maintenance of tradition as a

rational justification that satisfies the Fourteenth

Amendment. See Lawrence, 539 U.S. at 579 (“As the

Constitution endures, persons in every generation

can invoke its principles in their own search for

greater freedom.”); see also Windsor, 133 S. Ct. at

2689, 2689-93 (centuries-long “limitation of lawful

marriage to heterosexual couples . . . came to be seen

10 California struck down its anti-miscegenation statute in

Perez v. Sharp, 198 P.2d 17 (Cal. 1948), at a time when a

majority of states still had anti-miscegenation statutes in place,

and all of the other courts confronting the question had ruled

that there was no constitutional right to marry a person of

another race. See Lenhardt, supra n.5, at 857.

11 Though constitutional principles, not public opinion polls,

govern these cases, today, 63% of Americans support marriage

for same-sex couples, see Jennifer Agiesta, Poll: Obama's

approval ratings stagnant despite economy, CNN, Feb. 19, 2015,

a level of support that interracial marriage did not achieve until

the late-1990s, see Gallup Poll, supra, almost thirty years after

Loving.

24

[in some states] ... as an unjust exclusion... . [and]

reflects both the community’s considered perspective

on the historical roots of the institution of marriage

and its evolving understanding of the meaning of

equality.”); Harper v. Va. Bd. of Elections, 383 U.S.

663, 669 (1966) (“[T]he Equal] Protection Clause is not

shackled to the political theory of a particular era.”);

Bostic, 760 F.3d at 380 (“[A]ncient lineage of a legal

concept does not give it immunity from attack.”

(quoting Heller v. Doe, 509 U.S. 312, 326 (1993)).

Likewise, lower courts have _ rejected’ these

traditionalist arguments in the context of same-sex

marriage. See, e.g., Bostic, 760 F.3d at 380

(“Preserving the historical and traditional status quo

is therefore not a compelling interest that justifies

the Virginia Marriage Laws.”); Latta, 771 F.3d at 476

(“[N]either history nor tradition [can] save [the laws]

from constitutional attack.”) (quoting Lawrence, 539

U.S. at 577-78). This is because not every tradition

has constitutional significance. As the Seventh

Circuit explained in Baskin, there are “harmless”

traditions, and “mindless” traditions and also

discriminatory traditions. 766 F.3d at 667.

“Tradition per se . . . cannot be a lawful ground for

discrimination — regardless of the age of the

tradition.” Id. at 666.

Finally, the demise of the “tradition” of banning

interracial marriage has been an incredibly positive

step in terms of helping our society move toward

greater racial equality. The legalization of such

marriage, together with the other advances of the

civil rights movement, has led to a remarkable

reversal in public opinion. See Gallup Poll, supra

(“87% of Americans now favor marriage between

blacks and whites, up from 4% in 1958.”).

25

There is no reason to fear embracing a new, more

inclusive tradition or to devolve into some

epistemological debate about the long-term impacts of

changing established traditions.'2 Loving did not

require definitive proof of what the long-term impact

of interracial marriage might be, nor could it have.

Same-sex marriage is now permissible in more states

than interracial marriage at the time of Loving,'? and

the sky has not fallen. “[O]Jur tradition is to go

beyond present achievements, however significant,

and to recognize and confront the flaws and injustices

that remain.” Parents Involved in Cmty. Schs. v.

Seattle Sch. Dist. No. 1, 551 U.S. 701, 787 (2007)

(Kennedy, J., concurring in part and concurring in

the judgment). That overarching tradition of

progress and inclusion should rule the day.

B. Loving Rebuffed Arguments About The

Role Of Judicial Review.

Respondents and their supporters contend that

federal courts should not decide the propriety of

banning same-sex marriage, but instead reserve that

question for the states. The Sixth Circuit revisited

this argument in various forms. DeBoer, 772 F.3d at

396 (this case comes down to “who decides” how to

“handle change”), id. at 419 (“[W]ho are we [federal

courts] to say?”).

12 But see DeBoer, 772 F.3d at 406 (Even today, the only

thing anyone knows for sure about the long-term impact of

redefining marriage is that they do not know.”).

13 Compare Brief for Petitioners at 22, DeBoer v. Snyder, No.

14-571 (U.S. Feb. 27, 2015) (‘[S]ame-sex couples [are] now

allowed to marry in thirty-seven states... ”), with Loving, 388

U.S. at 6 (at the time of the oral argument and the subsequent

decision, “Virginia [was] one of 16 States which prohibit and

punish marriages on the basis of racial classifications.”).

26

In Loving, Virginia made a very similar claim about

why federal courts should not scrutinize the “wisdom”

of interracial marriage bans or engage in “judicial

legislation.” Loving Virginia Br. at *13. Yet, as noted

by LDF’s amicus curiae brief in Loving, no one asked

the courts to engage in such “legislation” — the

Lovings challenged a_— specific statute as

unconstitutional, and it was the state’s burden to

justify that law. Loving LDF Br. at *13. See also

Bostic, 760 F.3d at 379-80 (rejecting the state's

argument that federalism interests justified

infringing upon the right to marry); Kitchen, 755 F.3d

at 1228 (agreeing that striking down the state law at

issue here would not subvert the federalist,

democratic process).

Equal protection law locates in the judiciary a

special responsibility of prodding’ society’ to

reexamine assumptions that are rooted in animus,

bigotry, and social stereotypes that, in turn, entrench

social caste. See United States v. Carolene Prods. Co..,

304 U.S. 144, 152 n.4 (1938) (discussing laws that

restrict political processes or target discrete and

insular minorities). While all branches of

government have a role to play in ensuring the equal

protection of the laws, the judicial branch is best

situated to safeguard historically subordinated

groups, including lesbians and gay men, whom

majoritarian political processes are often unwilling or

unable to protect against constitutional violations.

Nixon v. Condon, 286 U.S. 73, 89 (1932) (“[Equal

protection] lays a duty upon the court to level by its

judgment these barriers... .”).

Nor does the fact that some bans on same-sex

marriage were brought about by ballot initiative, as

opposed to legislation, inoculate such laws from

27

constitutional review.'4 “[T}hat [a law] is adopted in

a popular referendum is insufficient to sustain its

constitutionality. . . . A citizen’s constitutional rights

can hardly be infringed simply because a majority of

the people choose that it be.” Lucas v. Forty—Fourth

Gen. Assembly of State of Colo., 377 U.S. 713, 736-37

(1964). See also City of Cleburne, 473 U.S. at 448 (“It

is plain that the electorate as a whole, whether by

referendum or otherwise, could not order city action

violative of the Equal Protection Clause, and the City

may not avoid the strictures of that Clause by

deferring to the wishes or objections of some fraction

of the body politic.”) (citations omitted); Romer, 517

U.S. at 620 (invalidating a state constitutional

amendment that excluded, gays, lesbians, and

bisexuals from anti-discrimination protections).'5

The Court has not wavered in weighing in on these

issues before, and it need not hesitate to fulfill its role

now.

C. Loving Did Not Link The Right To

Marry To The Ability To Procreate.

In upholding same-sex marriage bans under

rational basis review, the Sixth Circuit also reasoned

that people “need the government’s encouragement to

create and maintain stable relationships within

which children may flourish.” DeBoer, 772 F.3d at

405. This is a variant upon what has come to be

i

14 But see DeBoer, 772 F.3d at 421 (reasoning that it is better

to “let the people resolve new social issues like this one,”

through “customary political processes”).

15 The Sixth Circuit's passing reference, 772 F.3d at 409, to

dicta in Schuette v. Coal. to Defend Affirmative Action, 134 S. Ct.

1623, 1638 (2014), does not change matters, since this is a case

about the merits of a constitutional issue, not the process by

which a law was brought about.

28

known as the “responsible procreation” theory,

although some other amici curiae frame the same

concept more in terms of child-rearing norms and

institutions. See Brief of Amicus Curiae Idaho

Governor, supra, at 7-9.

This Court can readily dispose of this contention.

Nowhere did Loving link the right to marry to a

couple’s ability to procreate. Although the Lovings

happened to have biological children, this Court

never suggested that its decision rested in any part

on the Lovings’ intention or ability to procreate.

Other of this Court’s decisions have made clear that

the right to marriage is not dependent on the

capacity for procreation but is, instead, an

“expression[} of emotional support and public

commitment.” Turner v. Safley, 482 U.S. 78, 95

(1987) (holding that incarcerated persons have the

right to marry); Windsor, 133 S. Ct. at 2689 (same-

sex couples seek the right to marry to “affirm their

commitment to one another before their children,

their family, their friends, and their community .. .

and so live with pride in themselves and their

union”).

In the lower courts, the “responsible procreation”

theory has been regarded as “so full of holes that it

cannot be taken seriously.” Baskin, 766 F.3d at 656.

Even the Sixth Circuit acknowledged that “the

foolish, sometimes offensive, inconsistencies that

have haunted marital legislation,” include the fact

that “States allow couples to continue procreating no

matter how little stability, safety, and love they

provide the children they already have.” DeBoer, 772

F.3d at 406.

Moreover, there is simply no support for the

proposition that removing discriminatory restrictions

on the right to marry will, in any way, affect existing

29

marital or procreative practices. Indeed,

“[rjecognizing the right of an individual to marry a

person of the same sex will not diminish the validity

or dignity of opposite-sex marriage, any more than

recognizing the right of an individual to marry a

person of a different race devalues the marriage of a

person who marries someone of her own race.”

Goodridge, 798 N.E.2d at 965.

D. Loving Rejected The Proposition That

Interracial Marriage Bans Applied

“Equally.”

Some amici curiae continue to contend that

banning marriage equality does not discriminate on

the basis of sex because it applies “equally” to men

and women. See, e.g., Brief of Amicus Curiae Idaho

Governor, supra, at 18 (“[T]Jhere is already perfect

formal equality between homosexuals = and

heterosexuals.”) (citation and internal quotations

omitted).

This line of reasoning is particularly audacious,

given its unambiguous and repeated rejection in the

context of segregation and interracial marriage. It is

especially stunning to see this argument revived in

light of its shameful origins from Plessy v. Ferguson,

which held that segregation was not discriminatory

because it applied “equally” to individuals of all races,

163 U.S. 537, 551 (1896). Likewise, in Loving,

Virginia argued that itg anti-miscegenation statutes

were not discriminatory because a “law forbidding

marriages between whites and blacks operates alike

on both races.” Loving Virginia Br. at *17 (quoting

Cong. Globe, 39th Cong., Ist Sess. 322 (1866)).

Even assuming arguendo that these laws are

ostensibly facially neutral, because they prohibit both

men and women from marrying a person of the same

30

sex, this would not undermine a finding of an Equal

Protection violation. Loving directly “reject[ed] the

notion that mere ‘equal application” of a statute

somehow evades the protections of the Fourteenth

Amendment. 388 U.S. at 8. The Court recognized

that, despite the symmetrical application to members

of different races, Virginia’s laws operated in a

racially discriminatory manner because’ they

“proscribe[d] generally accepted conduct if engaged in

by members of different races.” Jd. at 11; see also

Romer, 517 U.S. at 633 (“Equal protection of the laws

is not achieved through indiscriminate imposition of

inequalities.” (quoting Sweatt v. Painter, 339 U.S.

629, 635 (1950); Shelley v. Kraemer, 334 U.S. 1, 22

(1948))).

As in Loving, this Court must reject the

contention that there is no sex discrimination in the

instant cases because the state law here treats men

and women equally. Loving found that Virginia’s

anti-miscegenation laws classified — and

discriminated against — persons on the basis of race

because the legality of a marriage turned on the races

of the adults seeking to exercise their right to marry

(i.e., only same-race marriages were permitted). See

Kitchen v. Herbert, 961 F. Supp. 2d 1181, 1206 (D.

Utah 2013) (rejecting the state’s argument that its

prohibition against same-sex marriage applies

“equally” to both men and women and analogizing

Loving). The States’ Laws here similarly classify —

and discriminate against — persons on the basis of sex

because the legality of a marriage turns on the sex of

the adults seeking to exercise their right to marry

(i.e., only opposite-sex marriages are permitted). It

also discriminates on the basis of sexual orientation.

All of these circumstances violate the Equal

Protection Clause.

31

E. Loving Refused To Credit Theories

That Interracial Marriage Harmed

Children Or Society.

The theory that same-sex marriage harms children

or society, while previously in vogue, has largely been

abandoned by the states, presumably because it was

unsuccessful and incorrect. Nevertheless, various

amict curiae still advance this theory in some form.

See generally Brief of Amici Curiae 76 Scholars of

Marriage Supporting Review and Affirmance, DeBoer

v. Snyder, Nos. 14-556, 14-562, 14-571, 14-574 & 14-

596 (U.S. Dec. 15, 2015).

In the context of race, these sorts of arguments

were also once common. Historically, courts and

opponents of interracial marriage argued that such

unions harmed children. See, e.g., State v. Jackson,

80 Mo. 175, 179 (1883) (interracial couples “cannot

possibly have any progeny”); Lonas v. State, 50 Tenn.

287, 299 (1871) (interracial couples are “unfit”); Scott

v. State, 39 Ga. 321, 323 (1869) (biracial children are

“unnatural,” “sickly,” “effeminate,” and “inferior”).

Indeed, the belief that interracial couples would

produce damaged children was a key rationale

proffered by the Virginia Supreme Court in upholding

an anti-miscegenation statute. Naim, 87 S.E.2d at

756 (endorsing “the power of the State to regulate the

marriage relation so that it shall not have a mongrel

breed of citizens”). Four years later, the Louisiana

Supreme Court upheld another anti-miscegenation

statute on the grounds that interracial marriages

spawned “half-breed children” who “have difficulty in

being accepted by society” and “are burdened, as has

been said in another connection, with ‘a feeling of

inferiority as to their status in the community that

may affect their hearts and minds in a way unlikely

32

ever to be undone.” State v. Brown, 108 So. 2d 233,

234 (La. 1959) (quoting Brown, 347 U.S. at 494).

In defending its anti-miscegenation statutes before

the Supreme Court in Loving, Virginia cited

purportedly scientific sources for its contention that

prohibitions against marriage for interracial couples

were in the interest of children. These theories took

various forms, including: (1) assertions’ that

interracial children might be genetically

disadvantaged, Loving Virginia Br. at *43 (“[W]here

two [widely distinct] races are in contact the inferior

qualities are not bred out, but may be emphasized in

the progeny ... .” (internal quotation marks

omitted)); (2) cultural arguments that only

monoracial couples could provide a coherent cultural

heritage necessary for a proper upbringing, id. at

*44-45 (“[M]uch that is best in human existence is a

matter of social inheritance, not of biological

inheritance. Race crossings disturb _ social

inheritance.” (internal quotation marks and citations

omitted)); and (3) sociological claims that interracial

marriages were more likely to divorce, id. at *45, *47-

48 (citation omitted).

As LDF stressed at the time, these arguments

amounted to an “amalgam of superstition, mythology,

ignorance and pseudo-scientific nonsense summoned

up to support the theories of white supremacy and

racial ‘purity.” Loving LDF Br. at *9-10. Likewise,

the NAACP argued that these theories were

“outmoded and unscientific” assumptions “abhorrent

to both science and jurisprudence,” and “disprove[n]”

by “[clontemprary physical anthropology and human

genetics. .. .” Loving NAACP Br. at *7.

This Court agreed, rejecting these theories as

unfounded, post-hoc rationalizations for Virginia’s

discriminatory marriage laws. Loving, 388 U.S. at 11

33

(“There is patently no legitimate overriding purpose

independent of invidious racial discrimination which

justifies this classification.”). Loving refused to even

credit Naim’s pseudo-scientific theories, casting them

aside instead as “obviously an endorsement of the

doctrine of White Supremacy.” Jd. at 7. With time, it

has become even clearer how blatantly offensive and

preposterous these theories really are.

Today’s arguments about the purported harm to

children, families, and heterosexuals are as offensive

as they were in 1967. They are also patently wrong.

The overwhelming consensus is that “there is no

scientific evidence that parenting effectiveness is

related to parental sexual orientation,” and “the same

factors” — including family stability, economic

resources, and the quality oof parent-child

relationships — “are linked to children's positive

development, whether they are raised _ by

heterosexual, lesbian, or gay parents.” Bostic, 760

F.3d at 383 (internal quotations omitted) (quoting

amicus brief on behalf of the American Psychological

Association, American Academy of Pediatrics,

American Psychiatric Association, National

Association of Social Workers, and Virginia

Psychological Association). Indeed, even amici curiae

in support of Respondents acknowledge that the

primary study they cite found “no evidence’ that

allowing same-sex marriage has any effect on U.S.

heterosexual marriage rates,” although they criticize

the study’s methodology and plead for more time.

Brief of Amici Curiae 76 Scholars of Marriage, supra,

at 13-14. Whatever the pseudoscientific theory du

jour may be, this Court should not deign to reconsider

these unsupported and irrational arguments in the

present case.

34

CONCLUSION

The proud legacy of Loving is deeply relevant to

this Court’s assessment of the constitutionality of

laws banning same-sex marriage. Loving’s principles

transcend the factual confines of that case and

support a finding in this case that consenting adults

should not be denied the right to marry solely

because of their sexual orientation or sex. Logically

and legally, the arguments against interracial

marriage and same-sex marriage bear striking

similarities and fatal flaws. It is hard to imagine

that their fate will not be the same. Today, Loving

has been almost universally celebrated, and the

repugnant theories hurled against interracial couples

have been largely relegated to the dustbin of history.

This progress is central to Loving’s promise: that

forms of equality that were once inconceivable can

become indisputable. There will likewise come a time

when the rights of lesbian and gay couples to express

their love and commitment through marriage will no

longer be subject to debate. Our nation has a

tremendous capacity to move forward. To ensure the

equal protection of law, this Court should reverse the

Sixth Circuit’s decision below.

March 6, 2015

35

Respectfully submitted,

SHERRILYN IFILL

Director-Counsel

JANAI NELSON

CHRISTINA SWARNS

JIN HEE LEE

RACHEL M. KLEINMAN

NAACP LEGAL DEFENSE &

EDUCATIONAL FUND, INC.

40 Rector Street, 5th Floor

New York, NY 10006

JOHN PAUL SCHNAPPER-

CASTERAS *

NAACP LEGAL DEFENSE &

EDUCATIONAL FUND, INC.

1444 I Street NW

Washington, DC 20005

202-682-1300

jschnapper@naacpldf.org

MARSHALL W. TAYLOR

Interim General Counsel

KHYLA D. CRAINE

NAACP

4805 Mount Hope Drive

Baltimore, MD 21215

Counsel for Amici Curiae

* Counsel of Record