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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2015

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0307%3A104. Public record. Not legal advice.