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

FILED ,. -

APR -3 205

OFFICE OF THE CLEr:’.

No. 14-556, 14-562, 14-571, and 14-574 ©

IN THE

Supreme Court of the Anited States

JAMES OBERGEFELL, ET AL., Petitioners,

Vv.

RICHARD HODGES, ET AL., Respondents.

VALERIE TANCO, ET AL., Petitioners,

Vv.

BILL HASLAM, ET'AL., Respondents.

APRIL DEBOER, ET AL., Petitioners,

Vv.

RICHARD SNYDER, ET AL., Respondents.

GREGORY BOURKE, ET AL., Petitioners,

Vv.

STEVE BESHEAR, ET AL., Respondents.

On Writ of Certiorari to the United States Court of

Appeals for the Sixth Circuit

Brief Amicus Curiae of Public Advocate of the U.S.,

Joyce Meyer Ministries, U.S. Justice Foundation,

The Lincoln Institute, Abraham Lincoln Foundation,

Institute on the Constitution, Conservative Legal

Defense and Education Fund, and Pastor Chuck

Baldwin in Support of Respondents

MICHAEL CONNELLY WLLLIAM J. OLSON*

U.S. JUSTICE FOUNDATION HERBERT W. TITUS

932 D Street, Ste. 2 JEREMIAH L. MORGAN

Ramona, CA 92065 WILLIAM J. OLSON, P.C.

Attorney for Amicus Curiae 370 Maple Ave. W., Ste. 4

U.S. Justice Foundation Vienna, VA 22180-5615

(703) 356-5070

*Counsel of Record wjo@mindspring.com

April 3, 2015 Attorneys for Amici Curiae

(Additional counsel listed on inside cover)

——

—

OF COUNSEL:

KERRY L. MORGAN

PENTTUK, COUVREUR &

KOBILJAK, P.C.

EDELSON BLDG.

STE. 200

2915 BIDDLE AVE.

Wyandotte, MI 48192

JAMES N. CLYMER

CLYMER CONRAD, P.C.

408 W. CHESTNUT ST.

Lancaster, PA 17603

J. MARK BREWER

BREWER & PRITCHARD,

P.C.,

3 Riverway, Ste. 1800

Houston, TX 77056

MARK J. FITZGIBBONS

9625 SURVEYOR CT.

SUITE 400

Manassas, VA 20110

T F T

Page

TABLE OF AUTHORITIES iv

INTEREST OF THE AMICI CURIAE 1

SUMMARY OF ARGUMENT . 2

ARGUMENT

I. THE FOURTEENTH AMENDMENT DOES NOT

MANDATE HOMOSEXUAL MARRIAGE ....... 5

A. Fabricating a False Foundation for a

Fundamental Right . 6

B. An Illegitimate Evolutionary “Right” 10

IJ. FEDERAL DECISIONS COMPELLING

HOMOSEXUAL MARRIAGE ARE DEEPLY FLAWED 13

A. Judge Martha Craig Daugherty 16

B. Judge Bernard Friedman 17

III. CATO’S “ORIGINALIST” CASE FOR SAME-SEX

MARRIAGE IS UNTENABLE

A. Cato’s “Original Meaning” Is Designed to

Reach a Result Contrary to the Intent of

the Framers : ©. * 20

B. Cato Ignores the Nation’s Unique History

of Slavery, Inverting the Equal Protection

Clause to Apply to All Class Legislation 22

nn

IV. FORCING HOMOSEXUAL MARRIAGE ON THE

STATES AND ON THE PEOPLE WOULD Do

GRAVE HARM TO THE NATION

A.

B.

Wholesale Revision of Every State’s Family

Law, and Related Matters coor ta

Closure of Christian and Other Religious

Adoption Agencies ;

. Preaching Against Homosexuality and

Counseling of Homosexuals Likely Would

Be Prohibited . .... ...22.0.. keen we

Churches and Others Would Lose

Exemption from Federal Income Tax

. Legalization of Multiple-Partner and

Incestuous Marriages ..

People of Biblical Faith Would be Driven

From Public Office ca ee

G. A Coarsening of Civil Society

H. Mandates on Businesses to Cater to

Homosexual Couples

Professional Licensing Requirements to

Serve Homosexual Couples .

Undermining the Created Male-Female

Order . ; eal mee

26

28

29

29

30

31

32

32

33

35

36

ill

K. Loss of Liberty . | | ; gg

L. God’s Judgment on the Nation ae 40

CONCLUSION .. a ae at : 4]

iv

TABLE OF AUTHORITIES

Page

HOLY BIBLE

Pe...) £4 icgtchuse eee eae dees 36

Ree ee ll 26

Leviticus 18: 22, 24-30 . 40

I Kings 14:24 X>— ....... — 40

Ezekiel 33:1-7 Sn cata ee ae ak ee 28

ES ane ees ees ... 26, 36

I Corinthians 15:1-4 ... 30

2 Peter 2:4-6 40

Jude 7 40, 41

U.S. CONSTITUTION

Article V.. ... PP ree ee ee 9

CE oe 4

Amendment V eee as 22

Amendment XIV 2, passim

ASES

Baker v. Nelson, 409 U.S. 810 (1972) .... ..... 15

Bishop v. Smith, 760 F.3d 1070 (10"" Cir. 2014) . 15

Bob Jones University v. United States, 461 U.S.

573 (1983) . 30

Bolling v. Sharp, 347 U.S. 497 (1954) 22

Bostic v. Schaefer, 760 F.3d 352 (4 Cir. 2014) .. 15

Brown v. Buhman, 947 F.Supp.2d 1170 (D.Ut.

RS ees 31

D.C. v. Heller, 554 U. S. 570 (2008) .. 21

Dred Scott v. Sandford, 60 U.S. (19 How.) 393

Se See) eA DOL re oe 24

Elane Photography, LLC v. Willock, 309 P. 3d

53 (N.M. 2013) ' 34

Vv

Employment Division v. Smith, 494 U.S. 872

ee eee — ei 30

Ex parte State of Alabama ex rel. Alabama

Policy Institute, Alabama Sp. Ct., No.

1140460 (Mar. 3,2015) .. . ..... 15, 28, 29

King v. Governor of New Jersey, 767 F.3d 216

(3rd Cir. 2014) ...... . . 30

Kitchen v. Herbert, 755 F. 3d 1193 (ot Cie.

2014) Se ae ee ee eee ee 15

Lawrence v. Texas, 539 U. S. 558 (2003) .. 4, 25, 26

Loving v. Virginia, 388 U.S. 1 (1967) ... 14

Marbury v. Madison, 5 U.S. (1 Cranch) 137

(1803) ..... ‘ 3, 10, 12, 20

Maynard v. Hill, 125 U. S. 190 (1888) : 6, 7,8

Meyer v. ary meal 262 U.S. 390 (1923) .... 7,8

Nort st W are Medical up, Inc. v.

meen mi any ‘44 Cal. 4th 1145 (Cal. 2008) 35

Osborn v. Bank of the United States, 22 U.S. (9

Wheat) 738 (1824) 19

Plessy v. Ferguson, 163 U.S. 537 (1896) Pp 23

Pickup v. Brown, 740 F.3d 1208 (9th Cir. 2014) . 30

Robicheaux v. Caldwell, 2 inal

es es GED cen ccccece 15

Roe v. Wade, 410 U.S. 114 (1973) . 39

Romer v. Evans, 517 U.S. 620 (1996) 10

Slaughter-House Cases, 83 U.S. (16 Wall.) 36

(1873) ao . 23

Strauder v. West Virginia, 100 U. S. ( 10 Otto)

303 (1879) ' va ae

United States v. Windsor, 570 U. S. _..» Loe

S.Ct. 2675 (2013) .. . . a

Yick Wo v. Hopkins, 118 U.S. 356 (1886) . —a

Zablocki v. Redhail, 434 U.S. 374 (1978) ...... 6, 7

MISCELLANEOUS

Associated Press, “Appeals Court Halts Gay

Marriages in Michigan” (Mar. 22, 2014)... .. 19

R. Beg, “The Lawyer’s License to Discriminate

Revoked: How a Dentist Put Teeth In New

York’s Anti-Discrimination Disciplinary

Rule,” 64 ALBANY L. REV. 154 (2000).. ... 35

William Blackstone, Commentesion om the

Laws of England (Univ. Of Chi. Facsimile

ed.: 1765) a . 7, 8, 25

G. Carey & J. McClellan, The Federalist

Papers . ae

B. Dickerson, “What Judge Pricdmen learned

about gay families from a lesbian law clerk,”

Detroit Free Press, Mar. 23,2014 .... ... 18

D t u i the For ion of th

Union, (Gov’t Printing Office, 1927) = eee

W.O. Douglas, The Court Years (Random

PP Pe si6- ceunee . 19

M.S. Evans, The Theme is Freedom: Religion, —

Politics, and the American Tradition

(Regnery Publishing, 1994) a Pa 39, 40

“Gender Identity Development,” Boundless

Psychology, Jul. 3, 2014 36

J. Gottry & G. Gottry, “Just Shoot Me: Public.

Accommodation Anti-Discrimination Laws

Take Aim at First Amendment Freedom of

Speech,” 64 VAND. L. REV. 961 (2011) ... ... 33

L. Gralia, “Constitutional Law Without the

Constitution: The Supreme Court’s Remaking

of America,” in “A Country I Do Not Recognize”

(R Bork ed., Hoover Press ee . 9

E.D. Hirsch, Jr., V. r tion

(Yale Univ. Press 1967). ...... a a ae

vil

K. Jay and A. Young, The Gay Report: Lesbians

and Gay Men Speak Out About Sexual

muparsmnens & Ldipatyiae, (Summit Books:

1979)

N. Johnson, N exroes an dtl ne Come Prometheus

Books (2014)

J. Krakauer, Under the Bonner of Heaven

(Doubleday: 2003)

H. Linde, “Without ‘Due Process,” 49 ORE. L.

i ea ee we ee

E. Nelson, The Hebrew Republic: Jewish

Sources and the Transformation of European

Political Thought (HARVARD UNIV. PRESS,

2010) .

M. Novak, On Two Wings (Encounter: 2002) .

Or. Const., 1856, art.1,§ 20. .....

Plato, The Republic (B. Jowett, edt., Random |

House) .

D. Prager, “Homosexuality, the Bible, ‘and Us a

a Jewish Perspective,” THE PUBLIC INTEREST,

Summer 1993 .

State Bar of California, Rules of Professional

Conduct: Rule 2-400B .. .. ,

Craig A. Stern, “Things Not Nice: An Essay 0 on

Civil Government,” 8 REGENT U.L. REV. 1

es

36

25

3l

24

38

27

24

16

39

35

17

INTEREST OF THE AMICI CURIAE'

Public Advocate of the United States and The

Abraham Lincoln Foundation for Public Policy

Research, Inc. are nonprofit social welfare

organizations, exempt from federal income tax under

Internal Revenue Code (“IRC”) section 501(c)(4). Joyce

Meyer Ministries, U.S. Justice Foundation, The

Lincoln Institute for Research and Education, and

Conservative Legal Defense and Education Fund are

nonprofit educational organizations, exempt from

federal income tax under IRC section 501(c)(3). Joyce

Meyer Ministries is a church. Institute on the

Constitution is an educational organization. Pastor

Chuck Baldwin was the Constitution Party candidate

for President of the United States in 2008, and leads

Liberty Fellowship, Kila, Montana.

The amici organizations were established, inter

alia, for educational purposes related to participation

in the public policy process, which purposes include

programs to conduct research and to inform and

educate the public on important issues of national

concern, the construction of state and federal

constitutions and statutes. Each organization has filed

many amicus curiae briefs, including 11 in so-called

“homosexual rnghts” cases, which were listed in their

' It is hereby certified that counsel for the parties have consented

to the filing of this brief; that no counsel for a party authored this

brief in whole or in part; and that no person other than these

amici curiae, their members, or their counsel made a monetary

contribution to its preparation or submission.

2

amicus curiae brief in DeBoer below (6" Cir., May 14,

2014), at 2-3.”

SUMMARY OF ARGUMENT

The constitutional case for same-sex marriage

concerns a power not given and a right not

enumerated. The power not given is the power of this

Court to write its peculiar view of sexual equality into

the Constitution. The right not enumerated is the

“right” to marry any person of one’s choice into the

Fourteenth Amendment.

Unable to ground a challenge in the Fourteenth

Amendment as written, a false constitutional

foundation for homosexual marriage has been

fabricated. Sifting through this Court’s precedents

embracing a fundamental right to marry, the

advocates for same-sex marriage have invented, rather

than discovered, a “right” to marry a person of one’s

choice.

Tossing aside America’s common law heritage

restricting marriage to a covenant union of one male

and one female, these same-sex marriage proponents

would have this Court pretend that the common law

not only did not recognize such marriage, but also did

not prohibit such sexual coupling as an infamous crime

against nature.

3

To escape these undeniable historical truths, the

same-sex advocates have posited that their right to

marry is an evolutionary one, having gradually

emerged from the dark ages of the common law into

the full bloom of a social science consensus of marriage

equality. Invoking the power of this Court to “say

what the law is,” these advocates would have this

Court ignore what it clearly acknowledged in Marbury

v. Madison — that the power of judicial review is

limited by the words of the Constitution, and by its

original purpose — to secure the right of the people to

limit future governments by principles designed to be

permanent, not to empower this Court to change the

Constitution to fit the changing times.

In a vain effort to avoid constitutional illegitimacy,

amicus Cato Institute insists that the “original

meaning’ of the equal protection guarantee of the

Fourteenth Amendment was not limited by its historic

purpose to secure to the newly freed slave class the

common law rights and privileges enjoyed by all

human beings. Rather, Cato would have this Court

ignore the “original understanding” of the equal

protection guarantee, and extend its reach to “gay

people” without any proof whatsoever that two people

living a “gay” lifestyle in the mid-19th Century have

been, like blacks, considered “nonpersons,” and thus

denied their common law rights and privileges to

acquire property, make and enforce contracts, sue and

be sued, to give evidence, to vote, or to serve on juries.

In recognition that the equal protection guarantee

is a weak reed upon which to rest their case, same-sex

marriage advocates have resorted to this Court’s

4

decision in Lawrence v. Texas as the fountainhead of

their right to marry. But Lawrence was based upon a

long line of case precedents protecting a right of

privacy which, according to various Justices’

assurances, did not implicate the state’s interest in

preserving traditional marriage. Indeed, it is one

thing for this Court to deny to the states, in the name

of privacy, the power to prosecute two consenting

adults of the same sex for having engaged in the

privacy of their home in unlawful sexual activity. It is

quite another to require the states to license that

behavior as right and good.

Should this Court rule that states must

affirmatively sanction same-sex marriage, there will

be serious and far-reaching consequences, not the least

of which will be major changes in state laws governing

domestic relations, inheritance, administration of

estates, interests in land, testimonial privileges, and

the like. Indeed, in anticipation of such a ruling by

this Court, there already have been repercussions

adversely impacting the free exercise of religion,

freedom of speech, and other constitutionally protected

and legitimate business activities. And there is no

reason to believe that this Court could confine its

ruling to monogamous relationships, for waiting in the

wings are a variety of other relationships that will

seek the imprimatur of the states.

Inevitably, a ruling in favor of same-sex marriage

will usher in an unprecedented coarsening of

community moral standards, spawning an aggressive

impulse to force the American people not just to

tolerate all forms of sexual misbehavior, but to

5

embrace and encourage pagan practices that threaten

to “defile” the land, and risk God’s judgment.

ARGUMENT

I. The Fourteenth Amendment Does Not

Mandate Homosexual Marriage.

The DeBoer decision upheld traditional marriage

against five challenges in four states. Circuit Court

Judge Sutton made clear that “[n]Jobody in this case ...

argues that the people who adopted the Fourteenth

Amendment understood it to require the States to

change the definition of marriage.” DeBoer v. Snyder,

772 F.3d 388, 403 (6" Cir. 2014). Indeed, such an

argument would have been impossible to support.

Homosexual rights simply had nothing to do with the

Fourteenth Amendment when ratified in 1868.

Recently, Justice Alito explained that “[s]ame-sex

marriage presents a highly emotional ... question ...

but not a difficult question of constitutional law.”

United States v. Windsor, 570U.S.__, 133 S.Ct. 2675,

2714 (2013) (Alito, J., dissenting):

The Constitution does not guarantee the

right to enter into a same-sex marriage.

Indeed, no provision of the Constitution speaks

to the issue. It is beyond dispute that the

right to same-sex marriage is not deeply

rooted in this Nation’s history and

tradition. [/d. at 2714-15.]

Therefore, challengers to traditional marriage:

6

seek ... not the protection of a deeply rooted

right but the recognition of a very new right,

and they seek this innovation not from a

legislative body elected by the people, but from

unelected judges. [Jd. at 2715.]

A. Fabricating a False Foundation for a

Fundamental Right.

Unable to ground their challenge in _ the

Fourteenth Amendment as written, the DeBoer

Petitioners base their case for homosexual marriage

upon an assemblage of fabrications, purportedly

derived from this Court’s precedents, but without any

support in fact or law. Shamelessly, they assert that

this Court has already established that “[t]he right to

marry the person of one’s choice is a fundamental

freedom.” Brief for Petitioners (“Pet. Br.”) at 1

(emphasis added). In support of this radical claim,

they cite Zablocki v. Redhail, 434 U.S. 374, 384 (1978),

which plainly states only “that the right to marry is of

fundamental importance for all individuals.”

Petitioners have twisted this limited precedent, first,

into a right to marry any “person of one’s choice,” and

then into a “fundamental right.”

Not only does Zablocki plainly not say what

Petitioners want it to say, their revised version is

totally incompatible with the Zablocki court’s reliance

on Maynard v. Hill, 125 U.S. 190 (1888), which states

that “[l]ong ago... the Court characterized marriage as

‘the most important relation in life... and as ‘the

foundation of the family and of society, without which

there would be neither civilization nor progress.”

7

Zablocki at 384. This statement obviously applies to

traditional marriage, and absolutely provides no

support for legal recognition of homosexual marriage.

See Maynard, 125 U.S. at 210-14. Indeed, it proves

just the opposite.

The Maynard court assumed that marriage law

was governed vy the common law which required

consummation between one male and one female.’ See

id. at 213. Additionally, the Maynard court made it

plain that, “though formed by contract ... the relation

of husband and wife, deriv[ed] both its rights and

duties from a source higher than any contract of

which the parties are capable, and as to these

uncontrollable by any contract which they can

make.” Id. at 212 (emphasis added). “When formed,”

the Court continued, the relation between husband

and wife was “no more a contract than ‘fatherhood’ or

‘sonship’ is a contract.” Jd. Instead, marriage

“partakes more of the character of an institution

regulated and controlled by public authority, upon

principles of public policy, for the benefit of the

community.” Jd. at 213. Thus, only by skipping over

Maynard could Petitioners even pretend to claim that

Zablocki established the right “to marry the person of

one’s choice.”

To be sure, the DeBoer Petitioners also have

offered up Meyer v. Nebraska, 262 U.S. 390, 399

3

See 1 William Blackstone, Commentaries on the Laws of

England, 424 (Univ. Of Chi. Facsimile ed.: 1765). Age was only

one of several common law limitations on one’s “choice” of a

marriage partner. See id. at 422-28.

8

(1923), to support their claim that the right “to marry

the person of one’s choice” was among the family rights

to “establish a home,’ to ‘bring up children’ and ‘to

enjoy those privileges long recognized at common

law as essential to the orderly pursuit of happiness by

free’ persons.” Pet. Br. at 1 (emphasis added). But

conspicuously absent from the Meyer inventory of

common law privileges is any reference to a right to

marry “the person of one’s choice.” See id. at 399.

Although the Meyer list included a right “to marry,” it

is a total fabrication to infer that the Meyer court

affirmed, as Petitioners have insisted, a right for a

person to marry another person of the same sex. To

the contrary, throughout the common law time period

referenced in Meyer, sexual relations between men

constituted, as Sir William Blackstone declared, “the

infamous crime against nature/,] a disgrace to human

nature,” and punishable by death. 4 Blackstone’s

Commentaries at 215-16.

In addition to this condemnation of “unnatural”

sexual coupling, the English common law of marriage

exclusively adopted the Biblical matrimonial order.

First, the common law limited the relationship to one

between “husband and wife,” that is, “baron and feme.”

I Blackstone’s Commentaries at 421. And second, the

common law made “voidable” any union between a

man and a woman under the “canonical disabilities” of

“consanguinity, or relation by blood; and affinity, or

relation by marriage.” Jd. at 422. Thus, it is wildly

false for Petitioners to presume, as they have, that

there is a right to marry any person of one’s choice.

9

in claiming to base their case on the Due Process

and Equal Protection Clauses, the DeBoer Petitioners

have “deliberately banished the original author[s] [of

the Fourteenth Amendment and], usurped [their]

place....”. E.D. Hirsch, Jr., Validity in Interpretation

(Yale Univ. Press 1967), p. 5. The DeBoer Petitioners

now ask this Court to take the nation one step further

away from the notion of a written constitution, by

fundamentally changing the meaning of the text based

on the will of a bare majority of five lawyers serving on

this Court, rather than complying with the exclusive

process for amending the Constitution, as set out in its

Article V. Freed from textual constraint, Professor

Lino Graglia has observed that:

[o]ver the past half-century the justices have

chosen to make themselves the final

lawmakers on most basic issues of domestic

social policy in American society. These

include issues literally of life and death ... and

issues of public morality.... In essence, the

Court now performs in the American system of

government a role similar to that performed by

the Grand Council of Ayatollahs in the Iranian

system.... [L. Gralia, “Constitutional Law

Without the Constitution: The Supreme

Court’s Remaking of America,” in “A Country

I Do Not Recognize” (R. Bork ed., Hoover Press

2005).*]

Nearly two decades ago, Justice Scalia warned:

tp://www.ho r /sites/default/files/uploads/

documents/0817946020 _1.pdf.

10

[t}his Court has no business imposing upon all

Americans the resolution favored by the elite

class from which the Members of this

institution are selected, pronouncing that

“animosity” toward homosexuality ... is evil.°

[Romer v. Evans, 517 U.S. 620, 636 (1996)

(Scalia, J., dissenting).]

Since Romer, as Justice Scalia predicted, the American

people have seen a flurry of judicial opinions with “no

foundation in American constitutional law”

overturning laws which were “designed to prevent

piecemeal deterioration of the sexual morality” desired

by the People. These opinions together constitute

what he described as “an act, not of judicial judgment,

but of political will.” Id. at 653.

B. An Illegitimate Evolutionary “Right.”

The DeBoer Petitioners purport to rest their

constitutional case on the “province and duty” of this

Court to “say what the law is.” Marbury v. Madison,

5 U.S. (1 Cranch) 137, 177 (1803). See Pet. Br. at 28.

In total disregard of Marbury, however, Petitioners

have made no effort to conform their argument to the

constitutional text, despite the fact that the Marbury

Court, itself, acknowledged that, in the exercise of its

judicial power, the written text governed its

° The current Court is drawn from only three elite law schools:

Harvard, Yale, and Columbia. This case could demonstrate that

the admissions directors and constitutional law professors of these

three schools have more effect on the institution of marriage than

do the voters of Michigan.

11

interpretation, not the other way around. See id. at

179-80. By contrast, the DeBoer brief simply

announces that:

Michigan’s exclusion of same-sex couples from

the freedom to marry denies Petitioners a

basic dignity to which they are constitutionally

entitled. It is, therefore, “the province and

duty” of this Court to hold that the exclusion

violates their rights under the Fourteenth

Amendment. [Pet. Br. at 29.]

In Petitioners’ equal protection section, the DeBoer

brief contends that laws exclude same-sex couples

from the definition of marriage do not satisfy either

this Court’s “rational basis” test or its “heightened

scrutiny” test. Of course, neither of these tests can be

found in the written constitutional text. Rather, both

are designed to enable judges to sort through a variety

of societal observations about families, substituting

“social science” for the rule of law (see, e.g., Pet. Br. at

40), or “minority status” for legal equality (see, e.g., id.

at 50).

Significantly, Petitioners’ due process segment

begins not with the text and its historical context,

which dates back to the 1215 Magna Carta, but

instead with various dicta that marriage is a

fundamental right, excised from this Court’s

precedents over the past half century. See Pet. Br. at

56-57. Criticizing the court of appeals below for

“mischaracteriz[ing] Petitioners’ claim as one for

‘same-sex marriage,” and therefore, “not a right

‘deeply rooted in our Nation’s history and tradition,”

12

Petitioners fault the court for “misunderstand[ing] the

role of history in due process analysis and ignor|[ing]

the constitutional significance of our ‘emerging

awareness of how ‘laws once thought necessary and

proper in fact serve only to oppress.” Pet. Br. at 57-58

(emphasis added).

History, Petitioners argue, is only the “starting

point but not in all cases the ending point of the

substantive due process inquiry.” Id. at 58 (emphasis

added). Positing that the claim of right to same-sex

marriage is just one more step in an ever-evolving

constitutional right of privacy that has not yet reached

full bloom, Petitioners urge this Court to adopt their

view that the right to same-sex marriage, like the

status of women over time, has somehow morphed into

an “evolving understanding as to the meaning of

equality with respect to marriage.” Pet. Br. at 59,

n.21.

In their Summary of Argument, the DeBoer

Petitioners stake their case on the “overwhelming,

well-documented social science consensus ... that child

outcomes depend on the quality of parenting ... not the

gender of the parents,” and thus, that there is no

rational basis for denying a marriage license to a

same-sex couple. See Pet. Br. at 40-42. But adjusting

the Constitution to conform with current social science

consensus is not the rule of law, much less

constitutional law. As this Court ruled in Marbury,

the very nature of a written constitution is that it

“establish[es] for [the people’s] future government, ...

principles ... [that] are deemed fundamental [and]

designed to be permanent.” /d. at 176 (emphasis

13

added). Indeed, the one thing that is self-evident is

that social science consensus is not, and has never

been, permanent. Prior to 1973, the American

Psychiatric Association consensus was that

homosexuality was a mental disorder. Now the

consensus is that homosexuality is a positive virtue.®

Who knows what tomorrow may bring. Either way,

reliance on social science to provide a foundation for

constitutional law builds a house on shifting sands,

perverts the rule of law, and seduces judges to function

as oracles of self-righteousness, issuing orders

requiring all other government officials to act

according to their “judicial” opinions.

II. Federal Decisions Compelling Homosexual

Marriage Are Deeply Flawed.

In DeBoer v. Snyder, 772 F.3d 388 (6" Cir. 2014),

writing for a 2-1 majority, Judge Sutton, inter alia,

reversed District Judge Friedman’s decision, upholding

the Michigan constitution and statutory law governing

marriage, but he did so almost apologetically, stating:

the question is not whether American law

will allow gay couples to marry; it is when

® For a discussion of Freud’s surprising views on homosexuality,

the politicized nature of the positions taken by the American

Psychiatric Association, and the sordid role of social science in

promoting eugenics and “racial integrity,” see Brief Amicus Curiae

of Public Advocate, et al., in DeBoer, pp. 6-14.

http://www.lawandfreedom.com/site/constitutional/

DeBoer%20Public%20Advocate%20amicus%20brief.pdf.

14

and how that will happen.... [DeBoer, 772

F.3d at 395 (emphasis added).]

Although Judge Sutton stated the issue correctly —

“Does the Due Process Clause or the Equal Protection

Clause of the Fourteenth Amendment require States

to expand the definition of marriage to include same-

sex couples?” — he too ignored the meaning of the

Constitutional text, concentrating solely on case

precedent which he correctly observed “offers many

ways to think about the issue.” DeBoer, 772 F.3d at

399.

To be sure, Judge Sutton makes many good points,

such as rejecting the charge of animus’ against people

who adhere to traditional marriage, and readily

distinguishing this Court’s ruling in Loving v. Virginia,

388 U.S. 1 (1967). DeBoer, 772 F.3d at 408-11.

Indeed, Judge Sutton observed:

[a] dose of humility makes us hesitant to

condemn as unconstitutionally irrational a

view of marriage shared not long ago by every

society in the world, shared by most, if not all,

of our ancestors, and shared still today by a

significant number of the States. [/d. at 404.]

Ultimately, however, Judge Sutton’s opinion was

grounded primarily in the continuing validity of this

" The doctrine of “animus” is among the most powerful invented

tools of judicial supremacy over the people, allowing courts to

strike down initiatives and referenda which contradict judicial

will. See, e.g., DeBoer, 772 F.3d at 408-10.

15

Court’s earlier, and unquestionably correct, 43-year-

old ruling in Baker v. Nelson, 409 U.S. 810 (1972),

falling short of providing a full-throated defense of

traditional marriage of the sort provided by other

judges:

@ District Judge Martin Feldman’s opinion in

Robicheaux v. Caldwell, 2 F.Supp.3d 910 (E.D.

La. 2014);

e Circuit Judge Kelly’s dissents in Kitchen v.

Herbert, 755 F.3d 1193, 1230 (10 Cir. 2014)

and Bishop v. Smith, 760 F.3d 1070, 1109 (10"

Cir. 2014); and

e Circuit Judge Niemeyer’s ringing dissent in

Bostic v. Schaefer, 760 F.3d 352, 385-98 (4

Cir. 2014).*

Other than these few exceptions, federal judges

have treated challenges to traditional marriage as an

opportunity to exercise raw political power, belying

Alexander Hamilton’s assurance that the federal

judiciary is “the least dangerous [branch] to the

political rights of the constitution....”. A. Hamilton,

Federalist 78. G. Carey & J. McClellan, The

Federalist Papers (Liberty Fund, 2001), p. 402. Rather

than serving as the protectors of the U.S. Constitution,

By far the most compelling judicial defense of traditional

marriage has come from the Alabama Supreme Court: Ex parte

State of Alabama ex rel, Alabama Policy Institute, Alabama Sp.

Ct., No. 1140460 (Mar. 3, 2015). http://www.alabamaappellate

watch.com/uploads/file/ 1091320.PDF.

16

federal courts have wielded the power that Plato

thought properly belonged to Philosopher Kings.°®

Hamilton postulated a very different judiciary, one

that:

has no influence over either the sword or the

purse, no direction either of the strength or of

the wealth of the society, and can take no

active resolution whatever. It may truly be

said to have neither Force nor Will, but merely

judgment; and must ultimately depend upon

the aid of the executive arm even for the

efficacy of its judgments. [The Federalist

Papers at 402 (emphasis added).]

Most federal courts reviewing challenges to traditional

marriage have issued opinions devoid of faithful

constitutional “judgment,” and full of personal “will,”

anticipating that neither the Legislative and Executive

Branches of the federal government, nor the States

will challenge this Court’s opinion, accepting it as the

final word on the matter. Indeed, before the case

reached this Court, the inferior federal courts felt no

constraint to “say what the law is” — confident that,

whatever they say, it is the law.

A. Judge Martha Craig Daugherty.

Circuit Judge Daugherty’s dissent below is highly

personal and political, restating the central issue of

the case to be how “the plaintiffs as persons, suffering

* See generally Plato, The Republic (B. Jowett, ed., Random

House), p. 203.

17

actual harm,” feel. DeBoer, 772 F.3d at 421, 423. Her

dissent is grounded in little more than the raw power

of “an independent judiciary” to disregard “legislative

will” and “a majority of the electorate,” as well as the

judiciary’s “authority, and indeed the responsibility, to

right fundamental wrongs left excused by” the people.

Id. at 436-37. Judge Daugherty’s dissent applies

atextual notions of fundamental rights, imputed

animus, and balancing tests, an approach where:

the Constitution is taken simply to prohibit

any state or federal action that is not nice.

Whatever the text may actually provide, this

school transforms it into an engine of political

wish-fulfillment. What we don’t like in

government, the Constitution outlaws. [Craig

A. Stern, “Things Not Nice: An Essay on Civil

Government,” 8 REGENT U.L. REV. 1, 2 (1997).]

B. Judge Bernard Friedman.

Similarly, in the district court below, Judge

Friedman waxed poetic and, full of emotion and

predilection, chastised the State of Michigan for even

deigning to defend the Constitution as it was written:

[S]tate defendants lost sight of what this case

is truly about: people. No court record of this

proceeding could ever fully convey the personal

sacrifice of these two plaintiffs.... It is the

Court’s fervent hope that these children will

grow up “to understand the integrity and

closeness of their own family and its concord

with other families in their community and in

18

their daily lives.....” Today’s decision is a step

in that direction. [DeBoer v. Snyder, 973 F.

Supp. 2d 757, 775 (E.D. Mich. 2014) (emphasis

added).]

Further, instead of exercising independent

judgment, Judge Friedman appears to have had a

personal interest in the outcome of the case. The

Detroit Free Press reported that, in 1995, now U.S.

District Judge Judith Levy came to work for Judge

Friedman as an openly lesbian law clerk. During her

three-year clerkship, Judge Levy had two children by

artificial insemination. Judge Friedman reportedly

took a special interest in Levy’s growing family, and

“(hje became more than a casual friend to them... It’s

almost like he’s their grandfather.” B. Dickerson,

“What Judge Friedman learned about gay families

from a lesbian law clerk,” Detroit Free Press, Mar. 23,

2014."° Indeed, the morning that the DeBoer trial

began, Ms. Levy and her children watched from the

courtroom gallery and, “[sjhortly after noon, the 15-

year-olds slipped into Friedman’s chambers for a quiet

lunch with the judge and his staff.” Id. Judge

Friedman apparently had no qualms about the

appearance of impropriety or the lack of impartiality

in meeting in his office during trial with personal

friends who were in the class of persons who would be

directly affected by his decision. Id.

Additionally, Judge Friedman directed the

plaintiffs’ litigation strategy from the bench. The

19

DeBoer plaintiffs commenced their litigation

challenging Michigan’s adoption law, but it was Judge

Friedman who counseled the challenge to the Michigan

Marriage Amendment (“MMA”). DeBoer, 973

F.Supp.2d at 759-60. In so doing, Judge Friedman

violated the bedrock principle of nemo iudex in causa

sua. Then, capping his judicial coup d’etat, he refused

to stay his order invalidating the MMA, which he

issued on a Friday afternoon at 5:00 p.m., and

prevented Michigan officials from obtaining an

immediate stay from the Sixth Circuit. Thus, Judge

Friedman freed his colleague, Judge Levy, to perform

marriages Saturday morning.'’ Abandoning the realm

of judicial judgment, Judge Friedman entered the

illegitimate realm of personal will, ignoring Chief

Justice Marshall’s admonition that:

Judicial power is never exercised for the

purpose of giving effect to the will of the

Judge; always for the purpose of giving effect

to the will of the Legislature; or, in other

words, to the will of the law. [Osborn v. Bank

of the United States, 22 U.S. (9 Wheat) 738,

866 (1824).]

Chief Justice Charles Evans Hughes once admitted

in private: “At the constitutional level where we work,

ninety percent of any decision is emotional. The

rational part of us supplies the reasons for supporting

our predilections.” W.O. Douglas, The Court Years

‘t See Associated Press, “Appeals Court Halts Gay Marriages in

Michigan” (Mar. 22, 2014), bite: pave, vahon.cosp/appesla- court:

halts-gay-marri -michigan-210343159.ht

20

(Random House 1980), p. 8. Cases involving so-called

“homosexual rights” demonstrate that this distinctly

unjudicial practice is not a relic of history, but a

present threat to the very survival of the rule of law

and the American constitutional republic.

Ill. CATO’S “ORIGINALIST” CASE FOR SAME-

SEX MARRIAGE IS UNTENABLE.

A. Cato’s “Original Meaning” Is Designed to

Reach a Result Contrary to the Intent of

the Framers.

Amicus Cato Institute urges this Court to reject

the “original understanding” of those who wrote and

ratified the Fourteenth Amendment, in favor of what

Cato terms the “original meaning.” Brief of Amici

Curiae Cato Institute, et al. in Support of Petitioners

(“Cato Br.”) at 3. Of course, this begs the question —

whose meaning? Obviously this cannot be the

meaning given by the people who wrote and ratified

the Amendment, since that would be the same as

“original understanding.”

Readers of poetry may impute meaning to a text —

“what does this poem mean to me?” But such an

approach to constitutional law would lead to the end of

a written constitution, the very purpose of which is to

set “permanent” limits on the power of civil

governments. See Marbury v. Madison, 5 U.S. at 176.

Because “the people have an original right to

establish, for their future government, such principles

as, in their opinion, shall most conduce to their own

happiness,” it is their “original understanding,” as

21

revealed by the written words, that determines what

the law is. Id.

Cato’s search for the “original meaning,” rather

than the people’s “original understanding,” sanctions

a wide-open methodology of interpretation that

permits Cato to give the Fourteenth Amendment the

“meaning” which leads to a desired outcome.

Remarkably, Cato relies on D.C. v. Heller, 554 U.S.

570 (2008), as support for its novel proposition. Cato

argues that “[lljaws can and must have consequences

beyond those understood or anticipated by the

generation of their promulgation.” Cato Br. at 4. It is

one thing to understand, as a matter of original

“principle,” the word “arms” in the Second Amendment

to include modern rifles as well as colonial muskets, as

clearly the framers would have intended. It is quite

another to contend that the word “equal” in the

Fourteenth Amendment should be read, as a matter of

principle, to mandate homosexual marriage, a subject

that, on its face, the equal protection guarantee does

not address and that its framers would never have

intended. See DeBoer, 772 F.3d at 403-04. In short,

Cato’s “original meaning” argument is designed to

evade the “original understanding” of those who wrote

and ratified the Fourteenth Amendment, imputing a

meaning that they did not and would not have

intended when the Amendment was ratified in 1868.

22

B. Cato Ignores the Nation’s Unique History

of Slavery, Inverting the Equal Protection

Clause to Apply to All Class Legislation.

From the beginning, the Cato brief ustethers its

argument from the Fourteenth Amendment text,

describing its interest as one “enforcing the age-old

principle of ‘equality under the law’ ... enshrined in the

Constitution through the Fifth and Fourteenth

Amendments.” Cato Br. at 1 (emphasis added). But

there is no “equal protection” guarantee written in the

Fifth Amendment. Instead, this Court grafted one

onto the due process guarantee, alleging that “it would

be unthinkable that the same Constitution would

impose a lesser duty on the Federal Government.”

Bolling v. Sharp, 347 U.S. 497, 500 (1954).

In like manner, Cato reads into the 1791 Fifth

Amendment due process guarantee an “age-old

principle of ‘equality under the law,” in order to lay a

foundation to reject what it deems to be a “narrow,

race-based view of the Fourteenth Amendment,” and

to adopt its preferred broad-based view which would

sweep away all “caste’ legislation,” not only of “race”

and “color” but also of “creed” and “orientation.” See

Cato Br. at 5-6. Indeed, in a rhetorical flourish

sweeping aside al] textual constraint, Cato opens its

Summary of Argument with the inventive claim that:

[t]he Fourteenth Amendment’s Equal

Protection Clause establishes a _ broad

assurance of equality for all. It guarantees the

same rights and same protection under the

law for all men and women of any race,

23

whether rich or poor, citizen or alien, gay or

straight. [Cato Br. at 2 (emphasis added).]

Equally remarkably, Cato claims that this “broad”

reading is supported by Yick Wo v. Hopkins, 118 U.S.

356, 369 (1886). While Yick Wo may be best known for

its atextual proclamation that the mght to vote is a

“fundamental political right,”’* that case decidedly

does not support Cato’s claim of a universal equality of

all people. To the contrary, the Yick Wo Court

reaffirmed the original narrow meaning of the equal

protection guarantee, limited to “race[,] color, ... [and]

nationality” (id. at 369), an interpretation that had

been previously embraced in the Slaughter-House

Cases, 83 U.S. (16 Wall.) 36, 71, 125 (1873).

Not only does Cato misuse Yick Wo, but also it

omits entirely the clarion call of Justice John Marshall

Harlan’s dissent in Plessy v. Ferguson, 163 U.S. 537

(1896), which captured the essence of the original

equality principle embodied in the Equal Protection

guarantee:

There is no caste here. Our Constitution is

color-blind.... The law regards man as man,

and takes no account of his surroundings or of

his color.... [Jd. at 559 (Harlan, J., dissenting)

(emphasis added) .]

Indeed, the equal protection guarantee was designed

to rid the nation of the pernicious doctrine of

'2 See id. at 370.

24

inequality sustained by this Court that undergirded

the American race-based slavery system,'* wherein a

human being could be “bought and sold, and treated as

an ordinary article of merchandise and traffic,” and

who therefore had “no rights which the white man was

bound to respect.” See ott v. Sandford, 60 U.S.

(19 How.) 393, 407 (1857). Cato instead would have

this Court ignore the specific equality principle ridding

the nation of race-based discrimination, absorbing it

into a broad-based “principle[] of colonial and

Founding Era constitutional theory ... that the rule of

law carries with it a presumption of general and equal

application.”"* Cato Br. at 6. Ignoring this

unimpeachable history of dehumanization of the newly

'* See, e.g., Strauder v. West Virginia, 100 U.S. (10 Otto) 303

(1879) (“[The fourteenth amendment] is one of a series of

constitutional provisions having a common purpose; namely,

securing to a race recently emancipated, a race that through many

generations had been held in slavery, all the civil rights that the

superior race enjoy.”).

‘* In support of its proposition that racial discrimination is only

one of a number of examples of unconstitutional class legislation,

Cato cites state constitutional provisions such as Article I, Section

20 of the 1857 Oregon Constitution, which reads: “No law shall be

passed granting to any citizen or class of citizens privileges, or

immunities, which, upon the same terms, shall not equally belong

to all citizens.” Or. Const., 1856, art. I, § 20. The Fourteenth

Amendment, of course, reads quite differently: “nor shall any

State ... deny to any person within its jurisdiction equal protection

of the laws.” “[T}he difference in the two constitutional texts,”

writes former Justice of the Oregon Supreme Court, Hans A.

Linde, “is not happenstance” explaining “[t]hey were placed in

different constitutions at different times by different men to enact

different historic concerns into constitutional policy.” H. Linde,

“Without ‘Due Process,” 49 ORE. L. REV. 125, 141 (1970).

25

freed slave class, Cato wrongfully attempts to meld

“race” and “gay people” into the same “caste” deserving

the same “equal protection” of the law. Cato Br. at 17-

24. But Cato utterly fails to make its case.

First, Cato has provided no historic parallel

between the experience of a homosexual and that of a

black person who was bought and sold as merchandise

with “no rights which the white man was bound to

respect.” Rather, while homosexual behavior

historically was punishable as a felony, it was rarely

prosecuted,’” not because the “concept of the

homosexual as a distinct category of person’ emerged

only at the end of the 19" century” (Cato Br. at 18), as

Cato would have the American people believe, but

because it was “an offense of so dark a nature, so

easily charged, and the negative so difficult to be

proved, that the accusation should be clearly made out:

for, if false, it deserves a punishment inferior only to

that of the crime itself.” 4 Blackstone’s Commentaries

at 215. In stark contrast, black people in America

were subject to lynching by lawless mobs,'* which often

acted based upon little or no “proof” of any crime. To

the contrary, as Blackstone attests, prosecutions for

“the infamous crime against nature” demanded that it

be “strictly and impartially proved.” 4 Blackstone’s

Commentaries at 215.

'® See Lawrence v. Texas, 539 U.S. 558, 569 (2003).

‘© See N. Johnson, Negroes and the Gun, Prometheus Books

(2014).

26

Second, however badly “homosexuals” have been

treated in America, Cato makes no effort to

demonstrate that “gay people,” like black persons,

have been historically treated as nonpersons, denied

by law the right to acquire property, to make and

enforce contracts, to sue, to give evidence, to vote, or to

serve on juries. Nor could such a case be made.

IV. Forcing Homosexual Marriage on the States

and on the People Would Do Grave Harm to

the Nation.

Just a dozen years ago, Justice Sandra Day

O’Connor, concurring specially in Lawrence, assured

the States that this Court’s decision striking down the

Texas sodomy law would not mean that Texas did not

have a “legitimate state interest [in] preserving the

traditional institution of marriage.” Jd. 539 U.S. at

585 (O’Connor, J., concurring). In his majority

opinion, Justice Kennedy likewise observed that

Lawrence “does not involve whether the government

must give formal recognition to any relationship that

homosexual persons seek to enter.” Jd. 539 U.S. at

578. In spite of that, courts across the nation, relying

primarily upon Lawrence,’ have stumbled over each

other to be the first to overturn state laws and

constitutions affirming the law of the Creator that

marriage is limited to the lawful covenant union of one

man and one woman as it was from the beginning of

time immemorial. See Genesis 2:24; Matthew 19:4-6.

'’ Petitioners’ brief invokes Lawrence 26 times.

27

Today, the American people are being told that the

institution of marriage cannot constitutionally be

based upon a divinely revealed moral foundation, but

only according to the secular reasons of men. The

nation was not so founded. The Declaration of

Independence, the nation’s charter, grounded our

nation on the Biblical “Laws of Nature and of Nature’s

God,” embracing the principle that all men “are

endowed by their Creator with certain unalienable

Rights,” putting its case for liberty before “the

Supreme Judge of the world,” and acting in “firm

reliance on the protection of divine Providence....” See,

e.g., M. Novak, On Two Wings (Encounter: 2002), pp.

5-47. Today’s secular message would startle America’s

founders who drafted and ratified the Constitution.

Ben Franklin — perhaps the least religious leader of

the founding generation — called the constitutional

convention to prayer, because: “God Governs in the

affairs of men.” Documents IDllustrative of the

Formation of the Union (Gov’t Printing Office, 1927),

p. 295. Drawing on the “sacred writings,” Franklin

continued, “except the Lord build the House they

labour in vain that build it,” and he then counseled “I

firmly believe ... that without His concurring aid we

shall succeed in this political building no better, than

the Builders of Babel....” Jd. at 296.

This case before this Court is this nation’s tower of

Babel. At issue is whether we as a people are going to

continue to conform the institution of marriage to the

one created and established by God, or instead will

reform the most sacred of human institutions into

something else chosen by an elite set of jurists. Unlike

Lawrence — the impact of which was limited to the

28

rarely enforced crime of sodomy — any decision to

require State recognition of “same-sex marriage” will

have repercussions of titanic proportions. To the end

that this Court be forewarned,'* these amici submit

the following:

A. Wholesale Revision of Every State’s

Family Law, and Related Matters.

The Alabama Supreme Court decision upholding

traditional marriage makes clear the far-ranging

implications of changing the meaning of the word:

“marriage” so as to make it mean [or apply to]

something antithetical to that which was

intended by the legislature and to the organic

purpose of [Alabama law] would appear to

require nothing short of striking down that

entire statutory scheme. [Ex parte State of

Alabama ex rel. Alabama Policy Institute, at

89.]

Indeed, the “entire edifice of family law [would be]

wipe[d] away ... with a wave of the judicial wand.” Jd.

at 89-90. The laws that would be affected include:

inheritance ... distribution of estates, ... post-

marital support, custodial and other parental

rights as to children, adoption of children,

dissolution of marriages, testimonial privileges

certain defenses in the criminal law,

'* Ezekiel 33:1-7.

29

interests in land, the conveyance and

recording of such interests ... loss of

consortium. [/d. at 24.]

B. Closure of Christian and Other Religious

Adoption Agencies.

Already, Archbishop Sean P. O’Malley and leaders

of Catholic Charities of Boston announced that the

agency will end its adoption work, rather than comply

with state law requiring homosexual adoption of

children." The same has already happened in

Chicago.” If homosexual marriage were sanctioned,

parents would be precluded from using religious

agencies to place their children in families who share

their religion and values.

C. Preaching Against Homosexuality and

Counseling of Homosexuals Likely Would

Be Prohibited.

Pastors would be monitored by atheist and liberal

groups to ensure that there be no teaching that

homosexual behavior is sin. Even websites which offer

information about withdrawing from homosexual

behavior would be banned as “hate speech.” All

persons would be prohibited from the free exercise of

30

religion, including “proselytizing” others that their

behavior constitutes sin, but that the penalty for their

sins has already been paid through the death, burial,

and resurrection of Jesus Christ. I Cor. 15:1-4.

In California, it is already a crime to counsel

minors with respect to “sexual orientation change

efforts,” that is, any practices by mental health

providers “that seek to change an individual's sexual

orientation.”” New Jersey passed a similar statute,

which was recently upheld by the U.S. Court of

Appeals for the Third Circuit. See King v. Governor of

New Jersey, 767 F.3d 216 (3rd Cir. 2014).

D. Churches and Others Would Lose

Exemption from Federal Income Tax.

The newly established constitutional right to

homosexual marriage would be adjudged more

important than the “free exercise” right of para-church

ministries, Christian schools and colleges, and even

churches. These entities would be placed in jeopardy

of losing their federal tax-exempt status. See Bob

Jones University v. United States, 461 U.S. 573 (1983).

Loss of federal income tax-exempt status could lead to

loss of contribution income, and forfeiting of church

properties to pro-homosexual charities. In addition,

*" See Employment Division v. Smith, 494 U.S. 872, 877 (1990).

“ The Ninth Circuit upheld the statute which prohibits the

“saying [of] certain words ... [bly labeling such speech as

‘conduct’....” See Pickup v. Brown, 740 F.3d 1208 (9th Cir. 2014)

(O’Scannlain, J., dissenting), cert. denied, 134 S.Ct. 2881 (2014).

31

criminal penalties might be imposed on church

leaders. In Idaho, two pastors recently were

threatened with fines and jail time unless they

performed homosexual marriages at their wedding

chapel.”*

E. Legalization of Multiple-Partner and

Incestuous Marriages.

Based on “privacy rights,” federal District Judge

Clark Waddoups has already invalidated a Utah

“cohabitation” law used against religious polygamists,

while leaving in place the ban on bigamy, thereby

permitting sister wives, with only one wife being the

state-recognized lawful wife. Brown v. Buhman, 947

F.Supp.2d 1170 (D.Ut. 2013). Currently, in Arizona

and Utah, there are a number of colonies of

polygamous families, where the first wife is legally

recognized, and the other wives are registered as

single mothers with the government as welfare

recipients, to the tune of millions of dollars at the

taxpayers’ expense.** Additionally, the door would be

wide open for three women” or three men” to marry

* See J. Krakauer, Under the Banner of Heaven (Doubleday:

2003), Pp. 12-13.

32

and, if they can marry, then why not an uncle and a

niece as in New York,”’ or a step-brother and sister, as

illustrated by Direct TV’s new show, “Billy & Billie”?”

F. People of Biblical Faith Would be Driven

from Public Office.

Requiring homosexual marriage would force state

officials to participate in wedding ceremonies which

would be sinful for Orthodox Jews, conservative

Catholics, and Evangelical Christians. In North

Carolina, numerous judges already have resigned to

avoid criminal prosecution for refusing to perform gay

marriages.””

G. A Coarsening of Civil Society.

Most persons have sufficient respect for others

that they regulate their sexual behavior to avoid

compelling others, especially those who are sensitive

or young , to observe their activities. Sadly, there is a

significant element among homosexuals who have

proven to be wholly insensitive to the sensibilities of

others. They refuse to allow Roman Catholics to

Celebrate Saint Patrick’s Day, without demanding the

i-men-tie- -fai e ony.html.

33

opportunity to celebrate their sexual difference from

Catholic doctrine. Gay Pride parades have included

nudity, sado-masochism, nuns in drag led by the

Sisters of Perpetual Indulgence, and other displays of

homosexual behavior designed to shock “straight”

people. Indeed, San Francisco’s 2012 ban on public

nudity is waived for the San Francisco Pride Parade.”

Television no doubt will become even more pro-

homosexual, making it more difficult for persons

adhering to traditional values to live their lives and

raise their children in an increasingly debased culture.

H. Mandates on Businesses to Cater to

Homosexual Couples.

Using statutes originally and primarily designed

to protect blacks from discrimination,”' activist

homosexuals have targeted bakers, photographers, and

florists, seeking to force all of them to promote a

marriage that they believe to be immoral. In

Washington state, a judge ruled that a florist violated

the state’s anti-discrimination laws when she referred

a longtime customer to another florist for the wedding

flowers for his homosexual marriage.*” In New York,

a husband and wife shut the doors to their business

*° See http://americansfortruth.com/2012/12/07/san-franciscos-

exual-events/ °

* J. Gottry & G. Gottry, “Just Shoot Me: Public Accommodation

Anti-Discrimination Laws Take Aim at First Amendment

Freedom of Speech,” 64 VAND. L. REV. 961, 965 (2011).

os Jiwww.cnn 015/0 iving/s an-florist-gay/.

34

hosting weddings on their family farm, after a court

fined them $13,000 for refusing to host gay marriages

in their home.* In Colorado, a baker faced jail time™

and stopped baking wedding cakes entirely, after a

court ruled that he discriminated against a gay couple

when he refused to bake them a cake for their

wedding.* In Oregon, a court found similarly against

another baker, and he may be forced to pay a

homosexual couple up to $150,000 as penalty.” The

New Mexico Supreme Court held that a photographer

violated the state’s anti-discrimination statutes by

refusing to photograph a gay wedding.*’ Newspapers

likely will be forced to publish homosexual wedding

announcements, in violation of their existing editorial

control over what they publish.

” http://news. yahoo. i e-fined-refusing-host-gay-

wedding-s : -19 10.h

a http://w breitbart.com/big-gov ent/2013/1 a f

aa dM 4/ jack-phillips-

mactecningn-sanetnen:—_B-RASETIS AES See opinion at

https://www t/ ssets/initial decision ca

se_no. cr 2

Jiwww. /news/2015/02/02/bakery-same-

*’ Elane Photography, LLC v. Willock, 309 P.3d 53 (N.M. 2013).

35

l. Professional Licensing Requirements to

Serve Homosexual Couples.

In this brave, new, homosexual-friendly world,

every licensed professional would be required to

embrace the new orthodoxy, to bow down to the idol of

“non-discrimination,” or be cast out of his profession.

People who first claimed only to only want tolerance of

their behavior will allow no toleration for other views.

Will a physician be forced to perform an artificial

insemination for a lesbian couple?** Will a lawyer be

forced to take a case defending gay marriage?

Lawyers are already losing their “traditional

prerogative to exercise absolute discretion in the

selection of clients....” R. Beg, “The Lawyer's License

to Discriminate Revoked: How a Dentist Put Teeth In

New York’s Anti-Discrimination Disciplinary Rule,” 64

ALBANY L. REV. 154 (2000). Provisions designed to

advance the homosexual agenda have been

incorporated into many state ethics codes. In

California, for example, it is unethical to

“discriminat[e] on the basis of ... sexual orientation

[in] employment... or [client] representation....” State

Bar of California, Rules of Professiona) Conduct: Rule

2-400B.*

** See North Coast Women's Care Medical Group, Inc. v. Superior

Court, 44 Cal. 4th 1145 (Cal. 2008).

= Hi . . Vv es/Rul fessionalConduct/

n ul aspx.

36

J. Undermining the Created Male-Female

Order.

The Holy Scriptures reveal that God created

mankind, male and female, in the image of God.

Genesis 1:27; Matthew 19:4-6. Homosexual sex and

homosexual marriage are a repudiation of God’s

created order.“° Nature itself reveals that God

fashioned the male penis and the female vulva/vagina

as complementary sex organs. One homosexual

testified to this obvious truth when he reported that

homosexual sex is “a poor substitute for intercourse

with a woman....” *’

In stark contrast to the created order, today one’s

“sex” is defined as “a person’s biological status,”** while

“gender” is “a person’s private sense and subjective

experience,”** and “sexual orientation” a person's

“emotional and sexual attraction to a particular sex or

* In Robert Bolt’s play “A Man for All Seasons” Sir Thomas More

asked “if [the world] is round, will the King’s command flatten it?”

Likewise here, if God created us male and female and marriage as

a covenant union between a husband and a wife, will an order by

this Court undo it?

*' K. Jay and A. Young, : an en

Speak Out About Sexual Experiences & Lifestyles (Summit Books:

1979), p. 477

37

gender.”“ In short, “sex” is who you are, “gender” is

how you feel, and “sexual orientation” is who you like.

Not too long ago, sexual] orientation was delineated

into heterosexual (straight) and homosexual

(gay/lesbian or “queer”). To that was added “bisexual”

(attracted to both men and women), “pansexual” or

“omnisexual” (attraction to all genders), and “asexual”

(not attracted to anyone).*° In 2014, Facebook added

more than 50 gender options to its users’ profiles and

now allows custom options.“ In order to be considered

“tolerant” and “understanding,” one presumably must

have a Ph.D. in gender studies. In the mid-1980's, and

for a time, “LGB” was settled upon. Then, by the mid-

1990s, “LGBT” was used. But even that did not prove

inclusive enough, prompting group after group to be

“outraged” and to demand “full inclusion” of all. The

current accepted vernacular is said to be

“LGBPTTQQIIAA+,” standing for “lesbian, gay,

bisexual, transgender, transsexual, queer, questioning,

intersex, intergender, asexual, ally and beyond.”*’

Indeed, some consider pedophilia to be a legitimate

“* http://www.apa.org/topics/Igbt/orientation.aspx.

*© See https://igbtag.unc.ed oring-identities/bisex

ual-pansexual-identities.

*© See http:// - . -custom-choice/.

*’ See http://msmagazine.com/blog/2013/10/01/gbpttqgiiaa-how-

we- got-here-from-gay/.

38

sexual orientation,*“® returning us to the pagan

pederasty of ancient Greece.** Requiring homosexual

marriage will contribute mightily to the sexual

confusion of the nation, sexualizing children and young

adults, encouraging them to experiment with sin.

K. Loss of Liberty.

John Adams warned “Our Constitution was made

only for a moral and religious people. It is wholly

inadequate to the government of any other.”” Today,

“the distinctive features of modern European political

thought, including ... its particular notion of individual

rights ... and its embrace of religious toleration,” are

attributed to the “process of secularization” — but that

view “puts things almost exactly backward.” E.

Nelson, The Hebrew Republic: Jewish Sources and the

fe) ti f Political ought

(HARVARD UNIV. PRESS, 2010), pp. 1-2. In fact,

rejection of Judeo-Christian thought inevitably leads

to a neopagan world view. In support of striking down

laws against abortion, Justice Blackmun pointed out:

= See -/ i /lanow/2013/

many-experts- _now-view-pedophilia-as-a-sexual-orientation-

- html.

*° ~=—« See, e.g., http://theol.eldoc.ub.rug.nl/FILES/root/1989/120/

lbremmer.pdf.

* J. Adams, “Message to the Officers of the First Brigade of the

Third Division of the militia of Massachusetts” (Oct. 11, 1798).

: w.beli t.com/ urcelib/docs/

39

abortion was practiced in Greek times as well

as in the Roman era, and ... “it was resorted to

without scruple”.... Greek and Roman law

afforded little protection to the unborn....

Ancient religion did not bar abortion. [Roe v.

Wade, 410 U.S. 114, 130 (1973).]

Like abortion, homosexuality constitutes:

a reversion to pagan ways of thinking. Most

obviously, homosexuality was accepted among

the ancient Greeks and supplies the premise of

Platonic discussions about the nature of love.

Similar views prevailed in Babylon, Egypt,

and imperial Rome. All of this was

unequivocally condemned by the religion of the

Bible. As cogently argued by Dennis Prager,”’

the current effort to relegitimize

homosexuality is thus an attempt to turn

Western culture back to pagan attitudes and

behaviors. [M. Ss. Evans, The Theme _is

F om: Rel rican

Tradition (Regnery Publishing, 1994), p. 128.)

Such pagan ways of thinking did not respect individual

rights, diversity, or tolerance, or envision government

to be limited in power, but rather were reflected in

acceptance of abortion, infanticide, “exposure”

(abandonment) of children, widespread slavery, and

governments with totalitarian powers, and even the

51

D. Prager, Homosexuality, the Bible, and Us — a Jewish

Perspective, THE PUBLIC INTEREST, Summer 1993.

40

divinity of political leaders. Jd. at 138. The choice for

the country is clear:

[t}he classical way of thinking led inexorably

to untrammeled power in the state, and to

subjugation of the individual. The biblical

model leads to limitations on that power, and

hence to freedom. [J/d. at 135.]

L. God’s Judgment on the Nation.

Should the Court require the States and the People

to “ritualize” sodomite behavior” by government

issuance of a state marriage license, it could bring

God’s judgment on the Nation. Holy Scripture attests

that homosexual behavior and other sexual

perversions violate the law of the land, and when the

land is “defiled,” the people have been cast out of their

homes. See Leviticus 18:22, 24-30. Although some

would assert that these rules apply only to the

theocracy of ancient Israel, the Apostle Peter rejects

that view: “For if God ... turning the cities of Sodom

and Gomorrha into ashes condemned them with an

overthrow, making them an ensample unto those that

after should live ungodly.” 2 Peter 2:4-6. The

continuing application of this Levitical prohibition is

confirmed by the Book of Jude: “Even as Sodom and

Gomorrha, and the cities about them in like manner,

giving themselves over to fornication, and going after

strange flesh, are set forth for an example, suffering

5? 1 Kings 14:24.

41

the vengeance of eternal fire.” Jude 7 (emphasis

added).

CONCLUSION

Whatever justification any judge may believe

compels a State to define marriage to include same-sex

couples, it is not found in the Constitution, nor is it

based in any constitutional principle. For any judge to

require a State to define marriage to include same-sex

couples is an usurpation of authority that he does not

have under the laws of man or God, and is thus illegal.

Respectfully submitted,

MICHAEL CONNELLY WILLIAM J. OLSON*

U.S. JUSTICE HERBERT W. TITUS

FOUNDATION JEREMIAH L. MORGAN

932 D Street, Ste. 2 WILLIAM J. OLSON, P.C.

Ramona, CA 92065 370 Maple Avenue West

(760) 788-6624 Suite 4

Attorney for Amicus Vienna, VA 22180-5615

Curiae U.S. Justice (703) 356-5070

Foundation wjo@mindspring.com

*Counsel of Record Attorneys for Amici

April 3, 2015 Curiae

42

OF COUNSEL: J. MARK BREWER

BREWER & PRITCHARD,

KERRY L. MORGAN P.C.

PENTIUK, COUVREUR & 3 Riverway, Ste. 1800

KOBILJAK, P.C. Houston, TX 77056

Edelson Bldg.

Ste. 200 MARK J. FITZGIBBONS

2915 Biddle Ave. 9625 Surveyor Ct.

Wyandotte, MI 48192 Suite 400

Manassas, VA 20110

JAMES N. CLYMER

CLYMER CONRAD, P.C.

408 W. Chestnut St.

Lancaster, PA 17603