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

nn

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

3n the

Supreme Court of the United States

JAMES OBERGEFELL AND BRITTANI HENRY ET AL.,

Petitioners,

V.

RICHARD HODGES, DIRECTOR, OHIO DEPARTMENT OF

HEALTH, ET AL.,

Respondents.

[Additional Case Captions Listed On Inside Front Cover}

On Writs Of Certiorari To The United States

Court Of Appeals For The Sixth Circuit

BRIEF OF AMICI CURIAE PROFESSORS

LAURENCE H. TRIBE AND MICHAEL C. DORF

IN SUPPORT OF PETITIONERS

Christopher J. Wright

Counsel of Record

Timothy J. Simeone

Stephen W. Miller

HARzIs, WILTSHIRE &

GRANNIS LLP

1919 M Street N.W., Fl. 8

Washington, DC 20036

(202) 730-1300

cwright@hwglaw.cum

MARCH 6, 2015

lee nanelaeetearcnesneeceeesnensenneet en

VALERIA TANCO, ET AL.,

Petitioners,

V.

WILLIAM EDWARD “BILL” HASLAM, GOV. OF

TENNESSEE, ET AL.,

Respondents.

APRIL DEBOER, ET AL.,

Petitioners,

V.

RICHARD SNYDER, GOV. OF MICHIGAN, ET AL.,

Respondents.

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

Petitioners,

V.

STEVE BESHEAR, GOV. OF KENTUCKY ET AL.,

Respondents.

i

TABLE OF CONTENTS

Page

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INTEREST OF AMICI CURIAE .................0.cccccceceeees 1

INTRODUCTION AND SUMMARY OF

ITI sisicinctchnsdinchenhiehd Aubeniaidetibaninbaniitemnetinniegechnadsiinnsicies 2

IIT 5.0 isk sicseiniccencibactaleesichitanataahnineieiaiaaanceneiminniieenencindent 5

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TABLE OF AUTHORITIES

Cases Page(s)

Baskin v. Bogan,

Fe oe ee CU Ge BN cinticcniccescsscccccseseccncncus 6

Bostic v. Schaefer,

760 F.3d 362 (4th Cir. 2014)........................ 3,9, 14

Latta v. Otter,

771 F.3d 466 (Oth Cir. ZO1TS)..........ccccccccesccescseceees 14

Lawrence v. Texas,

Be OF te Be CD vcccccccccccccsccecocesccess 2, 4, 5, 14, 15

Loving v. Virginia,

eee 2, 5, 6, 7, 8, 9

Michael H. v. Gerald D..,

I Te i aueieanimanonan 3, 11, 12

Planned Parenthood of Southeastern Pennsylvania

v. Casey, 505 U.S. 833 (1992) ...................26- 3, 8,11

Poe v. Ullman,

I ceded 3,13

Stanley v. Illinois,

ETE Hn ae aren arn 13

Turner v. Safley,

EE A eer 2, 6, 8,9

United States v. Windsor,

I el 2,4

Washington v. Glucksberg,

Bee Sf. 2, 3, 7, 9, 10, 11

Zablocki v. Redhail,

Ge TAs PS GOD cicccsincsinncctdinieaseemionmaa 2, 6, 8,9

Other References

Brief of Amici Curiae Constitutional Law Scholars

Pa THEO, GB GIB, occccccccecssecssetinninnsaiani 5

Jack Balkin, Tradition, Betrayal, and the Politics

of Deconstruction, 11 Cardozo L. Rev. 1613

Laurence H. Tribe, Lawrence v. Texas: The

Fundamental Right that Dare not Speak its

Name, 117 Harv. L. Rev. 893 (2004) ............00000.... 4

Laurence H. Tribe & Michael C. Dorf, Levels of

Generality in the Definition of Rights, 57 U. Chi.

i kere net ae Pe: 1, 12

Laurence H. Tribe & Michael C. Dorf, On Reading

ae CEES CE sckctcccecccccccncetasnddaniadiaian 1

1

INTEREST OF AMICI CURIAE'

Amici curiae are Laurence H. Tribe, the Carl M.

Loeb University Professor and Professor of

Constitutional Law at Harvard Law School, and

Michael C. Dorf, the Robert S. Stevens Professor of

Law at Cornell University Law School. In addition to

their numerous respective other scholarly works on

same-sex marriage and constitutional law more

generally, twenty-five years ago Professors Tribe and

Dorf wrote an article? and a book? addressing an issue

that is implicit in the Court’s first certiorari question

but that may be given insufficient attention by the

parties: At what level of generality should the

fundamental right to marry be formulated? This brief

considers that question in the event that this Court

wishes to rest its judgment on principles of due

process instead of, in addition to, or as this brief urges,

as intertwined with, principles of equal protection.

1 Pursuant to SUP. CT. R. 37.3(a), amici certify that Respondents

have given blanket consent to the filing of amicus briefs in

support of either party, and Petitioners have consented to the

filing of this brief in correspondence on file with the Clerk.

Pursuant to SUP. CT. R. 37.6, amici certify that no counsel for any

party authored this brief in whole or in part, no party or party's

counsel made a monetary contribution to fund its preparation or

submission, and no person other than amici or their counsel

made such a monetary contribution.

2? Laurence H. Tribe & Michael C. Dorf, Levels of Generality in

the Definition of Rights, 57 U. Chi. L. Rev. 1057 (1990).

3 Laurence H. Tribe & Michael C. Dorf, On Reading the

Constitution (1991).

2

SUMMARY OF ARGUMENT

This brief addresses whether state bans on same-

sex marriage violate the Due Process Clause of the

Fourteenth Amendment. It concludes that such bans

are unconstitutional because they violate the

fundamental right to marriage recognized in Loving v.

Virginia, 388 U.S. 1 (1967), and other cases.

In Loving, this Court invalidated Virginia’s ban on

interracial marriage on the ground that the

challenged law discriminated on the basis of race in

violation of equal protection and on the alternative

ground that its denial of the “fundamental freedom”

to marry was “unsupportable.” 388 U.S. at 12. This

Court’s subsequent decisions in Zablocki v. Redhail,

434 U.S. 374 (1978), and Turner v. Safley, 482 U.S. 78

(1987), confirmed that marriage is a fundamental

right. The Court’s opinions carefully scrutinized the

justifications for the marriage restrictions at issue in

those cases and held that neither failure to make child

support payments nor imprisonment provided

sufficient grounds to infringe that fundamental right.

State bans on same-sex marriage are likewise

unconstitutional infringements on the fundamental

right to marry recognized in those three cases. Under

Lawrence v. Texas, 539 U.S. 558 (2003), and United

States v. Windsor, 133 S. Ct. 2675 (2013), it is clear

that demeaning views of same-sex relationships

cannot provide a valid basis for restricting the

fundamental nght to marry.

Some defenders of state same-sex marriage bans

contend that this Court changed its analysis of

fundamental rights in Washington v. Glucksberg, 521

U.S. 702 (1997), and mandated a very narrow

3

delineation of the fundamental right claimed to be at

issue in any given case. But in Glucksberg, which

declined to categorically invalidate state laws

prohibiting assisted suicide, the Court found no

fundamental right to commit suicide comparable to

the right to marry, and then went on to find no reason

to permit persons to assist others in committing

suicide. There is simply no merit to the claim that

Glucksberg profoundly altered this Court’s approach

to identifying fundamental rights, and the argument

advanced by Judge Niemeyer in dissent in Bostic v.

Schaefer, 760 F.3d 352, 386 (4th Cir. 2014), is

therefore wrong.

Judge Niemeyer’s argument that fundamental

rights must be defined very narrowly may be

understood as an attempt to revive an approach

suggested by Justice Scalia in footnote 6 in Michael H.

v. Gerald D., 491 U.S. 110, 127 n.6 (1989). That

footnote was joined by only one other Justice and the

approach suggested there was again explicitly

rejected by the Court in Planned Parenthood of

Southeastern Pennsylvania v. Casey, 505 U.S. 833,

847-48 (1992).

And rightly so. Footnote 6 in Michael H argued

that any other approach to analyzing historical

traditions was arbitrary. 491 U.S. at 127 n.6. But the

narrowest-level approach is no more principled, and

thus it makes a false claim to value-neutrality.

Although no method of constitutional construction

is purely vvalue-neutral, Justice Harlan’s

pathbreaking dissent in Poe v. Ullman, 367 U.S. 497,

539-55 (1961), points the way to a moderately

constrained methodology which looks, inter alia, to

4

other parts of the Constitution itself—especially the

Bill of Rights—for guideposts.

This Court’s precedents have identified another

textual source to guide fundamental rights analysis:

the Equal Protection Clause. In Lawrence, the Court

built on Justice Harlan’s approach in holding that

adults “engaged in sexual practices common to the

homosexual lifestyle ... are entitled to respect for their

private lives” and that state sodomy laws therefore

violated the liberty protected by the Due Process

Clause. 539 U.S. at 578.4 And in Windsor the Court

struck down Section 2 of the Defense of Marriage Act

because its purpose and effect were “to demean those

persons who are in a lawful same-sex marriage.” 133

S. Ct. at 2695. Those holdings together make clear the

linkage between constitutional equality and

constitutional liberty. Applied in the current setting,

they show why the challenged laws violate both the

Equal Protection and Due Process Clauses.

This Court need not fear that failure to restrict the

previously recognized right to marry would entail a

right to incestuous, polygamous, or child marriage.

Laws forbidding or denying recognition to these

practices can be defended based on their protection of

the rights and interests of persons other than fully

consenting adults.

* The “focus on the right to dignity and equal respect for people

involved in intimate relationships” in the Court’s opinion in

Lawrence was its “most distinctive facet.” Laurence H. Tribe,

Lawrence v. Texas: The Fundamental Right that Dare not Speak

its Name, 117 Harv. L. Rev. 1893, 1945 (2004).

5

ARGUMENT

Petitioners correctly argue that state laws

prohibiting same-sex marriage violate both the equal

protection and due process guarantees of the

Fourteenth Amendment. The Court should hold such

bans unconstitutional on both grounds, as it held with

respect to Virginia’s ban on interracial marriage in

Loving v. Virginia.5 However, this brief focuses chiefly

on the due process issue, and specifically on how a

fundamental right protected by the Due Process

Clause should be identified. As explained below, the

liberty protected by the Due Process Clause should be

read to encompass the right of persons of the same sex

to marry. That liberty is not only an analytically

distinct basis for ruling for petitioners. Because

constitutional liberty and equality are mutually

reinforcing, the due process argument strengthens the

conclusion that the Equal Protection Clause also

prohibits bans on same-sex marriage. See Lawrence,

539 U.S. at 575 (“Equality of treatment and the due

process right to demand respect for conduct protected

by the substantive guarantee of liberty are linked in

important respects, and a decision on the latter point

advances both interests.”).

1. The level of generality at which fundamental

rights are identified is of critical importance but,

under this Court’s Gases, it is not at all difficult to

5 Indeed, because amici believe that the fundamental rights

analysis complements the equal protection analysis, they have

also joined a brief in the instant cases arguing that same-sex

marriage bans should be invalidated pursuant to heightened

scrutiny under the Equal Protection Clause. See Brief of

Constitutional Law Scholars Ashutosh Bhagwat et al.

6

determine when it comes to marriage. Here, if the

fundamental right at issue is described as the “right

to marry” rather than a more specific “right to same-

sex marriage,” it is clear that the right is

fundamental. And this Court’s precedents already

make abundantly clear that the broader formulation

applies.

In Loving, the Court explained that “[t]he freedom

to marry has long been recognized as one of the vital

personal rights essential to the orderly pursuit of

happiness by free men.” 388 U.S. at 12. The Court

reiterated that holding in striking down a Wisconsin

statute requiring child-support payments to be paid in

order to obtain a marriage license in Zablocki, 434

U.S. at 388, and a Missouri regulation generally

prohibiting prisoners from marrying in Turner, 482

U.S. at 99.

It practically goes without saying that the laws

challenged here cannot survive strict scrutiny.

Indeed, the arguments advanced to justify them even

under rational basis scrutiny—such as that banning

same-sex marriage somehow advances a State’s

interest in addressing the consequences of accidental

procreation by heterosexuals—are at best non

sequiturs. See Baskin v. Bogan, 766 F.3d 648, 662 (7th

Cir. 2014) (“Heterosexuals get drunk and pregnant,

producing unwanted children; their reward is to be

allowed to marry. Homosexual couples do not produce

unwanted children; their reward is to be denied the

right to marry. Go figure.”).

Such claims certainly do not survive strict

scrutiny, which perhaps explains why the

Respondents and their allies would prefer that the

7

Petitioners be characterized as seeking a right to

same-sex marriage rather than marriage simpliciter.

For it is concededly difficult to claim that a right to

same-sex marriage is “objectively, deeply rooted in

this Nation’s history and tradition,” Glucksberg, 521

U.S. at 720-21 (citations omitted), as it is only

relatively recently that same-sex marriage became

legal anywhere in this country (or, indeed, the world).

But there is no basis for such a narrowed definition of

the fundamental right to marry.

There was no deeply-rooted history of interracial

marriage before Loving. To the contrary, there was a

deeply-rooted and continuing history of laws banning

miscegenation. As this Court noted in its opinion, in

sentencing the Lovings in 1959 the Virginia judge

stated that “Almighty God created the races white,

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

separate continents,” and added that “[t]he fact that

he separated the races shows that he did not intend

for the races to mix.” 388 U.S. at 3. The Virginia

judge’s view was not a new opinion, but rather one

that had been long reflected in the laws of many

states. And yet, this Court had no difficulty in seeing

the traditionally unprotected practice of interracial

marriage as protected under the broader rubric of the

general right to marriage.

In a different setting, Justice Scalia offered a

wholly unpersuasive response to the argument that

Loving fatally undercuts his preferred approach of

defining rights in narrow historical terms. He stated

that “adherence to tradition would [not] require [the

Court] to uphold laws against interracial marriage

[because ajny tradition in [Loving] was

8

contradicted by a text—an Equal Protection Clause

that explicitly establishes racial equality as a

constitutional value.” Casey, 505 U.S. at 980 nl

(Scalia, J., dissenting) (emphasis in original).

Yet that claim is both wrong on its own terms and

would be beside the point even if true. It is wrong

because it sees a constitutional text where there is

none. Neither the Equal Protection Clause nor any

other part of Section 1 of the Fourteenth Amendment

makes any explicit reference whatsoever to race.

Moreover, even if one thought that the Equal

Protection Clause provided protection against racial

discrimination but not against other forms of

invidious discrimination, that view would not have

any bearing on the Due Process Clause. Justice

Scalia’s characterization of Loving as simply a race

discrimination case ignores the fact that in Loving

eight Justices thought that the fundamental right to

marry provided an alternative basis for the judgment.

This Court’s subsequent marriage cases confirm

that Loving was not simply a race-discrimination

case. Neither deadbeat spouses nor prisoners are

defined by any suspect classification; yet this Court

saw no obstacle to relying on Loving’s recognition of a

fundamental right to marry in Zablocki and Turner.

More to the present point, there was no deeply-

rooted right to marriage by deadbeat spouses before

Zablocki or to marriage by prisoners before Turner.

But the Court reaffirmed that there was a

fundamental right to marriage and held that it could

not be impaired on account of failure to pay child

support or imprisonment.

9

Accordingly, this Cour*’s precedents leave no room

for the argument that the right claimed by Petitioners

should be rejected simply because there is no

longstanding tradition protecting same-sex marriage.

There is undoubtedly a longstanding tradition

protecting marriage, and under this Court’s cases,

that suffices.

2. Case law outside the marriage context provides

no basis for characterizing the right claimed by

Petitioners in narrow terms.

Dissenting from the Fourth Circuit’s invalidation

of Virginia’s same-sex marriage ban in Bostic v.

Schaefer, Judge Niemeyer advanced a doctrinal

ground for the tradition-bound approach. He argued

“that the ‘marriage’ that has long been recognized by

the Supreme Court as a fundamental right is distinct

from the newly proposed relationship of ‘same-sex

marriage.” 760 F.3d. at 386. He contended that

Glucksberg rejected the application of strict scrutiny

when a “new fundamental right is being recognized,”

and argued that challengers to the same-sex marriage

ban sought to establish a “new fundamental right to

same-sex marriage.” 760 F.3d at 386, 390 (emphases

in original).

But nothing in Glucksberg requires a different

approach from that followed in Loving, Zablocki, and

Turner. Gluckberg’s requirement “of carefully

formulating the interest at stake in substantive-due

process cases,” 521 U.S. at 722, is entirely consistent

with the approach followed by the courts that have

invalidated state bans on same-sex marriage. While

the Glucksberg Court defined the ultimate issue as

“whether the protections of the Due Process Clause

10

include a right to commit suicide with another's

assistance,” id. at 724, the Court began by analyzing

whether there is a long-established right to commit

suicide generally. Writing for the Court, Chief Justice

Rehnquist concluded there is not, quoting Blackstone

to the effect that suicide had long been ranked “among

the highest crimes” and referring to “the pretended

heroism, but real cowardice, of the Stoic philosophers,

who destroyed themselves to avoid those ills which

they had not the fortitude to endure.” Jd. at 712

(citations omitted). In contrast, marriage has not, of

course, ever been ranked “among the highest crimes”

or considered a sign of “real cowardice.”

In short, the result in Glucksberg did not turn on

whether the right at issue there was defined as the

right to commit suicide or as the more specific right to

commit suicide with assistance; the Court disclaimed

prior recognition of a “right to die” at either level. Id.

at 722 (quoting Cruzan v. Director, Missouri Dept. of

Health, 497 U.S. 261, 277 (1990)).

Glucksberg did not purport to overrule the line of

cases holding that the right to marry is a fundamental

right protected by the Due Process Clause,

restrictions on which are reviewed under the strict

scrutiny standard. At most, Glucksberg might be read

to establish a more stringent test for determining

whether rights not already determined to be

fundamental should be recognized as such. In any

event, Glucksberg can and should be distinguished on

the grounds that the Court found: (1) no firmly rooted

right to commit suicide that is comparable to the right

to marry; and (2) reasons to question whether assisted

suicide should be permitted that are entirely unlike

11

any of the arguments against same-sex marriage. See,

e.g., Glucksberg, 521 U.S. at 730 (citing evidence that

many people who request physician-assisted suicide

subsequently withdraw their request if their pain and

depression are adequately treated).

3. There is no good reason to set aside decades of

fundamental rights jurisprudence in favor of the

tradition-bound approach that Justice Scalia

propounded in footnote 6 of Michael H.

In that footnote, Justice Scalia proposed that the

appropriate level of generality for analyzing a

putative fundamental right should be “the most

specific level at which a relevant tradition protecting,

or denying protection to the asserted right can be

identified.” 491 U.S. at 127 n.6. This approach was

expressly rejected even by two of the Justices who

joined the rest of Justice Scalia’s Michael H. plurality

opinion. Jd. at 132 (O’Connor, J., joined by Kennedy,

J., concurring in part). It was again rejected by the

Court as a whole in Casey, 505 U.S. at 847-48. Citing

footnote 6, the Court held that although it might be

supposed that fundamental rights should be “defined

at the most specific level ... such a view would be

inconsistent with our law.” Jd. at 847.

This Court was right to reject historical tradition

as the ultimate measure of an asserted right’s

fundamentality. Because Justices look to past

practices to discern historical traditions, it might be

thought that the process is value-neutral, merely

descriptive rather than prescriptive. But the past, like

the present, is messy. Consider an example involving

a specific provision of the Bill of Rights. In

determining the fundamental meaning of the

12

Establishment Clause, judges and Justices must

choose among views ranging from Jefferson’s wall

between church and state to the idea that the United

States was a Christian nation that no one

denomination should control.§

Or consider a case like Michael H. itself, which

involved, as Justice Scalia described the matter, “the

rights of the natural father of a child adulterously

conceived.” 491 U.S. at 127 n.6. Why is that

description the narrowest? The natural father in

Michael H. had a longstanding, albeit adulterous and

sporadic, relationship with the mother of his child. He

also had fairly extensive, if sporadic, contact with that

child. A more specific formulation of the issue than

Justice Scalia provided would be: what are the rights

of the natural father of a child conceived in an

adulterous but longstanding relationship, where the

father has played a major, if sporadic, role in the

child’s early development?

No tradition addresses that precise question at

this precise level of specificity. Thus, we are left with

the problem of specifying the next most specific

tradition. But there is no single dimension or direction

along which to measure the degree of abstraction or

generality. Do we abstract away the father’s

relationship with his child and her mother, as Justice

Scalia did? Or do we instead abstract away the fact

that the relationship with the mother was an

adulterous one? If the latter, then we will find

ourselves consulting traditions regarding natural

6 See Tribe & Dorf, Levels of Generality, 57 U. Chi. L. Rev. at

1086-89.

13

fathers who play major roles in their children’s

development, and they may well _ receive

constitutional protection. Cf. Stanley v. Illinois, 405

U.S. 645 (1972) (finding liberty interest for procedural

due process purposes). Starting from an even more

specific description of the case than did Justice Scalia

makes it apparent that he had no value-neutral

justification for abstracting away the father-child

relationship rather than the adultery.

Moreover, as Professor Balkin has observed, “what

is most troubling about Justice Scalia’s call for

respecting the most specific tradition available is that

our most specific historical traditions may often be

opposed to our more general commitments to liberty

or equality.” Jack Balkin, Tradition, Betrayal, and the

Politics of Deconstruction, 11 Cardozo L. Rev. 1613,

1618 (1990). “The fourteenth amendment’s abstract

commitment to racial equality was accompanied by

simultaneous acceptance of segregated public schools

in the District of Columbia and acquiescence in

antimiscegenation laws.” /d. (internal citations

omitted).None of this is to say that history and

tradition are irrelevant. But there is a key difference

between considering history and fetishizing it. As

Justice Harlan put the point in his Poe dissent, in

deciding the scope of liberty under the Due Process

Clause, this Court must pay attention to “what history

teaches are the traditions from which” the proper

constitutional balance between liberty and social

order “developed as well as the traditions from which

it broke. That tradition is a living thing.” 367 U.S. at

542.

14

4. Because the actual justifications for same-sex

marriage bans fare so poorly under even the most

minimal scrutiny, defenders of these laws frequently

invoke a parade of horribles. Recognizing a right to

same-sex marriage, they say, “will necessarily lead to

the invalidation of bans on incest, polygamy, and child

marriage.” Latta v. Otter, 771 F.3d 456, 478 n.2 (9th

Cir. 2014) (Reinhardt, J., concurring).? But as Judge

Reinhardt noted, fundamental rights may be abridged

by laws that “further compelling state interests, to

which they are narrowly tailored,” and “it is not

difficult to envision that states could proffer

substantially more compelling justifications for such

laws than have been put forward in support of the

same-sex marriage bans at issue here.” Jd.

In Lawrence too, this Court was faced with a

parade of hypothetical laws that would supposedly

succumb to the Court’s recognition of constitutional

protection for sexual intimacy. That list included

some of the practices now invoked, as well as others,

such as bestiality and obscenity. 539 U.S. at 590

(Scalia, J., dissenting). But here, as in Lawrence, the

link between constitutional liberty and equality

renders such concerns fanciful. This Court’s focus in

Lawrence on the rights of “two adults who, with full

and mutual consent from each other, engaged in

7 Some of the comparisons between same-sex marriage and

rights hypothesized by the lower courts—such as Judge

Niemeyer’s reference to an alleged “right’ of a father to marry

his daughter,” 760 F.3d at 386—reflect a view that itself

demeans same-sex couples. There are sound biological and social

reasons to prevent fathers from marrying their daughters that

do not apply to unions between consenting adults of the same

Bex.

15

sexual practices common to the homosexual lifestyle,”

539 U.S. at 578, did not require recognition for

practices that either play no essential role in human

relationships or cause harm to third parties. Likewise

here, to recognize that lesbians and gay men may not

be banished from the institution of marriage would

hardly open the door to successful constitutional

claims for incestuous, polygamous, and child

marriages.

” * o * cm

In dissent in Lawrence, Justice Scalia correctly

identified the euphemisms protecting traditional

marriage as a “kinder way of describing the State's

moral disapproval of same-sex couples.” 539 U.S. at

601 (Scalia, J., dissenting). Nothing in the records

compiled by the various district courts and courts of

appeals suggests that there is any reason other than

moral disapproval to deny same-sex persons the right

to marry. Accordingly, “just as neither history nor

tradition could save a law prohibiting miscegenation

from constitutional attack,” Lawrence, 539 U.S. at

577-78 (quoting Bowers v. Hardwick, 478 U.S. 186,

216 (1986) (Stevens, J., dissenting)), neither history

nor tradition shovld save laws prohibiting same-sex

marriage.

16

CONCLUSION

The judgment below should be reversed.

Respectfully submitted,

Christopher J. Wright

Counsel of Record

Timothy J. Simeone

Stephen W. Miller

HARRIS, WILTSHIRE &

GRANNIS LLP

1919 M Street N.W.

Eighth Floor

Washington, DC 20036

(202) 730-1300

cwright@hwglaw.com

Counsel for Professors

Tribe and Dorf

March 6, 2015