Amicus Curiae Brief — Deboer v. Snyder, 135 S. Ct. 1040 (2015) (No. 14-571)

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Supreme Court, U.S.

FILED

No. 14-571 DEC 18 2014

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In the Supreme Court

of the Gnited States

APRIL DEBOER, ET AL., PETITIONERS

RICK SNYDER, GOVERNOR OF MICHIGAN,

ET AL., RESPONDENTS

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF OF AMICUS CURIAE DAVID BOYLE

IN SUPPORT OF NEITHER PARTY

David Boyle

Counsel of Record

P.O. Box 15143

Long Beach, CA 90815

dbo@boyleslaw.org

(734) 904-6132

TABLE OF AUTHORITIES

TABLE OF CONTENTS

AMICUS CURIAE STAT2MENT OF INTEREST... 1

SUMMARY OF ARGUMENT

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I. DEBOER WAS CORRECTLY DECIDED BUT

OFFERS TOO LITTLE GUIDANCE ON

RELEVANT ISSUES. ............:.ccceeeceeeeeeeeceee 2

Il. WHY RELISTING DEBOER WOULD BE

BETTER THAN REJECTING IT................. 3

Ill. ONE KEY INSIGHT IN THE DEBOER

OPINION: COMPARING GAY MARRIAGE

TO SMALL-GROUP POLYGAMY............... 5

IV. WINDSOR'S LOGICAL PROBLEMS HAVE

LEFT A TRAIL OF SERIOUS

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V. WEAK POINTS IN THE DEBOER

OPINION, NEEDING FURTHER

PERCOLATION ELSEWHERE................ 11

A. Gay-Marriage Bans Channel Bisexual

Or “Sexually Fluid” Persons to Choose

Opposite-Sex Spouses Instead of Same-

Be icnncscnensediacasenseddeosanadains 12

B. Grutter and Children’s Benefit from

Diverse-Gender Parentage............... 14

C. Taking Sodomy Seriously: or, Not Being

Willfully Blind to the Effects of

BET Uti cccnesecesecocescccssos coos 17

D. A Sexual-Orientation-Discrimination

Claim Is Not Viable.....................+- 19

E. A Sex-Discrimination Claim Is Not

alii hinicdacascuniecstbenenteisuseesenseenseens 21

F. Even Some Who Support Gay Marriage

Oppose Mandatory Gay Marriage...... 22

G. The Various Considerations Above,

Reinforce One Another.................... 23

VI. HOW LONG SHOULD THE COURT WAIT

UNTIL GRANTING CERTIORARI?.......... 24

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TABLE OF AUTHORITIES

CASES

Ballard v. United States, 329 U.S. 187

Be bacdccatvacesenssovsncéscabenstecoinseseseenss 16-17, 26

Bowers v. Hardwick, 478 U.S. 186 (1986)......... 25, 26

Brown v. Bd. of Educ., 347 U.S. 483 (1954)........... 21

Cabell v. Chavez-Salido, 454 U.S. 432 (1982)......... 20

Citizens for Equal Prot. v. Bruning, 455 F.3d 859

I i piles diene adadnoedsenie 24

April DeBoer, et al., v. Rick Snyder, Governor of

Michigan, et al., -- F.3d --, 2014 U.S. App. LEXIS

22191 (6th Cir. Nov. 6, 2014, No. 14-1341), pet.

for cert. pending (U.S. Nov. 18, 2014) (No. 14-

SPF Eiinindec nds cendddwcsvenstececcocepneescsesccusecnnsess passim

DeLeon v. Perry, No. 14-50196 (5th Cir.), oral

arg. pending Jan. 9, 2015 (975 F. Supp. 2d 632

Sy Ss Sax niin tiamedadundieiadaehibaeduueedeiin 9

Grutter v. Bollinger, 288 F.%d 732 (2002)......... 14, 16

Grutter v. Bollinger, 539 U.S. 306

bes ave scccteccoescsaseccesoccantce 2, 6, 14, 15, 16, 23

Lawrence v. Texas, 539 U.S. 558 (2003)........... 11, 26

Nat Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566

Pe iveciistdtuindenidebosinnisetbiiibuianinienuenedins 24-25

Parents Involved in Cmty. Schs. v. Seattle, 127 U.S.

ee idccadicimvetisaiibinbadssdavecevasemeniancens 14

Pierce v. Soc’y of Sisters, 268 U.S. 510 (1925)......... 15

Schuette v. BAMN, 134 S. Ct. 1623 (2014)......... 6, 26

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

SE dodsidninbiiinatlenmpinsmeascnnsewernell 2, 8-9, 10, 11

CONSTITUTION

ee: Ns SITE, Dindnsicicadanncsinnidissccsinnibiinnnnddonia 17

STATUTES OR BALLOT MEASURES

Cal. Proposition 6 (“Briggs Initiative”) (1978)......... 20

Mich. Proposal 04-2 (2004)...........cccccsesccececccesesses 22

Mich. Proposal 06-2 (2006)..........scccsccssscesecccececess 22

RULE

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OTHER AUTHORITIES

(All internet links below were last visited December

17, 2014.)

Michael Boucai, Sexual Liberty and Same-Sex

Marriage: An Argument from Bisexuality, 49 San

Diego L. Rev. 415 (2012)................. 13-14, 17-18

Br. of Amicus Curiae David Boyle in Supp. of

Neither Party, in Herbert v. Kitchen,

Briefs in DeLeon v. Perry, No. 14-50196 (5th Cir.),

oral arg. pending Jan. 9, 2015 (975 F. Supp. 2d

632 (W.D. Tex. 2014)):

Br. of Amicus Curiae Katy Faust Supporting

Defs.-Appellants and Supporting Reversal

(Aug. 4, 2014, revised Sept. 21, 2014)......9, 12

Br. of Amicus Curiae B.N. Klein Supporting

Defs.-Appellants and Supporting Reversal

(Aug. 4, 2014, revised Sept. 21, 2014)...... 9,12

Br. of Amicus Curiae Robert Oscar Lopez

Supporting Defs.-Appellants and Supporting

Reversal (Aug. 4, 2014, revised Sept. 21,

Br. of Amicus Curiae Dawn Stefanowicz

Supporting Defs.-Appellants and Supporting

Reversal (Aug. 4, 2014, revised Sept. 21,

Dan Chmielewski, Ronald Reagan on Gay Rights,

Liberal OC, June 9, 2008, http://www.

theliberaloc.com/2008/06/09/ronald-reagan-on-

TREE = = = — fk

James G. Dwyer, Same-Sex Cynicism and the Self-

Defeating Pursuit of Social Acceptance through

Litigation, 68 SMU L. Rev. 1 (forthcoming 2015)

(pre-edit draft, subject to revision), available at

http://papers.ssrn.com/sol3/papers.cfm?abstract

Ep eeere 22-23 & n.11, 25

EI REE OM ER EN Ree ae 7

HealthDay News, FDA Advisors Not Sold on Lifting

Ban on Gay Men Giving Blood, MSN, Dec. 3,

2014, http://www.msn.com/en-us/health/medical

/fda-advisors-not-sold-on-lifting-ban-on-gay-

men-giving-blood/ar-BBgizDf............18-19 & n.9

HHS, Promoting Responsible Fatherhood—

Promoting Responsible Fatherhood Home Page

(last revised July 21, 2011), http://www.

fatherhood. hhs. gov/.................-..cc00-seeeeee0 15 &n.8

Lauren McGaughy, Jimmy Carter: States should

decide on gay marriage, Houston Chron., Oct.

27, 2014, http://blog.chron.com/texaspolitics/

2014/10/immy-carter-states-should-decide-on-

TT i ctctentevinbainnenionaenmienientl 1&n.3

Wikipedia, Bisexuality, http://en.wikipedia.org/wiki/

Bisexuality (as of Nov. 3, 2014, at 15:36

III, jccubidiisaduudtsnddsinaamiodmndadinianand 12-13 & n.6

vil

Wikipedia, Anne Heche, http://en.wikipedia.org/wiki/

Anne _ Heche (as of Nov. 16, 2014, at 03:37

TTI cscxesicsciale iiss neheieltdesdaperienieitbiisthlinbabinteegertceeinl 13 & n.7

AMICUS CURIAE STATEMENT OF INTEREST

The present amicus curiae, David Boyle (herein-

after, “Amicus”),! is respectfully filing this Brief in

Support of Neither Party in Case 14-571 (“DeBoer”).”

He and a client were amici in the Sixth Circuit

iteration of DeBoer, and Amicus writes now to

recommend caution before prematurely granting

certiorari.

New developments keep arriving re the same-sex

(“gay”) marriage debate: for example, a former

President who supports gay marriage and can hardly

be called a “homophobe”, nevertheless supports a

democratic decision on the issue: “Jimmy Carter... .

told the local ABC affiliate[,] ‘[I]f Texas doesn’t want

to have gay marriages then I think it’s a right for

Texas people to decide[{.] People who happen to be

gay...I1 think they ought to have equal rights to

marry.”* Carter’s wise and moderate balance, see id.,

of having his own views but not being willing to

inflict them on the People if they disagree, is a

valuable guiding star. Other guiding stars may

arrive from various Circuits’ decisions, too, if this

Court is willing to wait prudently.

1 No party or its counsel wrote or helped write this brief, or

gave money to its writing or submission, see S. Ct. R. 37.

Blanket permission to write briefs is filed with the Court.

Parties were contacted 10 days before this briefs due date.

2 April DeBoer, et al., v. Rick Snyder, Governor of Michigan, et

al., -- F.3d --, 2014 U.S. App. LEXIS 22191 (6th Cir. Nov. 6,

2014, No. 14-1341), pet. for cert. pending (U.S. Nov. 18, 2014).

3 Lauren McGaughy, Jimmy Carter: States should decide on

gay marriage, Houston Chron., Oct. 27, 2014, http://blog.chron.

com/texaspolitics/20 14/10/jimmy-carter-states-should-decide-

on-gay-marriage/.

SUMMARY OF ARGUMENT

The Court should consider granting certiorari in

DeBoer, supra, but not until after multiple relistings.

Various important arguments still have not been

addressed thoroughly by courts.

DeBoer has many strong points, although United

States v. Windsor, 133 S. Ct. 2675 (2013), has far

fewer. Windsor’s possible mistakes should be avoided

when the Court decides about each State’s People’s

right to decide on gay marriage.

However, DeBoer’s weak points echo some of

Windsor’s, including the illusion that homosexual

parents are essentially indistinguishable from

heterosexual ones. Also, DeBoer fails to deal, either

fully or at all, with crucial issues such as: bisexuals’

channelability towards traditional marriage; the

compelling interest of gender diversity, ad la Grutter

v. Bollinger (539 U.S. 306 (2003)), that supports

diverse-gender marriage; sodomy’s infertility and

disease-vector problems, and sodomy-norming by

State-endorsed gay marriage; children’s suffering

from being denied a mother or a father, in a State-

blessed monogender marriage; the invalidity of

sexual-orientation or sex-discrimination claims; and

gay-marriage supporters who oppose mandatory gay

marriage.

Thus, more percolation is crucial.

ARGUMENT

I. DEBOER WAS CORRECTLY DECIDED BUT

OFFERS TOO LITTLE GUIDANCE ON

RELEVANT ISSUES

Amicus was pleased to see DeBoer decided in the

Sixth Circuit so as to uphold the People’s will.

Michigan may not have made better arguments than

other States in other Circuits made, but was

fortunate enough to have a jurist, Judge Jeffrey

Sutton, who (with Judge Deborah Cook) understood

that even in those limited arguments, there was

enough good to sustain the same-sex-marriage bans.

What Sutton did not do, unfortunately, was to go

beyond a bare-bones “rational basis” defense of the

bans, with incentivizing of two people who can

naturally make children to stay together, especially

re unplanned pregnancy (a specialty of

heterosexuals), and a prudent wait-and-see attitude

about gay marriage, as reasons for letting things be,

see 2014 U.S. App. LEXIS 22191 at *38-42. He did

not really address the possibility that a court may

cede a rational basis for the bans, but find that

intermediate or strict scrutiny applies, so that the

bans thereby fall.

This is one reason why this Court should wait for

further percolation of the issues. Even if various

courts have read arguments for why gay-marriage

bans meet strong scrutiny, courts have not always

responded to them in a detailed or accurate fashion.

Il. WHY RELISTING DEBOER WOULD BE

BETTER THAN REJECTING IT

But DeBoer should be relisted, not denied

certiorari entirely. —Amicus is grateful that the

Court, back on October 6, did not immediately grant

certiorari to various gay-marriage cases. He had

recommended caution, see Br. of Amicus Curiae

David Boyle in Supp. of Neither Party, in Herbert v.

Kitchen, 14-124, passim. However, one thing Amicus

did not recommend was to simply reject the cases,

instead of relisting them. Relisting would have

added to the Court’s options about eventual

certiorari. The bigger the jurisprudential

smorgasbord, the better, so to speak.

However, the Court rejected all the cases, which

led to much crowing in the mass media to the effect

that the Court thus essentially legalized gay

marriage throughout America. Indeed, many same-

sex couples (either gay or seeking social or financial

benefits from same-sex marriage) have since married

in the Circuits affected, which could cause chaos if

this Court, as it should, upholds the same-sex-

marriage bans in those Circuits, bans which could

invalidate the marriages.

(Incidentally, Amicus does not know why the

various States seeking certiorari before October 6,

did not show the tactical savoir-faire to petition for

rehearing. Had they Jone so, by Halloween—of all

dates—, then their petitions would have been

reconsidered after the DeBoer decision created a

circuit split. We may never know, this side of glory,

what would have happened.)

The chaos mentioned supra might be lessened,

arguably, if those same-sex couples who marry

before the Court’s final decision are allowed to

remain married, but no more same-sex marriages

are allowed to take place afterwards. Amicus is not

supporting same-sex marriage here; but if allowing

already-contracted marriages to remain valid is the

equitable price to pay for disallowing any future

marriages, so be it. Those few same-sex couples who

were allowed to marry, could serve as a sort of

“experimental body”, whose marriages, and children

(if any), can be observed for whatever good or bad

effect occurs over time, by the People, who will

eventually vote about the future of same-sex

marriage.

The chaos might also be lessened by relisting

more cases, instead of denying grants entirely. This

would avoid further confusion, and also keep DeBoer,

a worthy case, “on board” for possible certiorari, by

itself or along with other cases.

Ill. ONE KEY INSIGHT IN THE DEBOER

OPINION: COMPARING GAY MARRIAGE TO

SMALL-GROUP POLYGAMY

One of the strongest points in DeBoer is that

Sutton rightly notes, see id. at *44-45, *59-60, that

small-group polygamy is a rough equivalent of gay

marriage. (Indeed, if any supposed “biological

predisposition to homosexuality” legitimates gay

marriage, then why does not what many believe is

most males’ “biological predisposition to promiscuity”

legitimate polygamy?)

One reason that two-person diverse-gender

marriage is so wonderful, is that it is a compromise

between the extremes of “genderless” marriage, i.e.,

two-person same-sex marriage, and more-than-two-

person diverse-sex marriage, i.e., polygamy.* Gay

marriage is hobbled by being sterile, employing

sodomy (statistically, a strong vector of disease and

4 Re gay polygamy, gay-marriage advocates only talk about

“marriage equality’, instead of really supporting it, since they

are not fighting for the rights of those who want same-sex

polygamous relationships.

injury), and depriving children, if any, of a father or

mother. Polygamy offers a mother and father, and

plenty of fertility; but it is hobbled by being “too

much of a good thing”, since having fifty mommies or

daddies might be worse than having just one.

However, that does not ipso facto mean that all

polygamy is bad, since there may be fewer than fifty-

one partners in a relationship. Similarly, a State

might claim to find gay marriage meritorious, since

a State might choose not to value gender diversity in

marriages. (Just as a State need not find diversity a

compelling state interest in education, see Grutter,

supra at 2, and cf. Schuette v. BAMN, 1345S. Ct.

1623 (2014).)

While Amicus personally finds plural marriage

(polygamy) to be disgusting and vile, that is his

personal preference, which should not affect any

right of polygamists to receive marriage licenses.

And once traditional marriage is thrown to the

wolves by saying that the “fundamental right to

marry’ covers basically any consenting adult, and by

claiming that “denial of benefits to the kids” or

“government stigmatization of the marriage” is

enough reason to prevent bans on non-traditional

marriage, there is, as Sutton implied, not a lot of

reason to make gays the special favorites of the law,

and to give them special marriage privileges that

small-group polygamists do not have.

After all, polygamy, including small-group

polygamy, has vastly more supporting tradition in

world history than gay marriage. (Judge Martha

Craig Daughtrey’s DeBoer dissent, saying “Even

today, polygynous marriages outnumber

monogamous ones’, id. at *114, hurts her cause

more than helps it. If polygamy has a deeper

tradition than gay marriage, then perhaps it should

be legalized first in this country, long before gay

marriage.)

Even the Twelve Tribes of Israel are the fruit of

polygamy. See, e.g., Genesis 46:8-25, noting Jacob

(“Israel”) sired Reuben, Simeon, Levi, Judah,

Issachar, and Zebulon through Leah; and Asher and

Gad through Zilpah, Leah’s handmaid; and Joseph

and Benjamin through Rachel; and Dan and

Naphtali through Bilhah, Rachel’s handmaid. Jd.

World Jewry turned out just fine despite that

multi-mothered background, id.—it would risk

sounding anti-Semitic to say otherwise.

Since not only could a man espouse multiple

wives, but a woman could espouse multiple

husbands, too, polygamy need not lead to a “wife

shortage”. Or the State could require that all plural

marriages be sex-equal, e.g., two men and two

women. Just as the State chooses a sensible number

of years before youngsters can marry (sixteen may

be old enough; six is not), without any obvious

dividing line (why sixteen instead of seventeen or

eighteen”), it can plausibly choose a maximum size

for marriages, e.g., four people, which is smaller

than the ménage G cing of Jacob and his intimate

partners, supra. Or if the maximum number in a

marriage can be two, then maybe the minimum

number of genders in a marriage can be two also.

Voila traditional marriage.

There will be more later on the animus that gay-

marriage advocates have arguably shown towards

polygamists; but first, we shall address Windsor, as

an introduction to some flaws in Sutton’s analysis.

IV. WINDSOR’S LOGICAL PROBLEMS HAVE

LEFT A TRAIL OF SERIOUS CONFUSION

Some State attorneys might be tempted to flatter

the Court majority, by saying Windsor was rightly

decided but still allows State gay-marriage bans.

However, other viewpoints may exist.

For one, Windsor’s consequences, if we take the

opinion seriously, may be absurd. E.g., if federal law

must recognize any marriage allowed by a State,

then what if a “progressive” State allows consensual

adult incest, say, to people over 21 years old who

possess signed statements from two separate

counselors or psychiatrists, that there are no issues

of coercion, mental illness, etc., preventing fully

informed consent? The federal government would

have to recognize and subsidize that. The Court may

find incest repulsive—who doesn’t?—, but the issue

is not repulsiveness, it is constitutionality.

Naturally, this also applies to polygamy. If the

imaginary State of Tuah legalizes small-group

polygamy, then Windsor shackles the federal

government into giving benefits and recognition.

...and the same if Tuah legalized large-group

polygamy. It opens Pandora’s box to subordinate the

federal government to state governments in these

marriage matters. This alone makes Windsor’s logic

questionable.

Among Windsor’s other problems, there is the

statement that, besides “humiliat{ing] tens of

thousands of children now being raised by same-sex

couples”, “[t]he law in question makes it even more

difficult for the children to understand the integrity

and closeness of their own family and its concord

with other families in their community and in their

daily lives.” Id. at 2694 (Kennedy, J.). But in real

life, that imagined “closeness”, id., does not always

exist. There are plenty of children who are not happy

to be deprived of either a mother or a father, or to

have two parents in a sterile (infertile) sexual

relationship which may also incidentally violate any

ethical beliefs of the children, given that many

children may have traditional ethical beliefs.

Amicus does not just theorize this, but has four

clients, Katy Faust, B.N. Klein, Robert Oscar Lopez,

and Dawn Stefanowicz, in DeLeon v. Perry, the Fifth

Circuit (Texas) gay-marriage case,5 clients whose

four separate amicus briefs testify that each amicus

was raiser’ by same-sex parents and was hurt and

damaged by this experience.

By contrast, Amicus knows of no one who claims

that children can be damaged by having a mother

and a father. (Just as therapy exists to change from

homosexual to heterosexual, but not the other way

around.) Thus, there is a basis, whether “rational” or

“compelling”, for States to ban monosex marriages.

However, it is not enough for Amicus merely to

mention this issue to the Court, the issue of children

damaged by same-sex parenting; it would be better

to wait and see the Fifth Circuit deliver its opinion,

which may well comment on the claims raised by

Amicus’ four amici clients. (Amicus is asking no

5 No. 14-50196, oral arg, pending Jan. 9, 2015 (975 F. Supp. 2d

632 (W.D. Tex. 2014)).

personal favor for himself or his clients; but he

coincidentally happens to be representing some

people who have important stories to tell.)

As for “DOMA’s unusual deviation from the usual

tradition of recognizing and accepting state

definitions of marriage”, Windsor at 2693,

homosexual marriage itself is extremely “unusual”,

in terms of non-traditionalism, total sterility, total

reliance on sodomy, and total exclusion of either a

mother or a father for a child. Given that

“unusualness”, it was not out of place for federal law

to treat same-sex marriage in an atypical manner.

Also, why could the Executive Branch not have

been allowed to issue a disclaimer whenever federal

law was implemented to interpret marriage as solely

opposite-sex, “This designation is neither an

acknowledgment nor a declaration by the Congress

or President of the United States that same-sex

marriages are inferior to other ones”? A similar

solution was recently broached re putting “Israel”

instead of “Jerusalem” on the passport of people born

in Jerusalem; so if that sort of solution were really

viable for the passport (which is unlikely, since it

sends a rather schizophrenic message), it should

have worked in Windsor as well.

Amicus appreciates the compassion shown by the

Windsor majority towards the putative plight of

children with gay parents. However, since the Court

majority did not show equal compassion to the plight

of children with polygamous parents, there is

“cognitive dissonance” here.

Speaking of “cognitive dissonance: like many

observers, Amicus cannot fully tell what is going on

in Windsor. Is it about federalism? Or individual

rights? And were the mid-1990’s Congress and

President really so totally bigoted? Windsor lacks the

intellectual crispness of a Lawrence (v. Texas, 539

U.S. 558 (2003)), which nicely demarcated things, see

id., by protecting the negative liberty of freedom-

from-arrest for homosexuals, while not promising

any state entitlements (“positive liberties”) for them.

Windsor is almost more like a Rorschach blot.

No one is calling the Windsor majority “sons of

anarchy” (or “daughters of anarchy”); but attempted

rationales, like Windsor’s, which openly mystify and

confuse many people, are best avoided.

We return to Sutton’s opinion, and some gaps or

errors there:

V. WEAK POINTS IN THE DEBOER OPINION,

NEEDING FURTHER PERCOLATION

ELSEWHERE

Sutton echoes Windsor’s lionization of gay

parenting: “And gay couples, no less than straight

couples, are capable of raising children and

providing stable families for them. The quality of

such relationships, and the capacity to raise children

within them, turns not on sexual orientation but on

individual choices and individual commitment.”

DeBoer at *39. His words are well-meant but

conclusory. With relatively few years of gay-

marriage experience in America, how can Sutton

categorically conclude as he does?

The testimony of Amicus’ four clients alone, supra

at 9, refutes Sutton’s imaginings that gay parenting

is undistinguishable from dual-gender parenting.

And Sutton also avoids or misconstrues other issues:

A. Gay-Marriage Bans Channel Bisexual or

“Sexually Fluid” Persons to Choose Opposite-

Sex Spouses Instead of Same-Sex Spouses

While Sutton mentions, accurately, that marriage

benefits only for heterosexual couples are fitting

because such couples may have unplanned

pregnancies and should receive incentives to stay

together for their children, Sutton does not really

answer the assertion, “But since gay couples are not

going to enter heterosexual marriages anyway, and

‘vice versa’: a gay-marriage ban just hurts

homosexual couples, instead of helping heterosexual

couples.”

However, being either gay or straight is a false

dichotomy. See, e.g., the Wikipedia article

Bisexuality,® listing figures ranging from 0.7 to 5

percent of Americans being bisexuals, see id. There

may be even more bisexuals than homosexuals: “The

Janus Report on Sexual Behavior, published in 1993,

showed that 5 percent of men and 3 percent of

women considered themselves bisexual and 4

percent of men and 2 percent of women considered

themselves homosexual.” Id. (footnote omitted);

“Alfred Kinsey’s 1948 work Sexual Behavior in the

Human Male found that ‘46% of the male population

had engaged in both heterosexual and homosexual

6 http://en.wikipedia.org/wiki/Bisexuality (as of Nov. 3, 2014, at

15:36 GMT).

activities ....in the course of their adult lives’.” Id.

(footnote omitted)

(Even those already in gay relationships may

change course towards non-gay ones. For example,

Ellen DeGeneres’ lesbian lover Anne Heche later

married a man, Coleman Laffoon, and then moved

on to James Tupper, having a son by each, see, e.zg.,

Wikipedia, Anne Heche.’)

So, if there are c. 315 million Americans right

now, each 1% of the population that is bisexual

equals c. 3 million bisexual Americans. Normally,

given average odds, half of those bisexuals might

choose a same-sex long-term relationship, and half

an opposite-sex long-term relationship. But if same-

sex marriage were unavailable, then of those

bisexuals who might otherwise have chosen a same-

sex relationship, any who want to marry would need

to choose opposite-sex partners, the only marriage

partners available. Potentially millions of sexually-

fluid people moved into diverse-gender marriage

provides more than a mere “rational basis” for laws

permitting only heterosexual marriage, but rather,

quite a compelling state interest.

Even some proponents of gay marriage admit,

and lament, that gay-marriage bans “channel”

bisexuals into heterosexual marriages. See Michael

Boucai, Sexual Liberty and Same-Sex Marriage: An

Argument from Bisexuality, 49 San Diego L. Rev. 415

(2012) (“Boucai’), “This Article proposes that same-

sex marriage bans channel individuals, particularly

7 http://en. wikipedia.org/wiki/Anne_Heche (as of Nov. 16, 2014,

at 03:37 GMT).

bisexuals, into heterosexual relations and

relationships[.]” Jd. at 416; and: “With regard to

procreation, this Article’s argument implicitly

concedes one way in which same-sex marriage bans

advance the state’s interest: by increasing the

number of bisexuals who pursue same-sex

relationships, legalization presumably will decrease

these individuals’ chances of reproducing.” Id. at

482.

Why does neither Sutton, nor any other judge

Amicus can think of, bring up the bisexuality issue?

Indeed, as Boucai notes: “Bisexuality is ‘virtually

invisible’ in same-sex marriage litigation.” Id. at 452.

Whatever the reason for omission, the absence of a

discussion of bisexuality’s effects is a gross material

omission 1n any gay-marriage case. Thus, the Court

should wait until one or more of the Circuits

discusses the issue thoroughly.

B. Grutter and Children’s Benefit from Diverse-

Gender Parentage

There is another socially positive aspect to gay-

marriage bans besides increased fertility: i.e.,

promoting diverse-gender parentage for children.

This chimes with Grutter, which upholds diversity,

including gender diversity, as a compelling state

interest, see 539 U.S. at 325. (The Sixth Circuit

iteration of Grutter, 288 F.3d 732 (2002), cites with

favor the use of gender as an allowable consideration

in giving preferred treatment, see id. at 745.)

Although Parents Involved in Community Schools v.

Seattle, 127 U.S. 2738 (2007), declined to apply a

Grutter-esque diversity rationale outside of higher

education, see id. at 2754, that does not mean one

cannot sensibly argue for that interest in a family

setting. (Ironically, Michigan’s Republican-leaning

state attorneys, who tend to dislike affirmative

action, may thus be loath to employ Grutter, even if

it is one of the best weapons they have. Perhaps they

should lose their loath-ness.)

In fact, parents, whether home-schoolers or not,

have long been considered iiber-educators of a sort.

See, e.g., Pierce v. Soc’y of Sisters, 268 U.S. 510

(1925), noting “the liberty of parents and guardians

to direct the upbringing and education of children

under their control”, id. at 534-35 (McReynolds, J.).

Thus, it is not a great leap to apply the Grutter

“educational” diversity rationale to parentage and

marriage as well.

Indeed, since it would be ludicrous to say

diversity is compelling over a few years of university

education but cannot even be rationally relevant in

18 years of child-nurture, then a gender-diverse

parentage is worthy of special favor by the State.

(See, e.g., HHS, Promoting Responsible Fatherhood—

Promoting Responsible Fatherhood Home Page (last

revised July 21, 2011),® “Involved fathers provide

practical support in raising children and serve as

models for their development.” Id. (emphasis added))

Some may make questionable counterarguments,

e.g., “Then why couldn’t a State make forced

interracial marriage a compelling state interest?”

But that would be unadministrable; there are so

many racial or interracial categories, that it would

be impossible to assign people. By contrast, there are

only two sexes; and the arrangement is quite

§ http://www.fatherhood.hhs.gov/.

workable, having been the standard arrangement

worldwide for thousands of years.

Some critics have said that gay-marriage bans

presume same-sex couples can never be good

parents. However, the “presumption” may only be

that diverse-sex couples have something special to

offer in parenting. On that note: the two Grutter

cases supra show how gender diversity matters; and

part of the rationale States may adopt per Grutter,

539 U.S. 306, is, see id. passim,

1) a bonus for diversity

2) that allows exclusion of others.

Thus, a diversity bonus in university admissions

to members of some groups, may exclude certain

others (e.g., some white males). But this, of course,

does not mean white males cannot be good students;

similarly, even though the gay-marriage ban

excludes gays from marriage, it does not at all mean

that same-sex couples can’t be good parents. (Just as

polygamists may not be bad parents.)

Also, no “sex stereotyping” is going on here: in

fact, if a child has “nontraditional-occupation” male

and female parents, e.g., a homemaker father and a

Marine Corps sniper mother, that may help break

down gender stereotypes.

Without citing from the copious literature

showing the benefits of having a mother and father:

more diversity exists, per se, when a child can learn

from a female parent and a male parent. And

diversity counts. With two fathers, which one can

breast-feed the child? And with two mothers, a child

may have no close male role model. “[T]he two sexes

are not fungible; a community made up exclusively

of one is different from a community composed of

both[.]” Ballard v. United States, 329 U.S. 187, 193

(1946) (Douglas, J.).

C. Taking Sodomy Seriously: or, Not Being

Willfully Blind to the &ffects of Homosexual

Sex

To paraphrase the late Ronald Dworkin (RIP),

taking sodomy seriously is important for courts to

do. Some misplaced Victorianism or inappropriate

gentility, perhaps, has led States’ attorneys to avoid

discussing the sodomy-norming quality of mandatory

legalized gay marriage. When society lauds a status

and pays someone to perform certain behavior, it

should not surprise anyone if more of that behavior

occurs, including among impressionable children.

Legalizing gay marriage may benefit those who

are in the marriage, true. However, that does not

account for the secondary effects of the marriage,

somewhat as various commercial sexual or sexually-

related entertainment options are regulable for their

secondary effects. People who consume sexually-

explicit entertainment may be allowed to do so under

the First Amendment, but not in a neighborhood

zoned for other purposes, like churches or children’s

schools. Similarly, even if (hypothetically) there were

no reason for the State to regulate gay marriage if it

occurred in a vacuum, the sodomy-norming and

other secondary effects of gay marriage may give

compelling state interest in regulating gay marriage.

Amicus is not just imagining sodomy-norming

from gay parenting; Boucai, supra at 14, says:

“(What if the] impressionable psychosexual

development of children is a basis for widening, not

limiting, the range of ‘lifestyle choices’ to which they

are exposed[?]}”, with a citation “urging advocates to

affirm that nonheterosexual parents ‘create an

environment in which it is safer for children to

openly express their own sexual orientations”. Jd. at

484 & n.456. I.e., Boucai posits nonheterosexual

parenting as better than heterosexual parenting, see

id., because a larger amount of children’s

homosexual behavior (which would tend to include

sodomy at some point) will occur, see id. If Boucai

admits it, who is anyone else to deny it?

Admittedly, gays may feel uncomfortable about

not being allowed marriage. But so might

polygamists. And sometimes, it is better that some

gays feel uncomfortable than that society be

endangered; see, e.g., HealthDay News, FDA

Advisors Not Sold on Lifting Ban on Gay Men Giving

Blood, MSN, Dec. 3, 2014,°

Members of a U.S. Food and Drug

Administration advisory panel asked

the agency on Tuesday to think

carefully before repealing a 3l-year ban

on blood donations from gay and

bisexual men.

[A]n HHS advisory panel has

recommended that a 12-month deferral

period replace the ban. That would

8 http://www.msn.com/en-us/health/medical/fda-advisors-not-

sold-on-lifting-ban-on-gay-men-giving-blood/ar-BBgizDf.

mean men who have had sex with

another man in the previous year could

not give blood.

However, the panel convened

Tuesday was not convinced by the HHS

recommendation, according to the AP.

“If I look at the science I would be

very wary of a one-year deferral,” said

Dr. Susan Leitman. “It sounds to me

like we’re talking about policy and civil

rights rather than our primary duty,

which is transfusion safety.”

Id. As Dr. Leitman said, see id., putative “civil

rights” may run into ugly realities, and “the science”,

id., such as mass death from AIDS. Maybe more

important than unlimited “gay rights”, there is a

more important liberty, the right not to die. And this

is science, not “Bible-thumping animus and

superstition”.

AIDS is not the sole issue relevant re same-sex

marriage, but if a Court does not consider disease

and injury issues re sodomy-norming and gay

marriage, that Court may be “aiding” many

Americans to have an early and undeserved death.

D. A Sexual-Orientation-Discrimination Claim

Is Not Viable

Sutton believes sexual-orientation claims are a

“rational basis” issue, see DeBoer at *61. But what if

that were not always true? E.g., upholding gay-

marriage bans would not estop this Court from

finding that gays suffer illegal discrimination, maybe

subject to heightened scrutiny, in employment or

other fields unrelated to marriage. For example,

since a gay person can presumably flip a hamburger

as well as a heterosexual can, it might be considered

irrational for a restaurateur to fire vhe burger-flipper

for being gay—but even if there were some “rational

basis”, maybe intermediate scrutiny could be applied

instead. But gay marriage is distinguishable from

business-related laws or private decisions.

After all, gay athletes Michael Sam and Jason

Collins of the NFL and NBA might be superb at

their sports, but that does not mean they can breast-

feed children, or serve as female role models to little

girls.

The Court could someday, if desired, adopt

heightened scrutiny re homosexuality vis-a-vis

employment or other issues besides marriage.

(Amicus is not recommending the Court adopt higher

scrutiny, only saying that rational-basis scrutiny re

gay marriage does not rule out higher scrutiny

elsewhere.) This kind of bifurcated scrutiny has been

done before, see, e.g., Cabell v. Chavez-Salido, 454

U.S. 432, 439 (1982) (applying strict scrutiny to

alienage, but a lower level of scrutiny re political

classifications).

See also, e.g., Dan Chmielewski, Ronald Reagan

on Gay Rights, Liberal OC, June 9, 2008,!° on the

Briggs Initiative, a 1978 California ballot measure

banning gay teachers from public schools,

Reagan met with initiative

opponents[,} and, ultimately, at the risk

of offending his anti-gay supporters in

10 http://www .theliberaloc.com/2008/06/09/ronald-reagan-on-

gay-rights/.

the coming presidential election, wrote

in his newspaper column: “I don’t

approve of teaching a so-called gay life

style in our schools, but there is already

adequate legal machinery to deal with

such problems if and when they arise.”

Id. (citation omitted) Like Reagan, see id., we can

meaningfully distinguish between employment/

business issues and family/lifestyle issues.

E. A Sex-Discrimination Claim Is Not Viable

Also, Sutton does not really address sex-

discrimination claims: which may be appropriate,

since they are invalid. —If Amicus said there are

public facilities that utterly exclude women: this

would sound horrible, except when Amicus explains

that the “facilities” are men’s bathrooms. Context is

key here, as with gay marriage.

Inter alia, how does it constitute gender

discrimination for gay-marriage bans to prohibit a

sex-segregated environment, i.e., monogender

parentage, for children? To claim otherwise turns

the idea of “sex discrimination” on its head. One is

tempted to say that instead, any unhappy children of

a same-sex couple might have a sex-discrimination

or sex-segregation claim. See, e.g., Brown v. Bd. of

Educ. (347 U.S. 483 (1954)) (condemning segregated

learning environments for children).

One way that DeBoer could be a useful case to

consider, even though the State of Michigan did not

use the following rationale, is the evidence that

Michiganders disfavor gender discrimination at the

same time they oppose gay marriage.

Le., within two years, and thus with substantially

the same electorate, Michiganders voted for and

passed Proposal 06-2, in 2006 (preventing race,

gender, or other controversial preferences in public

education—e.g., affirmative action—, employment,

or contracting) and also voted for and passed

Proposal 04-2, in 2004 (banning same-sex marriage).

Michiganders apparently believed that a gender

preference in an area where it might plausibly make

no difference (should one’s gender really be a plus in

getting a contract?) was discriminatory and illegal.

So, it is hard to say that they were trying to promote

sex discrimination by voting for Proposal 04-2, since

they shortly banned it in Proposal 06-2.

Perhaps the People, with their common sense

that is often far wiser than the ideas of some

academics or activists, realized that in a marriage

setting, gender-diversity is not discriminatory: it

may even be mandatory for helping children have

the optimal upbringing.

F. Even Some Who Support Gay Marriage

Oppose Mandatory Gay Marriage

Courts have not paid enough attention to those

who endorse gay marriage, but acknowledge the

damage from forcing it on the People. Jimmy Carter,

supra at 1, falls into that category, as does law

professor James G. Dwyer, Same-Sex Cynicism and

the Self-Defeating Pursuit of Social Acceptance

through Litigation,

1168 SMU L. Rev. 1 (forthcoming 2015) (pre-edit draft, subject

to revision), available at http://papers.ssrn.com/sol3/papers.

cfm? abstract_id=25057 54.

As a member of the American

political community, I strongly support

extending legal marriage to same-sex

couples... . I have contributed to The

Gay and Lesbian Victory Fund.

As a legal scholar, however, I

recognize the distinction between

something being the right thing to do

and its being a matter of constitutional

right, and I recognize that at this point

in time the case for the latter with

respect to same-sex marriage is too

implausible to endorse.

Id. at 1. The argument that “Only animus motivates

opponents of nationwide mandatory gay marriage”,

dies pretty quickly when we notice gay-marriage-

endorsers like Carter and Dwyer, who do not

endorse mandatory gay marriage.

G. The Various Considerations Above,

Reinforce One Another

Does, for example, the “channeling of bisexuals”

argument have anything to do with the “gender-

diversity per Grutter” argument? Yes, because there

is not a fixed number of “gay marrieds” and “straight

marrieds”. Bisexuals and other “flexible” types

receive motivation from laws like Michigan’s,

motivation to enter traditional marriages, increasing

the number of children with a mother and a father.

Without official endorsement of same-sex marriages,

fewer are likely to occur, and resources that might

have been spent on children (e.g., from artificial

insemination) in those marriages, can be spent on

children in diverse-sex marriages, or other worthy

causes. (Just as polygamists, or their children, may

receive fewer state benefits than others.) The People

can make their own “cost-benefit judgment” about

what kinds of marriage to support. And further

percolation on the intertwined issues supra, will

likely benefit the judgment of the Court.

VI. HOW LONG SHOULD THE COURT WAIT

UNTIL GRANTING CERTIORARI?

Despite the need for more percolation, though,

Amicus does not want the Court to wait forever.

Some partisans might be hoping for years to elapse

so that maybe an ultraconservative President can

appoint several ultraconservative Justices to the

Court and determine the opinion in any gay-

marriage case. However, waiting for a few more

Circuits to weigh in should take less than a year, so

that the Court could issue an opinion by June 2016,

well before the next general election.

The Fifth, Eleventh, First, and Eighth Circuits

may all have issued same-sex-marriage opinions

long before June 2016, opinions likely of great use to

this Court. And there is poetic justice in waiting to

see what the Eighth Circuit has to say, since its

long-held opinion, Citizens for Equal Protection v.

Bruning, 455 F.3d 859 (8th Cir. 2006), opposes

mandatory gay marriage, see id. Will the Eighth

Circuit change its mind or not?

After all, in NFIB v. Sebelius, 132 S. Ct. 2566

(2012), the dissent criticized the Court majority for

not taking more time and effort before making a

huge decision: “One would expect this Court to

demand more than fly-by-night briefing and

argument before deciding a difficult constitutional

question of first impression.” Jd. at 2655. In the huge

matter of forcing gay marriage on the entire Nation,

even on unwilling local supermajorities, the Court

should take ample time to decide, lest it produce a

Bowers v. Hardwick (478 U.S. 186 (1986)) of sorts,

an indefensible decision which is later overruled.

And the tradition of releasing blockbuster

decisions at the end of June need not always be

followed, either. It is more important to decide the

case rightly, and possibly release the opinion in the

middle of a Term, than to rush the process and

choose a case now just to be able to churn the

opinion out by late June 2015, as if the Court were

some jurisprudential fast-food restaurant. The NFIB

v. Sebelius decision may have been unduly rushed,

and the Court should not risk such a problem again.

x* * *

In this holiday season, it seems some would put

the label of “Scrooge” on anybody who opposes

legalized nationwide gay marriage. However, one

must be careful with the label of “Scrooge”. What if

some who support mandatory gay marriage,

themselves show possible “animus” or “bigotry”

towards more traditional forms of marriage? “See,

e.g., Boies and Olson[,] lumping ‘plural marriage’

together with incest and ‘unions of people and

animals’ and characterizing it as an ‘absurd

concept’)[, and] implying that practiced polygamy is

so rife with abuse it is categorically different from

same-sex relationships[.]” Dwyer, supra at 22, at 67

n.208 (citations omitted).

But the Ghost of Cases Past, such as Ballard,

Schuette, and Lawrence, warns us: that it can be

Scrooge-y to pretend gender is meaningless, e.g.,

that it is good to deprive a child of a mother or

father; that the People’s vote is meaningful; and that

a negative liberty does not imply a positive one. And

we all should all fear the Ghost of Cases Yet to

Come, if this Court produces some elitist, Jacobin,

hyper-centralizing yoke on regional voters’

legitimate marriage decisions, i.e., a tyrannical

forced-gay-marriage opinion which eventually gets

overruled like Bowers. On that note, Amicus wishes

well to all for the holidays—especially to the People,

whose common sense often exceeds that of courts.

CONCLUSION

Amicus respectfully asks the Court to consider

granting certiorari, in this case or another same-sex-

marriage case or cases, in the future, when sufficient

percolation has occurred; and humbly thanks the

Court for its time and consideration.

December 18, 2014 Respectfully submitted,