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

FILED

| Supreme Court, Us.

DEC 15 28.4

OFFICE OF THE CLERK

}

Nos. 14-556, 14-562, 14-571, 14-574 & 14-596

IN THE

Supreme Court of the Gnited States

APRIL DEBOER, et al.

Petitioners

Vv.

RICHARD SNYDER, et al,

Respondents

Additional Case Captions Listed On Inside Front Cover

On Petitions for Writs of Certiorari

to the United States Courts of Appeals

for the Fifth and Sixth Circuits

BRIEF OF AMICUS CURIAE

IDAHO GOVERNOR C.L. “BUTCH” OTTER

THOMAS C. PERRY GENE C. SCHAERR

COUNSEL TO THE GOVERNOR Counsel of Record

P.O. Box 83720 332 Constitution Ave. NE

Boise, Idaho 83720-0034 Washington, DC 20002

(202) 361-1061

gschaerr@gmail.com

—— EE eee

Wis0n-Eres PRintinG Co., inc. — (202) 789-0086 - WasiuncTon, D.C. 20002

VALERIA TANCO, et a/,

Petitioners

Vv.

WILLIAMM EDWARD “BILL” HASLAM, et ai,

Respondents

BRITTANI HENRY, et a/.,

Petitioners

v.

RICHARD HODGES,

Respondent

JAMES OBERGEFELL, et al,

Petitioners

v.

RICHARD HODGES

Respondent

TIMOTHY LOVE, et al AND GREGORY BOURKE,

et al.,

Petitioners

v.

STEVE BESHEAR

Respondent

JONATHAN P. ROBICHEAUX, et al,

Petitioners

v.

DEVIN GEORGE, et al.,

Respondents

QUESTION PRESENTED

Whether the Fourteenth Amendment to the United

States Constitution requires a state to define or legally

recognize marriages as between people of the same

gender.

os

TABLE OF CONTENTS

UTE ROIS PRR REB ISB EBDD cc ccccccceccccccceccccccccocscnccccoeseces i

TABLES OF AUTHOR TEI ccccccccscccccccsccccsccsccccccsecese iv

INTRODUCTION AND INTERESTS OF AMICUS 1

FIT sctectinecscnninincencintniiimsenqenerneiamnsenseenenn 4

Latta should be considered on the merits along with

whichever of the currently pending cases this

Court believes will provide the best vehicle for

deciding the constitutionality of man-woman

IL: sciteennccnsinntevenccennessiscienimeineneninns 4

A. JLattais the only pending case in which state

officials have vigorously defended the man-

woman definition, explaining why it satisfies

any form of heightened scrutiny. ..................... 4

B. Latta is the only pending case in which an

appellate court has held that sexual

orientation is a suspect class, and that the

man-woman marriage definition

“discriminates” on that basis.......................... 16

C. Latta is the only pending case in which state

officials have defended man-woman marriage

laws in part as a means of limiting the risk of

intrusions into religious liberty...................... 21

D. Unlike most of the pending cases, Latta

presents both the “licensing” and “recognition”

a a a li 22

il

E. On both sides, Latta counsel are experienced in

the issues presented and in handling cases in

REECE a eens Aenea ey mn 23

TIED sibiinnaetncnsennidecninaenncdimmieniisiniaumedannneimens 23

iv

TABLE OF AUTHORITIES

CASES

Ballard v. United States, 329 U.S. 187 (1946) ........... 8

Bd. Educ. Westside Cnty. Schs. (Dist. 66) v. Mergens,

TA a oe on nC a 25

Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S.

IIT clusoisisincnes indent deliiameteinin geal tala ahahaha diate teeileeaiieael 24

Crawford v. Board of Ed. of Los Angeles, 458 U.S. 527

ESC SERRE one eee Enea NS TORREY Dee T PLR a NTT 21

District Attorney’s Office v. Osborne, 557 U.S. 52

FCC v. Beach Comme'ns, Inc., 508 U.S. 307 (1993) .19

Hernandez v. New York, 500 U.S. 352 (1991).......... 21

Murphy v. Ramsey, 114 U.S. 15 (1888) ...................... 5

Nevada v. Hall, 440 U.S. 410 (1979)....................000. 27

Pacific Employers Ins. Co. v. Industrial Accident

ee Oe See 27

Vv

Pers. Adm'r of Massachusetts v. Feeney, 442 U.S. 256

ETE ee) CAE CENCE ae eT re ET 21

Rosenbaum v. City & Cnty. of San Francisco, 484

re I: SE cncinsincinincteinisieinenaineninanseniation 21

San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S.

I ceaaanasaeiuooies 19

Schuette v. BAMN, 134 S. Ct. 1623 (2014)............... 19

SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d

inn ccsnieansetiabieininanebeaenitinn passim

Turner Broadcasting Sys., Inc. v. FCC, 512 U.S. 622

United States v. Virginia, 518 U.S. 515, 533 (1996) ..8

Univ. of Alabama v. Garrett, 531 U.S. 356 (2001) .......

12, 21

Village of Arlington Heights v. Metro. Hous. Dev.

i CEE, SEE CITED incccncecitadiniterenhensbitnnainsiinieanse 21

STATUTES

Civil Marriage Protection Act (MD), House Bill 438

I i aati hedataapaitcipahieiacatiniaibiladil 6

vi

Marriage Equality Act (NY), AB A08354 (June 24,

ESR aene ee RE ee eee aT 6

OTHER AUTHORITIES

Oral Argument at 47:19-24, Hollingsworth v. Perry,

133 S.Ct. 2652 (2012) (No. 12-144) ...........2...0022.2... 15

MISCELLANEOUS

Centers for Disease Control and Prevention, “Divorce

Rates by State,” (available at

http://www.cdc.gov/nchs/data/dvs/divorce_

ee I i csccctenatnintcviheiinioniiceeninbabnadias 14

Centers for Disease Control and Prevention,

“Marriage Rates by State,” (available at

http://www.cdc.gov/ nchs/data/dvs/marriage

I I ss cnirenaitndiitindmaeniandetiieinitini 14

Nock, Steven L., Marriage in Men’s Lives (1998) .... 10

Posner, Richard A., Should There Be Homosexual

Marriage? And If So, Who Should Decide? 95 Mich.

RR RESET RMN ae ies en 9, 20

Trandafir, Mircea, The Effect of Same-Sex Marriage

Laws on Different-Sex Marriage: Evidence from the

Netherlands (2009) (available at

http://www.iza.org/conference

files/TAM2010/trandafir m6039.pdf)..................... 15

INTRODUCTION AND INTERESTS OF AMICUS ''

If this Court is prepared to decide the constitution-

ality of state man-woman marriage laws—as amicus

believes it should—it is important that the Court have

before it at least one case in which state officials will

vigorously defend those laws on the merits. Unless

state representatives in one case are mounting such a

defense—including an explanation of why the man-

woman definition of marriage satisfies any form of

heightened scrutiny—neither the Court nor the public

can be assured that the ultimate decision will be the

product of a fair contest between opponents who made

the strongest possible arguments on both sides.

Although the officials in the cases now before the

Court have been well represented, none has demon-

strated a willingness to mount such a defense. Per-

haps they believe this Court will inevitably reject all

the arguments for heightened scrutiny, thus making a

defense under such a standard superfluous. Or per-

haps some fear (incorrectly) that a vigorous defense

will impugn the parenting skills of same-sex couples

and thus be offensive to gays and lesbians. Whatever

the reason, these officials’ presentations have left an

important viewpoint unrepresented, and it is one that

needs to be vigorously presented in this Court.

That is a main reason Governor Otter respectfully

suggests that the Court ensure that the Idaho case,

‘ Undersigned counsel have authored this brief in whole, and no

other person or entity has funded its preparation or submission.

All counsel of record received timely notice pursuant to Rule 37.2

of amicus’ intent to file this brief, and all parties have consented

to its filing in communications on file with the Clerk.

2

Otterv. Latta, 771 F.3d 456 (9th Cir. 2014)—in which

the Governor is a named party—is among the cases the

Court uses as “vehicles” for deciding the constitution-

ality of the man-woman definition. Unlike the laws

now before the Court, Idaho’s definition has been vig-

orously defended, in part on the ground that it satisfies

the heightened scrutiny that the Ninth Circuit held

applies to such laws. And unlike those cases, the

Ninth Circuit in Latta purported to address Idaho's

heightened-scrutiny defense. Moreover, Latta will

likely be before the Court in a very few days: Unless

the Ninth Circuit quickly grants the pending petition

for rehearing en banc, amicus intends to seek this

Court’s review by January 5, 2015.

Latta is an ideal vehicle for other reasons too.

First, as with the Second Circuit’s decision that this

Court reviewed in Windsorv. United States, 133 S. Ct.

2675 (2013), Latta is the only pending case in which a

court of appeals has held that classifications based on

sexual orientation are subject to heightened scrutiny.

Given the likely importance of that issue to the consti-

tutionality of the man-woman definition, it makes

sense to ensure that at least one of the cases before

this Court is one in which the court of appeals articu-

lated and relied upon the suspect class argument.

Next, Latta is the only pending case in which par-

ticipating state officials (including the Nevada officials

in the consolidated case) defended the man-woman

definition on the ground that redefining marriage

would lead to a substantial risk of intrusion into citi-

zens religious freedom. And here again, the Ninth

Circuit addressed that point in its decision. Slip Op.

at 29-30. Given the likely importance of this issue to

3

the Court’s ultimate resolution, it makes sense to in-

clude Latta among the cases in which this Court

grants review.

In addition, unlike some of the pending cases, Latta

offers an opportunity to review state laws that define

marriage as only between a man and a woman and

that recognize only those marriages from other states.

See Slip Op. at 32. It will be more efficient for the

Court to resolve the constitutional issue presented

here in a case that involves both the “licensing” and

“recognition” contexts. And finally, the advocates on

both sides of Latta are experienced and capable.

For all these reasons, Governor Otter respectfully

suggests that the Court (a) wait until it has Latta be-

fore it before deciding which petition(s) to use as a ve-

hicle for resolving the constitutionality of the man-

woman definition of marriage, and at that time, (b)

grant the Latta petition in addition to whichever of the

currently pending petitions the Court views as the best

vehicle.

4

ARGUMENT

Latta should be considered cn the merits along with

whichever of the currently pending cases this Court

believes will provide the best vehicle for deciding the

constitutionality of man-woman marriages laws.

Although ZLatta is currently pending before the

Ninth Circuit on a petition for rehearing en banc—

which was filed before the Sixth Circuit decision now

before this Court—Latta remains the most appropri-

ate vehicle for resolution of the constitutionality of

man-woman marriage laws. That is why, unless the

Ninth Circuit grants rehearing en banc within the

next few days, amicus will seek review in this Court

on January 5, 2015.2 For five reasons, moreover, it

makes sense for the Court to wait until it has Latta

before it before deciding which case(s) will best assist

the Court in resolving that fundamental issue as well

as subsidiary questions such as whether sexual orien-

tation constitutes a suspect class.

A. Latta is the only pending case in which state

officials have vigorously defended the man-

woman definition, explaining why it satisfies

any form of heightened scrutiny.

First, as noted, Latta is the only case pending in

the courts of appeals in which public officials have vig-

orously defended the man-woman definition of mar-

riage—including an explanation of why that definition

2 Governor Otter is also working with the Idaho Attorney General

to file a single joint petition on that date. The Attorney General's

petition is currently due on January 5.

5

satisfies heightened scrutiny.* Such a defense appro-

priately begins less than twenty years after the ratifi-

cation of the Fourteenth Amendment, when this Court

embraced a model of marriage that at the time seemed

obvious: “[N]o legislation,” the Court held, “can be

supposed more wholesome and necessary in the found-

ing of a free, self-governing commonwealth ... than

that which seeks to establish it on the basis of the idea

of the family, as consisting in and springing from the

union for life of one man and one woman in the /[] es-

tate of matrimony...” Murphy v. Ramsey, 114 U.S. 15,

45 (1885) (emphasis added). To be sure, the Court has

recently held that the States are free to depart from

that model of marriage—and hence from the Court’s

own view of the compelling government interests that

underlie it. See United States v. Windsor, 133 S. Ct.

2675, 2693-94 (2013). But the Court has been equally

emphatic that the States retain the “historic and es-

sential authority to define the marital relation,” in

part because that authority is “the foundation of the

State’s broader authority to regulate the subject of do-

mestic relations ...” Jd. at 2692, 2691.

1. As was repeatedly explained to the district court

and the panel, marriage is a complex social institution

that pre-exists the law, but which is supported by it in

virtually all human societies. Otter v. Latta Gov. Ot-

ter Opening Brief (“OB”) at 10-11 (citing among others

ER 1107-08). And a principal purpose of marriage in

virtually all societies is to ensure, or at least increase

the likelihood, that all children have a known mother

> The analysis presented in this section is presented in greater

detail, and with more supporting citations, in another amicus

brief filed contemporaneously with this one. See Brief of Amici

Curtae Scholars of Marriage.

6

and father with responsibility for caring for them. OB

at 9-10. Indeed, Bertrand Russell—no friend of tradi-

tional sexual mores—once remarked, “But for chil-

dren, there would be no need of any institution

concerned with sex.” Memo in Support of Summary

Judgment, 13-482-CWD, Dkt No. 57-2, at 35 (D. Idaho

Feb. 18, 2014).

As was also explained to the district court and the

panel, the man-woman definition is integral not only

to the social institution of marriage that Idaho’s mar-

riage laws are intended to support, but also to Idaho’s

purposes in providing that support—which it does at

considerable cost. Throughout its history, Idaho has

rejected what Justice Alito has aptly called (without

any disagreement from other Justices) the relatively

but decidedly adult-centric, “consent-based” view of

marriage, and has embraced instead the more child-

centric, “conjugal” view. See Windsor, 133 S. Ct. at

2718 (Alito, J., dissenting); see also OB at 12. And

Idaho has repeatedly implemented that view of mar-

riage by explicitly retaining the man-woman definition

despite decisions by other states to redefine marriage

as the union of any two otherwise qualified “persons.”4

By itself, the man-woman definition conveys that

marriage—as understood in Idaho—is centered on

children, which man-woman pairings are uniquely ca-

pable of producing. OB at 18-19, 26. That definition

also conveys that one of marriage’s purposes is to pro-

vide a structure by which to care for any children that

may be created accidentally—-an issue that, again, is

4eg., Marriage Equality Act (NY), AB A08354 (June 24, 2011);

Civil Marriage Protection Act (MD), House Bill 438 (March 1,

2012).

7

unique to man-woman couples. /d. at 27, 31-35. More-

over, by requiring a man and a woman, that definition

indicates that this structure will ideally have both a

“masculine” and a “feminine” aspect.

By implicitly referencing children, accidental pro-

creation, masculinity and femininity, the man-woman

definition also “teaches” or reinforces certain child-

centered “norms” or expectations. OB at 26, 32-35. Be-

cause only man-woman couples are capable of produc-

ing children together through bodily union, these

norms are directed principally at opposite-sex couples,

and include the following (among others):

1. Where possible, every child has a right to be

supported financially and emotionally by the

man and woman who brought her into the world

(the “maintenance” norm). See OB at 31.

2. Where possible, every child has a right to be

reared by and to bond with her own biological

father and mother (the “bonding” norm). OB at

27, 30-32, 35 n.23 (citing ER 112-53); 36-39; ER

750.

3. Where possible, a child should be raised by a

mother and father, even where she cannot be

raised by both her biological parents (the “gen-

der-diversity” norm). OB at 27-28, 35; ER 735.

(This norm does not directly speak to parenting

by gays and lesbians, who may not realistically

have the option of raising their children with

the other biological parent.)

4. In all their decisions, parents should put the

8

long-term interests of their children ahead of

their own personal interests (the “child-cen-

tricity” norm). OB at 43-47.

The evidence presented below also established that

Idaho and its citizens receive enormous benefits when

man-woman couples heed these norms associated with

the conjugal vision and definition of marriage. Com-

mon sense and a wealth of social-science data teach

that children do best emotionally, socially, intellectu-

ally and economically when reared in an intact home

by both biological parents. OB at 27, ER 533. Such

arrangements benefit children of opposite-sex couples

both by harnessing the biological connections that par-

ents and children naturally feel for each other, and by

providing what experts have called “gender comple-

mentarity” in parenting. OB at 27-28, ER 712, ER 735.

Compared with children of man-woman couples raised

in any other environment, children raised by their two

biological parents in a married family are less likely to

commit crimes, engage in substance abuse, and suffer

from mental illness, and more likely to support them-

selves and their own children successfully in the fu-

ture. OB at 29 n. 15, 30. Accordingly, such children

pose a lower risk of needing State assistance, and a

higher long-term likelihood of contributing to the

State’s economic and tax base.

Similarly, parents who follow the norms of child-

centricity, bonding and maintenance are less likely to

engage in the kinds of behaviors—such as child abuse

or neglect, or divorce—that typically require State as-

sistance or intervention. OB at 28, 39. And again,

each of these norms is closely associated with—and re-

inforced by—the man-woman definition of marriage.

9

2. It is thus easy to see why so many informed com-

mentators on both sides have predicted that redefining

marriage to accommodate same-sex couples—which

requires removing the man-woman definition—will

change the institution profoundly. Writing not long

ago, Judge Posner described same-sex marriage as “a

radical social policy.” Richard A. Posner, Should There

Be Homosexual Marriage? And If So, Who Should De-

cide? 95 Mich. L. Rev. 1578, 1584 (1997). And in more

measured terms, Oxford’s prominent liberal legal phi-

losopher Joseph Raz observed that “the recognition of

gay marriage will effect as great a transformation in

the nature of marriage as that from polygamous to mo-

nogamous ... marriage.” Gov. Otter’s Response Brief,

13-482-CWD, Dkt No. 81, at 9 n. 18.

For opposite-sex couples, as was repeatedly ex-

plained below, the major effect of that “transfor-

mation” will be the erosion or elimination of each norm

that depends upon or is reinforced by the man-woman

definition. For example, as Professors Hawkins and

Carroll have explained, the redefinition puts in place

a legal structure in which two women (or two men) can

easily raise children together as a married couple, and

thus places the law’s authoritative stamp of approval

on such child-rearing arrangements. And for hetero-

sexual men—who generally need more encouragement

than women to marry and parent—that legal change

suggests that society no longer needs men to form well-

functioning families or to raise happy, well-adjusted

children. OB at 38-39; ER 122; Gov. Otter Reply Brief,

Dkt No. 157, at 8; see generally Steven L. Nock, Mar-

riage 10 Men’s Lives (1998).

For similar reasons, such a redefinition teaches

heterosexuals that society no longer places as much

10

value on biological connections and gender diversity in

parenting. Jd. And a redefinition weakens the expec-

tation that biological parents will take financial re-

sponsibility for any children they participate in

creating (since sperm donors and surrogate moms

aren’t expected to do that), and that parents will put

their children’s interests ahead of their own (since the

redefinition is being driven largely by a desire to ac-

commodate the interests of adults).

Furthermore, just as those norms benefit the State

and society, their removal or dilution can be expected

to harm the interests of the State and its citizens. For

example, as fewer heterosexual parents embrace the

norms of biological connection, gender complementa-

rity and maintenance, more children will be raised

without a mother or a father—usually a father. That

in turn will mean more children raised in poverty, ex-

periencing psychological or emotional problems, and

committing crimes—all at significant cost to the State.

OB at 28-29. Similarly, as fewer parents embrace the

norm of child-centricity, more will make choices driven

by personal interests rather than the interests of their

children. Many of these choices will likewise impose

substantial costs on the State. OB at 33-34.

3. To its credit, the Latta panel devoted some fif-

teen pages in attempting to rebut some of these points.

But the panel simply ignored the principal point,

which is that redefining marriage in genderless terms

will change the socia/ institution of marriage in a way

that risks adversely affecting the behavior of Aeterv-

sexuals—whether or not they choose to get (and stay)

“married” under the new genderless-marriage regime.

The panel thus did not deny that the specific norms

discussed above are part of the marriage institution as

11

it always has and currently exists in Idaho, that Idaho

has a compelling interest in maintaining those norms

among heterosexuals, or that a redefinition will likely

weaken or destroy those norms for that population. In-

stead, the panel engaged in two main diversions.

First, the panel said (Slip Op. at 15-16) that the

State’s defense of the man-woman definition is based

on the idea that “allowing same-sex marriages will ad-

versely affect opposite-sex marriage ....” (emphasis

added). But it’s not the existence of same-sex mar-

riages that is of principal concern. It’s the redefinition

of marriage that such marriages requires—i.e., replac-

ing the man-woman definition with an “any qualified

persons” definition—and the resulting impact of that

redefinition on the institution of marriage, especially

as perceived and understood by opposite-sex couples.

Similarly, in addressing the possibility that same-

sex marriage will reduce the desire of heterosexual

males to marry, the panel summarily dismissed as

“crass and callous” the idea that “a father will see a

child being raised by two women and deduce that be-

cause the state has said it is unnecessary for that child

... to have a father, it is also unnecessary for Ais child

to have a father.” Slip Op. at 19 (emphasis added).

But according to evidence submitted in the district

court and to the panel, see ER 112-53, it’s not the fact

that the father “will see a child being raised by two

[married] women” that is likely to reduce his enthusi-

asm for marriage. It’s the fact that marriage will have

already been redefined—legally and institutionally—

in a way that makes his involvement seem less im-

portant and valuable than before. See, e.g., Univ. of

Alabama v. Garrett, 531 U.S. 356, 375 (2001) (Ken-

nedy, J., concurring) (noting important role of law as a

12

teacher). And although not all heterosexual fathers or

potential fathers will have less interest in marriage as

a result of that change, some of them—especially those

at the margins of commitment to marriage and father-

hood—will undoubtedly do so.

Second, on several points the panel rejected the in-

stitutional defense because, in its view, it “is, funda-

mentally, ... about the suitability of same-sex couples,

married or not, as parents, adoptive or otherwise.”

Slip Op. at 27. Not so. While some aspects of that de-

fense might have some conceivable bearing on policies

toward parenting by gay and lesbian citizens, the point

here is different: It’s about the impact of removing the

man-woman definition on the marriage institution—

i.e., the public meaning of marriage—and the impact

of that change on heterosexuals. The panel had no an-

swer to the reality that replacing that definition with

an “any qualified persons” definition will (a) weaken or

eliminate the norms of biologically connected and gen-

der-diverse parenting (and other norms) that are cur-

rently part of Idaho's definition and vision of marriage,

and (b) lead at least some heterosexual parents to

place less value on those norms when making personal

decisions about the upbrinying of their children—and

thus lead to more of their children being raised by a

single parent.

4. In response to the social risks that would result

from removing the man-woman definition (and social

understanding) of marriage, the panel cited a single

study suggesting that Massachusetts’ decision to

adopt same-sex marriage in 2004 had no immediate

impact on marriage or divorce rates in that state. Slip

Op. at 18. But the conclusions of that study have been

hotly disputed, and indeed the evidence clearly shows

13

a longer-term increase in divorce in the wake of Mas-

sachusetts’ decision—and a decrease in marriage

rates.5 Furthermore, a recent study of the Nether-

lands, which had same-sex marriage before Massachu-

setts, shows a clear decline in marriage rates among

man-woman couples in urban areas after the passage

of same-sex marriage laws.®

More important, as discussed by Justice Alito in

Windsor, any empirical analysis of the effects of rede-

fining marriage calls for “[judicial] caution and humil-

ity.” 133 S. Ct. at 2715. Same-sex marriage is still

far too new—and the institution of marriage too com-

plex—-for a redefinition’s full impact to have registered

in a measurable way. /d. at 2715-16. Accordingly, as

Justice Kennedy pointed out during oral argument in

Perry, redefining marriage is akin to jumping off a

cliff—it is impossible to see with complete accuracy all

the dangers one might encounter when one arrives at

* See Centers for Disease Control and Prevention, “Divorce Rates

by State,” (available at http://www cdc.gov/nchs/data/dvs/di-

vorce_ rates_90_95_99-11.pdf) (divorce rates in Massachusetts in-

creased 8% from 2003 to 2011, and were the highest in 2011—tthe

last year of available data—in twenty years); Centers for Disease

Control and Prevention, “Marriage Rates by State,” (available at

http://www.cdc.gov/ nchs/data/dvs/marriage rates_90 95 99-

1l.pdf) (marriage rates in Massachusetts were lower in 2011—

the last year of available data—than in 2003—the year before

same-sex marriage started, and were the lowest in over twenty

years).

6 See Mircea Trandafir, The Effect of Same-Sex Marriage Laws

on Different-Sex Marriage: Evidence from the Netherlands at 28-

29 (2009) (available at http://www.iza.org/conference

files/TAM2010/trandafir m6039.pdf).

14

the bottom. See Oral Argument at 47:19-24, Ho/-

lingsworth v. Perry, 133 S. Ct. 2652 (2012) (No. 12-

144).

5. Given the foregoing analysis of the benefits con-

ferred on Idaho and its citizens by the man-woman

definition, and the harms—or at least risks—the State

and its citizens would face by eliminating that defini-

tion, Idaho’s decision to retain it passes muster under

any standard, including strict scrutiny. There can be

no doubt that the man-woman definition substantially

advances compelling interests—including Idaho’s

overall interest in the welfare of the vast majority of

its children, that is, those of opposite-sex couples.

That is not to say that Idaho is unconcerned with

same-sex couples or the children they raise together.

But the State cannot responsibly ignore the long-term

welfare of the many when asked to make a major soci-

etal change that will confer a short-term benefit on the

few.

The Ninth Circuit responded to the analysis of this

point, not by disputing the importance of the State’s

interests, but by claiming that Idaho is pursuing them

in a manner that is “grossly over- and under-inclusive

...” Slip Op. at 23. But that argument is irrelevant for

two reasons. First, the panel once again ignored

the real issue, which is the impact of redefining mar-

riage on the institution itself. Idaho can easily allow

infertile couples to marry (and avoid invading their

privacy) without having to change the existing man-

woman definition of marriage and thus lose the bene-

fits that definition and the associated norms provide.

Cf Slip Op. at 24 n. 14. Conversely, taking other

measures in pursuit of the State interests underlying

the man-woman definition—like “rescind[ing] the

15

right of no-fault divorce, or to divorce altogether”

(id.}—would not materially reduce the adverse impact

on the marriage institution of removing the man-

woman definition, or the resulting harm and risks to

Idaho and its children. Again, because many of the

norms and social benefits associated with marriage

flow from that definition, removing it will have ad-

verse consequences no matter what else Idaho might

do in an effort to strengthen the institution of mar-

riage.

Second, like the Fourth and Tenth Circuits (which

also applied a form of heightened scrutiny), the Ninth

Circuit ignored that the choice Idaho faced was binary:

Either preserve the man-woman definition and the

benefits it provides, or replace it with an “any two

qualified persons” definition and risk losing those ben-

efits. Idaho cannot do both. Idaho's choice to preserve

the man-woman definition is thus narrowly tailored—

indeed, perfectly tailored—to its interest in preserving

those benefits and in avoiding the enormous societal

risks accompanying a genderless-marriage regime.

Under a proper means-ends analysis, therefore, the

fact that the State might have done things differently

in other, related areas of the law is irrelevant—espe-

cially given that neither the panel nor the Plaintiffs

dispute that the interests Idaho has articulated are

compelling, or that the risks to those interests are real.

See, e.g., Turner Broadcasting Sys., Inc. v. FCC, 512

U.S. 622, 665—66 (1994) (Kennedy, J., plurality opin-

10n).

6. As previously noted, of all the pending court of

appeals cases, Latta is the only one in which public of-

ficials presented a robust “institutional” defense of the

man-woman definition of marriage. And Latta is the

16

only case in which public officials explained why that

definition easily satisfies any form of heightened scru-

tiny. For those reasons, Latta is an ideal vehicle for

this Court’s resolution of the constitutionality of that

definition.

B. Latta is the only pending case in which an ap-

pellate court has held that sexual orientation

is a suspect class, and that the man-woman

marriage definition “discriminates” on that

basis.

Latta is also unique in that it is the only court of

appeals decision in the state marriage law context to

conclude that sexual orientation is a suspect or quasi-

suspect class. That argument was also made and ad-

dressed in each of the cases now pending before the

Court, and it will undoubtedly be advanced here if the

Court grants review.

1. As Judge O’Scannlain pointed out in his dissent

from denial of rehearing in SmithKline v. Abbott La-

boratories, that decision—which formed the basis for

the ruling in Latta—created a 10-2 circuit split on the

suspect class issue. 759 F.3d 990, 991-92 (2014). Be-

sides cementing that split, the Latta panel's decision

to apply SmithKiine’s heightened standard to Idaho’s

marriage laws marks an unprecedented intrusion by

the United States into Idaho’s “historic and essential

authority to define the marital relation.” Windsor, 133

S. Ct. at 2692. That intrusion stands in substantial

tension (to say the least) with the principle of federal-

ism on which Windsor directly relied, and which af-

firms that few matters so firmly belong within State

authority as laws determining who is eligible to

marry—‘an area to which States lay claim by right of

17

history and expertise.” United States v. Lopez, 514

U.S. 549, 583 (1995) (Kennedy, J., concurring).

Avoiding damage to federalism is one reason this

Court has been especially cautious in endorsing novel

claims under the Fourteenth Amendment. See, e.z.,

District Attorney's Office v. Osborne, 557 U.S. 52, 72-

74 (2009); San Antonio Indep. Sch. Dist. v. Rodriguez,

411 US. 1, 44 (1973). Yet by applying SmithKline in

the marriage context, the Ninth Circuit has now im-

posed heightened scrutiny on an area of law—domestic

relations—that was previously governed by rational

basis review. Replacing that customary deference

with heightened scrutiny not only contravenes feder-

alism but also demeans the “fundamental right” of

Idaho voters to decide the definition of marriage for

themselves. Schuette v. BAMN, 1345S. Ct. 1623, 1637

(2014).

As Judge O’Scannlain pointed out, moreover,

SmithKline’s “unprecedented application of height-

ened scrutiny” has “significant implications” not only

“for the same-sex marriage debate,” but also “for other

laws that may give rise to distinctions based on sexual

orientation.” 759 F.3d at 990-91 (emphasis added).

For example, the Latta panel was only partially cor-

rect when it stated that “Nevada law currently prohib-

its discrimination based on sexual orientation in

public accommodations, while Idaho law does not.”

Slip Op. at 30, n. 17. In fact, at least ten Idaho cities

have adopted local ordinances prohibiting discrimina-

tion on the basis of sexual orientation and gender iden-

tity. When applied to those laws—as it likely will be—

the panel’s call for heightened scrutiny will lead to far-

reaching litigation and additional potential liability in

18

employment, housing, taxation, inheritance, govern-

ment benefits and other areas of domestic relations.

2. Even assuming SmithKline was correct, the

Latta panel's rationale for holding that Idaho's laws

trigger heightened scrutiny under that decision inde-

pendently merits this Court’s review. Idaho has long

maintained that, although its marriage laws have a

disparate impact on gays and lesbians, its man-woman

definition does not classify or discriminate on the basis

of sexual orientation. Indeed, that definition does not

even mention sexual orientation, gays, or lesbians. It

simply draws a distinction between opposite-sex cou-

ples and every other type of relationship. It follows

that heterosexuals (who might have tax or financial

reasons for such a choice) are forbidden from marrying

someone of the same sex, while, as Judge Posner has

noted, “[t]here is no legal barrier to homosexuals mar-

rying persons of the opposite sex; in this respect there

is already perfect formal equality between homosexu-

als and heterosexuals.” Richard A. Posner, Should

There Be Homosexual Marriage? at 1582.

But in one cursory paragraph, the Latta panel

swept that point aside. It held instead that, because

Idaho’s laws “distinguish on their face between oppo-

site-sex couples ... and same-sex couples,” those laws

amount to “classifications on the basis of sexual orien-

tation”—and are ipso facto subject to SmuithKline’s

heightened scrutiny standard. Slip Op. at 13. And

that holding enabled the panel to avoid the disparate

impact branch of equal protection law, with its re-

quirement that, to contravene the Fourteenth Amend-

ment, a neutral law must have both a discriminatory

19

effect and a discriminatory purpose.’ Undoubtedly,

the panel was aware that the disparate impact test re-

quiring both of these elements has been reiterated doz-

ens of times by this Court® and by every other Circuit.

The panel also undoubtedly realized that it would be

incredible to find that Idaho’s marriage laws, stem-

ming from the 1860s, had anything to do with gays and

lesbians, much less were animated by animus or a de-

sire to discriminate against them.

Whatever its purpose, the Latta panel's “classifica-

tion” holding departs from settled law—and in a way

that merits review by this Court. Specifically, alt-

hough the panel quoted this Court’s admonition that

facial discrimination depends on “the explicit terms” of

the provision at issue, /nternational Union, United

Auto., Aerospace & Agr. Implement Workers of Am.,

7 See, e.g., Pers. Adm'r of Massachusetts v. Feeney, 442 U.S. 256,

272 (1979) (finding that “even if a neutral law has a dispropor-

tionately adverse effect upon a [protected class], it is unconstitu-

tional under the Equal Protection Clause only ifthat impact can

be traced to a discriminatory purpose.”) (emphasis added).

8 See, e.g., Village of Arlington Heights v. Metro. Hous. Dev.

Corp., 429 U.S. 252, 265 (1977) (“[p]roof of [] discriminatory intent

or purpose is required to show a violation of the Equal Protection

Clause”); Hernandez v. New York, 500 U.S. 352, 359-60 (1991)

(quoting Arlington Heights, 429 U.S. at 264, and finding that “{a]

court [undertaking equal protection analysis} must keep in mind

the fundamental principle that ‘official action will not be held un-

constitutional solely because it results in a [] disproportionate im-

pact.”) (emphasis added); Bd. of Trustees of Univ. of Alabama v.

Garrett, 531 U.S. 356, 372-73 (2001) (‘disparate impact ...alone

is insufficient even where the Fourteenth Amendment subjects

state action to strict scrutiny”); Crawford v. Board of Ed. of Los

Angeles, 458 U.S. 527, 537-38 (1982) (even when a neutral law

has a disproportionately adverse effect on a [suspect class], the

Fourteenth Amendment is violated only if a discriminatory pur-

pose can be shown”).

20

UAW v. Johnson Controls, Inc., 499 U.S. 187, 199

(1991), the panel’s analysis flatly ignores that crucial

requirement: Unlike this Court in United Auto Work-

ers, nowhere did the panel examine the “explicit

terms” of the pertinent Idaho laws to determine

whether they actually “classify” on the basis of sexual

orientation.

Those laws do not do so. For example, Art. III, Sec-

tion 28 of the Idaho Constitution simply states that

“{a] marriage between a man and a woman is the only

domestic legal union that shall be valid or recognized

in this state”—-without saying anything about the sex-

ual orientation of the participants. By contrast, the

fetal-protection policy at issue in United Auto Workers

expressly classified based on the employees’ sex,

thereby warranting the Court’s (unanimous) conclu-

sion that it was indeed a “sex-based classification” —

and therefore that the plaintiffs there need not estab-

lish a disparate impact or a discriminatory purpose.

See 499 U.S. at 198.

Moreover, the Latta panel’s approach—treating a

distinction between man-woman couples and every

other sort of relationship as ipso facto discrimination

based on sexual orientation—will be problematic in fu-

ture cases. Indeed, as various states begin to accom-

modate same-sex couples in their domestic relations

and other laws, there may be situations in govern-

ments believe they have legitimate reasons, unrelated

to sexual orientation, for treating same-sex couples

differently from opposite-sex couples. For example, a

state might decide to charge lower insurance premi-

ums to an employee married to a same-sex partner (re-

gardless of their sexual orientations) than to an

employee married to an opposite-sex partner, given

21

the reduced risk of accidental pregnancy. Under the

panel’s analysis, such a policy would constitute a “clas-

sification based on sexual orientation,” and thus auto-

matically subject to heightened scrutiny—even though

the state’s purpose is to provide a fair financial benefit

to same-sex couples.

In short, the panel’s broad sexual-orientation hold-

ings are an additional, powerful reason why Latta pro-

vides an ideal vehicle with which to address the

constitutionality of state man-woman marriage laws.

C. Latta is the only pending case in which state

officials have defended man-woman marriage

laws in part as a means of limiting the risk of

intrusions into religious liberty.

Another reason Latta is an ideal vehicle for resolv-

ing the constitutionality of man-woman marriage laws

is that it is the only pending cases in which public of-

ficials defended such laws based in part on the need to

limit the risk of incursions into religious liberty. For

example, the courts below were repeatedly told that

applying heightened scrutiny to classifications based

on sexual orientation would amplify the likelihood of

religion-related strife and infringements of religious

freedom in a wide variety of foreseeable situations.

See OB 52-56. As was explained to both the district

court and the panel, a state and its officials have a pro-

found interest in minimizing such strife on issues, like

marriage, on which the U.S. Constitution does not

clearly dictate the outcome. Cf Bill Johnson’s Restau-

rants, Inc. v. NLRB, 461 U.S. 731, 741 (1983) (refer-

ring to “the State’s compelling interest in the

maintenance of domestic peace”).

22

Yet, like the SmithKline panel, the panel here sum-

marily dismissed these concerns: It remarked that

“(w]hether a Catholic hospital must provide the same

health care benefits to its employees’ same-sex spcuses

as it does their opposite-sex spouses, and whether a

baker is civilly liable for refusing to make a cake for a

same-sex wedding, turn on state public accommoda-

tion law, federal anti-discrimination law, and the pro-

tections of the First Amendment. These questions are

not before us.” Slip Op. at 30. This invitation to liti-

gate such contentious questions invites serious con-

flicts with religious liberties. And it misses the critical

point that Idaho’s decision to retain its definition of

marriage is justified, in part, by the legitimate purpose

of avoiding conflicts between the State’s domestic rela-

tions law and the First Amendment’s guarantee of re-

ligious liberty.

D. Unlike most of the pending cases, Latta pre-

sents both the “licensing” and “recognition” is-

sues.

Another reason Latta is a superior vehicle is that it

involves claims brought both by same-sex couples

seeking a marriage license in Idaho and a same-sex

couple seeking Idaho’s recognition of a license issued

in another state. See Slip Op. at 32. If this Court ulti-

mately vindicates Idaho’s right to retain its marriage

definition, the Court will also be in a position to reject

the recognition claim.

Accordingly, if the Court grants the upcoming

Idaho petition, the Court’s resolution of the question

presented there can mark the end of the marriage-lit-

igation wave in all respects. By contrast, if this Court

does not resolve the necessarily related recognition

23

question, further litigation and uncertainty are as-

sured.

E. On both sides, Latta counsel are experienced

in the issues presented and in handling cases

in this Court.

Finally, counsel on both sides in Latta have a

wealth of experience with the issues this Court will

face in resolving conclusively the constitutionality of

the man-woman definition of marriage. And both

sides have counsel with wide experience in handling

cases before this Court.

CONCLUSION

For all these reasons, Governor Otter respectfully

suggests that, before the Court decides which petition

or petitions to use as vehicles for resolving the consti-

tutionality of the man-woman definition of marriage,

the Court wait until it has Latta before it. The Court

should then grant review in Latta in addition to which-

ever of the currently pending petitions the Court views

as the most appropriate vehicle.

Respectfully submitted,

THOMAS C. PERRY GENE C. SCHAERR

COUNSEL TO THE GOVERNOR Counsel of Record

P.O. Box 83720 332 Constitution Ave. NE

Boise, Idaho 83720-0034 Washington, DC 20002

(202) 361-1061

gschaerr@gmail.com