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

Supite. ec Coun, Uo.

| ED

APR 17 2015

No, 14-571

) OFFICE OF THE CLERK

3u The

Supreme Court of the Anited States

°

APRIL DEBOER, et al.,

Petitioners,

v.

RICHARD SNYDER, et al.,

Respondents.

°

On Writ Of Certiorari To The

United States Court Of Appeals

For The Sixth Circuit

°

REPLY BRIEF FOR PETITIONERS

¢

KENNETH M. MOGILL CAROLE M. STANYAR

MOGILL, POSNER & COHEN Counsel of Record

27 E. Flint St., 2nd Floor 221 N. Main St., Suite 300

Lake Orion, MI 48362 Ann Arbor, MI 48104

(248) 814-9470 (313) 819-3953

Dana M. Neseet. cstanyar@wowway.com

NESSEL & KESSi-L LAW ROBERT A. SEDLER

645 Griswold, Suite 4300 WAYNE STATE UNIVERSITY

Detroit, MI 48226 LAw SCHOOL

(313) 556-2300 471 W. Palmer St.

Detroit, MI 48202

ae tae neenenes (313) 577-3968

& DEFENDERS Counsel for Petitioners

20 Winter St anite 800 april 11, 2015

(617) 426-1350

COCKLE LEGAL BRIEFS (800) 225-6964

WWW COCKLELEGALBRIEFS COM

i

TABLE OF CONTENTS

IID inciccciisuncarennseieninenseninnenininenineinns

I.

IT.

ITl.

The Marriage Bans Violate Fundamental

And Reinforcing Principles Of Equality

And Liberty Which Limit State Action .....

A. The State Concedes The Marriage

Pans Inflict Substantial Harms..........

B. The Fourteenth Amendment’s Guar-

antees Of Liberty And Equality Limit

I

The Marriage Bans Deny Petitioners

Equal Protection Under Any Level Of

CET A REEMA TERR Re en ee See DOO

A. The Marriage Bans Are Subject To

Heightened Scrutiny Because They

Unequally Burden A Particular Class

Of Citizens’ Right To Marriage............

B. The Marriage Bans Are Subject To

Heightened Scrutiny Because They

Impose Inequality On Individuals

Based On Their Sexual Orientation....

C. The Marriage Bans Fail Rational

ET SERTS SSA ene se aanee No

The Marriage Bans Deprive Petitioners

Of A Fundamental Liberty Interest ..........

Ee iiinccnsevicccnineinenscensesunietsssensnhvenseesesues

li

TABLE OF AUTHORITIES

Page

CASES

Albright v. Oliver, 510 U.S. 266 (1990)........................ 4

Attorney Gen. of N. Y. v. Soto-Lopez, 476 U.S.

TTT iit cranial iaienieieltatingiatiiaiimeniaei 8

Baker v. Baker, 13 Cal. 87 (1859)...........ccccccecsccccccccees 14

Baskin v. Bogan, 766 F.3d 648 (7th Cir. 2014)............ 2

Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S.

acai sida eae accep ienaeimmiannintiaaaditibiield 8

Burns v. Burns, 560 S.E.2d 47 (Ga. Ct. App.

ST ids cshicccenetamebbucaiadndediddammedataiedaaidamnibemianiianbaiiiiiadiiad 6

Carter v. Hill, 45 N.W. 988 (Mich. 1890) ................... 13

Christian Legal Socy. v. Martinez, 561 U.S. €61

ell nice adeeb enicenarineamnmnaniietiins 10

City of Cleburne v. Cleburne Living Ctr., 473

iene 7,15, 17,19

DeShaney v. Winnebago Cnty. Dep’t of Soc.

is My EY, HI nsiccediinidcencannaionmnnieusntions 22

Eisenstadt v. Baird, 405 U.S. 488 (1972)................... 18

FCC v. Beach Communications, Inc., 508 U.S.

I actinic ledge taaid andes bneeieeatianasseuentiniitid 8

Frontiero v. Richardson, 411 U.S. 677 (1973)............ 21

Gard v. Gard, 169 N.W. 908 (Mich. 1918) ................. 14

Goodridge v. Dept. of Public Health, 798 N.E.2d

SE NN: SETIEEY cctesnnteseedseneessenssoonecimmassioneneneiesssennonene 2

iil

TABLE OF AUTHORITIES ~ Continued

Page

Griswold v. Connecticut, 381 U.S. 479

EI inicicnciosencnnitiienaceneueedltnaimhteuanieidiueaimiiial 11, 22, 24, 25

Harper v. Va. St. Bd. of Elections, 383 U.S. 663

ee cveriecsnicsscencetereninninhienscitiniaiaiatindaiidiiadetaink rae neue 9

In re Marriage Cases, 183 P.3d 384 (Cal. 2008) ........ 24

Johnson v. Robison, 415 U.S. 361 (1974)............. 14, 15

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

Loving v. Virginia, 388 U.S. 1 (1967)......... 4, 21, 22, 26

Maynard v. Hill, 125 U.S. 190 (1888)................0....... 26

Minnesota v. Clover Leaf Creamery Co., 449

ee ee iiecensresonssenssiniinindibinmisteuusesemaeammasananl 19

Nguyen v. INS, 533 U.S. 53 (2001) ...... eee 20

Plessy v. Ferguson, 163 U.S. 537 (1896) .................... 12

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

Schuette v. Coal. to Defend Affirmative Action,

Pe ts Grex. I Ce iiisinutindienidiiiansineaniannamaiaeacnadinnee 7

eae G. Fen, 6 Gk Fe Cee svinttiitiienamnenaae 14

Town of Greece v. Galloway, 134 S.Ct. 1811

Ge cccseseenseccsedannenninidniimiishanisiieiiieaasssea 23

Turner v. Safley, 482 U.S. 78 (1987) .............. 22, 24, 25

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

GREED convencscnscncoeieosssnianntitmsinidaiesemmel passim

W. Va. St. Bd. of Educ. v. Barnette, 319 U.S.

Be Ge nccccciscnscocterenetininiiticliananaamenae 7

iv

TABLE OF AUTHORITIES — Continued

Page

Watson v. City of Memphis, 373 U.S. 526 (1963)....... 21

Zablocki v. Redhail, 434 U.S. 374 (1978).....4, 9, 22, 26

CONSTITUTIONAL PROVISIONS

ES a 23

U.S. Const. amend. XIV ........................... 1, 3, 8, 11, 19

STATUTES

Mich. Comp. Laws $551.2 (2015) ...................cceseeeeeees 13

OTHER AUTHORITIES

MAY IT PLEASE THE COURT (Peter Irons &

Stephanie Guitton eds., 1993) .....................c0eceeeeees 26

Mich. House Fiscal Agency, Legislative Analy-

sis: Prohibit Same-Sex Marriages and Simi-

ee 4,5

Mich. Op. Att’y Gen. No. 7171 (2005) .......................... 6

Neb. Op. Att’y Gen. No. 03004 (2003).......................... 6

RESOLVE: The National Infertility Associa-

tion, Fast Facts about Fertility .............................. 16

1

INTRODUCTION

Despite the State’s efforts to justify excluding

same-sex couples from marriage, it remains clear that

Michigan’s marriage bans violate the Fourteenth

Amendment. The State’s insistent refrain is that the

question whether same-sex couples have a right to

marry is one for voters and legislators, not for this

Court. But it is the office of this Court to enforce

Petitioners’ constitutional rights to liberty and equal-

ity. The marriage bans violate these mutually rein-

forcing guarantees, which together “demand respect”

for the “personal bond” shared by two adult persons

of the same sex who love and commit their lives to

one another. Lawrence v. Texas, 539 U.S. 558, 567,

575 (2003). The bans deny these adults the ability to

obtain any legal recognition for their relationships.

They deny same-sex couples access to the one institu-

tion — marriage — that affirms the dignity of a loving

adult couple’s “enduring” “bond,” id. at 567, and the

countless protections and benefits that marriage

guarantees.

I. The Marriage Bans Violate Fundamental

And Reinforcing Principles Of Equality

And Liberty Which Limit State Action

A. The State Concedes The Marriage

Bans Inflict Substantial Harms

The State never denies the real harms inflicted

by depriving same-sex couples of access to marriage.

Marriage confers both significant “protection[s}] and

2

dignity,” which the marriage bans deny to same-sex

couples and their families. United States v. Windsor,

133 S. Ct. 2675, 2692 (2013); Goodridge v. Dept. of

Public Health, 798 N.E.2d 941, 955 (Mass. 2003). The

bans withhold from same-sex families legal protec-

tions for their intimacy and autonomy. Under state

law, a marriage license is what entitles each spouse to

make legal, medical, and familial decisions for the

other spouse as well as their children. Pet. Br. 24-27;

American Bar Association (“ABA”) Amicus Br. 20

(examples of persons denied access to their dying

partners). The bans also deny same-sex families vast

economic and legal benefits, including those that

facilitate ordinary transactions like purchasing a

home. ABA Br. 16, 21-25. In law and civil society

alike, the bans demean same-sex families. Marriage

is the mechanism by which states deem “a relation-

ship ... worthy of dignity”. Windsor, 133 S.Ct. at

2692. The marriage bans, which eliminate all poten-

tial suitable marital partners for gay people, confirm

the “negative views” of same-sex relationships that

define what it means to be gay. Baskin v. Bogan, 766

F.3d 648, 658 (7th Cir. 2014), cert. denied, 135 S. Ct.

316 (2014).

Denying marriage to same-sex couples also

significantly harms their children. The bans stigma-

tize these children by deeming their families unwor-

thy of any public status or protection. American

Psychological Association (“APA”) Amicus Br. 30-32;

Family Equality Council Amicus Br. 24-34; Pet. Br.

48. Denying marriage to same-sex couples also

3

results in a variety of economic and legal inequities

for their children and deprives them of the salutary

effects of having married parents. See Pet. Br. 11-12;

American Sociological Association (“ASA”) Amicus

Br. 18; Gary Gates Amicus Br. (“Gates”) 21-23.

B. The Fourteenth Amendment’s Guaran-

tees Of Liberty And Equality Limit

State Action

The State’s arguments obscure what this case is

about: Whether state governments can deny gay

people the recognition and protections for their rela-

tionships and families that others take for granted.

The State conspicuously avoids discussing the mar-

riage bans’ substantial affronts to gay people’s consti-

tutional liberty and equality, instead invoking

federalism and the democratic process. But the

Fourteenth Amendment ensures that individuals’

rights to equality and liberty are not left to state

governments’ political processes. Judicial enforce-

ment of these constitutional rights is the essence of

our constitutional scheme.

States’ general authority to define and regulate

marriage is cabined by the imperative to “respect the

constitutional rights of persons.” Windsor, 133 S. Ct.

at 2691. The State wrongly disregards Petitioners’

claim on the ground that it has “no constitutional

tether” because “the Constitution is silent regarding

marriage.” Resp. Br. 15. But the “components of

liberty in its manifold possibilities” are not spelled

4

out in full detail by the Constitution’s text. Lawrence,

539 U.S. at 578; Albright v. Oliver, 510 U.S. 266

(1990) (Kennedy, J., concurring) (a state measure

“that does not contravene one of the more specific

guarantees of the Bill of Rights may nonetheless

violate the Due Process Clause”). And while the Court

has used different labels, it has long recognized the

constitutional significance of marriage. Loving uv.

Virginia, 388 U.S. 1, 12 (1967) (a “basic civil right[ ]”

and “fundamental freedom”); Zablocki v. Redhail, 434

U.S. 374, 387 (1978) (“fundamental”).

The State nevertheless asks the Court to “en-

trust{] ... the people ... to engage in public debate

and governance” rather than fulfill its constitutional

role to protect Petitioners’ basic civil right to marry.

Resp. Br. 10. But the origins, broad scope, and harm-

ful message of the bans — and similar state constitu-

tional amendments and statutes enacted in the 1990s

and 2000s — illustrate the necessity of judicial action.

The bans were reflexive reactions to legislative

developments and state court decisions in Hawai'i

and Massachusetts that recognized the promise of

equality for same-sex couples. See Romer v. Evans,

517 U.S. 620, 623-24 (1996) (noting “[t]he impetus” of

invalid law was “ordinances which banned discrimi-

nation” on account of “sexual orientation”); Pet. Br.

at 7-9. The bans also followed DOMA, which placed

a powerful “‘thumb on the scales’” to “discourage

enactment of state same-sex marriage laws.” Wind-

sor, 133 S. Ct. at 2693 (citation omitted); see Mich.

House Fiscal Agency, Legislative Analysis: Prohibit

5

Same-Sex Marriages and Similar Unions at 2 (Oct.

25, 2004), http://www.house.mi.gow/hfa/archives/pdf/

ballot04-02. pdf (last visited Apr. 15, 2015) (citing DOMA).

The enactments went beyond merely excluding

same-sex couples from marriage. See Romer, 517 U.S.

at 632 (explaining that the amendment’s “sheer

breadth” and “broad and undifferentiated disability”

rendered it unconstitutional). Michigan declared that

only “one man and one woman” could enter into any

“similar union for any purpose.” This language was

designed to mandate much broader governmental

discrimination including, for example, barring same-

sex partners from sharing health insurance benefits

provided by public employers. Pet. Br. 9. By enacting

and then constitutionalizing such comprehensive

discrimination, the bans shut down political debate

over equality for same-sex relationships and walled

off state political process from any discrete protec-

tions same-sex couples could seek for their relation-

ships.. Human Rights Campaign Amicus Br. 13-15.

State officials used the no-similar-union provisions

to argue that legislatures and municipalities were

* Michigan and Kentucky claim that their newly minted

statutes were not enacted to discriminate since same-sex couples

were already unable to marry. This merely raises the question of

what legitimate reason the states had for repeatedly enacting

burdensome marriage bans. And a history of excluding same-sex

relationships from marriage should not be presumed to be bias-

free given the extensive history and legacy of discrimination

against gay people. U.S. Amicus Br. 3-6, 17; Organization of

American Historians (“OAH”) Amici Br. 28-34.

6

barred from considering or enacting bills that would

allow surviving “domestic partners” to bury a de-

ceased partner’s remains. See Neb. Op. Att’y Gen. No.

03004 (2003); see also Mich. Op. Att’y Gen. No. 7171

(2005) (marriage bans foreclose laws allowing public

employers to provide domestic partners benefits).

Courts suggested that the provisions even barred gay

parents from visitations with their own children from

a prior marriage if the parent lived with a same-sex

partner in a civil union and the parent’s divorce

decree prohibited visitations during “overnight stays

with any adult to whom [the parent] was not legally

married.” Burns v. Burns, 560 S.E.2d 47, 48 (Ga. Ct.

App. 2002); see Ninety-Two Plaintiffs in Marriage

Cases Amicus Br. 25-31.

The state measures also often explicitly or implic-

itly declared gay people’s relationships incompatible

with societal values. Michigan proclaimed it had “a

special interest in ... protecting” the “relationship

between a man and a woman.” Such a committed

adult relationship is undoubtedly worth protecting,

but the bans’ implication is that a committed rela-

tionship between gay adults is not worth protecting.

See Mich. House Fiscal Agency, supra, 4-5 (bans’

proponents maintained that “[e]fforts to alter tradi-

tional marriage are driven by the selfish needs of

individuals”). The bans also imply that committed

different-sex relationships need protection from

same-sex relationships. /d. (bans’ proponents main-

tained legal recognition of same-sex relationships is

“harmful to society and to heterosexual marriage”).

7

The State’s message that same-sex relationships are

undeserving of legal respect is not a constitutionally

acceptable message, regardless of whether it results

from a nominally democratic process. See Lawrence,

539 U.S. at 578 (“The State cannot demean thel |]

existence” of gay people.).

The State relatedly suggests that this case is

about the “liberty to engage in self-government.”

Resp. Br. 13. But ours is a constitutional democracy,

and citizens do not enjoy the right to “equal[] ...

treatment” or the “substantive guarantee([s] of liber-

ty” only when they persuade political majorities such

rights exist. Lawrence, 539 U.S. at 575; see Romer,

517 U.S. at 632-33; City of Cleburne v. Cleburne

Living Ctr., 473 U.S. 432, 448 (1985); Pet. Br. 28.

“(FJundamental rights may not be submitted to vote;

they depend on the outcome of no elections.” W. Va.

St. Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943).

The mere fact that states have voted on whether

same-sex couples may marry does not mean these

couples have no right to do so.

For all of these reasons, the Court should firmly

reject the State’s claim that Petitioners are “weak-

en[ing} democracy” by asking that their constitutional

rights be enforced. Resp. Br. 15. “[WJhen hurt or

injury is inflicted ... by the encouragement or com-

mand of laws .. . the Constitution requires redress by

the courts.” Schuette v. Coal. to Defend Affirmative

Action, 134 S. Ct. 1623, 1637 (2014) (Kennedy, J.); see

Mehlman Amicus Br. 28-29. No sound constitutional

principle permits the Court to stand aside and allow a

8

political process steered by “want of. . . careful reflec-

tion” or past fears to disadvantage same-sex families,

especially when the bans may have closed off the

political process to proponents of same-sex couples

marrying and those who have changed their minds.

Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356,

374 (2001) (Kennedy, J., concurring).

Il. The Marriage Bans Deny Petitioners Equal

Protection Under Any Level Of Scrutiny

A. The Marriage Bans Are Subject To

Heightened Scrutiny Because They

Unequally Burden A Particular Class

Of Citizens’ Right To Marriage

1. The State’s efforts to avoid application of the

Equal Protection Clause are unavailing. The State

claims that “judicial restraint” defines rational-basis

review. Resp. Br. 29-31. But this Court’s cases the

State cites do not involve burdens on fundamental

rights or government institutions with such profound

significance as marriage; one case noted that the

scope of judicial review would be different if it did.

FCC v. Beach Communications, Inc., 508 U.S. 307,

313 (1993) (defining rational basis review for a

“classification that” did not “infringe[ ] fundamental

constitutional rights”). Unequal burdens on funda-

mental rights require heightened scrutiny even where

the burden is on a class that would not otherwise

trigger heightened review. Attorney Gen. of N. Y. v.

9

Soto-Lopez, 476 U.S. 898, 902 (1986); Harper v. Va.

St. Bd. of Elections, 383 U.S. 663, 670 (1966).

2. The State expresses concern about future

hypothetical challenges to other types of marriage

restrictions. Resp. Br. 23, 27. But wherever the line

of delineating permissible marital restrictions is

drawn, it cannot be drawn on sexual orientation

alone. The constitutional guarantee of liberty allows

“persons in a homosexual relationship [to] seek

autonomy” for personal choices relating to “mar-

riage, procreation, ... family relationships, [and]

child rearing” “just as heterosexual persons do.”

Lawrence, 539 U.S. at 567, 574-75. The bans violate

this guarantee of liberty because they eliminate any

possible spouse for gay people by not allowing gay

people to marry consistent with their sexual orienta-

tion. They “absolutely prevent[{[]” gay people “from

getting married.” Zablocki, 434 U.S. at 387. Other

marriage restrictions regarding age, consanguinity, or

bigamy do not similarly exclude particular classes of

people from marrying.

B. The Marriage Bans Are Subject To

Heightened Scrutiny Because They Im-

pose Inequality On Individuals Based

On Their Sexual Orientation

1. The bans discriminate based on _ sexual

orientation because they prevent all gay couples from

marrying consistent with their sexual orientation.

The State characterizes the classification as one of

10

“biological complementarity” instead of sexual orien-

tation. Resp. Br. 46, 52. But that is just another way

of describing the fact that the laws do not allow same-

sex couples to wed and, therefore, exclude all gay

people from marrying.

The State’s efforts to evade this reality highlight

why classifications based on sexual orientation

should receive no presumption of constitutionality.

The State denies that sexual orientation is “a particu-

lar ‘characteristic’ at all.” Resp. Br. 51. But this Court

has made clear that for purposes of sexual orienta-

tion, “status and conduct” are linked: Laws that

target “homosexual conduct” — acting on a same-sex

sexual orientation — target “homosexual persons.”

Christian Legal Socy. v. Martinez, 561 U.S. 661, 689

(2010); Lawrence, 539 U.S. at 575; see APA Br. 10.

The State relatedly assures the Court that “the long

history of unfair treatment against same-sex conduct”

is “not what this case is about.” Resp. Br. 52 (empha-

sis added). But the bans exclude same-sex couples

from marriage based on those couples’ orientation

toward a person of the same sex; denying same-sex

marriage is therefore inextricably linked to discrimi-

nating against gay people. And there are reasons to

believe Michigan’s recent laws are about “unfair

treatment” of gay people: The bans were enacted

abruptly when some states seemed likely to allow

same-sex couples to marry, and they follow on the

long history of criminalizing same-sex intimacy and

denying equal treatment to gay people.

11

The State simultaneously claims that gay people

are a small minority whose “significant political

power” explains why more than half the nation now

supports allowing same-sex couples to marry, and

that gay people are a “large and amorphous class”

like “‘poor’ people” or the “mentally disabled” who

therefore cannot constitute “a discrete group.” Resp.

Br. 49, 51. The State’s conflicting arguments under-

score why the political process continues to enact and

fail to rectify discriminatory classifications based on

sexual orientation.

2. The marriage bans deny gay people “‘the

protection of equal laws.’” Romer, 517 U.S. at 633-34

(citations omitted).

In depicting the bans as merely “[p]roviding

public benefits” to opposite-sex relationships, Resp.

Br. 18, the State ignores the constitutional signifi-

cance of civil marriage — a government institution

providing a panoply of legal protections, benefits, and

status for personal and family relationships. The

Equal Protection Clause embodies a “commitment to

the law’s neutrality where the rights of persons are

at stake,” and the marriage bans exhibit no such

neutrality. Romer, 517 U.S. at 623. The bans deny to

Petitioners the many attendant protections of mar-

riage, including those safeguarding couples’ intimacy

and autonomy, Griswold v. Connecticut, 381 U.S. 479,

486 (1965), as well as those that facilitate “ordinary

civic life in a free society.” Romer, 517 U.S. at 631;

Pet. Br. 24-27; ABA Br. 8-29.

12

The State wrongly insists that restricting mar-

riage to different-sex couples “does not disparage”

same-sex relationships. Resp. Br. 18. The State’s

brief, however, demonstrates that its reasons for

excluding same-sex couples from marriage trivialize

gay people’s constitutionally protected intimate

relationships. For example, the State’s argument that

loving and committed same-sex relationships may be

excluded from marital protection compares same-sex

relationships to platonic friendships, which receive no

constitutional sanctuary. Resp. Br. 31-32.

The bans also place gay people “in a solitary class

..- in both the private and governmental spheres.”

Romer, 517 U.S. at 627. They therefore violate the

cherished principle that the law “neither knows nor

tolerates classes among citizens.” Jd. at 623 (quoting

Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan,

J., dissenting)). Only same-sex couples are in the

untoward position of enjoying constitutional protec-

tion for their intimate relationships, Lawrence, 539

U.S. at 574, 578, while having those relationships

demeaned as “[un]worthy of dignity in the communi-

ty,” and “[un]worthy of” the “protection([s]” of mar-

riage. Windsor, 133 S. Ct. at 2692. The bans further

deny gay people the “protection” of the laws, Romer,

517 U.S. at 633, by forbidding any legal recognition of

“any similar union” that might provide access to

discrete protections for same-sex couples’ intimate

lives and families.

13

C. The Marriage Bans Fail Rational Basis

Review

1. The State’s primary constitutional defenses

depend on two unpersuasive constructs.

First, the State relies on a hollowed-out concep-

tion of marriage — largely developed as a post-hoc

justification — that inaccurately depicts marriage as

solely about responsible procreation. Resp. Br. 17

(“(T]he state’s interest in marriage has always been to

encourage individuals with the inherent capacity to

bear children to enter a union that supports raising

children.”). The State’s account of marriage bears

little resemblance to actual marriage law in Michigan

or other states, which focuses on the spousal bond,

not the capacity to bear children. Under state law,

marriage establishes a legally enforceable commit-

ment from one spouse to another, obligating them to

remain married until the state decrees otherwise.

See, e.g., Mich. Comp. Laws §551.2 (2015) (marriage

is a “civil contract”); Pet. Br. 14, 24-27 (marriage law

facilitates stable households for committed adult

relationships whether or not they result in children);

Family Law Scholars Amici Br. 4-8 (“Family Schol-

ars”) (marriage laws emphasize spousal relationship).

State law also recognizes how marriage affirms a

couple’s intimate bond. See, e.g., Carter v. Hill, 45

N.W. 988, 989 (Mich. 1890) (marital privilege “pre-

serve[s] with sacredness the confidences of the mar-

riage state”).

14

The State maintains that some state cases de-

scribe procreation as the essence of marriage. Resp.

Br. 17. But the cases it cites recognize other purposes

to marriage, including the “promotion of the happi-

ness of the parties by the society of each other.” Gard

v. Gard, 169 N.W. 908, 909-10 (Mich. 1918); see Baker

v. Baker, 13 Cal. 87, 103 (1859) (same); State v. Fry, 4

Mo. 120, 126 (1835) (in marriage “each acquires a

right in the person of the other for the purpose of

mutual happiness”). Gard involved an annulment

where a wife had misrepresented to her husband

before marriage that she was pregnant with his child;

its discussion of the State’s interest in procreation

concerned an interest in legitimacy. 169 N.W. at 909-

10 (describing interest as “the procreation of children,

who shall with certainty be known by their parents as

the pure offspring of their union”); Historians of

Marriage Amicus Br. 6-7 (legitimation of children

among state interests in marriage).

Second, relying on Johnson v. Robison, 415 U.S.

361, 383 (1974), the State insists it need not offer any

legitimate purpose for excluding a particular group

but need only articulate why the “inclusion of one

group promotes a legitimate governmental purpose.”

Resp. Br. 11, 35-37. This myopic approach disregards

the numerous cases requiring a rational explanation

for why legal exclusions rationally further a legiti-

mate state interest. Pet. Br. 33-35. The reason is

plain: A law that causes harm must be explained by

reference to those who are harmed, and a classifica-

tion must be explained by reference to those classified

15

as excluded. Romer, 517 U.S. at 626-35; Cleburne, 473

U.S. at 449 (rational-basis review requires showing

why “the characteristics of the .. . [plaintiffs] ration-

ally justify denying [them] what would be permitted

to [other] groups”).

The State also misunderstands Robison. In

upholding a program providing educational benefits

to active-duty veterans but not to conscientious

objectors, this Court did not focus solely on whether

including veterans furthered the government’s inter-

est in encouraging military service. Rather, the Court

determined whether the included and excluded

groups were similarly situated with respect to that

interest and concluded they were not. The State

would have the Court skip any inquiry into whether

same-sex couples are similarly situated to different-

sex couples with respect to the purposes of marriage.

See Cleburne, 473 U.S. at 432 (noting that defen-

dant’s “concern ... can hardly be based on a distinc-

tion between” excluded plaintiffs and others not

excluded). Additionally, in Robison, there was no

argument that the relevant benefits were provided to

persons who failed to further the government’s identi-

fied interest; the legislative objectives of the chal-

lenged program were not seriously disputed. See 415

U.S. at 378.

2. The State attempts to define away the consti-

tutional issues by tethering the State’s interest in

marriage to the “feature of opposite-sex relationships

that is biologically different from all other relation-

ships” — the ability to create children. Resp. Br. 32.

16

However, excluding same-sex couples from marriage

bears no rational relationship to the desire to offer

protections to couples who may procreate biologically.

States offer different-sex couples nothing additional

by excluding same-sex couples from marriage. And

there is no rational account of how discriminating

against same-sex relationships affects different-sex

couples’ parenting decisions, inclinations to marry, or

marital birth rates. Gates Br. 18 (summarizing stud-

ies in social science journals); J.A. 113-15.

Same-sex couples are also similarly situated to

many different-sex couples who are permitted to

marry with no regard for whether they will “procreate

biologically.” States allow persons of advanced age as

well as women over 55 to marry. States confirm

different-sex couples’ parentage of children conceived

through assisted reproduction,’ and allow married

couples to adopt children biologically unrelated to

them and to establish legal parentage in ways aside

from biology. Family Scholars Br. 11-18. The State

thus allows different-sex couples to marry whether

they have children or children genetically connected

to either parent. Yet it refuses to do the same for

same-sex couples, including those similarly situated

to different-sex couples in how and whether they

bring children into a marriage. Pet. Br. 35-37.

* One in eight couples (12% of married women) has fertility

issues. RESOLVE: The National Infertility Association, Fast

Facts about Fertility, at http://www.resolve.org/about/fast-facts-

about-fertility.html (last viewed April 15, 2015).

17

The State’s marital policies belie its suggestion

that responsible procreation is the aim of marriage.

See Cleburne, 473 U.S. at 447-50. The State’s fear

that allowing same-sex couples to marry will “change”

the “meaning” of marriage makes no sense where it

already allows “non-procreative” couples to marry.

Resp. Br. 35-36.

The State suggests that the Constitution forbids

it from subjecting individuals to privacy-invading

fertility tests. Resp. Br. 34. But the autonomy-based

constraints the State identifies — concerns it else-

where dismisses as lacking any “constitutional tether”

— are why the bans themselves are unconstitutional.

The bans violate individuals’ autonomy to define their

personal and familial lives consistent with their

sexual orientation. The State’s purported interests in

“connect{ing] sexuality ... with marriage” and “con-

nect[ing] ... having children with ... marriage” only

illustrate why the bans implicate same-sex couples’

rights to autonomy. Resp. Br. 35-36. The State’s

argument seems to rest on a preferred sexuality —

different-sex sexuality over same-sex sexuality — and

seeks to discourage same-sex intimacy. However,

“[plersons in a homosexual relationship” retain the

same “autonomy for” “thelir] most intimate and

personal choices” “as heterosexual persons.” Law-

rence, 539 U.S. at 574. If the State instead means it

would like to uniquely discourage same-sex couples

from procreating or raising children, the bans merit

the kind of heightened scrutiny applicable to laws

implicating such fundamental decisions as whether to

18

“bear or beget a child.” Eisenstadt v. Baird, 405 U.S.

438, 453 (1972).°

3. The State also claims that “[iJt is within the

realm of reason to believe that children benefit from

being raised by both a mother and a father.” Resp. Br.

39. The State’s speculation about optimal parenting

structures, however, is not rationally related to the

bans. The bans force same-sex couples to parent

outside of marriage. They deny to children of same-

sex couples the child-rearing structure the State

prefers — the protections and stability that come with

growing up in a home with married parents. See

Windsor, 133 S. Ct. at 2694-95; Resp. Br. 32 (noting

“marriage definition is designed to stabilize

relationships” that involve raising children). The

State notes that with “any marriage definition”

children “will be raised by unmarried persons,” but

the bans bar couples from marrying who are not

“unwilling to marry.” Resp. Br. 19.

The bans are not rationally related to parenting

outcomes for other reasons. They prohibit every

* The Bipartisan Legal Advisory Group similarly argued,

and this Court in Windsor did not accept, that DOMA was

justified as furthering “responsible procreation.” Brief on the

Merits for Bipartisan Legal Advisory Group of the U.S. House of

Representatives at 11, 21, Windsor, 133 S. Ct. 2675 (No. 12-307).

* Same-sex couples, particularly married couples, represent

a disproportionately large portion of adoptive and foster parents

and play an outsized role in caring for America’s most vulnera-

ble children. Gates Br. 10-14; J.A. 75-76.

19

same-sex couple, regardless of parenting ability, from

marrying but do not penalize any other class of

potentially non-optimal parents (or their children) by

categorically denying them the protections of mar-

riage. See Pet. Br. 38. There is also no reason to

believe — besides the State’s unsubstantiated specula-

tion — that allowing same-sex couples to marry affects

different-sex couples’ decisions to marry or raise

children in a marriage, and the evidence is to the

contrary. J.A. 113-15.

The State’s implicit view that different-sex

couples — “a mother and a father” — are better parents

is contradicted by the established consensus of medi-

cal, psychological, and social welfare experts. J.A. 66-

69; APA Br. 18-29; ASA Br. 5-27. It also contradicts

the extensive evidence from this case’s nine-day trial

that focused on what factors contribute to healthy

child development.’ The district court found that

parents’ biological relationship to their children,

parents’ sex, and parents’ sexual orientation were not

* The district court concluded that the State’s witnesses

were “unbelievable.” Pet. App. 122a-23a. The State now com-

plains that its asserted rationales “do not have to be proved by

evidence at trial.” Resp. Br. 30. But a plaintiff “may introduce

evidence” that shows a state law violates the Equal Protection

Clause. See Minnesota v. Clover Leaf Creamery Co., 449 U.S.

456, 46 (1981); see Cleburne, 473 U.S. at 442 n.9 (crediting trial

testimony on social-science questions).

20

rationally related to children’s psychological adjust-

ment. Pet. Br. 10-16; Pet. App. 109a, 127a-31a.°

Despite the State’s claims to the contrary, its

preference for different-sex couples impermissibly

relies on stereotypes about men and women’s respec-

tive parenting views and styles. Resp. Br. 39-40. The

State’s brief, replete with references to the “important

viewpoints and contributions” of men and women and

“biological complementarity,” speaks for itself. Resp.

Br. 39-40. The State’s citations to Nguyen v. INS, 533

U.S. 53, 73 (2001), and other cases do not justify the

stereotypes the State relies on because those cases

addressed the biological fact that women, not men,

bear children. Resp. Br. 38, 55-56.

4. Asa final resort, the State asserts an interest

in proceeding with caution. Resp. Br. 41. Windsor,

however, recognized “the urgency of this issue for

same-sex couples,” 133 S. Ct. at 2689, and the harms

* The State misrepresents Petitioners’ experts’ testimony by

suggesting they “agree” that “different sexes bring different

contributions to parenting.” Resp. Br. 35. Professor Nancy Cott,

a historian, when asked by Michigan’s counsel if “there are

different benefits to mothering versus fathering,” said, “[tJhere

may be. I, I am not a psychological expert.” J.A. 168-69. Psy-

chologist Dr. Brodzinsky did not simply state there are “differ-

ences in the ways that mothers and fathers interact with their

children” “on average.” J.A. 35-39. Dr. Brodzinsky explained that

“both men and women do the same kinds of things,” that

parenting roles vary between and within families with no harm

to children, and that mothers and fathers are equally capable of

fully meeting children’s needs. J.A. 35-39.

21

that waiting inflicts on families like Petitioners. Pet.

Br. 24-27; Colage Amici Br. In Support Of Certiorari

23-34; see Watson v. City of Memphis, 373 U.S. 526,

533 (1963) (“The basic guarantees of our Constitu-

tion are warrants for the here and now.”). There is

also nothing to wait for. The evidence is in: Married

same-sex couples live for their families and commu-

nities to see, and there is no credible argument for

denying marriage to same-sex couples. Appeals to

caution do not justify laws that discriminate based on

particular characteristics, Frontiero v. Richardson,

411 U.S. 677 (1973), or implicate fundamental rights.

In Loving, this Court rejected Virginia’s argument

that “caution” justified anti-miscegenation statutes,

and it should reject the State’s similar appeal here.

See Brief of Appellee at 46, Loving, 388 U.S. 1 (No.

395). The State’s appeal rings especially hollow given

the lack of caution in enacting a constitutional

amendment that indefinitely entrenches discrimina-

tion into law.

The State argues it could not defend a variety of

other laws if Petitioners’ arguments succeed. Resp.

Br. 31, 33-35. But even minimal equal protection

review requires state governments to identify some

legitimate purpose and explain how -its laws are

rationally connected to that purpose, and the bans

fail that standard. Pet. Br. 38-42.

22

Ili. The Marriage Bans Deprive Petitioners Of

A Fundamental Liberty Interest

A. The State also has no real answer to Peti-

tioners’ showing that the bans violate due process by

denying same-sex couples the fundamental right to

marry. It asserts without citation that “if a state got

out of the business of recognizing relationships en-

tirely ... there would be no constitutional injury to

anyone.” Resp. Br. 27. However, numerous cases

affirm that civil marriage is a fundamental right — it

could not be wholly withdrawn without constitutional

objection. See supra Part I.A; Pet. Br. 56-57, 62-63.

The State next accuses Petitioners of transform-

ing the substantive-due-process doctrine from a

“shield” for “negative” rights into a “sword” “that

guarantees positive rights.” Resp. Br. 27. But because

marriage exists only as a matter of civil law, the right

to marry functionally operates as a right to have one’s

marriage licensed by the state. For that reason,

Loving, Zablocki and Turner v. Safley, 482 U.S. 78, 95

(1987), all effectively required states to license par-

ticular marriages. The State’s argument, and its

reliance on cases like DeShaney v. Winnebago Cnty.

Dep't of Soc. Servs., 489 U.S. 189 (1989), misunder-

stands the nature of marriage. Resp. Br. 27.

DeShaney addressed the states’ obligation to protect

“against invasion[s] by private actors” or to provide

government aid. 489 U.S. at 195. Marriage, by con-

trast, is partially a “right” of autonomy that protects

couples’ ability to construct their personal identities

and relationships, Griswold, 381 U.S. at 495

23

(Goldberg, J., concurring), Pet. Br. 56-57, and guaran-

tees each spouse’s freedom to make legal, medical,

and other decisions for a couple’s family. Pet. Br. 24-

27. Same-sex couples are entitled to these guarantees

of liberty just as different-sex couples are.

B. The State alternatively would define the

contours of the right to marry such that it can only be

exercised by those who have traditionally enjoyed it,

or otherwise define the right so narrowly it ceases to

be recognizable. The State suggests fundamental

rights are defined as “practice[s} ... accepted by the

Framers [that have] withstood the critical scrutiny of

time and political change.” Resp. Br. 20, 22 (quotation

omitted). “‘History and tradition,’” however, “‘are the

starting point but not in all cases the ending point of

the substantive due process inquiry.’” Lawrence, 539

U.S. at 572 (citation omitted); Pet. Br. 57-62; Lau-

rence Tribe & Michael Dorf Amicus Br. 9-13. This

aspect of due process is necessary to “correct ...

injustice[s] ... not earlier known or understood.”

Windsor, 133 S. Ct. at 2689. Town of Greece v. Gallo-

way, 134 S. Ct. 1811 (2014), does not say otherwise.

See Resp. Br. 23-24. That case involved the Estab-

lishment Clause. U.S. Const. amend. I. It did not

dictate how fundamental rights are defined and it did

not involve an exclusion of an entire class based on

identity.

The State then seeks to define marriage in a way

that drains it of its constitutional significance. It first

equates the “right to marriage” with different-sex

marriage by claiming that “the opposite-sex right to

24

procreate ... is the key reason why this Court has

recognized any due-process right in marriage at all.”

Resp. Br. 24. But our legal tradition has defined the

right as a protection for more than procreation: It

protects “expressions of emotional support and public

commitment,” Turner, 482 U.S. at 95; “expression(s]

of personal dedication,” id. at 96, “acknowledgment(s]

of [an] intimate relationship,” Windsor, 133 S. Ct. at

2692; “coming together for better or for worse,” Gris-

wold, 381 U.S. at 487; and other features unrelated to

procreation. Pet. Br. 62-63; In re Marriage Cases, 183

P.3d 384, 419-32 (Cal. 2008). Indeed, Lawrence recog-

nized that “it would demean a married couple were it

to be said marriage is simply about the right to have

sexual intercourse.” 539 U.S. at 567. The personal

bonds and love that marriage recognizes stand for

more than couples’ ability to procreate in a particular

way.

The State’s account of the contours of the right to

marry also fails to explain Turner. Turner invalidated

a prison restriction that only permitted prisoners to

marry in cases involving “pregnancy or birth of a

child” because it violated prisoners’ right to marriage.

482 U.S. at 96-97. The Court, therefore, rejected the

idea that the right to marriage exists only to safe-

guard couples’ ability to procreate. The Court distin-

guished a prior summary affirmance involving a

“prohibition on marriage only for inmates sentenced

to life imprisonment” because “importantly, denial of

the right was part of the punishment for [the] crime.”

Id. at 96.

25

The State also asserts that “[t]here are . .. many

competing views on the nature and purpose of...

marriage,” and that it has adopted the “conjugal”

version that views marviage as a union for purposes

of raising a family. Resp. Br. 1, 3. But the existence of

different accounts of marriage does not change its

core constitutional “elements.” Turner, 482 U.S. at 96.

Same-sex couples, no less than different-sex couples,

may form the kinds of “enduring” and “personal

bond[s],” Lawrence, 539 U.S. at 567, “sufficient to

form a constitutionally protected marital relation-

ship.” Turner, 482 U.S. at 96. Same-sex couples are

also similarly situated to many different-sex couples

with respect to the goal of raising children in a family.

The bans merely preclude same-sex couples from

raising children in a home with the protections and

stability of marriage. To the extent that there are

multiple accounts of marriage, different-sex couples

who aspire to either version of marriage are free to

marry while same-sex couples similarly situated to

them are denied the ability to do so.

Finally, the State is wrong to suggest that invali-

dating the marriage bans would invalidate restrictions

on polygamy or youth. Resp. Br. 19, 23. This “case

does not involve minors.... [It] involve[s] two

adults.” Lawrence, 539 U.S. at 578. And the funda-

mental right to marriage is a “bilateral loyalty,”

Griswold, 381 U.S. at 486, “between two people.”

Windsor, 133 S. Ct. at 2692. The restrictions the State

identifies also do not delegitimize an entire category

of relationships that define particular identities, or

26

deny freedom to “enter into the marital relationship”

at all. Zablocki, 434 U.S. at 386. Age restrictions only

defer, rather than deny, marriage rights. The Court

should reject these calls to limit the right to marriage

just as it did in Loving. See MAY IT PLEASE THE

COURT 282-283 (Peter Irons & Stephanie Guitton

eds., 1993) (Virginia argued “the state’s prohibition of

interracial marriage ... stands on the same footing

as the prohibition of polygamous marriage ... or the

prescription of minimum ages... ”).

* * *

Marriage is “the most important relation in life.”

Maynard v. Hill, 125 U.S. 190, 205 (1888). It cannot

be denied to loving adult couples based on sexual

orientation alone.

27

CONCLUSION

For the foregoing reasons, the judgment of the

court of appeals should be reversed.

Respectfully submitted,

KENNETH M. MOGILL

MOGILL, POSNER & COHEN

27 E. Flint St., 2nd Floor

Lake Orion, MI 48362

(248) 814-9470

DANA M. NESSEL

NESSEL & KESSEL LAW

645 Griswold, Suite 4300

Detroit, MI 48226

(313) 556-2300

MARY L. BONAUTO

Gay & LESBIAN ADVOCATES

& DEFENDERS

30 Winter St., Suite 800

Boston, MA 02108

(617) 426-1350

CAROLE M. STANYAR

Counsel of Record

221 N. Main St., Suite 300

Ann Arbor, MI 48104

(313) 819-3953

cstanyar@wowway.com

ROBERT A. SEDLER

WAYNE STATE UNIVERSITY

LAW SCHOOL

471 W. Palmer St.

Detroit, MI 48202

(313) 577-3968

Counsel for Petitioners

April 17, 2015