Amicus Curiae Brief — Deboer v. Snyder, 135 S. Ct. 1040 (2015) (No. 14-571)
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Nos. 14 14 14-571 and 14
In the Supreme Court of the Anited States
JAMES OBERGEFELL, ET AL., PETITIONERS
v.
RICHARD HODGES, DIRECTOR, OHIO DEPARTMENT OF
HEALTH, ET AL.
VALERIA TANCO, ET AL., PETITIONERS
Vv.
BILL HASLAM, GOVERNOR OF TENNESSEE, ET AL.
APRIL DEBOER, ET AL., PETITIONERS
Vv.
RICK SNYDER, GOVERNOR OF MICHIGAN, ET AL.
GREGORY BOURKE, ET AL., PETITIONERS
Vv.
STEVE BESHEAR, GOVERNOR OF KENTUCKY, ET AL.
ON WRITS OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING PETITIONERS
DONALD B. VERRILLI, JR.
Solicitor
Counsel of Record
ee
Additional Counsel Listed on Inside Cover
nay fa -
cting Associate Attorney
General
VANITA GUPTA
—s C. -—y
cting Assistant Attorneys
General
IAN HEATH GERSHENGORN
Deputy Solicitor General
BETH S. BRINKMANN
GreEGoRY B. FRIEL
PAMELA S. KARLAN
. -~- Attorneys
ERIc J. FEIGIN
Assistant to the Solicitor
General
DIANA K. FLYNN
DOUGLAS N. LETTER
SHARON M. MCGOWAN
MICHAEL JAY SINGER
ROBERT A. KocH
ABBY C. WRIGHT
JEFFREY E. SANDBERG
(202) 514-2217
QUESTIONS PRESENTED
1. Does the Fourteenth Amendment require a
State to license a marriage between two people of the
same sex?
2. Does the Fourteenth Amendment require a
State to recognize a marriage between two people of
the same sex when their marriage was lawfully li-
censed and performed out-of-state?
(1)
TABLE OF CONTENTS
Page
I re Ce ee cccnscnnntrrnnnnersnnctenincmrememmesnnsiomannetn 2
STII i sniesieanesesinsrpapinninennensanemneeneunennmvenannaniatinnndaimminniiedstie: 2
I 11
Argument:
The state marriage bans violate the Equal Protection
I ecnnssnnsenanserenssmmnensnrecentenesenscsnenenenentneuensemnemeneinmenees 13
A. Classifications based on sexual orientation are
subject to heightened scrutiny .....................:.....0000+- 15
B. The state marriage bans fail heightened
I cnneccinernntarencenenerenpitsntadlicnsnsnssmsiimnatemermenenesees 25
C. The reasoning of United States v. Windsor
confirms the invalidity of the state marriage
ST iiciccnicrsnarnntencnnsenaiienintnnianminadeinpiaimnsniennnemmesasninnl 36
TABLE OF AUTHORITIES
Cases:
Adoption of Doe, In re, 719 N.E.2d 1071 (Ohio Ct.
Bs Fi esrarsensenesorsentnntescssnennsnscsensnectnnsnssenmsasssemescatinmessenenes 7
Baker v. Nelson:
a ee ntrirtncrnntirecnetecemasienccsntinsennaenneel 9, 21
SD Dee as I. IP Pecrcccccnscsennscensscenscenenssntennsnes 21
Baskin v. Bogan, 766 F.3d 648 (7th Cir.),
cert. denied, 135 S. Ct. 316 (2014) .................... 17, 19, 20, 28
Board of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356
Fes crnnncncsentnmnnscensnsssnepsnnmanemmnsenmasesnentessremmnenanemsennsnnesens
Bottoms v. Bottoms, 457 S.E..2d 102 (Va. 1995) hapasmasinennmsanent 5
Bowen v. Bowen, 688 So. 2d 1374 (Miss. 1997).............0000000 5
Bowen v. Gilliard, 483 U.S. 587 (1987)............... 16, 17, 19, 20
Bowers v. Hardwick, 478 U.S. 186 (1986) .................cccc0000- 30
Bray v. Alexandria Women’s Health Clinic,
a either ichteiaiteeatenara a inieiniaiiaataieiaaied 16
Cases—Continued: Page
Christian Legal Soc’y v. Martinez, 561 U.S. 661
eC 16
City of Cleburne v. Cleburne Living Ctr., 473 U.S.
eee passim
City of Eastlake v. Forest City Enters., 426 U.S. 668
GET Ui cccutucsancsnnmncnsmnmmanenncsenteiesteusnemimemanennenmmanteneneenteenaneetd 30
City of Richmond v. J.A. Croson Co., 488 U.S. 469
IID ccranssennnssceceqpsenentnsenmneencumnemapmenmmenesenmanmenmmmenmnnes 15
Clark v. Jeter, 486 U.S. 456 (1988) ...........cccceeeeseeees 15, 22, 25
Edelman v. Jordan, 415 U.S. 651 (1974) ..........--cccccceccsseeesees 21
Fiallo v. Bell, 430 U.S. T87 (1977) .......ccccsecccesssesesssssesessosseses 22
Frontiero v. Richardson, 411 U.S. 677 (1973)......... 16, 18, 20
Goldman v. Weinberger, 475 U.S. 503 (1986) .............0c0000 22
Goodridge v. Department of Pub. Health, 798 N.E.2d
ee Ss Geen neccnsnsencecenncsansevecsnsanintinnstansssasssesssesssesansscsssse 7
Graham v. Richardson, 403 U.S. 365 (1971) .......cc00cceecesees 19
Griswold v. Connecticut, 381 U.S. 479 (1965)..............00000 14
H.H., Ex parte, 830 So. 2d 21 (Ala. 2002) ............cccccseeeveeseeeees 5
Heller v. Doe, 509 U.S. 312 (19938) .........ccsssesserssesssseeressnseeens 30
J.E.B. v. Alabama T.B., 511 U.S. 127 (1994) 200......cccccccceeees 30
Johnson v. California, 543 U.S. 499 (Z005) .........0...ccecseereees 22
Kitchen v. Herbert, 755 F.3d 1193 (10th Cir.),
cert. denied, 135 S. Ct. 26 (2014) 2.0.0.0... cee cececeeeeeeee 23, 27
Lawrence v. Texas, 539 U.S. 558 (2008) ......-.cccceeeoeee passim
Lesbian/Gay Freedom Day Comm., Inc. v. INS,
541 F. Supp. 569 (N.D. Cal. 1982) .............co-cscssssesssesesesonees 4
Loving v. Virginia, 388 U.S. 1 (1967) ...........cccceseeeeeee passim
Lyng v. Castillo, 477 U.S. 635 (1986) .......-ccsccsessssvesseerees 19, 20
Massachusetts Bd. of Ret. v. Murgia, 427 U.S. 307
ITED cacesiaseneccesmmecasesanesemmesnanennsmemmaieeininnaniaranemerenneecennmemannes 24
Cases—Continued: Page
Romer v. Evans, 517 U.S. 620 (1996).................cc000e- 16, 31, 35
San Antonio Indep. Sch. Dist. v. Rodriguez,
Ee 24
S.J.LS. v. T.L.S., 265 S.W.3d 804 (Ky. Ct. App. 2008)......... 8
Turner v. Safley, 482 U.S. 78 (1987) ..........-scccssssescseseeceeeees 25
United States v. Virginia, 518 U.S. 515
CTT cchitctresnendanennipeitieentinaiucnsenanapunntoniieité 15, 24, 25, 26, 30, 35
United States v. Windsor, 133 S. Ct. 2675 (2013) ...... passim
Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457
SEIT senbicndsecsiveinecicesciidenscieeiatinnainteipbaipeinnamnenentinnpeniimaiienimenanenavesnten 31
Watson v. City of Memphis, 373 U.S. 526 (1963)................ 28
Windsor v. United States, 699 F.3d 169 (2d Cir. 2012)......21
Zablocki v. Redhail, 434 U.S. 374 (1978)..........ccccccccceeeeeseeees 23
Constitutions and statutes:
U.S. Const.:
Art. IV, § 1 (Full Faith and Credit Clause)................... 32
Amend. XIV (Equal Protection Clause) ............... passim
a Ss Sr eh ertirienersnicenicntniscnstensciicitaiiatiiliinsinseneinincinneiniihaninaiaintin 7
RE a aD Te 7
FER ees eee ae Le aE 7
, v _SERET SESE ee eee enema 7
Act of Feb. 5, 1917, ch. 29, § 3, 39 Stat. 875 ............cccceccceeeeees 5
Defense of Marriage Act, Pub. L. No. 104-199,
110 Stat. 2419:
Ee a ee ean 32
I i at aa 31, 32, 33
Immigration Act of 1990, Pub. L. No. 101-649,
EE NS ee Ce 5
Statutes—Continued: Page
Ala. Code (LexisNexis):
fe ne 4
ae 4
Ga. Code Ann. § 16-6-2(a)(1) (2011).............csccecssesceneesenesenenes 4
a iterate neater ett eattatanaaiaes 4
Kan. Stat. Ann. § 21-5504(a)(1) (Supp. 2013) ............c.csseee 4
Ky. Rev. Stat. (LexisNexis):
(2010):
EEE sae neem Me Se 8
REESE ee ance ene mee Oem nna 7
ASSERT I wenn ete nee Somer Renee Neo R Sart 7
I a 7
| Ce Ore ny ann CeO Mivereee ROOT 7
i islam 7
La. Rev. Stat. Ann. § 14:89(A)(1) (Supp. 2014)............c.scee0 4
Mich. Comp. Laws Ann. (West):
8 EE ee ee ee eae 7
EE EE en eee eS eer, &
ee I iii ecrincrcniasiciccabitilenidalieieaniaiatiaiiianils 7
Ohio Rev. Code Ann. (LexisNexis):
(2008):
| EET ae eee a a ee ee 7
EARLS RTE ne ne ED OO NEN Mime 8
ERA a Se TE &
Tenn. Code Ann. (2014):
SE ee an ae eR TE OTD 8
Teed en ae ce Ee 7
a tial 8
Tenn. House Bill No. 600, Pub. Ch. 278 (2011),
http:/Awww.state.tn.us/sos/acts/107/pub/pc0278.pdf ........ 20
Vil
Statutes—Continued: Page
Tex. Penal Code Ann. (West 2011):
i aliietiainiiad 4
EES a nar ee ER 4
Utah Code Ann. § 76-5-403(1) (LexisNexis Supp.
EDS OY ER race a-ak eR a ee Lee Ee ee 4
Miscellaneous:
Am. Acad. of Pediatrics, Coparent or Second-Parent
Adoption by Same-Sex Parents (Feb. 2002),
http://www.pediatrics.aappublications.org/content/
OIE tecinnnsinsinsnnttnceniniasnnnstininnictnersascsmeees 28
Am. Psychiatric Ass’n, Position Statement on
Homosexuality and Civil Rights (1973),
131 Am. J. Psychiatry 497 (1974) ..........scsecsesseessesesecenevees 18
Am. Psychological Ass’n, Marriage Equality and
LGBT Health, http://www.apa.org/about/gr/
issues/lgbt/marriage-equality.pdf (last visited
I cinnennieniiete 28
Dale Carpenter, Windsor Products, 2013 Sup. Ct.
i, Ca ci scistentrierncenseencinteniesiiniisneditinienpiinainnemumemennnnnenes 4
Simon R. Crouch et al., Parent-Reported Measures
of Child Health and Wellbeing in Same-Sex Parent
Families, 14 BMC Public Health 635 (June 21,
ID centacitpdscenniatistnstiinemanenememansniminimatitininiainmeneanecmcene 28
Andrew DeMillo, Arkansas bars expanding local
protections for gays, lesbians, Associated Press
(Feb. 23, 2015), http://www.apnews.com/ap/db _
268748/contentdetail.htm?contentguid =aAo9UJmZ......20
FBI:
Hate Crime Statistics 1996, http://www.fbi.
gov/ about-us/cjis/ucr/hate-crime/1996/
IIIT -cocniehiciteniasinadamisistiinilisintindinsiniaaataniecmmacats 6
Vill
Miscellaneous—Continued:
2013 Hate Crime Statistics, http://www.
fbi.gov/about-us/cjis/ucr/hate-crime/2013/
tables/1tabledatadeepdf/table_1_
incidents_offenses_ victims _and_known_
offenders _by_ bias motivation_2013.xls ...........
Sean Gregory, Louisiana Sodomy Sting: How
Invalidated Sex Laws Still Lead to Arrests, Time
(July 31, 2013), http:/Awww.nation.time.com/2013/
07/31/louisiana-sodomy-sting-how-invalidated-sex-
laws-still-lead-to-arrests/ i icateachariasitiiiniteeidgehtntin alliniiainite aaa
H.R. Rep. No. 664, 104th Coitg? 2d Sess. (1996)...........
Letter from Eric H. Holder, Jr., Att’y Gen., to John
A. Boehner, Speaker, House of Representatives
A Be Se ercncerncitttneiicnccmceneansnenneniemennnsmenmanetinnense
Michael Klarman, From the Closet to the Altar (2012)
Official Journal of the House of Representatives of
the State of Louisiana (Apr. 15, 2014), http://
house.louisiana.gov/H_Journals/H_Journals_
All/2014 RSJournals/14RS%20%20HJ%200415%
Pew Research Ctr., How many same-sex marriages
in the U.S.? At least 71,165, probably more
(June 26, 2013), http:/Awww.pewresearch.org/fact-
tank/2013/06/26/how-many-same-sex-marriages-
in-the-u-s-at-least-71165-probably-more .........-......-++-
Remarks by the President and Vice President at
Signing of the Don’t Ask, Don’t Tell Repeal Act of
2010 (Dec. 22, 2010), http:/Awww.whitehouse.gov/
the-press-office/2010/12/22/remarks-president-and-
vice-president-signing-dont-ask-dont-tell-repeal-a ..
Page
seseasse 4
IX
Miscellaneous—Continued: Page
Trudy Ring, Voters in Two Kansas Cities Repeal
Antidiscrimination Laws, Advocate (Nov. 8, 2012),
http:/Awww.advocate.com/politics/election/
2012/11/08/voters-two-kansas-cities-repeal-
ee cirtccitcctntnsnrnienicenstiinsecenmneninnnnmeccesi 20
Carl Smith, Wiseman: Aldermen offered no explana-
tion for LGBT-related policy discussions in execu-
tive session, The Dispatch (Jan. 7, 2015), http://
www.cdispatch.com/news/article.asp?aid =39208 ............ 20
Glen Staszewski, The Bait-and-Switch in Direct
Democracy, 2006 Wis. L. Rev. 17 (2006) .................2..0e00- 29
A.G. Sulzberger, Kansas Law on Sodomy Remains
on Books Despite a Cull, N.Y. Times, Jan. 21, 2012,
(Sh a rena ae ne aT eT 4
Williams Inst.:
LGBT Parenting in the United States (Feb.
2013), http://www.williamsinstitute.law.ucla.
edu/wp-content/uploads/LGBT-Parenting.pdf .......27
Brad Sears et al., Surveys of LGBT Public Em-
ployees and Their Co-Workers, in Document-
ing Discrimination on the Basis of Sexual
Orientation and Gender Identity in State
Employment (2009), http://www.
williamsinstitute.law.ucla.edu/wp-
content/uploads/9 Surveys.pdf. ................ccscsseeeeeeees 6
U.S. Census Bureau, American Community Survey
Data on Same Sex Couples (2013) http://www.
census.gov/hhes/samesex/data/acs. htiml.................0000-0+++ 29
U.S. Dep't of Justice, Jnvestigation of the New Orle-
ans Police Department (Mar. 16, 2011), http:/Awww.
justice.gov/crt/about/spl/nopd_report.pdf.....................-.-. 6
Robert Wintemute, Sexual Orientation and Human
SERRE Ri eR ae 20
In the Supreme Court of the United States
No. 14-556
JAMES OBERGEFELL, ET AL., PETITIONERS
v.
RICHARD HODGES, DIRECTOR, OHIO DEPARTMENT OF
HEALTH, ET AL.
No. 14-562
VALERIA TANCO, ET AL., PETITIONERS
Vv.
BILL HASLAM, GOVERNOR OF TENNESSEE, ET AL.
No. 14-571
APRIL DEBOER, ET AL., PETITIONERS
v.
RICK SNYDER, GOVERNOR OF MICHIGAN, ET AL.
No. 14-574
GREGORY BOURKE, ET AL., PETITIONERS
Vv.
STEVE BESHEAR, GOVERNOR OF KENTUCKY, ET AL.
ON WRITS OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING PETITIONERS
(1)
INTEREST OF THE UNITED STATES
These cases concern the authority of a State to de-
ny to same-sex couples and their children the protec-
tions and benefits granted through civil marriage to
opposite-sex couples and their children. The United
States has a strong interest in the eradication of dis-
crimination on the basis of sexual orientation. The
President and Attorney General have determined that
classifications based on sexual orientation should be
subject to heightened scrutiny. See Letter from Eric
H. Holder, Jr., Attorney General of the United States,
to John A. Boehner, Speaker, U.S. House of Repre-
sentatives (Feb. 23, 2011). The United States also has
an interest because marital status is relevant to many
benefits and responsibilities under federal law. See
United States v. Windsor, 133 S. Ct. 2675, 2694-2695
(2013).
STATEMENT
Petitioners are same-sex couples who have been
denied the privileges and responsibilities of civil mar-
riage by the States in which they make their homes.
Petitioners have formed, and seek legal recognition of,
their committed relationships for the same reasons
that opposite-sex couples do. But their home States
persist in excluding them from the “dignity and sta-
tus” of civil marriage and the “far-reaching legal ac-
knowledgment of the intimate relationship between
two people” that civil marriage represents, United
States v. Windsor, 133 S. Ct. 2675, 2692 (2013). In
doing so, those States have burdened petitioners in
every aspect of life that marriage touches, “from the
mundane to the profound,” id. at 2694.
(2)
3
The pervasive discrimination petitioners face be-
cause they cannot marry is reflected in their pleas for
equal treatment: “[sjome involve a birth, others a
death”; “[slome involve concerns about property,
taxes, and insurance”; others involve “rights to visit a
partner or partner’s child in the hospital.” 14-556 Pet.
App. 16a (Pet. App.). These cases thus require the
Court to decide whether States may deny to lesbian
and gay couples—more than 700,000 families, includ-
ing nearly 220,000 children—equal participation in an
institution that gives legal expression and protection
to “one of the vital personal rights essential to the
orderly pursuit of happiness,” Loving v. Virginia, 388
U.S. 1, 12 (1967).
1. Throughout this Nation’s history, lesbian and
gay people have encountered numerous barriers—
public and private, symbolic and concrete—that have
prevented them from full, free, and equal participation
in American life. The federal government, state and
local governments, and private parties have all con-
tributed to this history of discrimination. Many forms
of discrimination continue to this day.
Criminal laws. Perhaps the starkest form of dis-
crimination against lesbian and gay people is our
Nation’s long history of “demean|ing] their existence
* * * by making their private sexual conduct a
crime.” Lawrence v. Texas, 539 U.S. 558, 578 (2003);
see, e.g., id. at 573. “When homosexual conduct is
made criminal * * * , that declaration in and of
itself is an invitation to subject homosexual persons to
discrimination both in the public and in the private
spheres.” Jd. at 575.
Although this Court held over a decade ago that such
declarations are unconstitutional, Lawrence, 539 U.S. at
4
575, they remain on the books in many States. See, e.g.,
Ala. Code §§ 13A-6-60, 13A-6-65(a)(3) (LexisNexis 2005);
Ga. Code Ann. § 16-6-2(a)(1) (2011); Kan. Stat. Ann.
§ 21-5504(a)(1) (Supp. 2013); La. Rev. Stat. Ann.
14:89(A)(1) (Supp. 2014); Tex. Penal Code Ann.
§§ 21.01(1)(A), 21.06 (West 2011); Utah Code Ann. § 76-
5-403(1) (LexisNexis Supp. 2014). One State has affirm-
atively reenacted such a law post-Lawrence, 2006 Ga.
Laws 386, and other States have deliberately chosen not
to repeal preexisting laws, see A.G. Sulzberger, Kansas
Law on Sodomy Remains on Books Despite a Cull, N.Y.
Times, Jan. 21, 2012, at Al3; Official Journal of the
House of Representatives of the State of Louisiana
741 (Apr. 15, 2014), http://www.house.louisiana.gov/H _
Journals/H_ Journals All/2014 RSJournals/14RS%20-
%20HJ%200415%2022.pdf. Some local officials still
attempt to bring criminal charges under these laws. See
Sean Gregory, Louisiana Sodomy Sting: How Invali-
dated Sex Laws Still Lead to Arrests, Time (July 31,
2013), http://www.nation.time.com/2013/07/31/louisiana-
sodomy-sting-how-:nvalidated-sex-laws-still-lead-to-
arrests/.
Official hostility. In the early twentieth century,
the sexual orientation or conduct of lesbian and gay
people could provide a basis for indefinite civil institu-
tionalization, as well as sterilization or castration, on
the ground that they were “moral degenerates” or
“sexual perverts.” Dale Carpenter, Windsor Prod-
ucts, 2013 Sup. Ct. Rev. 183, 253 (2013). As late as
1991, lesbian and gay aliens were categorically subject
to exclusion from the United States on the ground
that they were “persons of constitutional psychopathic
inferiority,” mentally “defective,” or sexually deviant.
Lesbian/Gay Freedom Day Comm., Inc. v. INS, 541
5
F. Supp. 569, 571-572 (N.D. Cal. 1982) (quoting Act of
Feb. 5, 1917, ch. 29, § 3, 39 Stat. 875); see Immigration
Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978.
States and localities have denied child custody and
visitation rights to lesbian and gay parents based on
their intimate relationships. See, e.g., Ex parte H.H..,
830 So. 2d 21, 26 (Ala. 2002) (Moore, C.J., concurring);
Bowen v. Bowen, 688 So. 2d 1374, 1381 (Miss. 1997);
Bottoms v. Bottoms, 457 S.E.2d 102, 108 (Va. 1995).
Historically, public employees at both the federal] and
state levels were subject to intrusive investigations of
their private lives and to termination if they were
suspected of being lesbian or gay. See U.S. Br. at 23-
24, Windsor, supra (No. 12-307) (U.S. Windsor Br.).
The federal government was particularly aggressive
in forcing thousands of federal employees out of their
jobs based on suspicions about their sexual orienta-
tion, or in denying them opportunities, such as by
deeming them ineligible for security clearances. And
by banning lesbian and gay people from serving open-
ly in the Armed Forces before 2011, the federal gov-
ernment treated their sexual orientation as incompat-
ible with a significant attribute of citizenship: the
chance to defend the Nation.
Lesbian and gay people have long been, and con-
tinue to be, targets of discriminatory law-enforcement
practices. Historically, police would engage in har-
assment through selective enforcement of liquor-
licensing laws and laws prohibiting lewdness, vagran-
cy, and disorderly conduct. See U.S. Windsor Br. at
25-26. And as recently as 2011, the Department of
Justice found a pattern and practice of discriminatory
policing against lesbian and gay people by the New
Orleans Police Department. U.S. Dep’t of Justice,
6
Investigation of the New Orleans Police Department
34-40 (Mar. 16, 2011), http://www-.justice.gov/crt/
about/spl/nopd_report.pdf.
Hate crimes. Animus toward gay, lesbian, bisexual, or
transgender people is the second-most common motiva-
tion for hate crimes. See Federal Bureau of Investigation
(FBD, 2013 Hate Crime Statistics tbl.1, http://www.
fbi.gov/about-us/cjis/ucr/hate-crime/2013/tables/
ltabledatadecpdf/table_1 incidents offenses victims and
_known_offenders_ by_ bias | motivation | 2013.xls. Indeed,
from 1996 (the first year for which the FBI reported data)
to 2013 (the latest year in which the FBI reported data),
such hate crimes increased by 21%, even as hate crimes
overall decreased by 32%. Compare zbid., with FBI, Hate
Crime Statistics 1996 tbl.1, http-/Awww-fbi.gov/about-us/
cjis/ucr/hate-crime/1996/hatecrime96.pdf.
Employment discrimination. Employers and co-
workers continue to discriminate against lesbian and
gay people in the workplace. A set of 15 studies con-
ducted since the mid-1990s has found that significant
percentages of lesbian, gay, and bisexual people have
experienced workplace discrimination, including being
fired or refused employment; being denied promotion
or given unfavorable performance reviews; being
verbally or physically abused or experiencing work-
place vandalism; and receiving unequal pay or bene-
fits. Brad Sears et al., Williams Inst., Surveys of
LGBT Public Employees and Their Co-Workers, in
Documenting Discrimination on the Basis of Sexual
Orientation and Gender Identity in State Employ-
ment 9-1 (2009), http:/Avwww.williamsinstitute.law.
ucla.edu/wp-content/uploads/9_Surveys.pdf.
2. These cases present challenges involving 16 les-
bian and gay couples residing in Kentucky, Michigan,
7
Ohio, and Tennessee to laws in those States that bar
them from the institution of civil marriage, and the
dignity, rights, and responsibilities that marriage
entails. Pet. App. 16a-22a; see Ky. Const. § 233A; Ky.
Rev. Stat. Ann. §§ 402.005, 402.020(1)(d), 402.040(2)
and 420.045 (LexisNexis 2010) (Ky. Stat.); Mich.
Const. Art. I, § 25; Mich. Comp. Laws Ann. § 551.1
(West 2005) (Mich. Laws); Ohio Const. Art. XV, § 11;
Ohio Rev. Code Ann. § 3101.01(C) (LexisNexis 2008)
(Ohio Code); Tenn. Const. Art. XI, § 18; Tenn. Code
Ann. § 36-3-113(a) (2014) (Tenn. Code). After the
highest court in Massachusetts recognized a right
under the Massachusetts constitution for same-sex
couples to marry, see Goodridge v. Department of
Pub. Health, 798 N.E.2d 941 (2003), the voters in each
of those four States amended their own state constitu-
tions to foreclose marriage for lesbian or gay couples,
even if the rights guaranteed under those state consti-
tutions would otherwise have required it. Pet. App.
16a-22a.
Some petitioners seek recognition in their home
States for their otherwise-lawful out-of-state marriag-
es; others are currently unmarried and seek marriage
licenses. Pet. App. 16a-22a. The refusal of their home
States to recognize current or prospective marriages
has prevented petitioners from realizing the wide
range of tangible and intangible benefits that mar-
riage provides. Among other things, the state mar-
riage bans inhibit their ability to raise children in a
recognized two-parent family. 14-571 Pet. App. 72a-
75a. The adoption law in each State expressly pro-
vides for joint adoption by two parents only when the
parents are married (see Ky. Stat. § 199.470 (Lex-
isNexis 2013); Mich. Laws § 710.24 (West Supp.
8
2014); Ohio Code § 3107.03; Tenn. Code § 36-1-115),
and none of the four States expressly permits sepa-
rate adoptions of the same child by two parents who
are not legally married under state law. Kentucky
and Ohio have rejected adoption petitions filed by
lesbian women seeking to become the second parent of
a partner’s biological child. See S.J.L.S. v. T.L.S., 265
S.W.3d 804, 828 (Ky. Ct. App. 2008); Jn re Adoption of
Doe, 719 N.E.2d 1071, 1073 (Ohio Ct. App. 1998).
The state marriage bans also deny lesbian and gay
couples many other advantages under state law, in a
wide range of areas, that opposite-sex couples may
take for granted. Marriage affects contexts including
taxation, see, e.g., Ky. Stat. § 141.069(2) (tax deduction
for spouse’s educational expenses); intestate succes-
sion, see, e.g., Ohio Code § 2105.06 (LexisNexis 2011)
(inheritance rights of surviving spouse); workers’
compensation, see, e.g., Tenn. Code § 50-6-210(e)(1)
(income benefits for dependent spouse); and wrongful-
death actions, see, e.g., Mich. Laws § 600.2922(3)(a)
(West 2010) (automatic right for deceased’s spouse to
sue). And petitioners’ cases illustrate some of the
myriad other ways in which same-sex couples who
would marry in-state if allowed, or whose out-of-state
marriages are discounted, are disadvantaged. Ken-
tucky residents Timothy Love and Lawrence Ysunza,
who have lived together for over three decades, allege
that Love’s emergency heart surgery had to be de-
layed in order for him to execute documents granting
Ysunza hospital access and medical-decisionmaking
authority—rights that a spouse would have automati-
cally. 14-574 Pet. App. 100a. Tennessee residents
Valeria Tanco and Sophia Jesty cannot combine their
healtheare plans and lack automatic visitation and
9
medical-decision rights. 14-562 Pet. App. 113a-114a.
And Ohio-resident petitioners, although lawfully mar-
ried under the laws of other States, cannot obtain
from Ohio a child’s birth certificate listing both spous-
es or a death certificate listing the surviving spouse.
Pet. App. 20a-21a.
Beyond these tangible legal harms, petitioners also
allege that the marriage bans inflict psychological and
dignitary harms on themselves and their children.
For example, Sergeant First Class Ijpe DeKoe, who
married Thomas Kostura in New York and is now
stationed in Tennessee, has explained that “as some-
one who has dedicated my career and risked my life to
protect American values of freedom, liberty, and
equality, it is particularly painful to return home after
serving in Afghanistan only to have my citizenship
diminished by Tennessee’s refusal to recognize our
marriage.” 14-562 Pet. App. 114a-115a (brackets
omitted). And Tanco and Jesty “are concerned about
the environment in which their child will be raised,
fearing that Tennessee’s refusal to recognize her
parents’ marriage will stigmatize her, cause her to
believe that she and her family are entitled to less
dignity than her peers and their families, and give her
the impression that her parents’ love and their family
unit is somehow less stable.” Jd. at 114a.
3. The district courts hearing petitioners’ suits all
held that the state marriage bans violate the federal
Constitution’s Fourteenth Amendment. Pet. App.
107a-221la; 14-562 Pet. App. 104a-130a; 14-571 Pet.
App. 1038a-141a; 14-574 Pet. App. 96a-157a. The court
of appeals reversed. Pet. App. la-106a.
The court of appeals believed that, as a lower court,
it was bound by Baker v. Nelson, 409 U.S. 819 (1972),
10
in which this Court summarily dismissed a challenge
to Minnesota’s denial of a marriage license to a same-
sex couple. Pet. App. 23a-27a. The court of appeals
also held that the marriage bans are constitutional
because (in its view) they are rationally related to a
state interest in “creatiling] an incentive for two peo-
ple who procreate together to stay together for pur-
poses of rearing offspring” and a state interest in
taking a “wait and see” approach before changing
existing legal and social norms. /d. at 35a-37a. In
reaching that holding, the court rejected the conten-
tion that the marriage bans warrant heightened scru-
tiny under the Fourteenth Amendment. /d. at 5la-
58a. The court acknowledged “the lamentable reality
that gay individuals have experienced prejudice in this
country, sometimes at the hands of public officials,
sometimes at the hands of fellow citizens.” Jd. at 52a.
But it concluded that the “usual leap from history of
discrimination to intensification of judicial review does
not work” because “the institution of marriage arose
independently of this record of discrimination.” /d. at
53a.
Judge Daughtrey dissented. Pet. App. 70a-106a.
She emphasized the “destabilizing effect” of the mar-
riage bans on “tens of thousands of same-sex parents
throughout the four states of the Sixth Circuit.” /d. at
72a. Drawing upon trial evidence introduced in the
Michigan case, she noted that “same-sex couples in
Michigan are almost three times more likely than
opposite-sex couples to be raising an adopted child
and twice as likely to be fostering a child”; that “the
psychological well-being, educational development,
and peer relationships were the same in children
raised in gay, lesbian, or heterosexual homes”; and
11
that “heterosexual marriages have not suffered or
decreased in number as a result of states permitting
same-sex marriages.” Jd. at 78a-80a.
SUMMARY OF ARGUMENT
The marriage bans challenged in these cases im-
permissibly exclude lesbian and gay couples from the
rights, responsibilities, and status of civil marriage.
These facially discriminatory laws impose concrete
harms on same-sex couples and send the inescapable
message that same-sex couples and their children are
second-class families, unworthy of the recognition and
benefits that opposite-sex couples take for granted.
The bans cannot be reconciled with the fundamental
constitutional guarantee of “equal protection of the
laws,” U.S. Const. Amend. XIV.
A. This Court has appropriately recognized only a
small set of legal classifications as. constitutionally
suspect and subject to heightened equal-protection
scrutiny. Classification on the basis of sexual orienta-
tion presents the rare circumstance of a classification
that should be added to that list.
Sexual orientation satisfies all four factors that this
Court has looked to in determining whether to recog-
nize a suspect class. First, lesbian and gay people
have been subject to significant and continuing dis-
‘crimination in this country. That history includes
criminalization of intimate relations, treatment as
deviants, denial of rights to care for children, target-
ing in hate crimes, and limitation of employment op-
portunities. See pp. 3-6, supra. Second, sexual orien-
tation bears no relation to ability to participate in and
contribute to society. Lesbian and gay people make
critical contributions in every significant area of this
Nation’s life. Third, discrimination against lesbian
12
and gay people is based on an immutable or distin-
guishing characteristic. Sexual orientation is a core
aspect of a person’s identity, and it defines lesbian and
gay people as a class. Fourth, lesbian and gay people
are a minority group with limited political power.
Recent progress toward eradicating some of the
harshest and most overt forms of discrimination has in
significant respects been the result of judicial en-
forcement of the Constitution, and legislative gains
have often generated political backlash.
Heightened scrutiny under the Equal Protection
Clause is particularly appropriate in the context of
legal barriers to marriage. A State should be required
to present an especially strong justification for a law
that excludes a long-disadvantaged class of persons
from an institution of such paramount personal, socie-
tal, and practical importance.
B. The marriage bans at issue here cannot sur-
vive heightened scrutiny because they are not sub-
stantially related to an important governmental objec-
tive. Respondents’ contention that the marriage bans
encourage biological parents to jointly raise children
ignores the many non-procreative aspects of marriage,
assumes counterintuitively and without evidence that
allowing same-sex couples to marry would discourage
opposite-sex couples from staying together, and un-
justifiably disfavors children raised by same-sex cou-
ples by denying those couples the same incentives to
remain together. Respondents’ contention that the
marriage bans further a state interest in proceeding
with caution before departing from the traditional
understanding of marriage echoes similar arguments
advanced, and properly rejected, in other contexts,
such as integration of public facilities and interracial
13
marriage. And respondents’ contention that the mar-
riage bans return the issue of marriage to the demo-
cratic process simply begs the question whether those
bans exceed the limits that the Equal Protection
Clause imposes.
C. The Court’s recent decision in United States v.
Windsor, 133 S. Ct. 2675 (2013), reinforces the conclu-
sion that the state marriage bans are unconstitutional.
In Windsor, the Court held unconstitutional a federal
statute that denied recognition to same-sex couples
who were validly married under state law, notwith-
standing attempts by the law’s defenders to justify the
statute on substantially the same rationales that re-
spondents advance here. The primary distinctions
between these cases and Windsor—that these cases
involve state rather than federal law, and that peti-
tioners seek not only recognition of existing marriages
but also licensing of new ones—mean that the mar-
riage bans here inflict even more legal and practical
harm than the law at issue in Windsor. They impose a
more direct stigma that is all the more painful because
its source is the home State and not the federal gov-
ernment; they exclude lesbian and gay couples from
the institution of civil marriage; and they deprive the
children of those couples of equal recognition of their
family structure. There is no adequate justification
for such a discriminatory and injurious exercise of
state power.
ARGUMENT
THE STATE MARRIAGE BANS VIOLATE THE EQUAL
PROTECTION CLAUSE
Few, if any, legal institutions have the symbolic,
social, and practical importance of civil marriage.
Marriage is the gateway to a vast array of governmen-
14
tal benefits, which “touch[] many aspects of married
and family life, from the mundane to the profound,”
including parental rights, access to healthcare, and
inheritance and survivorship. United States v. Wind-
sor, 133 S. Ct. 2675, 2694 (2013); see pp. 7-9, supra.
But “marriage is more than a routine classification for
purposes of certain statutory benefits.” Windsor, 133
S. Ct. at 2692. “Marriage is a coming together for
better or for worse, hopefully enduring, and intimate
to the degree of being sacred.” Griswold v. Connecti-
cut, 381 U.S. 479, 486 (1965). And “[tjJhe freedom to
marry has long been recognized as one of the vital
personal rights essential to the orderly pursuit of
happiness.” Loving v. Virginia, 388 U.S. 1, 12 (1967).
Just as governmental recognition of a marriage
confers “a dignity and status of immense import,”
Windsor, 133 S. Ct. at 2692, governmental exclusion
from the institution of marriage can impose profound
emotional and practical hardships on committed cou-
ples. Same-sex couples form deeply committed rela-
tionships, and they seek the recognition, support,
stability, and benetiis of the institution of marriage
for the same reasons as opposite-sex couples. A
State’s refusal to confer such status under state law
through issuance of marriage licenses, or to recognize
marriages lawfully licensed and performed out-of-
state, “demeans the couple, whose moral and sexual
choices the Constitution protects,” id. at 2694. It
“humiliates tens of thousands of children now being
raised by same-sex couples,” by “mak[ing] it even
more difficult for the children to understand the in-
tegrity and closeness of their own family and its con-
cord with other families in their community and in
their daily lives,” ibid. It crystallizes in an acutely
15
painful way the stigma that lesbian and gay adoles-
cents experience as they come to understand that an
essential attribute of their being marks them for sec-
ond-class status. And it violates the Equal Protection
Clause.
A. Classifications Based On Sexual Orientation Are
Subject To Heightened Scrutiny
1. Legislation is generally presumed valid and sus-
tained if the “classification drawn by the statute is
rationally related to a legitimate state interest.” City
of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440
(1985). When “individuals in the group affected by a
law have distinguishing characteristics relevant to
interests the State has the authority to implement,”
courts will not “closely scrutinize legislative choices as
to whether, how, and to what extent those interests
should be pursued.” /d. at 441-442. But when legisla-
tion classifies on the basis of a factor that “generally
provides no sensible ground for differential treat-
ment,” the Equal Protection Clause imposes a greater
burden on the sovereign to justify the classification.
Id. at 440-441.
Such classifications are subject to heightened scru-
tiny, under which the government must show, at a
minimum, that the classification drawn is “substantial-
ly related to an important governmental objective.”
Clark v. Jeter, 486 U.S. 456, 461 (1988). Heightened
scrutiny provides an enhanced measure of protection
in circumstances where there is a greater danger that
the legal classification results from impermissible
prejudice or stereotypes. See, e.g., City of Richmond
v. J.A. Croson Co., 488 U.S. 469, 493 (1989) (plurality
opinion); United States v. Virginia, 518 U.S. 515, 533
(1996) (VM7).
16
2. The marriage bans in these cases discriminate
on the basis of sexual orientation by foreclosing a
class of marriages into which only lesbian and gay
people are likely to enter. See, e.g., Windsor, 133 S.
Ct. at 2694 (observing that burdens on marriage bear
on freedom of “sexual choice[]”); Christian Legal
Soc’y v. Martinez, 561 U.S. 661, 689 (2010) (observing
that the Court’s “decisions have declined to distin-
guish between status and conduct” of lesbian and gay
people) (citing cases); cf. Bray v. Alerandria Women’s
Health Clinic, 506 U.S. 263, 270 (1993) (“A tax on
wearing yarmulkes is a tax on Jews.”).
This Court has yet to determine what level of
equal-protection scrutiny is appropriate for review of
laws that classify based on sexual orientation. Previ-
ous decisions have found such laws illegitimate with-
out expressly deciding the level-of-scrutiny issue. See
Windsor, 133 S. Ct. 2675 (federal statute denying
recognition to marriages of same-sex couples); Law-
rence v. Texas, 539 U.S. 558 (2003) (state statute ban-
ning same-sex intimacy); Romer v. Evans, 517 U.S.
620 (1996) (state statute repealing and prohibiting
legal protections for lesbian and gay people).
This Court has, however, identified four factors
that guide a determination whether to apply height-
ened scrutiny to a classification that singles out a
particular group: (1) whether the class in question has
suffered a history of discrimination, e.g., Bowen v.
Gilliard, 483 U.S. 587, 602 (1987); (2) whether the
characteristic prompting the discrimination “frequent-
ly bears no relation to ability to perform or contribute
to society,” Cleburne, 473 U.S. at 440-441 (quoting
Frontiero v. Richardson, 411 U.S. 677, 686 (1973)
(plurality opinion)); (3) whether the discrimination
17
against members of the class is based on “obvious,
immutable, or distinguishing characteristics that de-
fine them as a discrete group,” Gilliard, 483 U.S. at
602 (citation omitted); and (4) whether the class is “a
minority or politically powerless,” ibid. The first two
considerations lie at the core of the inquiry; are com-
mon to every class this Court has deemed suspect;
and, where they coexist, provide direct and powerful
reasons to apply additional scrutiny to a discriminato-
ry classification, because they point strongly to the
conclusion that the classification is the product of
prejudice and stereotyping. By contrast, although
relevant, neither “immutability” nor political power-
lessness is dispositive. See, e.g., Cleburne, 473 U.S. at
443 n.10 (immutability); id. at 472 n.24 (Marshall, J.,
concurring in part and dissenting in part) (political
powerlessness). All four factors are present in the
case of sexual orientation.
History of discrimination. As the court of appeals
recognized, it is impossible to “deny the lamentable
reality that gay individuals have experienced preju-
dice in this country, sometimes at the hands of public
officials, sometimes at the hands of fellow citizens.”
Pet. App. 52a; see, e.g., Baskin v. Bogan, 766 F.3d 648,
658 (7th Cir.) (“[H]omosexuals are among the most
stigmatized, misunderstood, and _ discriminated-
against minorities in the history of the world.”), cert.
denied, 135 S. Ct. 316 (2014). The history—which
includes treating lesbian and gay people as criminals
and deviants, unfit parents, targets for hate crimes,
and undesirable employees—speaks for itself. See pp.
3-6, supra.
General irrelevance of classification. As with oth-
er suspect classifications such as gender, race, or
18
religion, sexual orientation “bears ‘no relation to [an]
individual’s ability to participate in and contribute to
society’” and is not “a characteristic that the govern-
ment may legitimately take into account in a wide
range of decisions.” Cleburne, 473 U.S. at 441, 446
(quoting Mathews v. Lucas, 427 U.S. 495, 505 (1976));
see Frontiero, 411 U.S. at 686 (plurality opinion).
Historically, discrimination against lesbian and gay
people has had nothing to do with ability to contribute
to society, but has instead rested on the discredited
view that they are, for example, sexual deviants, men-
tally ill, or immoral. See pp. 3-6, supra.
The American Psychiatric Association concluded
more than 40 years ago that “homosexuality per se
implies no impairment in judgment, stability, reliabil-
ity, or general social or vocational capabilities.” Am.
Psychiatric Ass’n, Position Statement on Homoseru-
ality and Civil Rights (1973), 131 Am. J. Psychiatry
497 (1974). That fact is evident throughout all aspects
of society, including military service. “[VJalor and
sacrifice are no more limited by sexual orientation
than they are by race or by gender or by religion or
by creed,” and lesbian and gay Americans have served
with honor “to protect this nation and the ideals for
which it stands.” Remarks by the President and Vice
President at Signing of the Don’t Ask, Don't Tell Repeal
Act of 2010 (Dec. 22, 2010), http://www.whitehouse.gov/
the-press-office/2010/12/22/remarks-president-and-vice-
president-signing-dont-ask-dont-tell-repeal-a. Indeed,
there are countless examples of contributions by les-
bian and gay people in all fields—including business,
medicine, technology, government, and the arts—even
when they were forced to hide their sexual orientation
due to anti-gay laws and attitudes. And the records in
19
these cases are replete with evidence of the contribu-
tions petitioners make to their communities, their
States, and their Nation.
Discrete group. Sexual orientation is an “obvious,
immutable, or distinguishing characteristic[] that
define[s} * * * a discrete group,” Gilliard, 483
U.S. at 602 (citation omitted); Lyng v. Castillo, 477
U.S. 635, 638 (1986). The broad consensus in the sci-
entific and medical community is that sexual orienta-
tion is not a choice for lesbian and gay people any
more than it is for their straight neighbors. See U.S.
Windsor Br. at 31-32 & nn.6-7. The choice lesbian and
gay people face is whether to live their lives openly
and honestly.
As this Court has recognized, sexual orientation is
a core aspect of human identity, and its expression is
an “integral part of human freedom.” Lawrence, 539
U.S. at 562, 576-577. The distinctive orientation of
lesbian and gay people—toward persons of their own
sex—is what distinguishes them as a class from the
majority of society. Such a defining characteristic
may give rise to heightened scrutiny even if it is not
always readily visible and even if it were subject to
change. See Lucas, 427 U.S. at 506 (“[I]llegitimacy
does not carry an obvious badge, as race or sex do.”);
Graham v. Richardson, 403 U.S. 365, 372 (1971) (al-
ienage).
Limited political power. Finally, lesbian and gay
people are “a minority or politically powerless,” Gilli-
ard, 483 U.S. at 602 (quoting Lyng, 477 U.S. at 638).
It is undisputed that they are a small percentage of
the population. See, e.g., Baskin, 766 F.3d at 668.
And while political powerlessness is not an inflexible
prerequisite for recognition as a suspect class, see
20
Frontiero, 411 U.S. at 685-687 & n.17 (plurality opin-
ion) (gender), the extensive and ongoing history of
discrimination against lesbian and gay people illus-
trates their inability to protect themselves adequately
through the political process.
Although some forms of discrimination have begun
to diminish, many of the most critical strides toward
equality for lesbian and gay people have resulted from
judicial enforcement of constitutional guarantees, e.g.,
Lawrence, supra, not from political action. Indeed,
efforts to combat discrimination against lesbian and
gay people have engendered significant political back-
lash, as evidenced by a series of successful state and
local ballot initiatives, starting in the 1970s, that re-
pealed antidiscrimination protections for lesbian and
gay people. See, e.g., Michael Klarman, From the
Closet to the Altar 26-29 (2012); Robert Wintemute,
Sexual Orientation and Human Rights 56 (1995).
That pattern continues today. In 2011, one State’s
legislature repealed local ordinances prohibiting discrim-
ination on the basis of sexual orientation and barred
future enactment of such ordinances. Tenn. House Bill
No. 600, Pub. Ch. 278, http://www.state.tn.us/sos/acts/
107/pub/pc0278. pdf. Another State has just adopted a
similar provision. Andrew DeMillo, Arkansas bars ex-
panding local protections for gays, lesbians, Associated
Press (Feb. 23, 2015), http:/Awww.apnews.com/ap/db _
268748/contentdetail.htm?contentguid=aAo9UJmZ.
Municipal anti-discrimination protections have likewise
recently been repealed. See, e.g., Carl Smith, Wiseman:
Aldermen offered no explanation for LGBT-related policy
discussions in executive session, The Dispatch (Jan. 7,
2015), http://www.cdispatch.com/news/article.asp?aid=
39203; Trudy Ring, Voters in Two Kansas Cities Repeal
21
Antidiscrimination Laws, Advocate (Nov. 8, 2012), http://
www.advocate.com/politics/election/2012/11/08/
voters-two-kansas-cities-repeal-antidiscrimination-laws.
And the history of marriage initiatives, such as those at
issue in these cases, confirms that lesbian and gay people
lack consistent “ability to attract the [favorable] attention
of the lawmakers,” Cleburne, 473 U.S. at 445.
3. The court of appeals did not question the history
of discrimination against lesbian and gay people. Pet.
App. 52a-53a. Nor did it question that lesbian and gay
people are fully capable of contributing to society,
engaging in meaningful marital commitment, and
successfully raising children. /d. at 34a-35a, 53a. Its
reasons for nevertheless rejecting heightened scruti-
ny are flawed.
First, whatever weight it might have had in the
lower courts, this Court’s summary disposition in
Baker v. Nelson, 409 U.S. 810 (1972), has limited
precedential value in this Court’s plenary review of
the questions presented. See, e.g., Edelman v. Jor-
dan, 415 U.S. 651, 671 (1974). Moreover, Baker pre-
dates many of the important developments in this
Court’s equal-protection jurisprudence, see Windsor
v. United States, 699 F.3d 169, 178-179 (2d Cir. 2012),
aff’d, 133 S. Ct. 2675 (2013), and neither the underly-
ing state-court decision nor the questions presented in
the plaintiffs’ jurisdictional statement addressed the
applicability of heightened scrutiny to classifications
based on sexual orientation, see Baker v. Nelson, 191
N.W.2d 185, 187 (Minn. 1971) (en banc); J.S. 3, Baker,
supra (No. 71-1027).
Second, the court of appeals erred in suggesting
(Pet. App. 53a) that heightened scrutiny, even if gen-
erally appropriate for sexual-orientation classifica-
22
tions, would not apply to a law defining marriage as an
institution unavailable to lesbian and gay couples,
because that definition “arose independently” of sex-
ual-orientation discrimination. Assuming arguendo
the court’s premise of independent development, the
level of scrutiny afforded a particular classification
does not—outside of certain specialized areas, see,
e.g., Fiallo v. Bell, 430 U.S. 787, 792-793 (1977) (immi-
gration); Goldman v. Weinberger, 475 U.S. 503, 507-
508 (1986) (military)—vary based on the context in
which the classification is employed. See, e.g., John-
son v. California, 543 U.S. 499, 505 (2005) (noting that
the Court “haj[s] insisted on strict scrutiny in every
context, even for so-called ‘benign’ racial classifica-
tions”); Clark, 486 U.S. at 461 (holding that interme-
diate scrutiny applies to “classifications based on sex
or illegitimacy” without noting context-dependent
exceptions).
If anything, the fact that these cases involve the in-
stitution of marriage underscores the appropriateness
of heightened scrutiny. “The freedom to marry has
long been recognized as one of the vital personal
rights essential to the orderly pursuit of happiness.”
Loving, 388 U.S. at 12. And the Court has recognized
that “personal decisions relating to marriage” are
“central to the liberty protected by the Fourteenth
Amerdment.” Lawrence, 539 U.S. at 587 (internal
quotation marks and citation omitted). It should re-
quire a particularly strong justification to deny equal
participation in an institution of such surpassing per-
sonal and social importance to a group that has been
historically marginalized on the basis of characteris-
tics that bear no general relevance to the ability of
members of the group to contribute to society. See
23
Zablocki v. Redhail, 434 U.S. 374, 383 (1978) (stating,
in equal-protection case, that “[slince our past deci-
sions make clear that the right to marry is of funda-
mental importance, and since the classification at
issue here significantly interferes with the exercise of
that right, we believe that ‘critical examination’ of the
state interests advanced in support of the classifica-
tion is required”) (citation omitted).
That earlier generations may have failed to “even
consider[] the possibility that two persons of the same
sex might aspire to occupy the same status and digni-
ty as that of a man and woman in lawful marriage,”
Windsor, 133 S. Ct. at 2689, does not counsel! in favor
of lesser scrutiny at a time when the invidiousness of
sexual-orientation discrimination has become appar-
ent. The Framers of the Fourteenth Amendment
“knew times can blind us to certain truths and later
generations can see that laws once thought necessary
and proper in fact serve only to oppress.” Lawrence,
539 U.S. at 579. That statement rings just as true in
the context of laws limiting same-sex couples’ access
to marriage as it did when referring to laws prohibit-
ing same-sex sexual intimacy. “[I]t is not the Consti-
tution that has changed, but the knowledge of what it
means to be gay or lesbian.” Kitchen v. Herbert, 755
F.3d 1193, 1218 (10th Cir.) (citation omitted), cert.
denied, 135 S. Ct. 26 (2014).
Third, the court of appeals’ perception (Pet. App.
56a-57a) that the political power of lesbian and gay
people obviates the need for heightened scrutiny is
both doctrinally and factually erroneous. As previous-
ly noted, see pp. 17, 19-20, supra, political powerless-
ness is not an irreducible prerequisite to heightened
scrutiny. Sex-based classifications, for example, re-
24
ceive heightened scrutiny even though men and wom-
en as groups have considerable political power. See
VMI, 518 U.S. at 531-534. And the court of appeals
failed to engage with the manifest evidence that lesbi-
an and gay people still suffer substantial discrimina-
tion in the political arena. See pp. 20-21, supra.
Finally, the court of appeals mistakenly viewed
(Pet. App. 57a) the States’ “undoubted power over
marriage” as a reason for deferential review of the
marriage bans. “State laws defining and regulating
marriage,” like other state laws, “must respect the
constitutional rights of persons.” Windsor, 133 S. Ct.
at 2691. In Loving v. Virginia, supra, this Court
applied the “most rigid scrutiny” under the Equal
Protection Clause to invalidate state laws banning
interracial marriage. 388 U.S. at 11 (citation omitted).
There is similarly no reason to water down the other-
wise-appropriate level of scrutiny here.
4. This Court has appropriately been reluctant to
recognize new suspect (or quasi-suspect) classes. See
Cleburne, 473 U.S. at 441-442, 445-446. None of the
Court’s reasons for rejecting heightened scrutiny for
other classifications, however, applies to sexual orien-
tation. See, e.g., id. at 442-443 (rejecting heightened
scrutiny for persons with intellectual disabilities on
grounds relating to, inter alia, “reduced ability to
cope with and function in the everyday world”); Mas-
sachusetts Bd. of Ret. v. Murgia, 427 U.S. 307, 313
(1976) (rejecting heightened scrutiny for age classifi-
cations due to insufficient purposeful discrimination or
unjustified stereotyping); San Antonio Indep. Sch.
Dist. v. Rodriguez, 411 U.S. 1, 28 (1973) (rejecting
heightened review for poverty-based classifications
because such a class would be too “large, diverse, and
25
amorphous”). Rather, sexual orientation falls square-
ly in the limited category of classifications for which
heightened scrutiny is designed.
B. The State Marriage Bans Fail Heightened Scrutiny
Because a classification based on sexual orientation
calls for the application of heightened scrutiny, re-
spondents must establish, at a minimum, that their
States’ marriage bans are “substantially related to an
important governmental objective.” Clark, 486 U.S. at
461. The court of appeals did not suggest that any of
the bans could survive such scrutiny. And they can-
not. To the extent that any of the primary rationales
advanced in defense of the bans were, as heightened
scrutiny requires, the “actual state purposes” behind
the laws, and “not hypothesized or invented post hoc
in response to litigation,” VM/, 518 U.S. at 533, 535,
they cannot justify excluding lesbian and gay couples
from the institution of marriage.
Responsible procreation and child-rearing. In re-
spondents’ view, marriage as an opposite-sex-only
institution “create[{s] an incentive for two people who
procreate together to stay together for purposes of
rearing offspring.” Pet. App. 35a-36a. That argument
rests on an unduly cramped view of marriage.
It should go without saying that marriage is much
more than a government incentive program to encour-
age biological parents to stay together. At its most
fundamental level, marriage constitutes an “expres-
sion|] of emotional support and public commitment,”
regardless of whether a married couple ever has chil-
dren. Turner v. Safley, 482 U.S. 78, 95-96 (1987); see
Loving, 388 U.S. at 12; see also Lawrence, 539 U.S. at
578 (recognizing the liberty interests of “married
persons” in the privacy of their sexual conduct “even
26
when not intended to produce offspring”) (citation
omitted). Respondents’ narrow conception of mar-
riage would hardly be recognizable to most of its par-
ticipants.
State laws reflect this broader understanding.
Marriage opens the door to a wide range of state-
conferred benefits that respect and give effect to the
deep bonds between a married couple without regard
to whether they are rearing biological offspring.
Those benefits include intestacy rights, medical-
decisionmaking authority, and state-incentivized fi-
nancial support. See pp. 7-9, supra. And, as this
Court recognized in Windsor, the federal government
similarly looks to marital status for purposes as di-
verse as taxes, social security, healthcare benefits,
and ethics rules. 133 S. Ct. at 2694-2695. The perva-
sive use of marriage for these purposes at the state
and federal levels “stems from the understanding that
marriage is more than a routine classification for
purposes of certain statutory benefits”; it “is a far-
reaching legal acknowledgement of the intimate rela-
tionship between two people.” /d. at 2692.
A complete bar to civil marriage for lesbian and
gay couples is not remotely tailored to respondents’
asserted procreational rationale. See VM/, 518 U.S.
at 533 (law must be “substantially related” to the
achievement of objective) (internal quotation marks
and citation omitted). On that rationale, the marriage
bans here are both overinclusive and underinclusive:
opposite-sex couples that either do not want or are not
able to procreate can marry, while same-sex couples
who are raising children biologically related to one of
the parents cannot.
27
The fact that opposite-sex couples can have un-
planned children with one another, while same-sex
couples cannot, Pet. App. 36a, provides no sound rea-
son for barring same-sex couples from marriage. To
begin with, respondents have provided no evidence for
the counterintuitive proposition that recognizing
same-sex marriages will change the incentives for
opposite-sex couples to remain together to raise an
unplanned child. See, e.g., Kitchen, 755 F.3d at 1223
(“We emphatically agree with the numerous cases
decided since Windsor that it is wholly illogical to
believe that state recognition of the love and commit-
ment between same-sex couples will alter the most
intimate and personal decisions of opposite-sex cou-
ples.”). At the same time, a State’s legitimate interest
in “creatiing] an incentive for two people * * * to
stay together for purposes of rearing offspring,” Pet.
App. 35a-36a, is not limited to “two people who pro-
create together,” ibid. It instead embraces all couples
raising children, whether those children came into
their lives by accident or on purpose, and whether
through giving birth or through adoption. The inter-
est thus applies equally to same-sex couples raising a
child as it does to opposite-sex couples raising a child.
See Williams Inst., LGBT Parenting in the United States
1 (Feb. 2013), http://www. williamsinstitute.law.ucla.edu/wp
-content/uploads/LGBT-Parenting.pdf (estimating nearly
220,000 children in same-sex households nationwide); see,
e.g., 14-571 Pet. App. 72a-75a.
As the court of appeals recognized, “gay couples,
no less than straight couples, are capable of raising
children and providing stable families for them.” Pet.
App. 34a. “There is no scientific basis for the asser-
tion that lesbian, gay, bisexual, and transgender per-
28
sons are not fit to marry or to become parents of
healthy and well-adjusted children.” Am. Psychologi-
cal Ass’n, Marriage Equality and LGBT Health 1,
http://www.apa.org/about/gr/issues/lgbt/marriage-
equality.pdf; see, e.g., Simon R. Crouch et al., Parent-
Reported Measures of Child Health and Wellbeing in
Same-Sex Parent Families, 14 BMC Public Health 635
(June 21, 2014); Am. Acad. of Pediatrics, Coparent or
Second-Parent Adoption by Same-Sex Parents (Feb.
2002), http://www. pediatrics.aappublications.org/content/
109/2/339.full.pdf+html. And “{iJf marriage is better
for children who are being brought up by their biolog-
ical parents, it must be better for children who are
being brought up by their adoptive parents.” Baskin,
766 F.3d at 664.
Caution. Respondents also assert that the mar-
riage bans serve a state interest in allowing them to
“wait and see” what happens in other States that allow
same-sex couples to marry before recognizing such
marriages themselves. Pet. App. 36a. “The basic
guarantees of our Constitution,” however, “are war-
rants for the here and now and, unless there is an
overwhelmingly compelling reason, they are to be
promptly fulfilled.” Watson v. City of Memphis, 373
U.S. 526, 533 (1963); see id. at 528 (rejecting city’s
attempt to “justify its further delay in conforming
fully and at once to constitutional mandates by urging
the need and wisdom of proceeding slowly and gradu-
ally in its desegregation efforts”). Defenders of the
ban on interracial marriage at issue in Loving v. Vir-
ginia, supra, argued that “there ha[d] not been suffi-
cient scientific investigation,” Tr. of Oral Argument
31, Loving, supra (No. 395), of the “biological conse-
quences” of interracial procreation, Resp. Br. App. E,
29
Loving, supra (No. 395). This Court did not credit
that argument. Cf. 388 U.S. at 8. There is no reason
to treat the wait-and-see argument in these cases any
differently.
Even assuming caution for its own sake were a
substantial state interest in some cireumstances, the
marriage bans here are not framed in temporary or
provisional terms. See, e.g., Glen Staszewski, The
Bait-and-Switch in Direct Democracy, 2006 Wis. L.
Rev. 17, 23 (2006) (quoting campaign brochure ex-
plaining that Michigan initiative “settles the question
once and for all what marriage is—for families today
and future generations”). They contain neither a
sunset provision nor a provision for further study. It
is, in any event, unclear what waiting would accom-
plish. States first began allowing same-sex couples to
marry in 2003. See Goodridge v. Department of Pub.
Health, 798 N.E.2d 941, 964 (Mass. 2003). Tens of
thousands of same-sex couples have wed. See Pew
Research Ctr., How many same-sex marriages in the
U.S.? At least 71,165, probably more (June 26, 2013),
http://www.pewresearch.org/fact-tank/2013/06/26/how-
many-same-sex-marriages-in-the-u-s-at-least-71165-
probably-more. Nothing that has happened during
this period supports continuing to deny equal access
to marriage to loving and committed same-sex cou-
ples. See, e.g., Pet. App. 80a-8la (Daughtrey, J., dis-
senting); see also U.S. Census Bureau, American Com-
munity Survey Data on Same Sex Couples tbl.3 (2013),
http://www.census.gov/hhes/samesex/data/acs.htm] _ (esti-
mating more than 700,000 same-sex couples in the United
States).
At bottom, the wait-and-see rationale largely re-
duces to an assertion that the persistence of class-
30
based discrimination is legally justifiable, at least in
the short run, so long as it is premised on longstand-
ing tradition. See Pet. App. 36a-37a. But tradition, no
matter how long established, cannot in itself justify a
law that otherwise violates the Equal Protection
Clause. “Many of ‘our people’s traditions,’ such as de
jure segregation and the total exclusion of women
from juries, are now unconstitutional even though
they once coexisted with the Equal Protection
Clause.” J.E.B. v. Alabama, 511 U.S. 127, 143 n.15
(1994); see VMI, 518 U.S. at 535-536 (invalidating
longstanding tradition of single-sex education at Vir-
ginia Military Institute); Lawrence, 539 U.S. at 577-
578 (“[Nleither history nor tradition could save a law
prohibiting miscegenation from constitutional at-
tack.”) (quoting Bowers v. Hardwick, 478 U.S. 186,
216 (1986) (Stevens, J., dissenting)); Heller v. Doe, 509
U.S. 312, 326 (1993) (“Ancient lineage of a legal con-
cept does not give [a law} immunity from attack for
lacking a rational basis.”).
Democratic self-governance. Respondents addi-
tionally claim that their marriage bans advance an
interest in state self-governance. See, e.g., Ohio C.A.
Br. 46-47. The court of appeals, while frequently
referencing this interest, e.g., Pet. App. 16a, correctly
declined to rely on it as a freestanding justification for
the marriage bans, even under rational-basis review,
id. at 32a-41la.
Promoting democratic decisionmaking is a laudable
governmental interest. But it cannot itself justify a
law that would otherwise violate the Constitution.
“The sovereignty of the people is itself subject to
* * * constitutional limitations.” City of Eastlake
v. Forest City Enters., 426 U.S. 668, 676 (1976) (cita-
31
tion omitted). The very premise of heightened scruti-
ny is that certain types of classifications are “seldom
relevant to the achievement of any legitimate state
interest,” and yet may become the basis for legislation
that burdens persons who are unable adequately to
protect themselves through the democratic process.
Cleburne, 473 U.S. at 440. The judiciary plays a “spe-
cial role in safeguarding” such classes. Washington v.
Seattle Sch. Dist. No. 1, 458 U.S. 457, 486 (1982).
Just as a State could not rely on an interest in
democratic decisionmaking to prohibit marriage be-
tween individuals of a different race (cf. Loving, su-
pra), it cannot rely on such an interest to prohibit
marriage between individuals of the same sex. Re-
spondents’ reliance on the state interest in democratic
self-governance thus ultimately begs the questions
presented in these cases.
C. The Reasoning Of United States v. Windsor Confirms
The Invalidity Of The State Marriage Bans
In United States v. Windsor, supra, this Court ad-
dressed a challenge to the federal government’s re-
fusal, codified in Section 3 of the federal Defense of
Marriage Act (1 U.S.C. 7), to recognize marriages of
same-sex couples considered valid under state law.
133 S. Ct. at 2682-2683. Reviewing that law with
“careful consideration,” the Court found it unconstitu-
tional. Jd. at 2692 (quoting Romer, 517 U.S. at 633);
see id. at 2693, 2696. Windsor’s reasoning and result
strongly support the conclusion that the bans at issue
here are likewise unconstitutional.
A principal purpose of Section 3 was to “discourage
enactment of state same-sex marriage laws.” Wind-
sor, 133 S. Ct. at 2693. The interests advanced in
support of the marriage bans here—encouraging
32
opposite-sex parents to raise their children together,
cautionary adherence to the traditional definition of
marriage, and sovereign self-determination—were
accordingly advanced to justify the discriminatory law
at issue in Windsor as well. See Bipartisan Legal
Advisory Grp. Br. at 28-49, Windsor, supra (No.
12-307). This Court nonetheless held Section 3 to be
“unconstitutional as a deprivation of the liberty of the
person protected by the Fifth Amendment,” which
“the equal protection guarantee of the Fourteenth
Amendment” made “all the more specific and all the
better understood and preserved.” Windsor, 133 S.
Ct. at 2695." Respondents’ arguments here should
meet the same fate as their Windsor analogues.
The Court in Windsor reasoned that the affected
same-sex couples had “their lives burdened * * *
* The Court in Windsor did not address Section 2 of the Defense
of Marriage Act, which provides that “[n]o State * * * shall be
required to give effect to any public act, record, or judicial pro-
ceeding of any other State * * * respecting a relationship
between persons of the same sex that is treated as a marriage
under the laws of such other State.” 28 U.S.C. 1738C. Section 2
concerns the Full Faith and Credit Clause, which addresses the
respect that one State must give the “Acts, Records and judicial
Proceedings” of another. U.S. Const. Art. IV, § 1; see H.R. Rep.
No. 664, 104th Cong., 2d Sess. 24-30 (1996). Any effect Section 2
might have in the context of a State’s refusal to recognize an out-
of-state marriage of a same-sex couple would most logically be
considered only after answering the second question presented
here, which asks whether such a refusal would be consistent with
the Fourteenth Amendment. Should the Court agree with the
government that such a refusal violates the Fourteenth Amend-
ment, then Section 2 itself would never come into play. Should the
Court hold otherwise, then the government would, in an appropri-
ate case, evaluate the effect and constitutionality of Section 2 in
light of the principles set forth in the Court’s decision.
33
in visible and public ways” by Section 3’s denial of
marriage recognition. 133 S. Ct. at 2694. By barring
application of a great number of statutes that turned
on marriage, Section 3 not only “wr[ote] inequality
into the entire United States Code,” ibid., but also
brought “financial harm to children of same-sex cou-
ples” and divested such couples of “the duties and
responsibilities that are an essential part of married
life and that they in most cases would be honored to
accept,” id. at 2695. On a more personal level, Section
3 “place[d] same-sex couples in an unstable position of
being in a second-tier marriage,” “demean[ed]” those
couples, and “humiliate[d]” the tens of thousands of
children being raised by such couples. /d. at 2694.
Section 3 “instructied]) * * * all persons with
whom same-sex couples interact, including their own
children, that their marriage is less worthy than the
marriages of others.” Id. at 2696.
As in Windsor, the laws here “single[] out a class of
persons,” exclude them from a vital institution on the
basis of this classification alone, and thereby “im-
pose[] a disability on the class.” 133 S. Ct. at 2695-
2696. For same-sex couples who are already married,
the States’ refusals to recognize those valid marriages
produce much the same harms here that the federal
government’s refusal produced in Windsor. But those
harms are not limited to couples who are already
married. The underlying dignitary and practical in-
terests of same-sex couples, “whose moral and sexual
choices the Constitution protects,” id. at 2694 (citing
Lawrence, 539 U.S. 558), and the underlying dignitary
and practical interests of their families, do not mean-
ingfully differ depending upon whether the couple is
34
already married in some other State or instead wishes
to be married in the couple’s home State.
Nor does it matter that, unlike Windsor, these cas-
es involve regulation of marriage by the States, rather
than by a federal law that “departs from th[e] history
and tradition of reliance on state law to define mar-
riage,” 133 S. Ct. at 2692. Indeed, the injury to same-
sex couples and their children is all the greater when
it is the State, rather than the national government,
that has declared marriage to be an opposite-sex-only
institution. The couple is considerably more “de-
meanj(ed]” when it is barred from even “a second-tier
marriage,” recognized by the couple’s home State but
not by the federal government, id. at 2694, and in-
stead relegated to no marriage at all. In that situa-
tion, the family is denied the many benefits provided
at the state level, in addition to federal benefits that
require recognition of a marriage by the state of resi-
dence. Cf. id. at 2694-2695. And the children’s “hu-
miliat{ion]” at their family’s legal status, id. at 2694, is
surely much greater when the source of the stigma is
not the national government, but instead their own
local community, cf. id. at 2693 (noting “the substan-
tial societal impact the State’s classifications have in
the daily lives and customs of its people”).
The harms of denying marriage to same-sex cou-
ples are sufficiently manifest that a law with that
effect is unconstitutional, irrespective of whether it
exhibits the sort of direct legislative record of animus
that the Court in Windsor found in relation to Section
3. See 133 S. Ct. at 2693-2694. It is unnecessary to
characterize those who voted for the laws at issue here
as having acted out of conscious il] will in order to
recognize the laws’ inconsistency with the fundamen-
35
tal guarantee of equal protection. “Prejudice, we are
beginning to understand, rises not from malice or
hostile animus alone. It may result as well from in-
sensitivity caused by simple want of careful, rational
reflection or from some instinctive mechanism to
guard against people who appear to be different in
some respects from ourselves.” Board of Trs. of Univ.
of Ala. v. Garrett, 531 U.S. 356, 374 (2001) (Kennedy,
J., concurring). The marriage bans at issue here, like
the law invalidated in Romer v. Evans, supra, “im-
pose[] a broad and undifferentiated disability” on
lesbian and gay people with a “sheer breadth * * *
so discontinuous with the reasons offered” that they
violate equal protection. 517 U.S. at 632.
*- * *+ * €
“As the Constitution endures, persons in every
generation can invoke its principles in their own
search for greater freedom.” Lawrence, 539 U.S. at
579. A “prime part of the history of our Constitution
* * * is the story of the extension of constitutional
rights and protections to people once ignored or ex-
cluded.” VMI, 518 U.S. at 557. Here, petitioners seek
the “duties and responsibilities that are an essential
part of married life,” Windsor, 133 S. Ct. at 2695, that
opposite-sex couples, and tens of thousands of same-
sex couples, already enjoy. The laws they challenge
exclude a long-mistreated class of human beings from
a legal and social status of tremendous import. Those
laws are not adequately justified by any of the ad-
vanced rationales. They are accordingly incompatible
with the Constitution.
36
CONCLUSION
The judgment of the court of appeals should be re-
versed.
Respectfully submitted.
DONALD B. VERRILLI, JR.
Solicitor General
STUART F. DELERY
Acting Associate Attorney
General
VANITA GUPTA
BENJAMIN C. MIZER
Acting Assistant Attorneys
General
IAN HEATH GERSHENGORN
Deputy Solicitor General
BETH S. BRINKMANN
GREGORY B. FRIEL
PAMELA S. KARLAN
Deputy Assistant Attorneys
eneral
ERIC J. FEIGIN
Assistant to the Solicitor
General
DIANA K. FLYNN
DOUGLAS N. LETTER
SHARON M. MCGOWAN
MICHAEL JAY SINGER
ROBERT A. KOCH
ABBY C. WRIGHT
JEFFREY E. SANDBERG
Attorneys
MARCH 2015
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.