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

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MAR 2 4 2015

No. 14-571 -DEFISE OF Tie net |

In the Supreme Court of the Gnited States

APRIL DEBOER, et al.,

Petitioners,

Vv.

RICK SNYDER, GOVERNOR OF MICHIGAN, et ail.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Sixth Circuit

BRIEF OF THE AMERICAN FREEDOM LAW CENTER

AS AMICUS CURIAE IN SUPPORT OF RESPONDENTS

—_—_—_- —~—-__ — -———

Rogsert J. Muise

Counsel of Record

AMERICAN FREEDOM LAW CENTER

P.O. Box 131098

ANN ArRBor, MI 48113

(855) 835-2352

rmuise@americanfreedomlawcenter.org

Davip YERUSHALMI

AMERICAN FREEDOM LAW CENTER

1901 PENNSYLVANIA AVE. NW

WasuINGcTon, D.C. 20006

(855) 835-2352

Counsel for Amicus Curiae

aE

Becker Gallagher - Cincinnati, OH - Washington, D.C. ~- 800.890.5001

i

QUESTION PRESENTED

Does the Fourteenth Amendment require a state to

license a marriage between two people of the same sex?

ii

TABLE OF CONTENTS

QUESTION PRESENTED .................... i

TABLE OF AUTHORITIES ................... ii

STATEMENT OF IDENTITY AND INTERESTS

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SUMMARY OF THE ARGUMENT ............. 5

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I. Michigan’s Marriage Amendment Satisfies the

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II. Michigan’s Marriage Amendment Also Satisfies

a Higher Level of Scrutiny ................. 7

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TABLE OF AUTHORITIES

CASES

Bray v. Alexandria Women’s Health Clinic,

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Clark v. Jeter,

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Deboer v. Snyder,

772 F.3d 388 (6th Cir. 2014) .......... 3, 5, 6, 7

Geduldig v. Aiello,

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Griswold v. Connecticut,

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Harris v. McRae,

se vee ee be aa 9

Heller v. Doe,

i a eek eh eaeeh awe 6

Lawrence v. Texas,

a ee eeeeeees 4

Maher v. Roe,

SPIED cc cccccvsescecesconcecs 9

Michael M. v. Super. Ct. of Sonoma Cnaty.,

CD i cece céeeeabee es 8,9, 10

San Antonio Indep. Sch. Dist. Dist. v. Rodriguez,

i oe Be oe i ee eae ee ee are e 6

Schweiker v. Wilson,

DEED og ccc cccéecesesbaeseeeus 6

iv

Turner v. Safley,

ET scavcccdeseuctveesees 9,10

United States v. Windsor,

133 S. Ct. 2675 (2013) ................. 10, 11

CONSTITUTIONS AND STATUTES

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An Act Regulating Marriages § 1(1820) ......... 2

1lLaws of the Territory of Mich. 646 (1871) ....... 2

OTHER AUTHORITIES

Francis de Sales, Introduction to the Devout Life,

(John K. Ryan ed., Image Books/Doubleday, New

rd ie ale ao ang 5

The Federalist No. 47, (J. Cooke ed. 1961)

I i ed aes 7

1

STATEMENT OF IDENTITY AND INTERESTS

OF AMICUS CURIAE

Pursuant to Supreme Court Rule 37, Amicus Curiae

American Freedom Law Center (hereinafter referred to

as “AF'LC”) respectfully submits this brief in support of

the respondents, urging the Court to protect and affirm

the fundamental right of the people of Michigan to

establish their own public policy with regard to the

meaning and purpose of marriage.’

Defining marriage as a matter of law is the

prerogative of the states and not the federal

government, including the federal courts. Most

important, restricting marriage to one man and one

woman promotes legitimate state (and _ societal)

interests. Therefore, this Court should affirm the

decision of the U.S. Court of Appeals for the Sixth

Circuit, which upheld the right of the people to define

marriage for purposes of state law.

AFLC is a national, public interest law firm that

advances and defends America’s Judeo-Christian

heritage and moral values, including the defense of

traditional marriage, which is necessary to promote the

common good. AFLC accomplishes its mission through

' All parties have consented to the filing of this brief. Letters

evidencing such consent have been filed with the Clerk of the

Court.

Amicus AFLC further states that no counsel for any party

authored this brief in whole or in part, and no counsel or party

made a monetary contribution intended to fund the preparation or

submission of this brief. No person other than Amicus AFLC, its

supporters, or its counsel made a monetary contribution to the

preparation or submission of this brief.

2

litigation, education, and public policy initiatives. It

has offices in Arizona, California, Michigan, New York,

and Washington, D.C.

INTRODUCTION

In Michigan, state law has defined marriage as a

relationship between one man and one woman since its

territorial days. See An Act Regulating Marriages § 1

(1820), in lLaws of the Territory of Mich. 646, 646

(1871). In 1996, this longstanding view of marriage

was reaffirmed when the state enacted a law that

declared marriage “inherently a unique relationship

between a man and a woman.” Mich. Comp. Laws

§ 551.1. In 2004, the people of Michigan took the

extraordinary step of amending the state’s constitution

to protect traditional marriage. This amendment

expresses, without equivocation, the will of the people

and the policy of the state: “To secure and preserve the

benefits of marriage for our society and for future

generations of children, the union of one man and one

woman in marriage shall be the only agreement

recognized as a marriage or similar union for any

purpose.” Mich. Const. art. I, § 25.

In 1965, this Court stated that “[mJarriage is a

coming together for better or for worse, hopefully

enduring, and intimate to the degree of being sacred.

It is an association that promotes a way of life, not

causes; a harmony in living, not political faiths; a

bilateral loyalty, not commercial or social projects. Yet

it is an association for as noble a purpose as any

involved in our prior decisions.” Griswold v.

Connecticut, 381 U.S. 479, 486 (1965). And while the

Court in Griswold ultimately failed to follow its own

wisdom by establishing federal precedent that

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promotes practices (contraception and abortion) that

ultimately destroy the sanctity of marriage, truth

reveals that the “noble” purpose of this “sacred” union

is the procreation and subsequent rearing of

children—a purpose that can only be fulfilled by a man

and a woman. Deboer v. Snyder, 772 F.3d 388, 405 (6th

Cir. 2014) (observing that “nature’s laws (that men and

women complement each other biologically) . . . created

the policy imperative”). This fundamental truth is

transcendent and unchangeable.

Indeed, there is a rational basis and a substantial (if

not compelling) state interest in limiting marriage to

unions between one man and one woman. And one

need look no further than the laws of nature to find it.

The complementarity of the sexes reiterates a truth

that is evident to right reason and recognized as such

by all the major cultures of the world. Marriage is not

just any relationship between human beings. It has its

own nature, essential properties, and purpose. No

ideology or political agenda can erase from the human

spirit the certainty that marriage exists solely between

a man and a woman, who by mutual! personal gift,

proper and exclusive to themselves, tend toward the

communion of their persons. In this way, they

mutually perfect each other in order to cooperate in the

procreation and upbringing of new human lives.

While social scientists, certain activists and

lawyers, and even federal judges appear willing to

upset this balance of nature and in the process deny

the very essence of our created beings as man and

woman, they do so at the peril of society and the

common good.

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And to be clear, the state is not preventing anyone

from forming a same-sex relationship, living with a

same-sex partner, or even engaging in perverse sexual

acts with a person of the same sex. See, e.g., Lawrence

v. Texas, 539 U.S. 558, 563 (2003) (striking down on

due process grounds a Texas sodomy statute which

made it a misdemeanor for a person to “engage[] in

deviate sexual intercourse with another individual of

the same sex” and thus reversing the convictions of two

men who were observed by police officers engaging in

anal sexual intercourse). People remain “free” to

engage in all sorts of sexually deviant behavior. That

“privacy” interest is not at issue. See generally id.

What the state (through its people) is not going to

do, however, is sanction and thus validate that same-

sex relationship as a “marriage” as a matter of law.

Nor should it be forced to do so by a federal court, any

more than it should be forced to sanction as valid

incestuous relationships, relationships between adults

and minors, or bigamous relationships, among others.

If the Court is going to disregard the natural law

and force a state to sanction same-sex relationships

there is no principled way to limit that holding.

Lawrence, 539 U.S. at 590 (Scalia, J., dissenting)

(observing that “the Court makes no effort to cabin the

scope of its decision to exclude” laws prohibiting, for

example, bigamy, adult incest, or bestiality).”

* Petitioners argue that they do not seek a “redefinition of the right

to marry,” (which of course they do), “[t]hey seek simply an end to

their exclusion from the freedom to marry the one adult of their

choice.” Petr’s Br. at 61 (emphasis added). But why limit it to only

one adult? Accepting Petitioners’ arguments provides no

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SUMMARY OF THE ARGUMENT

Michigan has a rational basis for defining marriage

as a relationship between one man and one woman,

and that basis is biology. The awareness of the

biological reality and self-evident truth that couples of

the same sex do not have children in the same way as

couples of opposite sexes satisfies rational basis review,

and, in fact, satisfies a heightened level of scrutiny

under the Fourteenth Amendment. Indeed, it is

without doubt a proper exercise of Michigan’s sovereign

authority within our federal system to resolve this

public policy issue by preserving the longstanding and

traditional definition of marriage as a matter of state

law. Therefore, Michigan is not required to license a

marriage between two people of the same sex, and it

would improper for this Court to conclude otherwise.

ARGUMENT

I. Michigan’s Marriage Amendment Satisfies the

Rational Basis Test.

The question presented is subject to rational basis

review. See Deboer, 772 F.3d 404-06. Under rational

basis review, the Court does not require the state “to

have chosen the least restrictive means of achieving its

principled (or honest) way to confine marriage to just two adults

(regardless of gender). Destroying the institution of marriage,

which is the inevitable outcome if this Court were to accept

Petitioners’ arguments, will have disastrous effects. See Francis

de Sales, Introduction to the Devout Life, at 219-20 (John K. Ryan

ed., Image Books/Doubleday, New York 1989) (1609) (“[T]he

preservation of holy marriage is of the highest importance for the

state since it is the origin and source of all that flows from the

state.”). We can resist natural law for only so long.

6

legislative end.” Heller v. Doe, 509 U.S. 312, 330

(1993); see also San Antonio Indep. Sch. Dist. Dist. v.

Rodriguez, 411 U.S. 1, 51 (1973). As long as it

“rationally advances a reasonable and identifiable

governmental objective, [the Court] must disregard”

the existence of alternative methods of furthering the

objective “that [it], as individuals, perhaps would have

preferred.” Schweiker v. Wilson, 450 U.S. 211, 235

(1981).

Indeed, “[r)ational basis review does not empower

federal courts to ‘subject’ legislative line drawing to

‘courtroom’ factfinding designed to show that

legislatures have done too much or too little.” Deboer,

772 F.3d at 405.

Consequently, the actual question presented is does

Michigan have a rational basis for defining marriage as

a relationship between one man and one woman? The

answer to that question is clearly and simply “yes.”

And Michigan’s rational basis is, in a word, biology.

As the Sixth Circuit quite properly held:

By creating a status (marriage) and by

subsidizing it (e.g., with tax-filing privileges and

deductions), the States created an incentive for

two people who procreate together to stay

together for purposes of rearing offspring. That

does not convict the States of irrationality, only

of awareness of the biological reality that

couples of the same sex do not have children in

the same way as couples of opposite sexes and

that couples of the same sex do not run the risk

of unintended offspring. That explanation, still

relevant today, suffices to allow the States to

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retain authority over an issue they have

regulated from the beginning.

Deboer, 772 F.3d at 405-06.

In the final analysis, an activist court will no doubt

be strongly tempted to substitute its policy preference

(whether as an individual judge at tiie district court

level or collectively in the case of this Court or the

federal appellate courts) for that of the people of

Michigan in such a politicized issue as “same-sex

marriage.” However, courts have no authority to do so.

Forcing the people of Michigan to accept this Court’s

policy preference on the issue of marriage would be

nothing short of lawlessness. See The Federalist No.

47, p. 324 (J. Cooke ed. 1961) (J. Madison) (“[The]

accumulation of all powers legislative, executive and

judiciary in the same hands, whether of one, a few or

many, and whether hereditary, self-appointed, or

elective, may justly be pronounced the very definition

of tyranny.”).

Il. Michigan’s Marriage Amendment Also

Satisfies a Higher Level of Scrutiny.

Even if this Court were to improperly disregard

rational basis review in favor of a higher level of

scrutiny by concluding that Michigan’s definition of

marriage discriminates on the basis of “gender,” see

generally Br. of Pet’rs at (“Whatever limits fnay be

imposed on the right to marry, the gender of the

partners cannot be one of them.”), Michigan’s Marriage

Amendment similarly satisfies this level of scrutiny.

See also Clark v. Jeter, 486 U.S. 456, 461 (1988)

(stating that “intermediate scrutiny” applies “to

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discriminatory classifications based on sex or

illegitimacy”).®

For example, in Geduldig v. Aiello, 417 U.S. 484

(1974), the Court held that a state disability insurance

program provision excluding benefits for disability

resulting from normal pregnancy did not discriminate

on the basis of sex in violation of the Equal Protection

Clause. “While it is true,” the Court stated, “that only

women can become pregnant, it does not follow that

every legislative classification concerning pregnancy is

a sex-based classification.” Jd. at 496, n. 20.

In Michael M. v. Superior Court of Sonoma County,

450 U.S. 464 (1981), the Court held that California’s

statutory rape law did not unlawfully discriminate on

the basis of gender. The Court stated, “[Blecause the

Equal Protection Clause does not ‘demand that a

statute necessarily apply equally to all persons’ or

require ‘things which are different in fact .. . to be

treated in law as though they were the same,’ a statute

will be upheld where the gender classification is not

invidious, but rather realistically reflects the fact that

the sexes are not similarly situated in certain

* Petitioners contend that intermediate scrutiny applies here

because “[t]he marriage bans, in tandem with Michigan's second

parent adoption law, ... trigger intermediate scrutiny because the

burden and disparate impact on children is at least as onerous as

that inflicted by the illegitimacy classifications invalidated by this

Court decades ago.” Br. of Pet’rs at 54-55. But Petitioners are

attempting here to inject an adoption law into the mix to argue

against Michigan’s Marriage Amendment. Whether Michigan’s

second parent adoption law requires amending is a matter to take

up with the Michigan legislature. It’s not a basis for striking down

a duly enacted constitutional amendment.

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circumstances.” Michael M., 450 U.S. at 469 (citations

to quotations omitted). Here, same-sex partners are

not similarly situated to opposite-sex partners as a

matter of biological fact. Therefore, the law does not

need to treat them as though they were the same.

Indeed, even in the politicized abortion context the

Court “establish [ed] conclusively that it is not ipso facto

sex discrimination” for a law to disfavor abortion. Bray

v. Alexandria Women’s Health Clinic, 506 U.S. 263, 273

(1993) (citing Maher v. Roe, 432 U.S. 464 (1977) and

Harris v. McRae, 448 U.S. 297 (1980)). In Bray, the

Court held that for purposes of a claim brought under

42 U.S.C. § 1985(3), opposition to abortion does not

reflect an animus against women. As the Court noted,

“(I]t cannot be denied that there are common and

respectable reasons for opposing [abortion], other than

hatred of, or condescension toward (or indeed any view

at all concerning), women as aclass....” Bray, 506

U.S. at 270.

Similarly here, opposition to “same-sex marriage”

does not reflect an animus against same-sex partners.

There are common and respectable reasons for

opposing same-sex marriage, as noted above. The most

notable (and common) reason is biology.

It is a biological fact that persons of the same sex

are incapable of producing offspring naturally. It

matters not that some married couples are incapable of

having children for various reasons, whether due to

illness, disabilities, or even incarceration. See Turner

v. Safley, 482 U.S. 78 (1987) (striking down a state

regulation of inmate marriages because it was not

reasonably related to legitimate penological

10

objectives).* The indisputable fact remains that as a

class, same-sex couples cannot reproduce while couples

of the opposite sex can.

In Michael M., for example, the Court recognized

that because women (and not men) can become

pregnant, this fact of nature provides a disincentive for

women to engage in the criminal offense of statutory

rape (even though not all women are capable of

becoming pregnant due to age, physical disabilities, or

other reasons). As the Court noted in upholding the

statute, the law “reasonably reflects the fact that the

consequences of sexual] intercourse and pregnancy fall

more heavily on the female than on the male.” Zd. at

476. In short, biology provided a legitimate basis for

upholding the statute against an equal protection

challenge under a heightened level of scrutiny. And

the same is true here regarding Michigan’s Marriage

Amendment.

In closing and drawing upon this Court’s reasoning

in United States v. Windsor, 133 S. Ct. 2675 (2013), the

only legitimate result in this case is for the Court to

affirm the Sixth Circuit’s holding. As stated by this

Court (with slight paraphrasing to make the relevant

point here):

In acting [to preserve the longstanding and

traditional] definition of marriage, Michigan was]

responding “to the initiative of those who

[sought] a voice in shaping the destiny of their

own times.” Bond v. United States, 564 U.S. __,

* Under Petitioners’ theory of the law, states would likely have to

allow male inmates to marry other male inmates.

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___, 1381 S. Ct. 2355, 180 L. Ed. 2d 269 (2011).

These actions were without doubt a proper

exercise of its sovereign authority within our

federal system, all in the way that the Framers

of the Constitution intended. The dynamics of

state government in the federal system are to

allow the formation of consensus respecting the

way the members of a discrete community treat

each other in their daily contact and constant

interaction with each other. ... It reflects . . .

the community’s considered perspective on the

historical roots of the institution of

marriage ....

Id. at 2692-93 (emphasis added).

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CONCLUSION

The Court should hold that the Fourteenth

Amendment does not require a state to license a

marriage between two people of the same sex.

Respectfully submitted,

ROBERT J. MUISE

Counsel of Record

American Freedom Law Center

P.O. Box 131098

Ann Arbor, MI 48113

(855) 835-2352

rmuise@americanfreedomlawcenter.org

David Yerushalmi

American Freedom Law Center

1901 Pennsylvania Ave. NW

Washington, D.C. 20006

(855) 835-2352

Counsel for Amicus Curiae

American Freedom Law Center