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

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Supreme Court of the United |Mtates voce cievx

JAMES OBERGEFELL, ET AL., AND BRITTANI HENRY, ET AL.,

PETITIONERS,

RICHARD HODGES, DIRECTOR, OHIO DEPARTMENT OF

HEALTH, ET AL., RESPONDENTS.

VALERIA TANCO, ET AL., PETITIONERS,

WILLIAM EDWARD “BILL” HASLAM, GOVERNOR OF

TENNESSEE, ET AL., RESPONDENTS.

APRIL DEBOER, ET AL., PETITIONERS,

Vv.

RicK SNYDER, GOVERNOR OF MICHIGAN, ET AL., RESPONDENTS.

GREGORY BOURKE, ET AL., AND TIMOTHY LOVE, ET AL.,

PETITIONERS,

Vv.

STEVE BESHEAR, GOVERNOR OF KENTUCKY, ET AL.,

RESPONDENTS.

On Writs of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

AMICUS BRIEF OF THE AMERICAN HUMANIST

ASSOCIATION AND CENTER FOR INQUIRY IN

SUPPORT OF PETITIONERS

MONICA L. MILLER ELIZABETH L. HILEMAN

AMERICAN HUMANIST Counsel of Record

ASSOCIATION HILEMAN & ASSOCIATES, P.C

1777 T Street N.W. 7979 Old Georgetown Rd,

Washington, D.C. 20009 #600

(202) 238-9088 Bethesda, Maryland 20814

mmiller@ (301) 652-1488

americanhumanist.org ehileman@hilemanlaw.com

Additional Counsel Listed on Inside Cover]

VWALSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D. C. 20002

DAVID A NIOSE

AMERICAN HUMANIST ASSOCIATION

1777 T Street N.W.

Washington, D.C. 20009

(202) 238-9088

dniose@americanhumanist.org

EDWARD TABASH

CENTER FOR INQUIRY

433 North Camden Drive, Suite 600

Beverly Hills, CA 90210

(310) 279-5120

etabash@centerforinquiry.net

NICHOLAS LITTLE

CENTER FOR INQUIRY

1020 19th St. NW, Suite 425

Washington, DC 20036

(202) 629-2403

nlittle@centerforinquiry.net

Attorneys for Amici Curiae

March 56, 2015

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIIBG ........000c..cccccsccccsceceses iii

INTERESTS OF AMICI CURIAE .................00005 1

SUMMARY OF ARGUMENT ...................:cceeceees 2

IEE vicciniesesnenindinnninnniniinminiaeasensaimeneiangie 3

I. THE EQUAL PROTECTION CLAUSE

REQUIRES STATES TO LICENSE A

MARRIAGE BETWEEN SAME-SEX

Fe El eccscececensccnscccecccsesssnnsoncesessssecccesece 3

A. Laws that discriminate on the basis of

sexual orientation create a suspect

B. Laws that impinge upon the

fundamental right to marry must be

subject to strict scrutiny...................... 5

C. There is no legitimate state interest,

compelling or otherwise, that justifies

the denial of same-sex couples the

fundamental right to marry................ 7

Il. TRADITIONAL AND _- RELIGIOUS

MORALITY CANNOT BE USED

TO JUSTIFY INVIDIOUS DIS

CRIMINATION AGAINST SAME-SEX

nein tininiseninmnetacnipenitninindanmnnsitiniinanine 10

A. Religious morality and traditions are

invalid state interests ....................600+ 10

(i)

‘i

TABLE OF CONTENTS—Continued

B. Preventing harm may be a moral

value, but it is the prevention of harm

itself that is a proper motivation for

legislation, mot any underlying

Feligious MOTILITY ..........0..cccccccocssceseeeee

C. The Sixth Circuit’s reliance on Town

of Greece is misplaced, as legislative

prayer is a sui generis category of

Establishment Clause jurisprudence

that has no applicability to other

TT isin scutidiiipeinnnianieniindietnndintninideneen

Ill. THE FOURTEENTH AMENDMENT

REQUIRES STATES TO RECOGNIZE A

MARRIAGE BETWEEN SAME-SEX

COUPLES LAWFULLY LICENSED

SF PE EEIEED snitccunenccccncesesnssenenesecesonann

SEED vcnncncescusesenennnesncsssnsepesnesanninnansninnens

APPENDIX

APPENDIX A: IDENTIFICATION OF AMICI

iti

TABLE OF AUTHORITIES

CASES Page(s)

ACLU v. Rabun Cnty. Chamber of

Commerce, Inc.,

698 F.2d 1098 (11th Cir. 1983)................. 30-31

ACLU of Ohio Found., Inc. v. Ashbrook,

375 F.3d 484 (6th Cir. 2004)..............0...... 28

Albright v. Board of Educ. of Granite Sch.

Dist., 765 F. Supp. 682 (D. Utah 1991).... 26

Atheists of Fla., Inc. v. City of Lakeland,

713 F.3d 577 (11th Cir. 2013)...........0....... 25

Baker v. Nelson,

191 N.W.2d 185, 186 (Minn. 1971)........... 19

Barnes v. Glen Theatre, Inc.,

a | ne 22

Baskin v. Bogan,

12 F. Supp. 3d 1144 (S.D. Ind. 2014) ....... 7

Bats v. Cobb Cnty.,

410 F. Supp. 2d 1324 (N.D. Ga. 2006)...... 26

Bellotti v. Baird,

ee I I ciceicnicoticesethomisenninnscsacants 7

Bethel School Dis. No. 403 v. Fraser,

a crccineriinceitunnnnnandcenniese 22

Blackwelder v. Safnauer,

689 F. Supp. 106 (N.D.N.Y 1988)............. 27

Bob Jones Univ. v. United States,

gf | anne 13

Bostic v. Schaefer,

760 F.3d 352 (4th Cir. 2014)...........0...0..... 6

TABLE OF AUTHORITIES—Continued

Page(s)

Bowers v. Hardwick,

ee Fs I I iintrcccdecnsctsscanctnsseneesosoes 20

Brown v. Bd. of Educ.,

gg Ener 29, 32

Cammack v. Waihee,

932 F.2d 765 (9th Cir. 1991)..................... 28

Card v. City of Everett,

520 F.3d 1009 (9th Cir. 2008)................... 26, 27

Carpenter v. City & Cnty. of San

Francisco, 93 F.3d 627 (9th Cir. 1996)..... 30

Carter v. Broadlawns Medical Center,

857 F.2d 448 (8th Cir. 1988)..................... 29

City of Cleburne v. Cleburne Living Ctr.,

ee A etticcntcicctstnmaieneecstdations 8

City of Erie v. Pap’s A.M..,

ae 22

City of Renton v. Playtime Theatres, Inc.,

I crs 22

Cohen v. California,

eee 22

Coles by Coles v. Cleveland Bd. of Educ.,

171 F.3d 369, 376, 379 (6th Cir. 1999)..... 26, 27

County of Allegheny v. ACLU,

Ge OE Be Gi Pocccicccecccncecccenecenccese 24, 25, 30

Crowley v. Christensen,

ge See 21

TABLE OF AUTHORITIES—Continued

Page(s)

Davis v. Beason,

133 U.S. BSS C1BBO)...cccccccccccccvccccccccccccscocess 21

DeBoer v. Snyder,

772 F. 3d 388 (6th Cir. 2014)................... passim

DeBoer v. Snyder,

973 F.Supp.2d 757 (E.D. Mich. 2014) ...... 8,9

Doe v. Indian River Sch. Dist.,

653 F.3d 256, 259 (3d Cir. 2011).............. 26, 27

Doe v. Tangipahoa Parish Sch. Bd.,

631 F. Supp. 2d 823 (E.D. La. 2009)........ 26

Edwards v. Aguillard,

(5 6 & |, SE eesareeaperae 25

Ellis v. La Mesa,

990 F.2d 1518 (9th Cir. 1993)...........0.00.... 30, 32

Epperson v. Arkansas,

es I iseueaiinnadeess 17

Estin v. Estin,

Se Cs Me GP crnecnccecccccccccnsocseccoscecess 21

Everson v. Bd. of Ed. of Ewing Twp.,

RE Ra 24

Friedman v. Board of Cnty.

Commissioners,

781 F.2d 777 (10th Cir. 1985)............0...... 30

Frontiero v. Richardson,

CL TT 5

Glassroth v. Moore,

229 F. Supp. 2d 1290 (M.D. Ala. 2002).... 26

TABLE OF AUTHORITIES—Continued

Page(s)

Glassroth v. Moore,

335 F.3d 1282 (11th Cir. 2003)................. 28, 31

Golinski v. OPM,

824 F. Supp. 2d 968 (N.D. Cal. 2012)....... 6

Gonzales v. North Township of Lake Cnty.,

4 F.3d 1412 (7th Cir. 1993)....................... 31

Goodridge v. Dep’t of Public Health,

440 Mass. 309 (20093) ....................ceeeeeeeeees g

Graham v. Central Comm. Sch. Dist.,

608 F. Supp. 531 (S.D. Iowa 1985)........... 28

Harris v. Zion,

927 F.2d 1401 (7th Cir. 1991)................... 30

Heller v. Doe,

5 EER ere een 8, 10

J.E.B. v. Alabama ex rel. T.B.,

I 32

Jager v. Douglas County Sch. Dist.,

862 F.2d 824 (11th Cir. 1989).............. 26, 28-29

Jewish War Veterans v. United States,

695 F. Supp. 3 (D.D.C. 1988).................... 27, 28

Jones v. Hamilton Cnty.,

891 F. Supp. 2d 870 (D. Tenn. 2012)........ 28

Joyner v. Forsyth County,

653 F.3d 341 (4th Cir. 2011)..............00..... 25

Katcoff v. Marsh,

755 F.2d 223 (2d Cir. 1985) ................00.00. 26

Kerrigan v. Comm’r of Pub. Health,

Se RS EIIEED csencestcnstessccecenecesens 5, 6, 20

vii

TABLE OF AUTHORITIES—Continued

Kitchen v. Herbert,

755 F.3d 1193 (10 Cir. 2014).............

Lawrence v. Texas,

539 U.S. 558 (2003)................:.cecceeseeees

Lee v. Weisman,

505 U.S. 577 (1992)..........cccccsssssssseesees

Lemon v. Kurtzman,

GED UB. GEE URE 2B) neccncccsssccoecscsccesosensee

25, 26, 27, 28

Loving v. Virginia,

ee Be Pecervassvencinnnsinntuiiinnniadiniiata

Lundberg v. West Monona Comm. Sch.

Dist.,

731 F. Supp. 331 (N.D. Iowa 1989) .....

Marsh v. Chambers,

GD UD. FE CI ccccccncccccvsnnsesconsscosoes

Mass. Bd. of Retirement v. Murgia,

Say Gs. eG CP Pevtesetnsinttncnscstsvciinten

Maynard v. Hill,

BBD UE. FO (BBS) .cccccccccccecscccsccsccccccees

McCreary Cnty. v. ACLU,

GEE Ts Ce eeticcstinnntccincnsinninaninne

McDonald v. Chicago,

GEE WA, FD Gi Prccccccnsccccccescsnccnsssnsin

Mellen v. Bunting,

327 F.3d 355 (4th Cir. 2003)................

Metzl v. Leininger,

850 F. Supp. 740 (N.D. Ill. 1994).........

Page(s)

....passim

seve 28

....passim

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Meyer v. Nebraska,

ee 6

Miss. Univ. Women v. Hogan,

ia creantinniemansennnnats 10

North Carolina Civil Liberties Union Legal

Found. v. Constangy,

947 F.2d 1145 (4th Cir. 1991)................... 28

Pelphrey v. Cobb Cnty.,

547 F.3d 1263 (11th Cir. 2008)................. 26

Perry v. Brown,

671 F. 3d 1052 (9th Cir. 2012).................. 8

Phalen v. Commonwealth of Virginia,

TN 21

Pitts v. City of Kankakee,

267 F.3d 592 (7th Cir. 2001)..................... 31

Plyler v. Doe,

457 U.S. 202 (1982).................... i iiiaiiaael 4,7,8

Posadas de Puerto Rice Associates v.

Tourism Co. of Puerto Rico,

LL 21

Robinson v. City of Edmond, 68 F.3d 1226

EN 30

Rubin v. City of Lancaster,

710 F.3d 1087 (9th Cir. 2013)................... 27

Santa Fe v. Doe,

530 U.S. 280 (2O00).............................2...... 28

Scott v. Sandford,

Be Se GI GIT Pecceccnsnnesnsnssccestsscevseensesnes 29

TABLE OF AUTHORITIES—Continued

Page(s)

Searcy v. Strange,

2015 U.S. Dist Lexis 7776 (S.D. Al. Jan.

Eee ne ee 18

Simpson v. Chesterfield County Bd. of

Supervisors,

404 F.3d 276 (4th Cir. 2005).............0....... 25, 27

Slaughter-House Cases,

I ae 33

Snyder v. Murray City Corp.,

159 F.3d 1227 (10th Cir. 1998)................. 25, 27

Town of Greece v. Galloway,

| &. passim

Trunk v. City of San Diego,

629 F.3d 1099 (9th Cir. 2011)................... 30

Turner v. Safley,

ee 6

U.S. Dep’t of Agric. v. Moreno,

ee es ee ictrtercesccncccsecssseceneccocnses 23

United States v. Virginia,

tk, ee 33

United States v. Windsor,

570 U.S. __ (2013), 133 S. Ct. 2675

dain ae 4,6, 10, 33

Varnum uv. Brien,

763 N.W.2d 862 (Iowa 2009) .............0000... 4

Wallace v. Jaffree,

RD Ce Ce Cie iernsnctccnsscencnenssesesessenensens 28

TABLE OF AUTHORITIES—Continued

Page(s)

Walz v. Tax Commission,

gt 8 re 30

Warner v. Orange County Dep't of Prob.,

115 F.3d 1068 (2d Cir. 1997).................... 28

Washegesic v. Bloomingdale Pub. Sch.,

813 F. Supp. 559 (W.D. Mich. 1993),

affd 33 F.3d 679 (6th Cir. 1994).............. 31

Watson v Memphis,

SC eR 9

Weisman v. Lee,

908 F.2d 1090 (ist Cir. 1990)................... 26

West Chester & P.R. Co. v. Miles,

Ae BI icicctstticntintnsrsemmenpeninde 12-13

West Virginia Bd. of Ed. v. Barnette,

8 8) rn 3

Wynne v. Town of Great Falis,

376 F.3d 292, 302 (4th Cir. 2004)............. 28

Wynne v. Town of Great Falis,

2003 U.S. Dist. LEXIS 21009 (D.S.C.

AIEEE TT Se a ee 26, 27

Young v. Am. Mini Theatres, Inc.,

427 U.S. 50 (1976).................. Ee Ra 22

Zablocki v. Redhail,

FS GR BO Ge Deveeneernecnvensnvsnesesesevctenees 3, 6

TABLE OF AUTHORITIES—Continued

CONSTITUTION Page(s)

ee passim

U.S. Const. amend. XTV, § 1. ...................... passim

rn 33

COURT FILINGS

Brief for the Coalition of Black Pastors

From Detroit, Outstate Michigan, and

Ohio as Amici Curiae, DeBoer v. Snyder,

772 F. 3d 388 (6th Cir. 2014).................... 17-18

Brief for the National Coalition of

Evangelicals et al. as Amici Curiae,

DeBoer v. Snyder, 772 F. 3d 388 (6th Cir.

a heieeitealtilia ei ininadaetntnaesiitiieitdiiniabatebhiniininbios 18

OTHER AUTHORITIES

Ross Barnett, Segregationist, Dies;

Governor of Mississippi in 1960's, N.Y.

Times, Nov. 7, 1987, available at

http://www.nytimescom/1987/11/07/obith

aries/ross-barnett-segregationist-dies-

governor-of-mississippi-in-1960-s.html

(last visited Feb. 24, 2015) ....................... 14

Alan Blinder, Alabama Judge Defies Gay

Marriage Law, N.Y. Times, Feb. 8, 2015,

available at http:/Awww.nytimes.com/20

15/02/09/us/gay-marriage-set-to-begin-

in-alabama-amid-protest.html?_r=0

(last visited Feb 26, 2015.......................... 18

xii

TABLE OF AUTHORITIES—Continued

Page(s)

S. Michael Craven, No-Fault Divorce is

Institutionalized Evil, Christian Post

Sept. 11, 2009, available at http://www.

christianpost.com/news/no-fault-divorce-

is-institutionalized-evil-40822/ (last

i 8 ee

Michael Curtis, A Unique Religious

Exemption From_ Antidiscrimination

Laws in the Case of Gays? Putting the

Call for Exemptions for Those who

Discriminate Against Married’ or

Marrying Gays in Context, 188 WAKE

FOREST L. REV. 173 (2012)...............000e00008

David Edwards, Roy Moore: If Supreme

Court changes God’s ‘Organic Law’

on marriage ‘I would not be bound

thereby,” Feb, 15, 2015, available at

http://www.rawstory.com/rs/2015/02/roy-

moore-if-supreme-court-changes-gods-

organic-law-on-marriage-i-would-not-be-

bound-thereby (last visited Feb. 24,

EC A ar I eee eee

Steven B. Epstein, Rethinking the

Constitutionality of Ceremonial Deism,

96 Colum. L. Rev. 2083 (1996) .................

Family Research Council, Vision and

Mission Statements, available at

http://www.frc.org/mission-statement

(last visited March 2, 2015)......................

ere

TABLE OF AUTHORITIES—Continued

Page(s)

GAO, D. Shah, Defense of Marriage Act:

Update to Prior Report i (GAOQ—04—353R,

STI cuisbisicionbbbaniaitnachetniiiciaacsieeiihiienigunatiaadiaiduasipttibaitics

Jill Hasday, Contest and Consent: A Legal

History of Marital Rape, 88 CALIF. L.

REV. 1373 (2000)

Bob Jones, Sr., Is Segregation Scriptural?,

Radio Address at Bob Jones University,

Apr. 17, 1960, available at https://docs.

google.com/a/centerforinquiry.net/file/d/0

B6A7PtimRgT7Q1kzZEVXUThMLWe/e

dit (last visited Feb. 24, 2015)..................

LGBTQNation Staff Reports: Civil laws on

same-sex marriage must comport with

God’s law, Nov. 5, 2011, available at

http://www.lgbtqnation.com/2011/11/sa

ntorum-civil-laws-on-same-sex-marriag

e-must-comport-with-gods-law/ (last

i GE ER Ee

Mason I. Lowance, A House Divided: The

Antebellum Slavery Debates in America,

TEESE ARS ER EERE

Michael M. Maddigan, The Establishment

Clause, Civil Religion, and the Public

Church, 81 Cal. L. Rev. 293 (1993)

13-14

xiv

TABLE OF AUTHORITIES—Continued

Page(s)

Gary Stern, Two Christian Groups

Oppose No-Fault Divorce, The Journal

News, June 17, 2010, available at

http-//religion.lohudblogs.com/2010/06/1

7/two-christian-groups-oppose-no-fault-

divorce/ (last visited Feb. 24, 2015).......... 15-16

The Bible:

EE ciinsniccncsnscntcinietineneniannnininieiiesion 11

III os icnisnnsscectadiintdisdenieieminabemainainibhets 12

ee INOUE siicicstscisisdiicieencitciienciiineniieddnaiebaiies 16

SI IT icthincichinnigesianimmapnuiieuietetebdinin 16

te SN iiccinncisistensscediccnsentenninininies 11

DE CEE cenetinincsdinnisspscctasotntenensinitinees 15

INTERESTS OF AMICI CURIAE’

This amici curiae brief in support of Petitioners is

filed on behalf of the American Humanist Association

(“AHA”) and Center For Inquiry (“CFI”).

AHA has a long history of supporting equal rights

for gay people. It remains committed to advancing

equality for lesbian, gay, bisexual and transgender

people and their families. AHA’s LGBT Humanist

Council seeks to improve the lives of LGBT individuals

through education, public service and outreach, and

serves as a resource for its members, the greater

freethought community and the public on LGBT

issues. Humanists celebrate the happiness brought

into the lives of LGBT couples by their love for each

other, and reject discrimination against gay people

because it finds no basis in reason.

CFI’s mission to promote the values of secular

humanism in society leads directly to its firm

belief that lesbian, gay, bisexual, and transgender

individuals are entitled to the same civil rights and

liberties as other Americans. They are also entitled to

the same economic benefits. CFI has examined the

issue of marriage for same-sex couples and has

concluded that as long as the state recognizes and

regulates intimate relationships through the

institution of marriage, then marriage should be

available for LGBT individuals just as it is for other

Americans. CFI opposes bans on marriage equality as

1 Respondents have given blanket permission to file this

amicus brief; Petitioners have granted written consent to file this

brief. Petitioners’ letter of consent is attached herein. No counsel

for a party authored this brief in whole or in part, and no party

or counsel for a party made a monetary contribution intended to

fund its preparation or submission.

discriminatory, and believes they brand LGBT

individuals as second-class citizens.

This case concerns core humanist and atheist

interests regarding the equal, fair and just application

of our laws to all of citizens and the separation of

church and state.

SUMMARY OF ARGUMENT

This case, properly considered, is not merely about

the civil institution of marriage and the right to build

a committed and stable life with the one you love.

Rather, it is about the denial of any civil right on the

basis of discrimination in contravention of our most

foundational constitutional values.

An application of these general principles resolves

the particular cases before the Court. It violates the

Equal Protection Clause to discriminate against same-

sex couples, including denying them the fundamental

right to marry. The purported state interests put

forward to justify these discriminatory laws are

illusory, having either no logical connection to the

legislation or embodying an illegitimate interest, such

as animus toward gay people or the promotion of

discriminatory religious views. Indeed, because the

First Amendment forbids any law solely grounded in

or codifying a religious “moral” commandment, such

“justifications” can be accorded no weight by this

Court.

ARGUMENT

I. THE EQUAL PROTECTION CLAUSE

REQUIRES STATES TO LICENSE A

MARRIAGE BETWEEN SAME-SEX

COUPLES.

It is a fundamental democratic ideal of the American

republic, forged in the crucible of the Civil War and

codified in the Fourteenth Amendment enacted in its

wake, that “we are a free people whose institutions are

founded upon the doctrine of equality.” Loving v.

Virginia, 388 U.S. 1, 11 (1967). The late date of this

Court’s decision in Loving, however, is telling. The

promise of legal equality has all too frequently been

empty for those groups deemed by some of the white,

Christian majority to be alien, unworthy, abnormal or

inferior.

It has been left to this Court to act as a bulwark

against such majoritarian discrimination and to

defend the Constitution’s guarantees of liberty and

equality for all. As this Court summarized in West

Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 638

(1943), our fundamental civil liberties and rights,

including that to legal equality, must be “placefd] . . .

beyond the reach of majorities and . . . establish[ed] . . .

as legal principles to be applied by the courts... .

[F]undamental rights may not be submitted to vote;

they depend on the outcome of no elections.”

The passage of the Fourteenth Amendment was a

milestone in the long, unfinished struggle for equality

in American society. Although it was racial slavery

that was the issue at the forefront of the Civil War, the

language of the Equal Protection Clause is not limited

to preventing discrimination on the basis of race. It

defends equality for all, forbidding the government to

“deny to any person .. . the equal protection of the

laws.” U.S. CONST. AMEND. XIV, §1 (emphasis added).

While Respondents may argue that recent cases give

states protection from the Fourteenth Amendment in

matters involving marriage, they ignore the obvious

fact that such laws must comport with the

Constitution. See United States v. Windsor, 570 U.S.

___, 1383 S. Ct. 2675, 2691 (2013) (“State laws defining

and regulating marriage, of course, must respect the

constitutional rights of persons”).

A. Laws that discriminate on the basis of

sexual orientation create a suspect

classification requiring strict judicial

scrutiny.

The question in this case is not whether these laws

discriminate on the basis of sexual orientation. They

clearly do. See, e.g., Varnum v. Brien, 763 N.W.2d 862,

884 (Iowa 2009) (stating that laws that ban

recognition of “civil marriages between two people

of the same sex classifly] on the basis of sexual

orientation”). Instead, the question is whether the

government can justify such discrimination as a

means to. protect a_ sufficiently important

governmental interest. It cannot.

In interpreting the Constitution’s guarantee of legal

equality, this Court has developed a jurisprudence

that requires courts to subject to strict scrutiny any

law that treats people differently on the basis of

“suspect” classifications. Plyler v. Doe, 457 U.S. 202,

216-17 (1982). Governmental line-drawing that “likely

. reflect[s] deep-seated prejudice rather than

legislative rationality in pursuit of some legitimate

objective” is suspect. Jd. at n.14.

Amici support and endorse, and will not duplicate

in their entirety here, Petitioners’ arguments that

discrimination against gay people is, upon application

of this Court’s precedents, suspect and therefore

subject to heightened judicial scrutiny. Sexual orien-

tation is a core element of personal identity and has no

relationship to the ability to function or excel in

society. Kerrigan v. Comm’r of Pub. Health, 289 Conn.

135, 175 (2008). Gay people have suffered a history of

unequal treat:inent motivated by outright bigotry.

They represent a small proportion of the population

and are in need of protection from hostile political

majorities. Cf. Frontiero v. Richardson, 411 U.S. 677,

686 n.17 (1973) (plurality) (applying heightened

scrutiny to gender classifications even though women

constitute a majority of the populace). The very fact

that this case is before the Court itself illustrates that

gay people frequently have been unable politically to

prevent the passage of discriminatory laws.

In view of the above, the Sixth Circuit gravely erred

in applying mere rational basis review to the laws at

issue. DeBoer v. Snyder, 772 F.3d 388, 405 (6th Cir.

2014) (applying rational basis).

B. Laws that impinge upon § the

fundamental right to marry must be

subject to strict scrutiny.

There is a second basis for applying strict scrutiny

to the laws challenged here: They impinge upon the

fundamental right to marry.

It is apodictic that the Constitution recognizes a

fundamental right to marry. Loving, 388 U.S. at 12;

Zablochi v. Redhail, 434 U.S. 374, 384 (1978) (stating

that “[a]lthough Loving arose in the context of racial

discrimination, prior and subsequent decisions of

this Court confirm that the right to marry is of

fundamental importance for all individuals”); Turner

v. Safley, 482 U.S. 78, 95 (1987) (“the decision to marry

is a fundamental right”); Meyer v. Nebraska, 262 U.S.

390, 399 (1923) (recognizing “right . . . to marry”);

Maynard v. Hill, 125 U.S. 190, 205 (1888) (marriage is

“the most important relation in life”).

This fundamental right does not depend upon the

characteristics of the spouse. In Loving, “the Court

defined the fundamental right as the right to marry,

not the right to interracial marriage.” Golinski v.

OPM, 824 F. Supp. 2d 968, 983 (N.D. Cal. 2012) (citing

388 U.S. at 12). In Turner, “the fundamental right was

the right to marry, not the right to inmate marriage.”

Id. (citing 482 U.S. at 94-96). In Zablocki, “the

fundamental right was the right to marry, not the

right of people owing child support to marry.” 7d.

(citing 434 U.S. at 383-86).

Petitioners here simply seek to participate equally

in the established right to marry rather than seek a

“new” fundamental right to “same-sex marriage.” See

Bostic v. Schaefer, 760 F.3d 352, 376 (4th Cir. 2014);

Kitchen v. Herbert, 755 F.3d 1193, 1215 (10th Cir.

2014); Kerrigan, 289 Conn. at 261-63. If “courts

limited the right to marry to certain couplings,

they would effectively create a list of legally

preferred spouses, rendering the choice of whom to

marry a hollow choice indeed.” Bostic, 760 F.3d at 377.

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

teach that “the choices that individuals make in the

context of same-sex relationships enjoy the same

constitutional protection as the choices accompanying

~ > relationships.” Jd. “In time, Americans

will... refer to it simply as a marriage—not a same-

sex marriage.” Baskin v. Bogan, 12 F. Supp. 3d 1144,

1163-64 (S.D. Ind. 2014).

Impairing a fundamental right violates the

Fourteenth Amendment regardless of whether such

impairment implicates a suspect class. Mass. Bd. of

Retirement v. Murgia, 427 U.S. 307, 312 (1976)

(stating that “equal protection analysis requires strict

scrutiny of a legislative classification . . . when the

classification impermissibly interferes with the

exercise of a fundamental right or operates to the

peculiar disadvantage of a suspect class”) (emphasis

added); Bellotti v. Baird, 443 U.S. 622, 633 (1979)

(applying strict scrutiny to a burden on a fundamental

right on the basis of age).

Strict scrutiny is therefore warranted here

independent of the level of scrutiny the Court accords

sexual-orientation discrimination. In fact, a “law

that impinges upon a [fundamental right]” is

“presumptively invalid, whether or not the law’s

purpose or effect is to create any classifications.”

Plyler, 457 U.S. at 231-32 (Blackmun, J., concurring)

(emphasis added). Because these laws categorically

prevent same-sex couples from marrying, they do more

than merely “burden” the right to marry — they deprive

them of the right completely. Such infringement of a

fundamental right must be justified by the most

compelling of governmental interests. No such

compelling interest exists, infra.

C. There is no legitimate state interest,

compelling or otherwise, that justifies

the denial of same-sex couples the

fundamental right to marry.

When a law discriminates among individuals on

the basis of a suspect classification, or burdens a

fundamental right, the government must “demon-

strate that its classification has been precisely tailored

to serve a compelling governmental interest.” Plyler,

457 US. at 217.

In reviewing marriage equality bans, courts have

been presented with a variety of post-hoc rationaliza-

tions by their defenders. Such purported “state

interests” have included, inter alia, “furthering the

[state’s] interest in childrearing and responsible

procreation,” (Perry v. Brown, 671 F. 3d 1052, 1086

(9th Cir. 2012)), “proceeding with caution before

altering the traditional definition of marriage,” and

“upholding tradition and morality.” DeBoer v. Snyder,

973 F.Supp.2d 757, 777 (E.D. Mich. 2014).

None of these arguments can constitutionally justify

such laws. Gay and heterosexual couples, married or

unmarried, may both procreate (naturally or artifi-

cially) or adopt, or choose not to do so, or be infertile.

Either may be good or poor parents, depending

on their individual! character and ability, rather than

their sexual orientation. “[A]pproximately 150 socio-

logical and psychological studies of children raised by

same-sex couples have repeatedly confirmed .. . that

there is simply no scientific basis to conclude that

children raised in same-sex households fare worse

than those raised in heterosexual households.” /d.

at 778. While courts have traditionally allowed

lawmakers leeway to determine which factual argu-

ment they are to accept, this Court has also made clear

that it must “find some footing in the realities of the

subject addressed by the legislation.” Heller v. Doe,

509 U.S. 312, 321 (1993); see also City of Cleburne v.

Cleburne Living Ctr., 473 U.S. 432, 450 (1985)

(“irrational prejudice” does not pass rational basis

review).

Of all the purported state interests advanced in

favor of the marriage bans, supra, the most obscure

is the alleged “wait and see” justification adopted by

the Sixth Circuit. Strangely, the Sixth Circuit found

this “justification” particularly persuasive, writing:

“To take another rational explanation for the decision

of many States not to expand the definition of

marriage, a State might wish to wait and see before

changing a norm that our society (like all others) has

accepted for centuries.” DeBoer, 772 F.3d at 406.

The Sixth Circuit’s “wait and see” approach is as

fundamentaliy flawed as it is unprecedented; when

constitutional rights are hindered there must be

“prompt rectification.” Watson v Memphis, 373 U.S.

526, 532-33 (1963). “The basic guarantees of our

Constitution are warrants for the here and now and,

unless there is an overwhelmingly compelling reason,

they are to be promptly fulfilled.” Id. (emphasis

added). “Were the Court to accept this position, ‘it

would turn the rational basis analysis into a toothless

and perfunctory review’ because ‘the state can plead

an interest in proceeding with caution in almost any

setting.” DeBoer, 973 F.Supp.2d at 782 (citation

omitted).

Just as the “wait and see” approach is

fundamentally flawed, so too is the “tradition and

morality” justification. Courts have been virtually

unanimous in concluding that “moral disapproval is

not a sufficient rationale for upholding a provision of

law on equal protection grounds.” Jd. at 782-83

(citations omitted). As the Massachusetts Supreme

Judicial Court recognized in Goodridge v. Dep’t of

Public Health, 440 Mass. 309, 332 n.23 (2003), “it is

circular reasoning, not analysis, to maintain that

marriage must remain a heterosexual institution

because that is what it historically has been.” Indeed,

as discussed in more detail infra, reliance on tradi-

tional, moral disapproval to uphold discriminatory

laws against same-sex couples violates the Equal

Protection Clause at its core. See Heller, 509 U.S. at

326 (the “[a]ncient lineage of a legal concept does not

give it immunity from attack for lacking a rational

basis.”).

In short, the asserted state interests provide no

logical justification for sustaining the marriage bans

let alone a compelling one. They are instead illusory

post hoc phantasms. We are left with those founded in

religious interests, often in the guise of “morality” or

“tradition,” to which we now turn.

Il. TRADITION AND RELIGIOUS MORALITY

CANNOT BE USED TO JUSTIFY

INVIDIOUS DISCRIMINATION AGAINST

SAME-SEX COUPLES.

A. Religious morality and traditions are

invalid state interests.

In developing and applying its equal protection

jurisprudence, this Court has rightly cautioned

against a reliance on history or tradition as a reason

to uphold a discriminatory law. Such “justifications,”

as here, simply embody the very discrimination at

issue. See, e.g., Miss. Univ. Women v. Hogan, 458 U.S.

718, 724-25 (1982) (“[clare must be taken in

ascertaining whether the statutory objective itself

reflects archaic and stereotypic notions”).? Thus, in

upholding the marriage bans based primarily on

2 It is this history of discrimination against gay people that

compels the Court to apply strict scrutiny, supra, rather than to

uphold the laws at issue. See Windsor, 133 S. Ct. at 2689.

America’s “tradition,” rooted in religious morality of

condemning gay people, infra, the Sixth Circuit’s

ruling contradicts this Court’s Equal Protection

jurisprudence, and stands in stark opposition to the

very purpose of the Equal Protection Clause itself.

The Court’s Equal Protection approach is sensible;

after all, the foremost purpose in enacting the

Fourteenth Amendment was to remedy the long

history of deeply entrenched racial discrimination that

stained American society from its earliest days. It was

intended to force a new beginning, to change the law

by repudiating long-standing norms of discrimination.

Its broad language did not limit such change to

protecting former slaves and their descendants, but

guaranteed the right to equality to all.

Such traditional norms used to justify slavery

took the form not only of discriminatory laws, but also

of the Christian “moral” justifications for them.

Consider, for example, the justifications that a

Christian slaveholder found in his Bible. Leviticus

25:44-46 says that “you may buy male and female

slaves from among the nations that are around you ...

and they may be your property.” Once acquired, he

could rely on Ephesians 6:5 to compel obedience with

its command to slaves to “obey [their] earthly masters

with fear and trembling, with a sincere heart, as [they]

would Christ.” As Jefferson Davis, president of the

secessionist Confederate States of America, put it,

“{s]lavery was established by the decree of Almighty

God .. . It is sanctioned in the Bible, in both

Testaments, from Genesis to Revelation.” Following

the abolition of slavery itself, many Christian racists

* Mason I. Lowance, A House Divided: The Antebellum Slavery

Debates in America, 1776-1865, 60 (2003).

continued to look to the Bible to justify enduring racial

discrimination, citing the story in Genesis 9:25 of the

“mark of Cain” for their view that dark-skinned

peoples are cursed by God, and therefore must be

treated as inferiors.

Religious, in particular Christian, faith was at the

forefront of the defense of segregation and the bans on

interracial marriage. In 1967, 16 states including

Virginia banned such marriages with penalties. Mr.

and Mrs. Loving, an interracial couple from Virginia,

married in the District of Columbia and returned to

their home state. Loving, 388 U.S. at 2. They were

arrested and charged with violation of the law.

Sentenced to’a year in prison, the judge offered to

suspend the sentence for 25 years in exchange for the

Lovings leaving Virginia, a modern, self-imposed

exile. Id. at 3. The statute banning interracial

marriage was upheld by the state court, including one

of the most famous expressions of religious based

racial discrimination in American history:

‘Almighty God created the races white, black,

yellow, malay and red, and he placed them

on separate continents. And but for the

interference with his arrangement there

would be no cause for such marriages. The

fact that he separated the races shows that he

did not intend for the races to mix.’

Id. (citing the trial judge’s ruling).

Loving was far from the first time where a judge

criticized interracial relationships based on an

explicitly Biblical morality. In reversing a lower court

decision awarding damages to a non-white passenger

who was removed from a train when she refused to

move seats, the court in West Chester & P.R. Co. v.

Miles, 55 Pa. 209, 213 (Pa. 1867) upheld the right to

segregate, noting that:

Why the Creator made one black and the

other white, we know not; but the fact is

apparent, and the races distinct, each

producing its own kind, and following the

peculiar law of its constitution. Conceding

equality, with natures as perfect and rights

as sacred, yet God has made them dissimilar,

with those natural instincts and feelings

which He always imparts to His creatures

when He intends that they shall not overstep

the natural boundaries He has assigned to

them.

Churches, in particular many Southern Protestant

churches, also defended segregation and bans on

interracial marriage. Bob Jones University, a non-

denominational Protestant university in South

Carolina fought a case all the way to the Supreme

Court, unsuccessfully maintaining that the Internal

Revenue Service could not use the university’s ban on

interracial relationships to deny it tax exemption. Bob

Jones Univ. v. United States, 461 U.S. 574 (1983). The

university's claim was that the discriminatory rules

were part of the school’s divine mission. Jd. at 580-81.

In a 1960 radio address, the school’s founder, Bob

Jones, Sr., a preacher, stated:

All men, to whatever race they may belong,

have immortal souls; but all men have mortal

bodies, and God fixed the boundaries of the

races of the world. Let me repeat, it is no

accident that most of the Chinese live in

China. It is not an accident that most

Japanese live in Japan; and the Africans

should have been left in Africa, and the

Gospel should have been taken to them as

God commanded His people to do.‘

Another famous Protestant preacher, the Reverend

Jerry Falwell, was horrified by the Supreme Court’s

mandating desegregation in public education, blaming

it on “Chief Justice Warren’s failure to know and

follow God’s word.” Michael Curtis, A Unique

Religious Exemption From Antidiscrimination Laws

in the Case of Gays? Putting the Call for Exemptions

for Those who Discriminate Against Married or

Marrying Gays in Context, 188 WAKE FOREST L. REv.

173, 188 (2012).

Senior politicians also trumpeted their belief in

segregation and purity of the races in terms of

religious faith. On the Senate floor, Senator Robert

Byrd cited Genesis, Leviticus and the Gospel

according to Matthew to oppose the 1964 Civil Rights

Act, which banned racial discrimination in public

accommodations. Id. at 188, n.71. Senator Bilbo of

Mississippi placed his opposition to desegregation and

interracial marriage, asserting, “miscegenation and

amalgamation are sins of man in direct defiance with

the will of God.” Jd. at 189-90. Mississippi’s governor,

Ross Barnett, is reported as proudly announcing, “God

was the original segregationist.”- Even charitable

organizations such as the Daughters of the American

* Bob Jones Senior, Js Segregation Scriptural?, Radio Address

at Bob Jones University, Apr. 17, 1960 at 13-14, available at

https://docs.google.com/a/centerforinquiry.net/file/d/OB6A7Ptfm

RgT7Q1kzZEVXUThMLWCcedit (last visited Feb. 24, 2015).

5 Ross Barnett, Segregationist, Dies; Governor of Mississippi in

1960’s, N.Y. Times, Nov. 7, 1987, available at http://www.ny

timescom/1987/1 1/07/obituaries/ross-barnett-segregationist-dies

-governor-of-mississippi-in-1960-s.htm] (last visited Feb. 24,

2015).

Revolution chimed in, announcing “racial integrity

[was a] fundamental Christian principle.” Curtis, A

Unique Religious Exemption, at 190.

Racial discrimination is in no way unique in

finding its justification in long-standing history and

traditional religious views. Opponents of equal rights

for women could point to 1 Timothy 2:12, which said

“suffer not a woman to teach, nor to usurp authority

over the man, but to be in silence.”

Religious morality was also a driving force behind

discriminatory treatment of women within marriage.

Wives were, for much of U.S. history, prevented from

owning property, and could only obtain divorces on

extremely restrictive grounds. “Opposition to divorce

remained widespread among American churches in

the second half of the nineteenth century (especially in

the absence of adultery).” Jill Hasday, Contest and

Consent: A Legal History of Marital Rape, 88 CALIF. L.

REV. 1373, 1468 (2000). The Catholic Church and all

major Protestant denominations joined the anti-

liberalization National Divorce Reform League as

charter members; and the Presbyterian Church held

moves towards easier divorce in the states to be “in

direct contravention of the law of God.” Jd. at 1468

n.33 (citation omitted). The final state to permit no-

fault divorce was New York, which did not pass such

legislation until 2010. Once again, the most vocal

opponents of no-fault divorce included religious

groups. The New York State Catholic conference,

continuing to uphold the Vatican’s policy against

divorce, released a statement saying “[wle urge the

state Assembly to reject this proposal, and failing that,

we call on Gov. Paterson to veto it.” In the words of a

column in the Christian Post, “[wlhat must be

understood by Christians is that no-fault divorce

functions as a direct enemy of the gospel of the

kingdom.”

Laws prohibiting same-sex couples from marrying

are undoubtedly motivated by religious bias, founded

in Christian “morality” as well. Opponents of equal

legal rights for gay people frequently ground their

position in what they say are the moral commands of

their religion. Many cite the story of Sodom and

Gomorrah (found in Genesis 19:1-11) or Leviticus

20:13, which calls for the execution of those who

engage in gay sex, saying that “[i]Jf a man lies with a

male as with a woman, both of them have committed

an abomination; they shall be put to death; their blood

is upon them.”

® Gary Stern, Two Christian Groups Oppose No-Fault Divorce,

The Journal News, June 17, 2010, available at http-//religion.

lohudblogs.com/2010/06/17/two-christian-groups-oppose-no-fault

-divorce/ (last visited Feb. 24, 2015).

7S. Michael Craven, No-Fault Divorce is Institutionalized Evil,

Christian Post Sept. 11, 2009, available at http://www.

christianpost.com/news/no-fault-divorce-is-institutionalized-evil-

40822/ (last visited Feb, 24, 2015).

® Of course, not all Christians read these portions of the Bible

as compelling them to discriminate against African Americans,

women and gay people, but it is clear that large portions of

the Christian-majority electorate have voted to discriminate

on the basis of sexual orientation in approving the myriad of

anti-marriage equality measures enacted in the first decade of

this century, often as constitutional amendments requiring a

super majority vote. That many Christian and other religious

groups now and historically oppose such discrimination only

strengthens the unconstitutionality of relying on such

religious opposition as a justification for discrimination. The

The religious nature of the opposition to marriage

equality is apparent to this day. When the list of amici

briefs submitted to the Sixth Circuit defending the

states’ proscriptions of same sex marriage is

examined, it can be seen that brief after brief was filed

by religious groups. These groups included: (1) The

Family Research Council, whose mission is “to

advance faith, family and freedom . . . from a Christian

worldview;” (2) The Becket Fund for Religious

Liberty; (3) the U.S. Conference of Catholic Bishops;

(4) the National Association of Evangelicals; (5) the

Church of Jesus Christ of the Latter-Day Saints; and

(5) the Coalition of Black Pastors, amongst many other

religious groups. These briefs were not shy in stating

the source of the tradition to be invoked when seeking

to restrict marriage rights to same-sex couples:

Christianity.

For example, amici The Coalition of Black Pastors

noted that they were duty bound to “oppose any idea,

law, rule or suggestion that is contrary to the

teachings of the Bible.” Brief for the Coalition of Black

Pastors From Detroit, Outstate Michigan, and Ohio as

Amici Curiae at 2, DeBoer, 772 F.3d 388. The District

Court’s decision was to be overturned because it

“supplant[ed] the tried and true morality of the Judeo-

Christian tradition upon which our country was

Establishment Clause “mandates government neutrality between

religion and religion, and religion and non-religion.” Epperson v.

Arkansas, 393 U.S. 97, 104 (1968). Accepting the religious dogma

of those groups, which oppose marriage equality rights while

denying that of those who support, violates this core provision of

the Constitution.

° Family Research Council, Vision and Mission Statements,

available at http://www.frc.org/mission-statement (last visited

March 2, 2015)

founded with the trendy, relativist morality of political

correctness.” Jd. at 21. The joint brief by The National

Association of Evangelicals based its support for

excluding gay people from marriage by noting that the

“respective religious doctrines hold that marriage

between a man and a woman is sanctioned by God as

the right and best setting for the raising of children.”

Brief for the National Coalition of Evangelicals et al.

as Amici Curiae at 3, DeBoer, 772 F.3d 388. These

beliefs derive from amici’s “marriage affirming

religious beliefs.” Id. at 5.

Opposition outside of official briefs is explicit

in linking marriage equality bans to _ specific

interpretations of Christianity. When a court in

Alabama struck down that state’s ban on marriage for

same-sex couples, Searcy v. Strange, 2015 U.S. Dist

Lexis 7776 (S.D. Al. Jan. 23, 2015), Alabama’s Chief

Justice issued an order to probate judges that they

should not issue marriage licenses to same-sex

couples.’® In justification for this, he looked firmly to

his religious views, noting that “[t]his power over

marriage, which came from God under our organic

law, is not to be redefined by the United States

Supreme Court or any federal court.”"

Alan Blinder, Alabama Judge Defies Gay Marriage Law,

N.Y. Times, Feb. 8, 2015, available at http://www.nytimes.com/

2015/02/09/us/gay-marriage-set-to-begin-in-alabama-amid-

protest.html?_r=0 (last visited Feb 26, 2015).

'! David Edwards, Roy Moore: If Supreme Court changes God’s

‘Organic Law’ on marriage ‘I would not be bound thereby,’ Feb,

15, 2015, available at http://www.rawstory.com/rs/2015/02/roy-

moore-if-supreme-court-changes-gods-organic-law-on-marriage-

i-would-not-be-bound-thereby (last visited Feb. 24, 2015)

(emphasis added).

Speaking in lowa, ex-Senator Rick Santorum, a

leading candidate for the Republican Presidential

nomination in 2012, observed that “God who gave us

rights also gave us a responsibility and laws by which

our civil laws have to comport with. A higher law.

God’s law.”

The Sixth Circuit acknowledged, and indeed

embraced, the religious motivation underlying the

marriage bans by beginning its discussion with a

citation to Baker v. Nelson, 191 N.W.2d 185, 186

(Minn. 1971), where the court declared: “The

institution of marriage as a union of man and woman,

uniquely involving the procreation and rearing of

children within a family, is as old as the book of

Genesis. . . . This historic institution manifestly is

more deeply founded than the asserted contemporary

concept of marriage and societal interests for which

petitioners contend.” DeBoer, 772 F.3d at 400.

This Court has also recognized the religious animus

underlying discrimination against gay people,

observing: “for centuries there have been powerful

voices to condemn homosexual conduct as immoral...

shaped by religious beliefs, conceptions of right and

acceptable behavior, and respect for the traditional

family.” Lawrence, 539 U.S. at 571. But unlike the

Sixth Circuit, this Court ruled that “[{t]hese considera-

tions do not answer the question before us, however ..

. [which is] whether the majority may use the power of

the State to enforce these views on the whole society.”

Id. Rejecting lawmaking grounded in religious moral

2 LGBTQNation Staff Reports: Civil laws on same-sex

marriage must comport with God’s law, Nov. 5, 2011, available at

http://www.lgbtqnation.com/201 1/1 1/santorum-civil-laws-on-

same-sex-marriage-must-comport-with-gods-law/ (last visited

Feb, 24, 2015).

commands, the Court declared that its “obligation is to

define the liberty of all, not to mandate our own moral

code.” Id.

In soundly overruling Bowers v. Hardwick, 478 U.S.

186 (1986), this Court condemned Bower’s misguided

reliance on “the history of Western civilization and

Judeo-Christian moral and ethical standards.”

Lawrence, 539 U.S. at 572. It advised courts to look

forward, just as the authors of the Fourteenth

Amendment did, who “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.” Jd. at 579. Rather than bowing to a

“history and tradition” of legal discrimination against

gay people, the new, more inclusive direction of “our

laws and traditions in the past half century are of most

relevance here.” Jd. at 571-72.

Lawrence reaffirmed that this Court has “never held

that moral disapproval, without any other asserted

state interest, is a sufficient rationale under the Equal

Protection Clause to justify a law that discriminates

among groups of persons.” Jd. at 582 (O’Connor, J.,

concurring) (emphasis added). Bowers, the sole outlier,

“was not correct when it was decided, and it is not

correct today.” Jd. at 578. Consequently, “[mJoral

disapproval of [a] group .. . is an interest that is

insufficient to satisfy [even] rational basis review[.]”

Id. at 582 (O’Connor, J., concurring) (citations

omitted). See also Kerrigan, 289 Conn. at 256-57

(same). The Sixth Circuit therefore erred as a matter

of law in sustaining the marriage bans on such

grounds, even under rational basis review.

B. Preventing harm may be a moral value,

but it is the prevention of harm itself

that is a proper motivation for

legislation, mot any underlying

religious morality.

Opponents of marriage equality point to the

Lawrence dissent’s suggestion that, if morality is an

insufficient state interest, a number of state laws

would be “called into question.” 539 U.S. at 590

(Sealia, J., dissenting) (referring to “laws against

bigamy, same-sex marriage, adult incest, prostitution,

masturbation, adultery, fornication, bestiality, and

obscenity”). Even putting aside the repulsive calumny

inherent in lumping together marriage equality with

bestiality and incest, a careful review of each instance

in which this Court has considered such laws reveals

that morality has never stood alone as justification for

them. In every instance, the decision relied on the

state interest in preventing concrete harms of the

prohibited conduct and not on a bare assertion of

immorality. See Crowley v. Christensen, 137 U.S. 86,

91 (1890) (alcohol leads to “neglect of business and

waste of property” and is associated with crime and

misery); Phalen v. Commonwealth of Virginia, 49 U.S.

163, 168 (1850) (lotteries harm the poor and ignorant);

Posadas de Puerto Rice Associates v. Tourism Co. of

Puerto Rico, 478 U.S. 328, 341 (1986) (restrictions on

lotteries protect the health, safety, and welfare of

citizens).'*

'S Even in considering bans on polygamy and bigamy, the Court

has always cited to the alleged harm that such practices cause,

rather than pure moral arguments. See Estin v. Estin, 334 U.S.

541, 546 (1948) (protecting children); Davis v. Beason, 133 U.S.

333, 341 (1890) (degrading women and debasing men). As the

Sixth Circuit noted: “If it is constitutionelly irrational to stand

This same can be said of this Court’s decisions

regarding sexual speech. See City of Erie v. Pap’s

A.M., 529 U.S. 277, 291 (2000); Barnes v. Glen Theatre,

Inc., 501 U.S. 560, 569 (1991) (rejecting reliance on an

asserted “government interest in protecting .. .

morality” and instead relying on the secondary effects

doctrine); City of Renton v. Playtime Theatres, Inc.,

475 U.S. 41, 48 (1986) (upholding statute as a means

to “prevent crime, protect the city’s retail trade,

maintain property values, and generally protec(t] and

preservie] the quality of [the city’s] neighborhoods,

commercial districts, and the quality of urban life”);

Young v. Am. Mini Theatres, Inc., 427 U.S. 50, 52

(1976) (upholding ordinance based on city’s interest in

preventing crime and prostitution as a “secondary

effect”).

Similarly, in cases involving supposedly obscene or

offensive speech, the Court has refused to rest its

reasoning on morality alone. See Cohen v. California,

403 U.S. 15, 22-23 (1971) (rejecting an asserted right

of “States, acting as guardians of public morality, [to]

properly remove [an] offensive word from the public

vocabulary”). See also Bethel School Dis. No. 403 v.

Fraser, 478 U.S. 675, 683-86 (1986) (upholding the

suspension of a high school student for a sexually

explicit speech, but only after describing the harm it

caused to young students, viz. the speech “would

undermine the school’s basic educational! mission”).

Opponents have further argued that if morality is

not a basis for legislation, laws such as those setting a

by the man-woman definition of marriage, it must be

constitutionally irrational to stand by the monogamous definition

of marriage.” DeBoer, 772 F. 3d at 411. This may indeed be true,

if the only rationale for such bans are limited to tradition and

moral disaproval.

minimum wage, establishing legal and medical ethics

codes, or forbidding discrimination or animal cruelty

would all be left without a sufficient justification to

survive rational basis review. These laws, of course,

are all justified by an interest in seeking to prevent

harm to or promote the welfare of those in need of

protection. While preventing harm may be a moral

value, it is the prevention of harm itself that is a

proper motivation for legislation, not any moral

consideration behind it. Concern for concrete effects

removes such justifications from the same category as

the empty “morality” of mere disapproval grounded in

repugnance and nothing more.

All that is left to its defenders is a moral argument

that gay people are sinful and therefore not to be

permitted to share the institution of marriage with

other Americans. This kind of spiteful, self-righteous

“desire to harm a politically unpopular group cannot

constitute a legitimate governmental interest.” U.S.

Dep't of Agric. v. Moreno, 413 U.S. 528, 534(1973).

Accordingly, these laws do not satisfy the judicial

scrutiny required to sustain them.

C. The Sixth Circuit’s reliance on Town

of Greece is misplaced, as legislative

prayer is a sui generis category of

Establishment Clause jurisprudence

that has no applicability to other

situations.

The Sixth Circuit justifies the use of religious

tradition to uphold the discriminatory laws at issue

here by relying largely on Town of Greece v. Galloway,

134 S. Ct. 1811, 1818-20 (2014). Insisting on viewing

this case through a narrow historical lens, the Sixth

Circuit wrote:

Nobody in this case, however, argues that

the people who adopted the Fourteenth

Amendment understood it to require the

States to change the definition of marriage.

Tradition reinforces the point. . . . In one case,

the Court held that the customary practice of

opening legislative meetings with prayer

alone proves the constitutional permissibility

of legislative prayer, quite apart from how

that practice might fare under the most up-

to-date Establishment Clause test.

DeBoer, 772 F.3d at 403-04 (citing Town of Greece).

However, Town of Greece is completely inapposite and

its rationale cannot be used to support other practices

challenged under the Establishment Clause let alone

discriminatory practices challenged under the Equal

Protection Clause.

The Establishment Clause of the “First Amendment

has erected a wall between church and state” and this

“wall must be kept high and impregnable.” Everson v.

Bd. of Ed. of Ewing Twp., 330 U.S. 1, 18 (1947). It

“mandates that the government remain secular.”

County of Allegheny v. ACLU, 492 U.S. 573, 610

(1989). This means, inter alia, that the government

must “not promote or affiliate itself with any religious

doctrine or organization,” and must “not favor

religious belief over disbelief.” Jd. at 590-93 (citation

omitted). Indeed, there is a “myriad [of] subtle ways

in which Establishment Clause values can be eroded.”

Id. at 591 (citation omitted). In Lemon v. Kurtzman,

403 U.S. 602, 625 (1971), the Court synthesized these

principles into what is now known as the “Lemon test,”

which has “been applied regularly in the Court’s later

Establishment Clause cases.” Allegheny, 492 U.S. at

592. Pursuant to the Lemon test, government action

must have a (1) secular purpose; (2) not have the effect

of advancing or endorsing religion; and (3) not foster

an excessive entanglement with religion. Jd. at 612.

In Marsh v. Chambers, 463 U.S. 783 (1983), and

more recently, in Town of Greece, this Court eschewed

applying the Lemon test to legislative prayer,

understanding that doing so would result in the

inescapable conclusion that the practice is

unconstitutional. See Snyder v. Murray City Corp.,

159 F.3d 1227, 1232 (10th Cir. 1998) (“the kind of

legislative prayers at issue in Marsh simply would not

have survived the traditional Establishment Clause

tests that the Court had relied on prior to Marsh

and .. . since Marsh”); Marsh, 463 U.S. at 800-01

(Brennan, J., dissenting, with Marshall J., joining) (“if

any group of law students were asked to apply the

principles of Lemon to the question of legislative

prayer, they would nearly unanimously find the

practice to be unconstitutional.”). As correctly pointed

out by Justice Brennan, “if the Court were to judge

legislative prayer through the unsentimental eye of

our settled doctrine, it would have to strike it down as

a clear violation of the Establishment Clause.” Jd. at

796. The majority did not dispute this contention. See

Simpson v. Chesterfield County Bd. of Supervisors, 404

F.3d 276, 281 (4th Cir. 2005).

As a result, the courts, including this Court, have

described Marsh as an “exception” to Lemon. See, e.z.,

Edwards v. Aguillard, 482 U.S. 578, 583, n.4 (1987)

(“The Lemon test has been applied in all cases since its

adoption in 1971, except in Marsh”); Atheists of Fia.,

Inc. v. City of Lakeland, 713 F.3d 577, 590 (11th Cir.

2013) (the “Supreme Court has not extended the

Marsh exception”); Joyner v. Forsyth County, 653

F.3d 341, 349 (4th Cir. 2011) (“the exception created

by Marsh is limited”) (citation omitted); Doe v. Indian

River Sch. Dist., 653 F.3d 256, 259, 275 (3d Cir. 2011)

(where the issue was “whether a school board may

claim the exception established for legislative bodies

in Marsh, or whether the traditional Establishment

Clause principles . . . apply” the court concluded

that “Marsh’s legislative prayer exception does not

apply”); Card v. City of Everett, 520 F.3d 1009, 1014

(9th Cir. 2008) (Marsh is “construed as carving out

an exception to normal Establishment Clause

jurisprudence.”) (internal quotation omitted);

Pelphrey v. Cobb Cnty., 547 F.3d 1263, 1276 (11th Cir.

2008) (“the Supreme Court has never expanded the

Marsh exception”); Coles by Coles v. Cleveland Bd. of

Educ., 171 F.3d 369, 376, 379 (6th Cir. 1999) (“the

unique and narrow exception articulated in Marsh”);

Jager v. Douglas County Sch. Dist., 862 F.2d 824, 829,

n.9 (11th Cir. 1989) (“Marsh created an exception to

the Lemon test only for such historical practice.”);

Katcoff v. Marsh, 755 F.2d 223, 232 (2d Cir. 1985)

(Marsh is an “exception” to Lemon); Weisman v. Lee,

908 F.2d 1090, 1094-96 (list Cir. 1990) (Bownes, J.,

concurring) (same); Doe v. Tangipahoa Parish Sch.

Bd., 631 F. Supp. 2d 823, 835 (E.D. La. 2009) (Marsh

is “a narrow exception”), Bats v. Cobb Cnty., 410 F.

Supp. 2d 1324, 1328 (N.D. Ga. 2006) (same); Glassroth

v. Moore, 229 F. Supp. 2d 1290, 1306 (M.D. Ala. 2002)

(same); Wynne v. Town of Great Falls, 2003 U.S. Dist.

LEXIS 21009, *10 (D.S.C. 2003) (Marsh is an

“exception in Establishment Clause law”); Metzi v.

Leininger, 850 F. Supp. 740, 744 (N.D. Ill. 1994)

(“Marsh court's narrow ‘historical exception’ to

traditional Establishment Clause jurisprudence.”);

Albright v. Board of Educ. of Granite Sch. Dist., 765 F.

Supp. 682, 688 (D. Utah 1991) (Marsh is an

“exception”); Lundberg v. West Monona Comm. Sch.

Dist., 731 F. Supp. 331, 346 (N.D. Iowa 1989) (same);

Jewish War Veterans v. United States, 695 F. Supp. 3,

11, n.4 (D.D.C. 1988) (“[t]he Supreme Court has

applied the Lemon framework in all but one

establishment clause case. The exception was

Marsh.”); Blackwelder v. Safnauer, 689 F. Supp. 106,

142, n. 38 (N.D.N.Y 1988) (the “Lemon test has been

applied by the Supreme Court in all cases subsequent

to its formulation with one exception. In Marsh .. . the

Court carved out a narrow exception to the

prohibitions of the establishment clause”); cf. Marsh,

463 U.S. at 796 (Brennan, J., dissenting) (“the Court

is carving out an exception to the Establishment

Clause.”) (Emphasis added in each). Some of the

foregoing cases explicitly referred to Marsh as an

exception to the Establishment Clause itself."

Other courts discussing Marsh have highlighted

its sui generis and one-of-a-kind nature, thereby

affirming that Marsh is_ inconsistent with

Establishment Clause jurisprudence. See, e.g.,

McCreary Cnty. v. ACLU, 545 U.S. 844, 860 n.10

(2005) (describing Marsh as a “special instance”);

Rubin v. City of Lancaster, 710 F.3d 1087, 1091, n.4

(9th Cir. 2013) (since “Marsh, legislative prayer has

enjoyed a ‘sui generis status’ in Establishment Clause

jurisprudence.”); Simpson, 404 F.3d at 281 (“Marsh,

in short, has made legislative prayer a field of

Establishment Clause jurisprudence with its own set

of boundaries and guidelines.”); Coles, 171 F.3d at 381

(“Marsh is one-of-a-kind”); Snyder, 159 F.3d at 1232

(“the constitutionality of legislative prayers is a sui

* See, e.g., Indian River Sch. Dist., 653 F.3d at 259, 275; Card,

520 F.3d at 1014; Wynne, 2002 U.S. Dist. LEXIS 21009, *10;

Metzil, 850 F. Supp. at 744; Blackwelder, 689 F. Supp. at 142, n.

38.

generis legal question”); Jones v. Hamilton Cnty., 891

F. Supp. 2d 870, 885 (D. Tenn. 2012) (same); Graham

v. Central Comm. Sch. Dist., 608 F. Supp. 531, 535

(S.D. Iowa 1985) (“Marsh decision is a singular

Establishment Clause decision.”).

Marsh is not only inconsistent with decades of

Establishment Clause jurisprudence preceding it, but

also with subsequent jurisprudence. See, e.g., Santa Fe

v. Doe, 530 U.S. 290, 313 (2000) (student-led prayer at

public school football games unconstitutional); Lee v.

Weisman, 505 U.S. 577, 592 (1992) (public school

graduation prayers unconstitutional); Wallace v.

Jaffree, 472 U.S. 38 (1985) (public school prayers

unconstitutional). See also Wynne v. Town of Great

Falls, 376 F.3d 292, 302 (4th Cir. 2004) (“in the more

than twenty years since Marsh, the Court has never

found its analysis applicable to any other

circumstances; rather, the Court has twice specifically

refused to extend the Marsh approach to other

situations.”); Jewish War Veterans, 695 F. Supp. at 11,

n.4 (“[t]he Court returned to the Lemon test in cases

decided after Marsh.”). Taking this Court’s lead, lower

courts have properly refused to apply or extend Marsh

to situations other than legislative prayer.”

484, 494-95 (6th Cir. 2004) (declining to apply Marsh in ruling

that judge’s Ten Commandments display violated Establishment

Clause); Glassroth v. Moore, 335 F.3d 1282, 1298 (11th Cir. 2003)

(same); North Carolina Civil Liberties Union Legal Found. v.

Constangy, 947 F.2d 1145, 1147-49 (4th Cir. 1991) (Marsh

inapplicable to judicial prayers); Mellen v. Bunting, 327 F.3d 355,

368-69 (4th Cir. 2003) (Marsh inapplicable to prayers by military

officials); Warner v. Orange County Dep’t of Prob., 115 F.3d 1068,

1076 (2d Cir. 1997) (refusing to apply Marsh to compulsory A.A.

program); Cammack v. Waihee, 932 F.2d 765, 772 (9th Cir. 1991)

(refusing to apply Marsh to Good Friday holiday); Jager v.

Because this Court was, in essence, carving out an

exception from the Establishment Clause for the

narrow issue of legislative prayer, this Court in both

Marsh and Town of Greece was careful to make clear

that the rationale for the exception is inapplicable

to other areas of Establishment Clause law. See Town

of Greece, 134 S. Ct. at 1820 (noting the exception’s

“limited context”) (emphasis added). As_ the

legislative prayer exception is completely inapplicable

to other areas of Establishment Clause law, it is, a

fortiori, inapplicable to Equal Protection law, which is

designed to rectify, rather than perpetuate,

discriminatory historical practices.

Moreover, in addition to being inconsistent with the

Establishment Clause, Marsh is also premised on

dangerous logic; in fact, it is the same dangerous logic

adopted by the Sixth Circuit. The analysis in the short

ten page opinion only goes as far as, “(t]he founders

did it. Everyone since them has done it. No one is

abusing it. Therefore it is constitutional.” Michael M.

Maddigan, The Establishment Clause, Civil Religion,

and the Public Church, 81 Cal. L. Rev. 293, 338 (1993).

This “logic” would uphold anti-miscegenation laws,

Loving, 388 U.S. 1, racial segregation, Brown v. Bd. of

Educ., 347 U.S. 483 (1954), and even slavery, Scott v.

Sandford, 60 U.S. 393 (1857). Marsh’s logic would

permit women to be denied the right to vote and

practice law, among many other rights now secured to

them. This is precisely why the reliance on tradition

Douglas Cnty. Sch. Dist., 862 F.2d 824, 828 (11th Cir. 1989)

(Marsh “has no application to” school prayers); Carter uv.

Broadlawns Medical Center, 857 F.2d 448, 453 (8th Cir. 1988)

(declining to extend Marsh to hospital chaplaincy program).

central to Marsh and Town of Greece is so confined by

this Court to the specific arena of legislative prayer.

Just as history cannot justify discriminatory

laws under the Equal Protection Clause, it cannot,

and should not, justify governmental practices that

promote religion. Allegheny, 492 U.S. at 630

(O'Connor, J., concurring). This Court later

acknowledged the pernicious nature of the Marsh-

historical justification, asserting that it could “gut the

core of the Establishment Clause,” reasoning:

The history of this Nation, it is perhaps sad to

say, contains numerous examples of official

acts that endorsed Christianity specifically . . .

but this heritage of official discrimination

against non-Christians has no place in the

jurisprudence of the Establishment Clause.

Id. at 603-05. In an earlier Establishment Clause

case, the Court emphasized: “no one acquires a vested

or protected right in violation of the Constitution by

long use, even when that span of time covers our entire

national existence and indeed predates it.” Walz v. Tax

Commission, 397 U.S. 664, 678 (1970).

In accord with this Court’s decisions, many courts

have rejected history as a basis for upholding

government-sponsored religious displays.'* For instance,

6 See, e.g., Trunk v. City of San Diego, 629 F.3d 1099, 1108

(9th Cir. 2011) (cross unconstitutional despite “historical

significance.”); Carpenter v. City & Cnty. of San Francisco, 93

F.3d 627, 631-32 (9th Cir. 1996); Robinson v. City of Edmond, 68

F.3d 1226, 1232 (10th Cir. 1995) (despite claim that cross on seal

“symbolizes ‘the unique history and heritage of [the city]” it

violated Establishment Clause); Ellis v. La Mesa, 990 F.2d 1518,

1526 (9th Cir. 1993); Harris v. Zion, 927 F.2d 1401, 1414-15 (7th

Cir. 1991); Friedman v. Board of Cnty. Commissioners, 781 F.2d

777, 781-82 (10th Cir. 1985); ACLU v. Rabun Cnty. Chamber of

the Eleventh Circuit held that a judge’s Ten

Commandments display was’ unconstitutional,

reasoning: “That there were some government

acknowledgments of God at the time of this country’s

founding and indeed are some today, however, does

not justify under the Establishment Clause a 5280-

pound granite {religious} monument.” Glassroth, 335

F.3d at 1298.

The Seventh Circuit similarly rejected a town’s

argument that “the duration of its [crucifix] display

reinforces its secular effect,” declaring: “We do not

accept this sort of bootstrapping argument as a

defense to an Establishment Clause violation, nor

have we found any other case that adopted this

reasoning.” Gonzales v. North Township of Lake Cnty.,

4 F.3d 1412, 1422 (7th Cir. 1993). It reiterated in Pitts

v. City of Kankakee, 267 F.3d 592, 596 (7th Cir. 2001):

In a predominantly Christian community, it

may take a Buddhist, or a Moslem, or a Jew,

or an atheist, to call to the authorities’

attention a possible violation of the

Establishment Clause. The rights of such

citizens do not expire simply because a

monument has been comfortably

unchallenged for twenty years, or fifty years,

or a hundred years.

The longstanding nature of a religious practice, in

fact, exacerbates the constitutional injury because

“religious outsiders [must] tolerate these practices .. .

Commerce, Inc., 698 F.2d 1098, 1111 (11th Cir. 1983); Washegesic

v. Bloomingdale Pub. Sch., 813 F. Supp. 559, 563, n.9 (W.D. Mich.

1993), affd 33 F.3d 679 (6th Cir. 1994) (“[t]his Court’s analysis

does not depend upon the length of time the picture [of Jesus] has

hung on the school wall.”).

with the awareness that those who share their

religious beliefs have endured these practices for

generations.” Steven B. Epstein, Rethinking the

Constitutionality of Ceremonial Deism, 96 Colum. L.

Rev. 2083, 2164 (1996). See also Ellis, 990 F.2d at 1525

(“If anything, such facts underscore the formidable

nature of the display and increase the likelihood of an

impermissible appearance of religious preference.”).

Nevertheless, whatever limited role history has

played in Establishment Clause legislative prayer

jurisprudence, supra, it simply has no place,

whatsoever, in justifying discriminatory laws under

the Equal Protection Clause. E.g., Lawrence, 539 U.S.

at 577; Brown, 347 U.S. at 490; J.E.B. v. Alabama ex

rel. T.B., 511 U.S. 127, 143 n.15 (1994) (“the total

exclusion of women from juries,” is “now

unconstitutional even though [it] once coexisted with

the Equal Protection Clause.”). Insofar as the Sixth

Circuit relied on religious history and the narrow

Marsh exception upheld in Town of Greece to sustain

the marriage bans, it is in error as a matter of well-

settled law.

Ill. THE FOURTEENTH AMENDMENT

REQUIRES STATES TO RECOGNIZE

A MARRIAGE BETWEEN SAME-SEX

COUPLES LAWFULLY LICENSED OUT-

OF-STATE.

Though the arguments, supra, have clarified that

the Fourteenth Amendment requires states to license

a marriage between same-sex couples; if the Court

decides otherwise, such states must still recognize a

marriage that was lawfully licensed and performed

out-of-state.

Much like the Defense of Marriage Act, the state

laws at issue here remove a “dignity and status of

immense import” when they refuse to recognize

marriages performed out-of-state. Windsor, 133 S. Ct.

at 2681. In effect, they violate the Fourteenth

Amendment by making and enforcing laws that

“abridge the privileges . . . of citizens of the United

States.” U.S. Const. Art. [V, Sec. 2. This Court has

found that the “privileges and immunities” are “those

rights which are fundamental” such as the right to

marriage. Slaughter-House Cases, 83 U.S. 36 (1873).

The Clause “protects against more than just state

discrimination, and in fact establishes a minimum

baseline of rights for all American citizens.”

McDonald v. Chicago, 561 U.S. 742, 838 (2010)

(Thomas, J.).

Marriage is a fundamental right of every citizen,

supra. And a lawful marriage is related to over a

thousand federal rights and responsibilities. See GAO,

D. Shah, Defense of Marriage Act: Update to Prior

Report 1 (GAO—04—353R, 2004). “A prime part of the

history of our Constitution . . . is the story of the

extension of constitutional rights . . . to people once

ignored or excluded.” United States v. Virginia, 518

U.S. 515, 557 (1996). The time has long since come for

this Court to reject any law that codifies ancient

religious bigotry against gay persons. The Fourteenth

Amendment ensures that personal and societal biases,

not based in fact nor designed to stop any real harm,

do not continue to unconstitutionally bind those that

the majority may feel are too “other,” too outside their

own view of how one should speak, live, and love.

CONCLUSION

Whether the love of a man for another man or a

woman for another woman should be labeled morally

repugnant, or is instead to be celebrated for the joy it

brings into their lives, is not before the Court. This

Court does not, and cannot, decide issues of religion or

its morality. The Court is instead presented with a

much different question: whether legislation may be

used as a sword to deny the basic humanity and

fundamental rights of gay people, or whether the

Constitution acts as a shield, protecting such

individuals from the codification of deeply ingrained

social bias against them. The answer is clear: our

Constitution requires that our laws require equal

protection for all and forbids the government from

creating second-class citizens. There being no legiti-

mate bases for the discriminatory laws denying same-

sex couples the fundamental right to marry, they must

be struck down.

For the foregoing reasons, Amici Curiae request

that the judgment of the United States Court of

Appeals for the Sixth Circuit be reversed.

MONICA L. MILLER

AMERICAN HUMANIST

ASSOCIATION

1777 T Street N.W.

Washington, D.C. 20009

(202) 238-9088

mmiller@

americanhumanist.org

DAVID A NIOSE

AMERICAN HUMANIST

ASSOCIATION

1777 T Street N.W.

Washington, D.C. 20009

(202) 238-9088

dniose@

americanhumanist.org

Respectfully submitted,

ELIZABETH L. HI1LEMAN

Counsel of Record

HILEMAN & ASSOCIATES, P.C

7979 Old Georgetown Rd,

#600

Bethesda, Maryland 20814

(301) 652-1448

ehileman@hilemanlaw.com

EDWARD TABASH

CENTER FOR INQUIRY

433 North Camden Drive,

Suite 600

Beverly Hills, CA 90210

(310) 279-5120

etabash@centerforinquiry. net

NICHOLAS LITTLE

CENTER FOR INQUIRY

1020 19th St. NW, Suite 425

Washington, DC 20036

(202) 629-2403

nlittle@centerforinquiry.net

Attorneys for Amici Curiae

March 5, 2015

APPENDIX

APPENDIX A

IDENTIFICATION OF AMICI CURIAE

The American Humanist Association (“AHA”) is a

national nonprofit organization with over 414,000

supporters and members across the country. 4HA is

dedicated to advocating progressive values and

equality for humanists, atheists, and freethinkers.

Founded in 1941 and headquartered in Washington,

D.C., its work is extended through more than 180 local

chapters and affiliates across America. Humanism is

a progressive philosophy of life that, without theism

and other supernatural beliefs, affirms our ability and

responsibility to lead ethical lives of personal

fulfillment that aspire to the greater good of humanity.

The mission of the AHA is to promote the spread of

humanism, raise public awareness and acceptance of

humanism and encourage the continued refinement of

the humanist philosophy.

The Center for Inquiry (“CFI”) is a nonprofit

educational organization dedicated to promoting and

defending reason, science, freedom of inquiry, and

humanist values and represents over 50,000 members.

Through education, research, publishing, social

services, and other activities, including litigation, CFI

encourages evidence-based inquiry into science,

pseudoscience, medicine and health, religion, and

ethics. CFI believes that the separation of church and

state is vital to the maintenance of a free society that

allows for a reasoned exchange of ideas about public

policy.

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.