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

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2upletie Cou, Us

FILLED |

MAR 6 - 2015

Nos. 14-556, 14-562, 14-571 and 141574; i

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IN THE

Supreme Court of the Anited States

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

PETITIONERS,

Vv.

RICHARD HODGES, DIRECTOR, OHIO DEPARTMENT OF

HEALTH, ET AL., RESPONDENTS.

VALERIA TANCO, ET AL., PETITIONERS,

Vv.

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

BRIEF OF AMICI CURIAE

AMERICAN PUBLIC HEALTH ASSOCIATION AND

WHITMAN-WALKER HEALTH

IN SUPPORT OF PETITIONERS

SHEREE R. KANNER BORIS BERSHTEYN

KENNETH Y. CHOE Counsel of Record

MARGIA K. CORNER SKADDEN, ARPS, SLATE,

ELIZABETH C. LOCKWOOD MEAGHER & FLOM LLP

HOGAN LOVELLS US LLP 4 Times Square

555 Thirteenth Street, NW. New York, NY 10036

Washington, DC 20004 212) 735-3834

Boris. Bershteyn@skadden.com

Counsel for Amici Curiae

{Additional Counsel Listed on Inside Cover]

DAVID W. SKAAR ROMAN J. RODRIGUEZ

HOGAN LOVELLS US LLP MICHAEL SPRINGER

1999 Avenue of the Stars SAM AULD

Suite 1400 | AUDREY FELDMAN

Los Angeles, CA 90067 KEVIN C. Hu

STEFANIE E. NEALE

THOMAS CUMMINS SKADDEN, ARPS, SLATE,

HOGAN LOVELLS US LLP MEAGHER & FLOM LLP

7930 Jones Branch Drive 4 Times Squdre —

Ninth Floor New York, NY 10036

McLean, VA 22102

DANIEL BRUNER

WHITMAN-WALKER

HEALTH

1701 Fourteenth Street, NW

Washington, DC 20009

i

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE . ..00.0......ccccceceeeeeeeeeees ]

SUMMARY OF ARGUMENT. ..............ccccccccecccceeseeeees 2

FRILL AERL TOA ERC ae Oe ST CSS ee 4

I. Stigma, Including Same-Sex Marriage Bans,

Is Linked to Negative Health Outcomes in

TTS TEES na aCe ene Oe 4

A. The Health of LGB Individuals Suffers Due to

SUTTIT caindsnieciiceniiadindslebeandascaninenisionminneniiiessapasniensiteiiatials 4

B. Discriminatory Marriage Laws Are

TT incerta iricecenieiindaenenatiniiaiaibeminasiaesnetets 9

C. The Stigma from Discriminatory Marriage

Laws Correlates with Negative Health

Outcomes in LGB Populationse........................ 1]

A. Married People Enjoy Significantly Better

SEE i nncisicttnieneiienpnnmeneienininnstninmnendteramnnimesinene 15

B. Cohabitation Does Not Provide Health

Benefits Equal to Those of Marriage............. 25

‘i

C. Same-Sex Couples Would Equally Enjoy the

Health Benefits of Marriage.........................-.. 30

TABLE OF AUTHORITIES

Page(s)

CASES

Baskin v. Bogan,

766 F.3d 648 (7th Cir. 2014) .........................2 9

De Leon v. Perry,

975 F. Supp. 2d 632 (W.D. Tex. 2014) ............. 9

Lawrence v. Texas,

I a 32

Loving v. Virginia,

I a 9, 32

United States v. Windsor,

133 S. Ct. 2676 (2013) ............2.....--. 2, 9, 15, 32

OTHER AUTHORITIES

Ayal Aizer et al., Marital Status and Survival

in Patients With Cancer, 31 J. Clinical

a uieviisiianeilin 21

American Medical Assoeiation, Health Care

Disparities in Same Sex Partner

Households, AMA Policy H-65.973

SIE deinsieihbeeeinesdtenteititeeainiagdinaianieiitibieaimepncniiaantianianiaidain 10

iv

American Psychological Association,

Resolution on Marriage Equality for

Same-Sex Couples (2011) ................00.0000+4 10, 13

American Psychiatric Association, Position

Statement on Support of Legal

Recognition of Same-Sex Civil

Marriage, APA Official Actions (2005).......... 10

Susan Averett et al., In Sickness and in

Health: An Examination of Relationship

Status and Health Using Data from the

Canadian National Public Health

Survey, 11 Rev. Econ. Household 599,

_ fs 16, 19, 20, 22, 25, 27, 28

John R. Blosnich et a]., Health Inequalities

Among Sexual Minority Adults:

Evidence from Ten U.S. States, 2010, 46

Am. J. Prev. Med. 337 (2014)...................-- 5, 12

Susan L. Brown, The Effect of Union Type on

Psychological Well-Being: Depression

Among Cohabitors versus Marrieds, 41

J. Health and Soc. Behav. 241 (2000)............ 26

Susan L. Brown et al., The Significance of

Nonmarital Cohabitation: Marital

Status and Mental Health Benefits

Among Middle-Aged and Older Adults,

60B J. Gerontology 1 (2005) .....................0000. 25

Vv

William C. Buffie, Public Health Implications

of Same-Sex Marriage, 101 Am. J. Pub.

as esliniilsciln 7

Centers for Disease Control and Prevention,

National Center for Health Statistics,

Marriage, Cohabitation and Men’s Use

of Preventive Health Care Services,

NCHS Data Brief No. 154, June 2014........... 21

Laura Dean et al., Lesbian, Gay, Bisexual,

and Transgender Health: Findings and

Concern, 4J. Gay & Lesbian Med.

SN I incre iahnmiicieuatiniats simisnintisbbatie 12

Justin Denney et al., Families, Resources, and

Adult Health: Where Do Sexual

Minorities Fit?, 54 J. Health & Soc.

Ee, CTT iricndiduncccnibaneniindneinediaininns 28, 29

Greg Duncan et al., Cleaning Up Their Act:

The Effects of Marriage and

Cohabitation on Licit and Illicit Drug

Use, 43 Demography 691 (2006) .................... 20

Elissa S. Epel et al., Cell Aging in Relation to

Stress Arousal and Cardiovascular

Disease Risk Factors, 31

Psychoneuroendocrinology 277 (2006)............. 7

vi

William Farr, /nfluence of Marriage on the

Mortality of French People, in

Transactions of the National

Association for the Promotion of Social

ey He I cciceisicicctienssedisesnaccnseasvccnencess 22

Karen I. Fredriksen-Goldsen et al., Health

Disparities Among Lesbian, Gay, and

Bisexual Older Adults: Results From a

Population-Based Study, 103 Am. J.

Pub. Health 1802 (2013) ......................2..eceee 12

Morten Frisch & Jacob Simonsen, Marriage,

Cohabitation and Mortality in

Denmark: National Cohort Study of 6.5

Million Persons Followed for Up to

Three Decades (1982-2011), 2013 Int'l

J. Epidemiology 1 (2013).................... 22, 23, 24

Johnathan Gardner & Andrew Oswald, How

Is Mortality Affected by Money,

Marriage, and Stress, 23 J. of Health

EEE eee 24

John Mordechai Gottman et al., Observing

Gay, Lesbian, and Heterosexual

Couples’ Relationships: Mathematical

Modeling of Conflict Interaction, 45 J.

Homosexuality 65, 84-88 (2003).................... 32

Vii

Mark L. Hatzenbuehler, The Social

Environment and Suicide Attempts in

Lesbian, Gay & Bisexual Youth, 127

ii cteciitnenmnarnntion 11

Mark L. Hatzenbuehler et al., Effect of Same-

Sex Marriage Laws on Health Care Use

and Expenditures in Sexual Minority

Men: A Quasi-Natural Experiment,

102(2) Am. J. Pub. Health 285 (2012) ........... 13

Mark L. Hatzenbuehler et al., State-Level

Policies and Psychiatric Morbidity in

Lesbian, Gay, and Bisexual

Populations, 99 Am. J. Pub. Health

I se piteininamianté 8

Mark L. Hatzenbuehler et al., Structural

Stigma and the Health of LGB

Populations, 23 Current Directions in

, § % , — scene IeeneE 8

Mark L. Hatzenbuehler et al., The Impact of

Institutional Discrimination on

Psychiatric Disorders in LGB

Populations, 100 Am. J. Pub. Health

452 (2010) ........... EE Aen Ree Ie oa ee 13

Julia E. Heck et al., Health Care Access

Among Individuals Involved in Same-

Sex Relationships, 96 Am. J. Pub.

ea aN 30

Gregory M. Herek, Anti-equality Marriage

Amendments and Sexual Stigma, 67 J.

of Social Issues 413 (2011) «2.2.2.0... cece cece eee eee 9

Gregory M. Herek, Evaluating the

Methodology of Social Science Research

on Sexual Orientation and Parenting: A

Tale of Three Studies, 48 U.C. Davis L.

I a eti 4

Erin E. Horn et al., Accounting for the

Physical and Mental Health

Benefits of Entry Into Marriage: A

Genetically Informed Study of Selection

and Causation, 27 J. Fam. Psych. 30

I cicada dented inae 17, 19, 27

Hui Liu et al., Same-Sex Cohabitors and

Health: The Role of Race-Ethnicity,

Gender, and Socioeconomic Status, 54

J. Health & Soc. Behav. 25 (2013)................. 29

Institute of Medicine, Committee on the

Consequences of Uninsurance, Coverage

Matters: Insurance and Health Care 5

Norman Johnson et al., Marital Status and

Mortality: The National Longitudinal

Mortality Study, 10 Ann. Epidemiology

STITT isititeccineleiaiainedteeltnaiaatidtinmadiaditeaaanbnnenes 22

ix

Robert M. Kaplan & Richard G. Kronick,

Marital Status and Longevity in the

United States Population, 60 J.

Epidemiology & Comm. Health 760

Sa ciseesicelechnipei delineate asi 23

Hyoun Kim & Patrick C. McKenry, The

Relationship Between Marriage and

Psychological Well-Being: A

Longitudinal Analysis, 23 J. Fam.

I Be GI ececccecencconabsccncsecocesecee 18, 26, 27

Lawrence Kurdek, What Do We Know

About Gay and Lesbian Couples?,

14 Current Directions in Psychol. Sci.

AEE ES SE ROR ee 30, 31, 32

Kathleen Lamb et al., Union Formation and

Depression: Selection and Relationship

Effects, 65 J. Marriage & Family 953

EE EE TERS Se Aen ee eC 26

Bruce G. Link & Jo C. Phelan,

Conceptualizing Stigma, 27 Ann. Rev.

TAT TTD 4

Derrick D. Matthews & Joseph G. L. Lee, A

Profile of North Carolina Lesbian, Gay,

and Bisexual Health Disparities, 2011,

104 Am. J. Pub. Health 98 (2014).................. 12

x

Michael E. Martinez & Robin A. Cohen,

Health Insurance Coverage: Early

Release of Estimates from the National

Health Interview Survey, January-June

2014, National Health Interview

Survey Early Release Program (2014) .......

Ilan H. Meyer, Minority Stress and Mental

Health in Gay Men, 36 J. Health &

Social Benavior 38 (1995).....................00c000-

Ilan H. Meyer, Prejudice and Discrimination

as Social Stressors, in The Health of

Sexual Minorities (Ilan H. Meyer &

Mary E. Northridge eds., 2007) ..................

Ilan H. Meyer, Prejudice, Social Stress, and

Mental Health in Lesbian, Gay, and

Bisexual Populations: Conceptual Issues

and Research Evidence, 129 Psychol.

es CE SE eethisinniiinntnnisinndnonnesininneninnessees

Gerard John Molloy et al., Marital Status,

Gender and Cardiovascular Mortality:

Behavioural, Psychological Distress and

Metabolic Explanations, 69 Soc. Sci. &

Se SE CIE icntncicnicetnvnacinineniinsiansenesenesees

Kelly Musick & Larry Bumpass, Re-

Examining the Case for Marriage:

Union Formation and Changes in Well-

Being, 74 J. Marriage Family 1 (2012).......

26

xi

National Institute of Mental Health, Fact

EET nee na ne ee 7

Laura S. Richman & Mark L. Hatzenbuehler,

A Multilevel Analysis of Stigma and

Health, 1 PIBBS 213 (2015)................00..... 5, 10

Ellen D. B. Riggle et al., The Marriage Debate

and Minority Stress, 38 Pol. Sci. & Pol.

EAE n aan one nn 6,9

James Robards et al., Marital Status, Health

and Mortality, 73 Maturitas 295 (2012)........ 18

Michael J. Rosenfeld, Couple Longevity in the

Era of Same-Sex Marriage in the United

States, 76 J. Marriage & Family 905

STi cietillchaccadideinaaleiahadaialaptiaandiehauemadaataniemnenaiiiaisidntiieiatie 31

Glenda M. Russell & Jeffrey A. Richards,

Stressor and Resilience Factors for

Lesbians, Gay Men, and Bisexuals

Confronting Antigay Politics, 31 Am. J.

Community Psychol. 313 (2003) ...................... 6

Charlotte Schoenborn, U.S. Dep’t of Health

& Human Servs., Centers for

Disease Control’& Prevention,

Advance Data No. 351, Marital Status

and Health: United States 1999-2002

GE en 15, 16, 20, 28

sii

Stephen Shortell, Bridging the Divide Between

Health and Health Care, 309 J. Am.

Med. Assoc. 1121 (BOTS) .......ccccccccccccscescesceseee 30

U.S. Dep’t Health & Human Servs., Office of

Assistant Secretary for Planning &

Evaluation, The Effects of Marriage on

Health (2007) .............. 16, 17, 18, 19, 20, 21, 29

Jeremy Uecker, Marriage and Mental Health

Among Young Adults, 53 J. Health Soc.

IN Gr Ce sn ctenscnnisntisiinstisdidcaniincniniiiiteinis 20

Richard G. Wight et al., Same-Sex Legal

Marriage and Psychological Well-Being:

Findings from the California Health

Interview Survey, 103 Am. J. Public

ee Se ee icctsssntionssscinntntinianeas 14, 15, 31

David R. Williams & Selina A. Mohammed,

Discrimination and Racial Disparities

in Health: Evidence and Needed

Research, 32 J. Behav. Med. 20 (2008)............ 7

1

INTEREST OF AMICI CURIAE'!

The American Public Health Association

(‘APHA”) champions the health of all people and all

communities. APHA strengthens the profession of

public health, shares the latest research and

information, promotes best practices, and advocates

for public health issues and policies grounded in

research. APHA is the only organization that

combines a 140-plus-year perspective, a broad-based

member community, and the ability to influence

federal policy to improve the public’s health. APHA’s

25,000 members represent a broad array of health

officials, educators, and health care providers. The

APHA has played a leading role in both illuminating

health disparities among different segments of the

U.S. population and suggesting methods to reduce

these disparities.

Whitman-Walker Clinic, Inc., d/b/a Whitman-

Walker Health (“Whitman-Walker’”), is a nonprofit,

community-based Federally Qualified Health Center

' Pursuant to Supreme Court Rule 37.6, counsel for amici

represent that they authored this brief in its entirety and that

none of the parties or theix counsel, nor any other person or

entity other than amici or their counsel, made a monetary

contribution intended to fund the preparation or submission of

this brief. Timely notice under Supreme Court Rule 37.2(a) of

intent to file thie brief was provided to the Petitioners and the

Respondents, and both have consented in writing to the filing of

this brief.

2

serving the Washington, D.C. metropolitan area’s

diverse urban community. With specialties in HIV

and lesbian, gay, bisexual, and transgender health

care, Whitman-Walker provides health and health-

enabling services to more than 13,000 individuals

and families annually, including primary and HIV

specialty care; mental health and substance abuse

treatment; dental care; medical adherence case

management; legal services; and HIV and sexually

transmitted infection testing, counseling, and

prevention services. Time and again, Whitman-

Walker health care professionals and lawyers have

seen how lack of full legal recognition of gay and

lesbian relationships has harmed the health, dignity,

and well-being of its patients and their partners.

SUMMARY OF ARGUMENT

Marriage equality is a civil rights issue—but it is

a public health issue, too. And a growing body of

research links bans on same-sex marriage with

adverse health effects on lesbian, gay, and bisexual

(LGB) individuals.

Discriminatory marriage policies are a form of

structural stigma against LGB individuals and

thereby contribute to poor health outcomes. As this

Court recognized two terms ago when striking down

a federal law on the subject, these policies impose “a

disadvantage, a separate status, and so a stigma

upon all who enter into same-sex marriages.” United

States v. Windsor, 133 S. Ct. 2675, 2693 (2013).

3

Researchers have long recognized the _ close

correlation between such stigma and poor health

outcomes—outcomes often linked to the profound

stress that stigmatized minorities experience.

Even as LGB individuals face poorer health than

heterosexuals that is linked to stigma and minority

stress, those living in states with discriminatory

marriage policies are also denied the health benefits

associated with marriage. A robust body of research

demonstrates that married people enjoy better

health and longer lives in part because of marriage’s

protective effects. Importantly, these same benefits

do not appear to accrue to unmarried cohabiting

couples.

Of course, observational studies of health

outcomes across populations demonstrate only

correlation—not causation. Yet many of the studies

discussed below control for other relevant variables:

age, education, income, location, children, and more.

In addition, many of these studies have used quasi-

experimental designs, which is the _ strongest

evidence for causal inference when it is not possible

or ethical to conduct randomized experiments, as in

the case at hand. Based on this robust body of

research, the scientific consensus is that marriage

contributes to better health and longevity. And that

fact is another compelling reason to reject the

judgment of the Court of Appeals.

4

ARGUMENT

I. Stigma, Including Same-Sex Marriage Bans,

Is Linked to Negative Health Outcomes in LGB

Individuals.

A. The Health of LGB Individuals Suffers

Due to Stigma.

The stigma and stress imposed by discriminatory

laws, including same-sex marriage bans, take a

significant toll on the mental and physical well-being

of LGB individuals. Stigma refers to the negative

associations attributed to a subset of the population

and to the imposition of “inferior” status on people

who are perceived to fall within that subset. Bruce

G. Link & Jo C. Phelan, Conceptualizing Stigma, 27

Ann. Rev. Sociology 363, 367 (2001). Stigma against

the LGB population, or “sexual stigma,” has been

described as “the negative regard, inferior status,

and relative powerlessness that society collectively

accords any nonheterosexual behavior, identity,

relationship, or community.” Gregory M. Herek,

Evaluating the Methodology of Social Science

Research on Sexual Orientation and Parenting: A

Tale of Three Studies, 48 U.C. Davis L. Rev. 583, 590

(2014).

Same-sex marriage bans present a paradigmatic

example of stigma reinforced and perpetuated: They

exclude LGB individuals from one of the most

fundamental institutions established by law—and do

so under the color of law. See Herek (2014), supra, at

5

590. At the same time, the bans convey that

discriminatory treatment of LGB individuals is not

only acceptable, but sanctioned or even compelled by

law.

Research across a broad range of disciplines has

drawn a strong. correlation between such

exclusionary policies and negative health effects on

members of the stigmatized graup—even when the

group’s members have not personally been denied

access to a benefit or otherwise individually

discriminated against. See Laura S. Richman &

Mark L. Hatzenbuehler, A Multilevel Analysis of

Stigma and Health: Implications for Research and

Policy, 1 PIBBS 213, 217 (2014).

These negative health outcomes have been

identified as by-products of “minority stress’: “the

excess stress to which individuals from stigmatized

social categories are exposed as a result of their

social position.” Ilan H. Meyer, Prejudice, Social

Stress, and Mental Health in Lesbian, Gay, and

Bisexual Populations: Conceptual Issues and

Research Evidence, 129 Psychol. Bull. 674, 677

(2003); see also John R. Blosnich et al., Health

Inequalities Among Sexual Minority Adults:

Evidence from Ten U.S. States, 2010, 46 Am. J. Prev.

Med. 337, 347 (2014) (“[Nlegative experiences (e.g.,

stigma) projected onto minority groups negatively

influence[} their health by causing. elevated

distress.”). For LGB individuals, minority stress “is a

chronic psychological strain’ resulting from

6

experiences and expectations of prejudice, decisions

about disclosure of sexual identity, and the

internalization of homophobia or homonegativity.”

Ellen D. B. Riggle et al., The Marriage Debate and

Minority Stress, 38 Pol. Sci. & Pol. 221, 222 (2005).

This stress “arises not only from negative events,

but from the totality of the minority person's

experience in dominant society.” [lan H. Meyer,

Minority Stress and Mental Health in Gay Men, 36 J.

Health & Social Behavior 38, 39 (1995). Internalized

homophobia, perceived stigma, and _ actual

experiences of prejudice all contribute to minority

stress. Id.

Stigma increases this minority stress. LGB

people “learn to anticipate—indeed expect—negative

regard from members of the dominant culture,” and

they “must maintain vigilance” at all times. Ilan H.

Meyer, Prejudice and Discrimination as Social

Stressors, in The Health of Sexual Minorities 242,

251 dlan H. Meyer & Mary E. Northridge eds.,

2007). Such vigilance is both chronic, in that it is

“repeatedly and continually evoked in the everyday

life of the minority person,” and exhausting, “in that

it requires the exertion of considerable energy and

resources in adapting to it.” Meyer (1995), supra, at

41. Discriminatory policies also increase the risk

that external stressors will become internalized,

leading to feelings of prejudice and rejection. Glenda

M. Russell & Jeffrey A. Richards, Stressor and

Resilience Factors for Lesbians, Gay Men, and

7

Bisexuals Confronting Antigay Politics, 31 Am. J.

Community Psychol. 313, 322 (2003).

Minority stress, like all forms of chronic stress,

can contribute to “serious health problems, such as

heart disease, high blood pressure, diabetes,

depression, anxiety disorders, and other illnesses.”

Fact Sheet on Stress, National Institute of Mental

Health, http://www.nimh.nih.gov/health/publications/

stress/index.shtm] (last visited March 4, 2015).

Chronic stress may also accelerate cellular aging.

Elissa S. Epel et al., Cell Aging in Relation to Stress

Arousal and Cardiovascular Disease Risk Factors, 31

Psychoneuroendocrinology 277, 278 (2006). For this

reason, “stressors including discrimination can play

a role in the onset, progression, and severity of

illness.” David R. Williams & Selina A. Mohammed,

Discrimination and Racial Disparities in Health:

Evidence and Needed Research, 32 J. Behav. Med.

20, 38 (2008).

It is therefore not surprising that, a formidable

body of research links the stigma affecting LGB

individuals—and the attendant stress that it

causes—to adverse health outcomes. See William C.

Buffie, Public Health Implications of Same-Sex

Marriage, 101 Am. J. Pub. Health 986, 987 (2011)

(“[T]he association and prevalence of [psychiatric]

disorders suggest that institutionalized stigma and

its attendant internalized prejudice (i.e., minority

stress) stand at the forefront of this cycle, begetting

higher rates of sexually transmitted diseases,

8

depression, suicide, and drug use—all of which,

when combined with suboptimal access to healthcare

and fractured family-support systems, eventually

contribute to higher overall mortality as well as

morbidity from various cancers, cirrhosis,

hypertensions and heart disease.”).

Studies have observed that as the level of stigma

against LGB individuals increases (for example,

through the enactment of policies specifically

disadvantaging LGB individuals), so does the extent

of negative health outcomes. One study found that

gay men and lesbians living in states with less

inclusive or protective policies were 2.5 times more

likely to suffer from psychiatric disorders such as

dysthymia (a form of depression) than their

counterparts living in states without such policies.

Mark L. Hatzenbuehler et al., State-Level Policies

and Psychiatric Morbidity in Lesbian, Gay, and

Bisexual Populations, 99 Am. J. Pub. Health 2275,

2277 (2009). Conversely, a separate study observed

that LGB individuals living in communities “with

high levels of anti-gay prejudice” experienced life

expectancies shortened by, on average, twelve years.

Mark L. Hatzenbuehler et al., Structural Stigma

and the Health of LGB Populations, 23 Current

Directions in Psychol. Sci. 127, 129 (2014).

9

B. Discriminatory Marriage Laws Are

Stigmatizing.

This Court, as well as lower courts across the

country, have linked discriminatory marriage laws

to stigma. E.g., United States v. Windsor, 133 S. Ct.

2675, 2681 (2013) (““DOMA impose[d] a

disadvantage, a separate status, and so a stigma

upon all who enter into same-sex marriages made

lawful by the unquestioned authority of the States.”);

Baskin v. Bogan, 766 F.3d 648, 658 (7th Cir. 2014),

cert. denied, 135 S. Ct. 316, and cert. denied sub

nom. Walker v. Wolf, 135 S. Ct. 316 (2014) (“[T]o

exclude a couple from marriage is thus to deny it a

coveted status.”); De Leon v. Perry, 975 F Supp. 2d

632, 646 (W.D. Tex. 2014) (“[IJt is clear that

Plaintiffs suffer humiliation and discriminatory

treatment under the law on the basis of their sexual

orientation, and this stigmatic harm flows directly

from Texas’ ban on same-sex marriage.”); cf. Loving

v. Virginia, 388 U.S. 1, 12 (1967) (“Marriage is one of

the ‘basic civil rights of man” that cannot be denied

on the basis of “classifications so directly subversive

of the principle of equality.” (citation omitted)).

Researchers agree that discriminatory marriage

laws, in particular, have a stigmatizing effect on

LGB individuals. Institutional discrimination in

marriage contributes to “a status of stigmatized

‘second-class citizens,” who are thus “at risk for

minority stress and its health consequences.” Riggle

et al., supra, at 221; see also Gregory M. Herek, Anti-

10

equality Marriage Amendments and Sexual Stigma,

67 J. of Social Issues 413, 415-19 (2011) (anti-

equality marriage amendments are a source of

heightened stress for lesbians, gay men, and

bisexuals). This is because the “legal validation or

disapproval of one’s marriage communicates whether

the state and surrounding community accept a same-

sex couple’s identity. Prohibition of marriage for

same-sex couples therefore confers upon gays and

lesbians a marginalized status that is imbued with a

derogatory social appraisal.” Richman &

Hatzenbuehler, supra, at 230.

Leading groups of medical and psychological

professionals have therefore adopted resolutions

condemning discriminatory marriage policies as

stigmatizing. Health Care Disparities in Same Sex

Partner Households, American Medical Association,

AMA Policy H-65.973 (2012) (“denying civil marriage

based on sexual orientation is discriminatory and

imposes harmful stigma on gay and lesbian

individuals and couples and their families”);

Resolution on Marriage Equality for Same-sex

couples, American Psychological Association (2011)

(“(T]he denial of civil marriage, including the

creation of legal statuses such as civil unions and

domestic partnerships, stigmatizes same-sex

relationships, perpetuates the stigma historically

attached to homosexuality, and reinforces prejudice

against lesbian, gay, and bisexual people.”); Position

Statement on Support of Legal Recognition of Same-

Sex Civil Marriage, American Psychiatric

11

Association, APA Official Actions (2005) (“In the

interest of maintaining and promoting mental

health, the American Psychiatric Association

supports the legal recognition of same-sex civil

marriage with all _ rights, benefits, and

responsibilities conferred by civil marriage, and

opposes restrictions to those same rights, benefits,

and responsibilities.”).

C. The Stigma from Discriminatory

Marriage Laws Correlates with Negative

Health Outcomes in LGB Populations.

Stigma is associated with a marked gap in health

outcomes between LGB and _ heterosexual

individuals. Study after study confirms that LGB

individuals suffer from higher rates of depression,

physical illmess, and disability compared to

heterosexuals.

Most notably, a higher risk of depression

manifests itself early in the life of LGB individuals

and follows them throughout their lifetimes.

According to an Oregon-focused study, lesbian, gay,

and bisexual youth were more than five times as

likely to attempt suicide than their heterosexual

peers (21.5% versus 4.2%). Mark L. Hatzenbuehler,

The Social Environment and Suicide Attempts in

Lesbian, Gay & Bisexual Youth, 127 Pediatrics 896,

899 (2011). A study in North Carolina found that

LGB men and women were more likely than

heterosexuals to report experiencing five or more

12

days of bad mental health in the last thirty days or

to have been diagnosed with a depressive disorder.

Derrick D. Matthews & Joseph G. L. Lee, A Profile of

North Carolina Lesbian, Gay, and Bisexual Health

Disparities, 2011, 104 Am. J. Pub. Health 98, 102

tbl. 12 (2014). Another study analyzed population

data from ten states and found “a pattern of

disparities in general health, mental health, activity

limitations owing to health, and substance abuse”

between LGB and straight individuals. Blosnich et

al., supra at 4-5. Older LGB adults similarly

confronted elevated risk of poor mental health

compared to older heterosexual adults. Karen I.

Fredriksen-Goldsen et al., Health Disparities Among

Lesbian, Gay, and Bisexual Older Adults: Results

From a Population-Based Study, 103 Am. J. Pub.

Health 1802 (2013).

Studies also show higher rates of physical illness

among LGB individuals. For instance, survival time

after receiving a cancer diagnosis may be shorter for

gay men than heterosexual men. Laura Dean et al.,

Lesbian, Gay, Bisexual, and Transgender Health:

Findings and Concern, 4 J. Gay & Lesbian Med.

Assoc. 101, 112 (2000). LGB individuals also exhibit

a higher prevalence of physical disabilities that

restrict their mobility than do _ heterosexuals.

Fredriksen-Goldsen, supra, at 1802.

And emerging research points to discriminatory

marriage laws in particular as being correlated with

poorer mental and physical health in LGB

13

populations. According to one recent study, LGB

individuals experienced markedly increased rates of

psychiatric disorders in states that erected

constitutional amendments banning same-sex

marriage during the 2004-2005 elections. Mark L.

Hatzenbuehler et al., The Impact of Institutional

Discrimination on Psychiatric Disorders in LGB

Populations, 100 Am. J. Pub. Health 452, 454—55

(2010). Among LGB individuals living in states

enacting such bans, the prevalence of general

anxiety disorder increased by more than 248%,

psychiatric comorbidity by over 36%, and alcohol

abuse by 42%. Jd. LGB individuals living in states

without such bans did not experience any of these

spikes in adverse health outcomes. Jd. As the

American Psychological Association’s resolution on

marriage equality notes, “emerging evidence

suggests that statewide campaigns to deny same-sex

couples legal access to civil marriage are a

significant source of stress to the lesbian, gay, and

bisexual residents of those states and may have

negative effects on their psychological well-being.”

Resolution on Marriage Equality for Same-Sex

Couples, American Psychological Association (2011).

Conversely, removing barriers to same-sex

marriage is associated with mental and physical

health improvements for LGB individuals. In the

year after Massachusetts became the first state to

legalize same-sex marriage, health outcomes for

LGB individuals within the state improved

markedly. Mark L. Hatzenbuehler et al., Effect of

14

Same-Sex Marriage Laws on Health Care Use and

Expenditures in Sexual Minority Men: A Quasi-

Natural Experiment, 102 Am. J. Pub. Health 285,

289 (2012). During that time, the 1,211 gay and

bisexual men surveyed experienced a 13% reduction

in health care visits and a 10% reduction in health

care costs. Jd. In contrast, the health care costs of

the overall Massachusetts populace increased during

this same time period. /d.

A recent study from California compared married

LGB individuals to those who were in registered

domestic partnerships (RDPs) and those who were

not in a legally recognized same-sex relationship. It

found that respondents who were legally married or

in an RDP with a same-sex partner had significantly

less psychological distress than those who were not

in a legally recognized same-sex relationship.

Richard G. Wight et al., Same-Sex Legal Marriage

and Psychological Well-Being, 103 Am. J. Pub.

Health 339, 343-44 (2013). Perhaps most

importantly, marriage was a better predictor of

psychological well-being among same-sex couples

than domestic partnership, leading to the conclusion

that “there might be a unique positive mental health

association specifically conferred by legal marriage,

particularly compared with not being in any type of

legally recognized relationship at all.” Jd. at 343.

In short, same-sex marriage bans impose a well-

documented burden on the health of LGB

individuals. The sum of peer-reviewed research on

15

the subject spotlights the toll these discriminatory

bans take on the mental and physical well-being of

the community.

II. The Significant Health Benefits of Marriage

Eliminating same-sex marriage bans would not

only help mitigate the negative health effects of

discrimination and _ stigma, but also allow

individuals in same-sex relationships to avail

themselves of the mental and physical health

benefits that have long been associated with

marriage. The results of studies conducted since the

legalization of same-sex marriage in certain states

are consistent with a positive association between

marriage and health. Legal recognition of same-sex

marriage “appeared to have the potential to offset

mental health disparities between heterosexuals and

LGB persons.” Wight et al., supra, at 344. And these

health benefits are yet another reason LGB

individuals should not be denied the right to marry.

A. Married People Enjoy Significantly

Better Health.

The right to marry confers “a dignity and status

of immense import.” Wiadsor, 133 S. Ct. at 2692. It

also confers immense health benefits. Indeed,

researchers have long recognized that “married

persons are healthier than unmarried persons.”

Charlotte Schoenborn, U.S. Dep’t of Health &

Human Servs., Centers for Disease Control &

Prevention, Advance Data No. 351, Marital Status

16

and Health: United States 1999-2002, at 1 (Dec. 5,

2004) (“CDC Report”) (collecting sources and

observing that “[m]Jarital status and health has been

a topic of research interest for over a century”); see

also, e.g., U.S. Dep’t Health & Human Servs., Office

of Assistant Secretary for Planning & Evaluation,

The Effects of Marriage on Health: A Synthesis of

Recent Research Evidence, at 1 (2007) available at

http://aspe.hhs.gov/hsp/07/marriageonhealth /rb.htm

(“ASPE Report”).

Married people enjoy better mental and physical

health—and live longer—than their unmarried

counterparts. Drawing on years of National Health

Interview Surveys, for example, the Centers for

Disease Control and Prevention concluded that

married adults were healthier than unmarried

adults regardless of “population subgroup (age, sex,

race, Hispanic origin, education, income, or nativity)

or health indicator (fair or poor health, limitations in

activities, low back pain, headaches, serious

psychological distress, smoking, [etc.]).” CDC Report,

supra, at 1.

Although there is some evidence that healthier

people may “self-select” into marriage, the positive

relationship between health and marriage can at

least in part be explained by the protective effects of

marriage: the fact that, for example, spouses monitor

each other's health behaviors, care for each other

when ill, and offer each other emotional support in

times of personal hardship. Susan Averett et al., In

17

Sickness and in Health: An Examination of

Relationship Status and Health Using Data from the

Canadian National Public Health Survey, 11 Rev.

Econ. Household 599, 601 (2012).

Today, there is an emerging consensus that

married people enjoy significantly better health in

part because marriage makes them healthier. E.z.,

ASPE Report, supra, at 2 (“Most researchers

conclude that the association between marriage and

health represents a combination of the selection of

healthier people into marriage and true health

benefits from marriage.”). Put differently, there are

tangible health benefits from marriage that do not

accrue to unmarried people.

i. Married people enjoy better mental

health.

It is generally accepted that marriage contributes

to better mental health. The evidence “consistently

shows that being married reduces depression,” even

after controlling for baseline mental health. ASPE

Report, supra, at 4 (collecting sources). Married

people also experience smaller increases in

depressive symptoms as they grow older when

compared to unmarried people. Id.

Likewise, a wealth of empirical research has

“demonstrate[d] that married individuals are better

adjusted psychologically” than unmarried

individuals. Erin E. Horn et al., Accounting for the

18

Physical and Mental Health Benefits of Entry Into

Marriage: A Genetically Informed Study of Selection

and Causation, 27 J. Fam. Psych. 30, 30 (2013).

Three recent longitudinal studies illustrate this

consensus.” In the first study, after controlling for

relevant variables, people who were continuously

married throughout a six-year observation period

had “a higher level of psychological well-being” than

people belonging to other marital status groups.

Hyoun Kim & Patrick C. McKenry, The Relationship

Between Marriage and Psychological Well-Being: A

Longitudinal Analysis, 23 J. Fam. Issues 885, 898—

99, 905 (2002). Similarly, while participants who had

never been married at the study’s outset initially

reported similar levels of depression, those who were

married for the first time during the study period

ultimately reported significantly lower levels of

depression compared to those who had still never

married six years later—even if they had begun

cohabiting with a partner. Id. at 898-99.

2 The most reliable evidence for the protective effect comes from

studies using longitudinal data (i.e., researching the same

subjects over time). This is because participants in longitudinal

studies “serve as their own control group, and the effect of

marriage is measured by comparing their outcomes before and

after marriage.” ASPE Report, supra, at 3 (describing benefits

of longitudinal studies); see also James Robards et al., Marital

Status, Health and Mortality, 73 Maturitas 295 (2012).

19

The second study found that marriage was

associated with marked improvements in mental

health for women in particular. Averett et al., supra,

at 624. Even after controlling for age, education,

income, health insurance, the presence of children,

location, and personality, married people exhibited a

“reduction in depressive symptoms, and improved

health behaviors related to alcohol use.” Jd.

The third study examined the mental health of

adult twin and sibling pairs throughout an eight-

year period in order to control for genetic and

environmental selection effects. Horn et al., supra, at

30-31 (describing benefits of genetically-informed

research designs). The study observed that married

participants had lower depression scores, drank less

alcohol, and were four times less likely to report

suicidal ideation than their unmarried counterparts.

Id. at 35.

These studies and others indicate that marriage

is not merely associated with better mental health—

at least in part, marriage seems to be causing it.

ii. Married people enjoy better physical

health.

Numerous studies have found that married

people experience better physical health than their

unmarried counterparts. See generally ASPE Report,

supra, at 5 (observing that “[m]Jany studies have

documented that people who marry live longer and

20

enjoy better physical health than those who do not

marry’). Drawing on years of National Health

Interview Surveys, for example, the Centers for

Disease Control and Prevention observed: “Married

persons [a]re healthier for nearly every measure of

health—the one important exception being body

weight status.” CDC Report, supra, at 11. The

measures of health on which married persons

outperform unmarried persons include low back

pain, headaches, physical activity limitations, self-

assessed health conditions, and health-related

behaviors (e.g., alcohol consumption, smoking,

leisure-time physical inactivity). There appear to be

at least two reasons why.

First, marriage is associated with a reduction in

several leading health risk behaviors, including

alcohol consumption, smoking, and illicit drug use.

See Averett et al., supra, at 616; see also Jeremy

Uecker, Marriage and Mental Health Among Young

Adults, 53 J. Health Soc. Behavior 67, 77—80 (2012)

(finding that marriage is associated with lower levels

of alcohol consumption and smoking); but see ASPE

Report, supra, at 3 (observing that, although

“[s]tudies consistently indicate that marriage

reduces heavy drinking and overall alcohol

consumption,” “[s]tudies of marriage and smoking

reveal no consistent pattern of results”). A recent

longitudinal study likewise observed that marriage

is associated with consistent reductions in illicit

drug use and binge drinking, particularly for young

men. Greg Duncan et al., Cleaning Up Their Act: The

21

Effects of Marriage and Cohabitation on Licit and

Illicit Drug Use, 43 Demography 691 (2006); see also

ASPE Report, supra, at 3 (collecting sources and

noting that “marriage is also associated with reduced

marijuana use for young men”).

Second, beyond reducing risky behavior,

marriage also is associated with increased likelihood

of certain health-promoting behaviors. For example,

regardless of age, married insured men are more

likely than non-married men with health insurance

to have had a health care visit in the last year.

Centers for Disease Control and Prevention,

National Center for Health Statistics, Marriage,

Cohabitation and Men’s Use of Preventive Health

Care Services, NCHS Data Brief No. 154, June 2014,

at 2—3. Married men are also more likely to have

received recommended clinical preventative services

in the past year, such as blood pressure and

cholesterol checks. Id. at 4.

Marriage is also associated with improvements in

specific health outcomes. Surviving cancer is one

example. Ayal Aizer et al., Marital Status and

Survival in Patients With Cancer, 31 J. Clinical

Oncology 3869, 3869 ( 2013) (finding that, after

controlling for such relévant factors as age, sex, race,

income, education, and cancer stage, married

patients are less likely to die from cancer than

unmarried patients). Cardiovascular disease is

another: One study found that married people are

less likely to suffer from it. Gerard John Molloy et

22

al., Marital Status, Gender and Cardiovascular

Mortality: Behavioural, Psychological Distress and

Metabolic Explanations, 69 Soc. Sci. & Med. 223,

225-26 (2009).

In sum, marriage is associated with better health

generally, as well as better specific outcomes. As

noted above, there are exceptions to the general

correlation between marriage and better physical

health, the principal one being bodyweight. Averett

et al., supra, at 604. On balance, however, the

positive associations between marriage and physical

health far outweigh the negative associations.

iii. Married people enjoy longer lives.

Married people tend to live longer. That much

has been documented for more than 150 years. See,

e.g., William Farr, Influence of Marriage on the

Mortality of French People, in Transactions of the

National Association for the Promotion of Social

Science 1858, 504—20 (1859), cited in Morten Frisch

& Jacob Simonsen, Marriage, Cohabitation and

Mortality in Denmark: National Cohort Study of 6.5

Million Persons Followed for Up to Three Decades

(1982-2011), 2013 Int’ J. Epidemiology 1, 13 & n.1

(2013); see also Norman Johnson et al., Marital

Status and Mortality: The National Longitudinal

Mortality Study, 10 Ann. Epidemiology 224 (2000)

(using data gathered from 1978 through 1985).

23

Longitudinal data collection studies have begun

to provide an explanation for this phenomenon:

Married people live longer in part because they are

married. E.g., Frisch & Simonsen, supra, at 1—20;

Robert M. Kaplan & Richard G. Kronick, Marital

Status and Longevity in the United States

Population, 60 J. Epidemiology & Comm. Health

760, 760—65 (2006).

Three recent studies illustrate this emerging

consensus. The first examined marital status and

mortality using the U.S. National Health Interview

Survey and National Death Index. Kaplan &

Kronick, supra, at 760-61. This study found that

married people had a much lower risk of death.

Specifically, “[u]sing married as the reference group,

those who were widowed had a 39% greater risk of

mortality and those who were divorced or separated

had a 27% greater chance of mortality.” Jd. at 761.

But, perhaps most striking, those at greatest risk of

death were individuals who never got married; they

had a 158% greater risk of mortality than their

married counterparts. Id.

The second study examined mortality in 6.5

million subjects in Denmark over thirty years using

continuously updated fhdividual-level information.

Frisch & Simonsen, supra, at 2—3. The study found

that opposite-sex married persons had consistently

24

lower mortality rates than unmarried, divorced, or

widowed people. Id. at 4.3

The third study addressed the question of

whether income or marriage has the greater impact

on lifespans. Jonathan Gardner & Andrew Oswald,

How Is Mortality Affected by Money, Marriage, and

Stress, 23 J. of Health Econ. 1181 (2004). The results

would be surprising to many: “[M]arriage has a more

important effect on longevity than income does.” Jd.

at 1204. In particular, the data show “only minor

effects from economics, with income playing little

role once we enter suitable controls for initial health

status.” Id. at 1182. Marriage, in contrast, has a

large effect on mortality risk. As the study’s authors

bluntly put it, the evidence is that marriage “keeps

you alive, and the effect is large.” Id. at 1191.

In summary, married people enjoy better physical

health, better mental health, and longer lives than

unmarried people. The emerging conclusion is that

this is because they are married. All Americans,

regardless of sexual orientation, should have an

equal opportunity to enjoy the many health benefits

of marriage.

3 Because same-sex marriage became legal in Denmark in only

June 2012, limited data exist regarding mortality for same-sex

married persons. Those data do not yet consistently show the

same lower mortality rates as those for opposite-sex married

individuals. Frisch & Simonsen, supra, at 17-18.

25

B. Cohabitation Does Not Provide Health

Benefits Equal to Those of Marriage.

It is unlikely that same-sex couples who are

simply cohabiting, or who have some lesser level of

legal recognition than married couples (such as

domestic partnerships or civil unions), can fully

enjoy the health benefits of marriage, as

cohabitation is not associated with the health

benefits of marriage. See, e.g., Averett et al., supra,

at 604 (“While the majority of the studies have

focused on marriage, a few studies have also begun

to examine whether similar benefits accrue to those

who cohabit. {I]n the U.S., cohabitors behave

more like singles than married _ individuals.”).

Cohabitation does not present marriage’s positive

physical or mental health impacts, nor does it

provide the same increase in access to health care. In

short, in terms of health benefits, cohabitation end

marriage are decidedly unequal.

i. Cohabitation does not provide equal

mental health benefits.

Across all adult age ranges, cohabiting people

exhibit more depressive symptoms than their

married counterparts. See Susan L. Brown et

al., The Significance of Nonmarital Cohabitation:

Marital Status and Mental Health Benefits Among

Middle-Aged and Older Adults, 60B J. Gerontology

1, S21-S29 (2005) (finding that cohabiting men

exhibited significantly higher depression scores than

26

married men); Susan L. Brown, The Effect of Union

Type on Psychological Well-Being: Depression Among

Cohabitors versus Marrieds, 41 J. Health and Soc.

Behav. 241, 247—51 (2000) (finding that cohabiting

adults were more likely to suffer from depression

than their married counterparts).

The evidence indicates that, at least in part, this

difference is caused by being unmarried. For

example, researchers observed that, over a six-year

period, married individuals experienced significantly

lower levels of depression than those who began

cohabiting with a partner, “clearly indicat[ing] the

advantageous effects of marriage over cohabitation

in terms of psychological well-being.”4 Kim &

McKenry, supra, at 906; see also Kathleen Lamb et

al., Union Formation and Depression: Selection and

Relationship Effects, 65 J. Marriage & Family 953,

960 (2003) (finding that entering into cohabitation

did not reduce depression scores compared to being

unpartnered); Kelly Musick & Larry Bumpass, Re-

Examining the Case for Marriage: Union Formation

and Changes in Well-Being, 74 J. Marriage Family 1,

10 (2012) (finding that moving into any union

(marriage or cohabitation) increased __ global

happiness and reduced depressive symptoms relative

to remaining single, but that entering into marriage

4 These observations held true even after controlling for age,

education, number of children in the household, and level of

depression at the outset of the observation period.

27

increased perceptions of health relative to

cohabitation).

The same study also found that, while marriage

was related to a decrease in depressive symptoms,

cohabitation was not, “suggesting that the protection

effects of marriage are not as applicable to

cohabitation.” Kim & McKenry, supra, at 905; see

also Averett et al., supra, at 616 (finding that, unlike

marriage, cohabitation was not associated with a

statistically significant decrease in depression

scores, and that “cohabiting women are rarely

statistically distinguishable from their never-

married counterparts’).

Provocatively, evidence suggests that marriage

causes not only better mental health but also better

behavior. In the study of siblings described above,

cohabiting subjects were 67% more likely than their

married siblings to have exhibited “antisocial

behaviors’—that is, to have committed one of ten

enumerated crimes—within the past year. Horn et

al., supra, at 35.5 Further, “cohabiting men and

women are more likely to drink and smoke regularly

compared to their never-married or married

counterparts.” Averett et al., supra, at 616.

5 Those ten criminal] behaviors were described as “damage

property, petty theft, burglary, threaten another with a

weapon, sel] drugs, grand theft, gang fighting, buy/sell stolen

goods, and write a bad check.” Horn et al., supra, at 33.

28

ii. Cohabitation does not provide equal

physical health benefits.

Cohabiting adults also tend to have worse

physical health than their married counterparts. See

CDC Report, supra, at 6—7. The Centers for Disease

Control and Prevention, for example, has found that

the health status and behaviors of adults living with

a partner most closely resemble those of divorced or

separated adults. CDC Report, supra, at 6~—7.

Cohabiting partners are more likely than their

married counterparts to be in fair or poor health

(rather than excellent, very good, or good health); to

have low back pain; to experience headaches; or to

have some type of health-related limitation on

activity. Id. at 7.

Not only is cohabitation not equal to marriage in

terms of observed health benefits, this observation

holds true regardless of whether the relationship is

same-sex or opposite-sex. Justin Denney et

al., Families, Resources, and Adult Health: Where Do

6 Married and cohabiting people do share one physical health

characteristic: unhealthy weight outcomes. “[D]uring marriage

and cohabitation men and women consistently have higher

[body mass indices]” than unmarried men and women. Averett

et al., supra, at 616. These effects are smaller for cohabiting

people than their married counterparts, but still significant in

comparison to their unmarried, unpartnered peers. Jd. In terms

of physical health, then, cohabitation could be said to share in

the least advantageous aspects of both married and unmarried

life.

29

Sexual Minorities Fit?, 54 J. Health & Soc. Behav. 46

(2013). For example, after adjusting for

socioeconomic status: “Men and women in same- and

different-sex cohabitations have higher odds of poor

health than married persons.” Jd. at 57; see also Hui

Liu et al., Same-Sex Cohabitors and Health: The

Role of Race-Ethnicity, Gender, and Socioeconomic

Status, 54 J. Health & Soc. Behav. 25, 41 (2013).

iii. Cohabitation does not provide equal

access to health care.

In the United States, married adults are

significantly more likely than adults in other marital

status categories to have health insurance. And

health insurance is the most important factor in

Americans’ receipt of timely, appropriate health

care. Institute of Medicine, Committee on the

Consequences of Uninsurance, Coverage Matters:

Insurance and Health Care 5 (2001).

The relationship of marriage and access to health

insurance is hardly surprising: “[B]ly offering access

to coverage through a spouse’s policy|,] marriage

increases the likelihood of having insurance and

reduces the likelihood of becoming uninsured after a

job loss or other majo¥ life event.” ASPE Report,

supra, at 4.

Yet the magnitude of the relationship is striking:

In the first half of 2014, the uninsured rate for

married adults was 12.6%. Michael E. Martinez &

30

Robin A. Cohen, Health Insurance Coverage: Early

Release of Estimates from the National Health

Interview Survey, January-June 2014, National

Health Interview Survey Early Release Program 18

tbl. 9 (2014). For widowed, divorced, and never-

married adults, the uninsured rate clustered around

20%. Id. But, for people cohabitating, it approached

30%. Id.

Historically, this disparity has been particularly

stark for women in same-sex relationships. Julia E.

Heck et al., Health Care Access Among Individuals

Involved in Same-Sex Relationships, 96 Am. J. Pub.

Health 1111, 1113 (2006). Women in same-sex

relationships are 60% less likely to have health

insurance, and 85% more likely to have unmet

medical needs because of cost. Jd. at 1112.

Health insurance coverage, of course, is not the

equivalent of good health itself. See Stephen

Shortell, Bridging the Divide Between Health and

Health Care, 309 J. Am. Med. Assoc. 1121, 1121

(2013). But it is distinctly better than the

alternative.

C. Same-Sex Couples Would Equally Enjov

the Health Benefits of Marriage.

Same-sex couples have the same loving,

committed relationships as other couples. See, e.g.,

Lawrence Kurdek, What Do We Know About Gay

and Lesbian Couples?, 14 Current Directions in

31

Psychol. Sci. 251, 253 (2005); see generally Michael J.

Rosenfeld, Couple Longevity in the Era of Same-Sex

Marriage in the United States, 76 J. Marriage &

Family 905 (2014). It is therefore not surprising that

the available evidence indicates that same-sex

couples enjoy marriage’s health benefits to the same

extent as opposite-sex couples. See Wight et al.,

supra, at 343.

“[T]he relationships of gay and lesbian partners

appear to work in much the same way as the

relationships of heterosexual partners do.” Kurdek,

supra, at 253. In general, the principal predictors of

relationship quality are: (1) what personality traits

each partner brings to the relationship; (2) how

much trust each partner has in the other; (3) how

partners behave toward each other (e.g.,

communication and conflict-resolution styles); and

(4) how much support for the relationship the

partners perceive from family members and friends.

Id.

The current evidence indicates that “the extent to

which relationship quality is predicted by these four

kinds of variables tends to be as strong for gay and

lesbian couples as it is for heterosexual couples.”

Kurdek, supra, at 253. For example, although same-

sex couples often face challenges regarding perceived

support from family members, the available data

suggest that same-sex couples generally “resolve

conflict more positively than spouses from married

couples do: They argue more effectively, are less

32

likely to use a style of conflict resolution in which

one partner demands and the other partner

withdraws, and are more likely to suggest possible

solutions and compromises.” Jd. (citing John

Mordechai Gottman et al., Observing Gay, Lesbian,

and Heterosexual Couples’ Relationships:

Mathematical Modeling of Conflict Interaction, 45 J.

Homosexuality 65, 84-88 (2003)). This evidence

supports the expectation that same-sex couples

would equally enjoy the benefits of marriage.

- - a

The right to marry confers “a dignity and status

of immense import.” United States v. Windsor, 133 S.

Ct. 2675, 2692 (2013). “This status is a far-reaching

legal acknowledgment of the intimate relationship

between two people.” Id.; cf. Lawrence v. Texas, 539

U.S. 558, 574 (2003) (“These matters, involving the

most intimate and personal choices a person may

make in a lifetime, choices central to personal

dignity and autonomy, are central to the liberty

protected by the Fourteenth Amendment.” (quoting

Planned Parenthood of Se. Pa. v. Casey, 505 U.S.

833, 851 (1992)). A fundamental freedom, the right

to marry “has long been recognized as one of the

vital personal rights essential to the orderly pursuit

of happiness.” Loving, 388 U.S. at 12. For same-sex

couples who wish to marry, the recognition of their

fundamental right will “give their lawful conduct a

lawful status.” Windsor, 133 S. Ct. at 2692. It will

33

also give them access to immensely important health

benefits.

CONCLUSION

For the foregoing reasons, amici respectfully urge

this Court to reverse the judgment of the Court of

Appeals.

SHEREE R. KANNER

KENNETH Y. CHOE

MARGIA K. CORNER

ELIZABETH C. LOCKWOOD

HOGAN LOVELLS US LLP

555 Thirteenth Street, N.W.

Washington, D.C. 20004

DAVID W. SKAAR

HOGAN LOVELLS US LLP

1999 Avenue of the Stars

Suite 1400

Los Angeles, CA 90067

THOMAS CUMMINS

HOGAN LOVELLS US LLP

7930 Jones Branch Drive

Ninth Floor

McLean, VA 22102

Respectfully submitted,

BORIS BERSHTEYN

Counsel of Record

ROMAN J. RODRIGUEZ

MICHAEL SPRING R

SAM AULD

AUDREY FELDMAN

KEVIN C. Hu

STEFANIE E. NEALE

SKADDEN, ARPS, SLATE,

MEAGHER & FLOM LLP

4 Times Square

New York, NY, 10036

(212) 735-3000

Boris.Bershteyn@skadden.com

DANI®L BRUNER

WHITMAN-WALKER

HEALTH

1701 Fourteenth Street, NW

Washington, DC 20009

Attorneys for Amici Curiae

March 6, 2015