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

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G6 O- THE CLERK

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,

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 peals

for the Sixth Circuit

BRIEF OF BAY AREA LAWYERS FOR INDIVIDUAL

FREEDOM, ET AL. AS AMICI CURIAE

SUPPORTING PETITIONERS

JEROME C. ROTH

Counsel of Record

AMELIA L.B. SARGENT

MUNGER, TOLLES & OLSON LLP

560 Mission Street 27th Floor

San Francisco, CA 94105

Jerome.Roth@mto.com

(415) 512-4000

(CR AR te An

VALSON-EPES PRINTING CO.., Inc. — (202) 789-0086 — WASHINGTON, D. C. 20002

TABLE OF CONTENTS

PAGE

EN EL aS ET 1

A TEES 2

[ELSES ee ee One nO 4

I. It Is The Province And Duty Of This Court To

Hold That The Marriage Bans Violate The

Equal Protection Clause ...................0.cccccccesseeeeeeees

A. Classifications That Are Intended Only To

Disadvantage A Group Of People Fail Even

B. It Is Uniquely The Province Of The Courts

To Decide The Equal Protection Challenge

To The Marriage Bans .....................0..0cccccsse0000

. Excluding Same-Sex Couples From The

Institution Of Marriage Harms Gay And

Lesbian Individuals, Their Families, And Their

A. Marriage Is A Uniquely Revered

Institution In American Society ......................

B. Exclusion From Marriage Causes Tangible

2. Legal And Economic Harm ........................

3. Emotional And Physical Harm ..................

C. The Marriage Bans Communicate

Governmental Animus Toward Same-Sex

EL er

1. The Marriage Bans Stigmatize Same-

EE IE era eee

(1)

2. The Marriage Bans’ Stigma Perpetuates

Societal Discrimination Against Gay

EE en ee 27

EE a ec 30

Appendix — List of Amici Curiae ......................cccceseeees la

TABLE OF AUTHORITIES

FEDERAL CASES PAGE(S)

Baskin v. Bogan,

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

Bostic v. Schaefer,

760 F.3d SEB (4th Cir. 2OI4).............cccsccscccccccsece 3

Brown v. Board of Education,

gO 2

City of Cleburne v. Cleburne Living Center,

ee ie Ge BP rccnttccscccesccssccscecncces 4,5, 17, 26

Eisenstadt v. Baird,

a eeildsimaaeion 5

Griswold v. Connecticut,

TET TA TT TE 10

Kitchen v. Herbert,

765 F.3d 1193 (10th Cir. 2014).................ccccccsees 2

Latta v. Otter,

771 F.3d 456 (9th Cir. 2014).....................000 3,17

Lawrence v. Texas,

nce aaetctieieennndubeees 22, 28

Loving v. Virginia,

BBB U.S. 1 (1967) .....ccccccceccecessesesseseeseeees 4, 8, 9, 10

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) ...................secsseerees 6

Mayers v. Ridley,

466 F.2d 630 (D.C. Cir. 19772) ...........cccccccoscccescees 8

Perry v. Schwarzenegger,

704 F. Supp. 2d 921 (N.D. Cal. 2010)............... 27

Plessy v. Ferguson,

ee Se ie ictccsssisisiiissniiineecameiimmsinnelill 2

Reynolds v. Sims,

8 2 Tee 7,8

Romer v. Evans,

Be Gels GE Cie eccccccccccctscenscscnsonsonscosene passim

SmithKline Beecham Corp. v. Abbott

Laboratories,

740 F.3d 471 (Oth Cir. BO14).........cccccccsccccccscscsees 4

Strauder v. West Virginia,

es ee aiicccncccssssesccccnstnienannin 23, 28

Taylor v. Louisiana,

gf ese yeone 24

Turner v. Safley,

EG STi cicsicndceccisienstisidiciddaeimnmmmmamemal 10

United States v. Virginia,

Be Oe I I ccciiccscsecdenssnineshdunssimanmammiailiid 30

United States v. Windsor,

BE GAR, Bree Ge cccccccsccncssscncssescsssseses passim

United States Department of Agriculture v.

Moreno,

Se i Se icrsiniisiitcinisiiiiintiiiaileadininaibaeapegias 5, 27

West Virginia State Board of Education v.

Barnette,

319 U.S. 624 (1943)...............cccccsees ion’ 7

Williams v. North Carolina,

sone 10

STATE CASES

Garden State Equality v. Dow,

| 21

Goodridge v. Department of Public Health,

798 N.E.2d 941 (Mass. 2003).......... 10, 11, 15, 25

In re Marriage Cases,

183 P.3d 384 (Cal. 2008)....................... 24, 25, 28

Kerrigan v. Commissioner of Public Health,

957 A.2d 407 (Conn. 2008)................ 9, 14, 15, 25

Perez v. Lippold,

a 10

Varnum v. Brien,

763 N.W.2d 862 (Iowa 2009)....................... 11, 12

CONSTITUTIONAL PROVISIONS

ten ncetincnncenenennecnnsagncennncenbenes 26

I I nsntusesonncncnouint 26

A N 26

SII, EE Ls sasnenssgunentonsassees 26

i i. 1 1... ssssssseeonenenasecs 4

STATE STATUTES

Haw. Rev. Stat. § 572B (2014)..................:ccccecceeeee 12

Haw. Rev. Stat. § 572C-2 (2014)....................0000000. 12

Tenn. Code Ann. § 36-3-113 (2014)...............000000... 26

ADMINISTRATIVE REGULATIONS

Rev. Rul. 2013-17, 2013-38 I.R.B. 201................... 20

OTHER AUTHORITIES

Jeffrey M. Adams & Warren H. Jones, The

Conceptualization of Marital Commitment:

An Integrative Analysis, 72 J. Personality

BB ke 11

M.V. Lee Badgett, The Economic Value of

Marriage for Same-Sex Couples, 58 Drake

* > | Rasen eeearrsees. Seceere 19, 21

Robert A. Burt, Belonging in America: How to

Understand Same-Sex Marriage, 25 BYU J.

es Si i i ccnsncnccnincnitinisdieinnedinbieminnis 10, 11

Kim Chandler, Alabama Set to Become 37"

State to Allow Gay Marriage, Associated

Press, Feb. 7, 2015, available at

http://news. yahoo.com/gay-marriage-

arrives-alabama-183946121.html. ................... 28

Lisa C. Connolly, Anti-Gay Bullying in

Schools—Are Anti-Bullying Statutes the

Solution?, 87 N.Y.U. L. Rev. 248 (2012)........... 23

Nancy F. Cott, Public Vows: A History of

Marriage and the Nation (2000)................. 29, 30

Ashley Fantz, An Ohio Transgender Teen’s

Suicide; A Mother’s Anguish, Jan. 4, 2015,

CNN,

http://www.cnn.com/2014/12/3 1/us/ohio-

transgender-teen-suicide/ .......................c.cs00000s 23

Adam W. Fingerhut et al., Identity, Minority

Stress and Psychological Well-Being Among

Gay Men and Lesbians, 1 Psychol. &

icici ieiniteniaeininsseneine 22

Gary J. Gates, Williams Institute, UCLA

School of Law, LGBT Parenting in the

United States (2013),

http://williamsinstitute.law.ucla.edu/wp-

content/uploads/lgbt-parenting. pdf. ................. 16

Gilbert Herdt & Robert Kertzner, J Do, But J

Can't: The Impact of Marriage Denial on

the Mental Health and Sexual Citizenship

of Lesbians and Gay Men in the United

States, 3 J. Sexuality Res. Soc. Pol’y 33

Gregory M. Herek et al., Correlates of

Internalized Homophobia in a Community

Sample of Lesbians and Gay Men, 2 J. Gay

& Lesbian Med. Ass’n 17 (1997)................. 22, 23

Robin A. Lenhardt, Understanding the Mark:

Race, Stigma, and Equality in Context, 79

Bs See Tite E> Gi Ge cccccccncnnenscnensscnnssenseeuse 29

Ilan H. Meyer, Prejudice, Social Stress, and

Mental Health in Lesbian, Gay and

Bisexual Populations: Conceptual Issues

and Research Evidence, 129 Psychol. Bull.

ER SEES REISE SER SLES ae 22

Vil

New Jersey Civil Union Review Commission,

The Legal, Medical, Economic & Social

Consequences of New Jersey’s Civil Union

Law (Dec. 10, 2008),

http://www.nj.gov/lps/dcr/downloads/CURC

-Final-Report-.pdf .............0cccscccecesssseseseeeeee 15, 16

Office of Personnel Management, Coverage of

Same—Sex Spouses, No. 13-203 (July 17,

2013), http://-www.opm.gov/retirement-

services/publications-forms/benefits-

administration-letters/2013/13-203.pdf ..........

James G. Pawelski et al., The Effects of

Marriage, Civil Union, and Domestic

Partnership Laws on the Health and Weill-

being of Children, 118 Pediatrics 349

Marc R. Poirier, Name Calling: Identifying

Stigma in the “Civil Union” / “Marriage”

Distinction, 41 Conn. L. Rev. 1425 (2009).......

Elizabeth S. Scott, Social Norms and the Legal

Regulation of Marriage, 86 Va. L. Rev.

Thomas B. Stoddard, Why Gay People Should

Seek the Right to Marry, Out/Look: Nat’]

Gay & Lesbian Q., Fall 1989 .................0.........

USCIS, Same Sex Marriages,

http://www.uscis.gov/family/same-sex-

marriages (last updated Apr. 3, 2014) ............

Evan Wolfson, Why Marriage Matters:

America, Equality, and Gay People’s Right

INTEREST OF AMICI CURIAE’'

Bay Area Lawyers for Individual Freedom (BALIF)

is a bar association of more than 600 lesbian, gay, bi-

sexual, and transgender (LGBT) members of the San

Francisco Bay Area legal community. As the nation’s

oldest and largest LGBT bar association, BALIF pro-

motes the professional interests of its members and the

legal interests of the LGBT community at large. To

accomplish this mission, BALIF actively participates in

public policy debates concerning the rights of LGBT

individuals and families. BALIF frequently appears as

amicus curiae in cases, like this one, where it believes

it can provide valuable perspective and argument that

will inform court decisions on matters of broad public

importance.

Additional amici include a broad array of organiza-

tions, including state, metropolitan, local, and minority

bar associations and non-profit organizations. Each

organization supporting this amicus brief is dedicated

to ensuring that its constituents and all others in this

country, including gay men and lesbians, receive equal

treatment under the law. See App., infra, la-14a.

‘ No counsel for a party authored this brief in whole or in part,

and no such counsel or party made a monetary contribution

intended to fund the preparation or submission of this brief. All

parties have consented to amici’s submission of this brief either

in writing or by blanket consent letter. No person other than

the amici curiae, or their counsel, made such a monetary con-

tribution. A full list of amici curiae appears in the Appendix to

this brief.

(1)

SUMMARY OF ARGUMENT

Foundational to the Equal Protection Clause of the

Fourteenth Amendment is the principle that “the Con-

stitution ‘neither knows nor tolerates classes among

citizens.” Romer v. Evans, 517 U.S. 620, 623 (1996)

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

(Harlan, J., dissenting)). In line with this principle, it

has long been bedrock law that “separate but equal”

treatment does not satisfy the Federal Constitution.

The very notion is a contradiction in terms: as this

Court has emphasized since Brown v. Board of Educa-

tion, the Constitution’s promise of true equality is

necessarily breached by government-sponsored separa-

tion of a disfavored class.

The statutory and constitutional bans in Kentucky,

Michigan, Ohio, and Tennessee that prohibit same-sex

couples from marrying and that prohibit recognition of

legally performed marriages in other states (collective-

ly, the “Marriage Bans”) betray these longstanding

values. They exclude a class of people—gay men and

lesbians—from the venerated institution of marriage.

They do so for no purpose other than to deny that class

of people access to marriage, creating a pernicious

distinction that is as obvious and emotion-laden as it is

difficult to fully articulate. And this unjustifiable dif-

ferentiation of gay and lesbian couples, as amici ex-

plain below, inflicts profound injury upon them. Be-

cause the Marriage Bans set them apart, gay men,

lesbians, and their families are deprived of critical

benefits enjoyed by their heterosexual neighbors, are

subjected to debilitating stigma, and are exposed to

increased discrimination on the basis of their sexual

orientation. These effects are repugnant to the Consti-

tution’s guarantee of equality and are in no way miti-

gated by access—where available—to separate and

inherently inferior systems of domestic partnership or

civil union.

The Marriage Bans cannot survive even rational

basis review. Amici agree with Petitioners’ argument

that these bans lack any legitimate justification; they

have been enacted “for the purpose of disadvantaging

the group burdened by the law.” Romer, 517 US. at

633. They “classif[y] homosexuals not to further a

proper legislative end but to make them unequal to

everyone else.” Id. at 635.

There is widespread consensus among the district

courts of the Sixth Circuit as well as other Courts of

Appeals that laws such as the Marriage Bans unconsti-

tutionally disadvantage gays and lesbians without any

legitimate justification. Amici respectfully urge this

Court to hold likewise. See Kitchen v. Herbert, 755 F.3d

1193 (10th Cir. 2014); Bostic v. Schaefer, 760 F.3d 352

(4th Cir. 2014); Baskin v. Bogan, 766 F.3d 648 (7th Cir.

2014); Latta v. Otter, 771 F.3d 456 (9th Cir. 2014); Pet.

App. 161a-218a?; 14-571 Pet. App. 103a-139a; 14-562

Pet. App. 108a-130a; Pet. App. 124a-157a. As explained

below, first, the Court should not abandon its judicial

responsibility, as the Sixth Circuit did, by refusing to

adjudicate the constitutionality of the Marriage Bans

and by leaving the constitutional legitimacy of the

Marriage Bans exclusively in the hands of state voters.

Doing so would amouni to a stunning rejection of the

constitutional underpinnings of our judicial system

and over two hundred years of jurisprudence by this

Court. Second, in deciding the constitutional issue,

2 Uniess otherwise noted, citations to “Pet. App.” are to the

Appendix in No. 14-556.

this Court should recognize that the institution of

marriage is special, that nothing short of granting

same-sex couples the same marriage rights enjoyed by

opposite-sex couples fulfills the Constitution’s mandate

of equal protection, and that the Marriage Bans inflict

real, tangible, and unjustifiable harm on gay men and

lesbians, as well as on their families and children.

ARGUMENT

I. It Is The Province And Duty Of This Court

To Hold That The Marriage Bans Violate

The Equal Protection Clause

A. Classifications That Are Intended Only To

Disadvantage A Group Of People Fail

Even Rational Basis Review

The Equal Protection Clause of the Fourteenth

Amendment is “a commitment to the law’s neutrality

where the rights of persons are at stake.” Romer, 517

US. at 623. In forbidding any state from “denyling] to

any person within its jurisdiction the equal protection

of the laws,” U.S. Const. amend. XIV, § 1, the Equal

Protection Clause “requires the consideration of

whether the classifications drawn by any statute con-

stitute an arbitrary and invidious discrimination.”

Loving v. Virginia, 388 U.S. 1, 10 (1967). Even under

the most deferential review—the rational basis test—a

state law must be “rationally related to a legitimate

state interest.” City of Cleburne v. Cleburne Living Ctr.,

473 U.S. 432, 440 (1985).° “The State may not rely on a

% Amici believe that the Marriage Bans should be subject to

heightened scrutiny. See, e.g., SmithKline Beecham Corp. v.

Abbott Labs., 740 F.3d 471, 480 (9th Cir. 2014) (distinctions

based on sexual orientation are subject to heightened scrutiny).

However, because the Marriage Bans fail to advance any legit-

classification whose relationship to an asserted goal is

so attenuated as to render the distinction arbitrary or

irrational.” Id. at 446.

A “classification of persons undertaken for its own

sake” fails even rational basis review, because by defi-

nition it serves no legitimate governmental purpose.

Romer, 517 U.S. at 635. As this Court repeatedly has

explained, “[I|f the constitutional conception of ‘equal

protection of the laws’ means anything, it must at the

very least mean that a bare . . . desire to harm a politi-

cally unpopular group cannot constitute a legitimate

governmental interest.” Jd. at 634-35 (quoting U.S.

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

Accordingly, in Romer, this Court struck down a Colo-

rado constitutional amendment that prohibited gov-

ernmental protection of gay and lesbian ind#viduals.

Id. at 636. The amendment, the Court held, was a

“status-based enactment” that “imposeld] a special

disability upon [gays and lesbians] alone.” Jd. at 631,

635. It “inflict[ed] on [gays and lesbians] immediate,

continuing, and real injuries that outrun and belie any

legitimate justifications that may be claimed for it.” Jd.

at 635; see also Eisenstadt v. Baird, 405 U.S. 438, 454-

55 (1972) (law prohibiting distribution of contracep-

tives to unmarried individuals lacked a rational basis

and violated the Equal Protection Clause).

B. It Is Uniquely The Province Of The Courts

To Decide The Equal Protection Challenge

To The Marriage Bans

The Sixth Circuit Court of Appeals entirely abdicat-

ed its judicial responsibility in holding that, in the face

imate governmental purpose, they fail to pass constitutional

muster under even the most deferential standard of review.

of a federal constitutional challenge to the Marriage

Bans under the Equal Protection Clause, state voters

should have the last word as to whether the Marriage

Bans were constitutional and when, if ever, they should

be invalidated. This Court should not repeat that

error.

It is both disappointing and surprising that such a

fundamental precept of our nation’s revered constitu-

tional system, dating back to the founding, should have

to be pointed out in a brief filed before this Court in the

year 2015. Since Marbury v. Madison, 5 US. (1

Cranch) 137 (1803), this Court has been crystal clear

on the issue, never flinching from the urgent duty

imposed on the judicial branch:

It is emphatically the province and duty of the judi-

cial department to say what the law is. Those who

apply the rule to particular cases, must of necessity

expound and interpret that rule.... So if a law be

in opposition to the constitution; if both the law and

the constitution apply to a particular case, so that

the court must either decide that case conformably

to the law, disregarding the constitution; or con-

formably to the constitution, disregarding the law;

the court must determine which of these conflicting

rules govern the case. This is of the very essence of

judicial duty.

Id. at 177-78.

And yet, despite these foundational principles, the

Sixth Circuit held that it had no duty to “say what the

law is” here because, in the face of a constitutional

challenge to the Marriage Bans, the “definition of mar-

riage” should be left “in the hands of state voters” and

legislators. Pet. App. 29a; see also id. at 40a (“Do the

benefits of standing by the traditional definition of

marriage make up for these costs? The question de-

mands an answer—but from elected legislators, not

life-tenured judges.”). That destructive tautology, pur-

porting to reassign to voters and legislators the inher-

ently judicial task of evaluating the constitutionality of

state provisions originally decided upon by voters and

legislators, flies directly in the face of the rule of law

and the principles in which our country rightfully

takes such great pride. As this Court held in West

Virginia State Board of Education v. Barnette, 319 U.S.

624 (1943),

The very purpose of a Bill of Rights was to with-

draw certain subjects from the vicissitudes of politi-

cal controversy, to place them beyond the reach of

majorities and officials and to establish them as le-

gal principles to be applied by the courts. One’s

right to life, liberty, and property, to free speech, a

free press, freedom of worship and assembly, and

other fundamental rights may not be submitted to

vote; they depend on the outcome of no elections.

Id. at 638 (striking down regulation mandating ‘lag-

salute as violating First Amendment).

When majority-enacted state laws are challenged as

contravening the Equal Protection Clause—especially

when they are challenged on the ground that they

separate, disadvantage, and harm a minority—this

Court has been adamant: the federal courts must act.

See Reynolds v. Sims, 377 U.S. 533, 566 (1964) (stating

in the context of apportioning state legislative repre-

sentation: “We are told that the matter . . . is a complex

and many-faceted one. We are advised that States can

rationally consider [various] factors .... We are ad-

monished not to restrict the power of the States to

impose differing views as to political philosophy on

their citizens. We are cautioned about the dangers of

entering into political thickets and [other] quagmires.

Our answer is this: a denial of constitutionally protect-

ed rights demands judicial protection; our oath and our

office require no less of us.” (emphasis added)). And the

federal courts have never shied away just because a

challenge presented social controversy or touched on

fundamental issues; quite the contrary, that is when

their responsibility to decide constitutional issues is

most critical. See Mayers v. Ridley, 465 F.2d 630, 642

(D.C. Cir. 1972) (“[A]ppellees suggest that appellants

should address their complaints of racial discrimina-

tion to the political branch of government and that

attempting to wrench social reform from the judiciary

disregards the principle of separation of powers. But

while we must, of course, maintain proper respect for

the jurisdiction of coordinate branches of government,

under our law the judiciary too has the obligation of

enforcing constitutional rights.” (emphasis added));

Baskin, 766 F.3d at 671 (“Minorities trampled on by

the democratic process have recourse to the courts; the

recourse is called constitutional law.”).

Finally, the obligation of the courts to decide consti-

tutionality is even more momentous when the subject

of the challenged law is so essential an institution as

marriage. “State laws defining and regulating mar-

riage, of course, must respect the constitutional rights

of persons[.]” United States v. Windsor, 133 S. Ct. 2675,

2691 (2013); see also Loving, 388 U.S. at 7 (“While the

state court is no doubt correct in asserting that mar-

riage is a social relation subject to the State’s police

power, . . . the State does not contend in its argument

before this Court that its powers to regulate marriage

are unlimited notwithstanding the commands of the

Fourteenth Amendment. Nor could it do so... .”).

The right to marry is not, as the DeBoer appellate

court found, a mere “policy problem” or “social ques-

tion[],” Pet. App. 37a, 62a, suitable for a “Burkean sense

of caution,” id. at 37a. Rather, “[m]arriage is one of the

‘basic civil rights of man[kind],” “one of the vital per-

sonal rights essential to the orderly pursuit of happi-

ness{.])” Loving, 388 U.S. at 12. Whether it can consti-

tutionally be denied to a class of people, and whether

there is any rational basis for doing so, are questions

for the judiciary.

Il. Excluding Same-Sex Couples From The

Institution Of Marriage Harms Gay And

Lesbian Individuals, Their Families, And

Their Children

In deciding the constitutionality of the Marriage

Bans, this Court should recognize that marriage enjoys

a privileged status among the institutions that this

country is founded upon, and that barring entry into

that institution to same-sex couples imposes serious

harm on them and on their families and children.

A. Marriage Is A Uniquely Revered Institu-

tion In American Society

1. Marriage holds a hallowed status in our society.

As courts repeatedly recognize, marriage can be an

essential aspect of the human experience. Far “more

than a routine classification for purposes of certain

statutory benefits,” Windsor, 133 S. Ct. at 2692, mar-

riage is “an institution of transcendent historical, cul-

tural and social significance,” Kerrigan v. Comm’r of

Pub. Health, 957 A.2d 407, 418 (Conn. 2008), “an insti-

tution more basic in our civilization than any other.”

Williams v. North Carolina, 317 U.S. 287, 303 (1942).

Its significance to the couple involved is unparalleled;

it is “intimate to the degree of being sacred.” Griswold

v. Connecticut, 381 U.S. 479, 486 (1965). Furthermore,

marriage is a time-honored demonstration to family,

friends, and the community of a loving commitment

and mutual responsibility between two people, and

implies a return promise by society to respect that

commitment. See Turner v. Safley, 482 U.S. 78, 95

(1987) (recognizing that marriage is an “expression[) of

emotional support and public commitment”). The

institution is “a highly public celebration of the ideals

of mutuality, companionship, intimacy, fidelity, and

family.” Goodridge v. Dep’t of Pub. Health, 798 N.E.2d

941, 954 (Mass. 2003).

The right to marry, accordingly, “has long been rec-

ognized as one of the vital personal rights essential to

the orderly pursuit of happiness by free men [and

women).” Loving, 388 U.S. at 12; see also Perez v. Lip-

pold, 198 P.2d 17, 18-19 (Cal. 1948) (“Marriage is ...

something more than a civil contract subject to regula-

tion by the state; it is a fundamental right of free

men.”). As a result of the special significance of mar-

riage in society, the institution has a critical “signaling”

role, apart from the specific legal obligations it entails.

Elizabeth S. Scott, Social Norms and the Legal Regula-

tion of Marriage, 86 Va. L. Rev. 1901, 1917 (2000). The

signal sent by the fact that two individuals are married

alters how they view themselves, how they behave

toward one another, and how society behaves toward

them.

First, married people understand they are to be

emotionally and financially supportive, honest, and

faithful to one another. See Robert A. Burt, Belonging

in America: How to Understand Same-Sex Marriage, 25

BYU J. Pub. L. 351, 357 (2011) (noting that “[tjhis

faithfulness has always been at the core of the marital

status for mixed-sex couples”). Although married cou-

ples may modify their expectations and behavior over

time, they benefit by beginning with a common under-

standing of the marital relationship, gleaned from a

lifetime of participating in society, hearing about mar-

riage, and observing married couples. See generally

Jeffrey M. Adams & Warren H. Jones, The Conceptual-

ization of Marital Commitment: An Integrative Analy-

sis, 72 J. Personality Soc. Psychol. 1177 (1997). This

shared understanding assists married couples in meet-

ing individual and spousal expectations, and motivates

them to work through temporary difficulties. See id.

The institution of marriage likewise provides com-

mon ground for others in society to understand a cou-

ple’s relationship. Because marriage is universally

recognized, married couples are readily treated in a

manner that reflects their personal commitment and

concomitant legal and social status. See Goodridge,

798 N.E.2d at 955 (“Because [marriage] fulfills yearn-

ings for security, safe haven, and connection that ex-

press vur common humanity, civil marriage is an es-

teemed institution, and the decision whether and

whom to marry is among life’s momentous acts of self-

definition.”). Spouses are understood as family mem-

bers. When a married couple opens a joint bank or

retirement account, or checks into a hotel, or applies

for a credit card, or attends a parent-teacher confer-

ence, or accompanies a child or grandchild on a plane

flight, or rents a car together, there is no need for ex-

planation or documentary proof of the relationship.

See generally Varnum v. Brien, 763 N.W.2d 862, 883-84

(Iowa 2009) (“Iowa’s marriage laws” are “designed to

bring a sense of order to the legal relationships of

committed couples and their families in myriad

ways.”).

For these reasons and others, many people rmyard

getting married as the most important day in their

lives—indeed, marriage “is the centerpiece of our entire

social structure.” Thomas B. Stoddard, Why Gay People

Should Seek the Right to Marry, Out/Look: Nat'l Gay &

Lesbian Q., Fall 1989, at 9, 12.

2. Domestic partnership laws and civil unions,

which some states have attempted to use to remedy

the harm caused by the exclusion of same-sex couples

from the institution of marriage, lack the significance,

stability, and meaning of real marriage. These novel

and unstable categories were invented recently,‘ and

their meaning is ever-shifting.®

Not surprisingly, in light of their novel and uncer-

tain stature, domestic partnerships and civil unions

are not valued by society in a way that compares to

marriage. People do not associate these legalistic rela-

tionships with the stability and permanence that char-

acterize marriage. In turn, the registration of a domes-

tic partnership is less meaningful to same-sex couples

than getting married would be. The complex emotions

that people experience when they get married—as well

as the joy and human closeness they feel when they

attend a wedding—simply do not attach to the minis-

*The City of West Hollywood, California, enacted the first

domestic partnership ordinance in the mid-1980s.

°* For example, in 1997, Hawaii's statutory scheme granted

same-sex couples only 60 rights associated with marriage, but

recently expanded the number of such rights. See Haw. Rev.

Stat. §§ 572B, 572C-2 (2014).

terial step of registering a domestic partnership or

entering a civil union. Even when domestic partners

celebrate their legal registration with a ceremony, the

terrain is unfamiliar: Is the event a wedding? A com-

mitment ceremony? Something else? The lack of a

common vocabulary underscores the institution’s lack

of societal stature.

These difficulties continue throughout the relation-

ship. Even the simple act of referring to one’s “partner”

can be wrought with embarrassment and misunder-

standing: members of same-sex couples can be left

searching for a manner to explain, no matter how un-

comfortable the setting, whether they are referring to

their domestic partner or to their professional, athletic,

or law partner. Consequently, same-sex couples must

often explain the intricacies of state family law to

friends and potentially hostile strangers alike. Such

ambiguities, and the likelihood of differential treat-

ment, would be reduced if same-sex couples could accu-

rately refer to themselves as “married” or could refer to

each other as “husband” or “wife,” a vocabulary that is

universally understood.

In sum, marriage has a unique status in American

society. There is no dispute that marriage means far

more than inheritance rights, tax advantages, or com-

munity property. It is, instead, the ultimate symbol of

“unequaled commitment.” Evan Wolfson, Why Mar-

riage Matters: America, Equality, and Gay People’s

Right to Marry 6 (2004). Simply put: “No matter what

language people speak—from Arabic to Yiddish, from

Chinook to Chinese—marriage is what we use to de-

scribe a specific relationship of love and dedication to

another person. It is how we explain the families that

are united because of that love. And it universally

signifies a level of self-sacrifice and responsibility and

a stage of life unlike any other.” Jd. at 3 (emphasis

added).

B. Exclusion From Marriage Causes Tangible

Harm

Denial of this fundamental right imposes serious

harm on gay and lesbian individuals, couples, and their

families. This harm is not limited to those same-sex

couples who wish to marry. Rather, it is felt by all gay

men and lesbians who see how people who share their

sexual orientation are treated, as well as by their fami-

lies and children.

1. Harm To Children

Harm to children lies at the heart of the issue.

“Formally, [the same-sex marriage] cases are about

discrimination against the small homosexual minority

in the United States. But at a deeper level, .. . they are

about the welfare of American children.” Baskin, 766

F.3d at 654. Notably, “the ban on same sex marriage is

likely to have an especially deleterious effect on the

children of same sex couples.” Kerrigan, 957 A.2d at

474. Children perceive and understand the unique

institution of marriage in American society and know

the difference when their parents—their families—are

excluded from it. As recognized by this Court in Wind-

sor, the perceived “differentiation” of same-sex couples

not only “demeans the couple, whose moral and sexual

choices the Constitution protects,” but also “humiliates

tens of thousands of children now being raised by

same-sex couples.” Windsor, 133 S. Ct. at 2694. While

Windsor addressed the differentiation felt regarding

federal recognition of a state-sanctioned marriage, this

“humiliation” is only exacerbated for children whose

parents are barred from marriage completely. More so

than in Windsor, the Marriage Bans “make[] it even

more difficult for the children to understand the integ-

rity and closeness of their own family and its concord

with other families in their community and in their

daily lives.” Id.

“A primary reason why many same sex couples wish

to marry is so that their children can feel secure in

knowing that their parents’ relationships are as valid

and as valued as the marital relationships of their

friends’ parents.” Kerrigan, 957 A.2d at 474; see also

Baskin, 766 F.3d at 664 (“If a child’s same-sex parents

are married . . . the child can feel secure in being the

child of a married couple.”). Whereas “[cjJhildren who

are raised by civilly married parents benefit from the

legal status granted to their parents,” children whose

parents are not permitted to marry may suffer psycho-

logical harm. James G. Pawelski et al., The Effects of

Marriage, Civil Union, and Domestic Partnership Laws

on the Health and Well-being of Children, 118 Pediat-

rics 349, 358, 361 (2006). “Excluding same-sex couples

from civil marriage . . . does prevent children of same-

sex couples from enjoying the immeasurable ad-

vantages that flow from the assurance of a stable fami-

ly structure in which the children will be reared, edu-

cated, and socialized.” Goodridge, 798 N.E.2d at 964

(citation omitted).

As the President of the New Jersey Psychological

Association has attested:

Children of same-sex relationships must cope with

the stigma of being in a family without the social

recognition that exists through marriage .... Such

stigma may be indirect such as the strain due to

lack of social support and acceptance. Also, some

children may be targeted due to teasing in school or

from peers.

N.J. Civ. Union Rev. Comm’n, The Legal, Medical, Eco-

nomic & Social Consequences of New dJersey’s Civil

Union Law 16 (Dec. 10, 2008),

http://www.nj.gov/|ps/dcr/downloads/CURC-Final-

Report-.pdf (quoting testimony of Dr. Judith

Glassgold).

In engaging in the rational basis analysis, the Court

must look to the proffered “legitimate justification”

provided by the state. As characterized by the dissent

in DeBoer, this is “what has come to be known as the

Srresponsible procreation’ theory: that limiting mar-

riage and its benefits to opposite-sex couples is ration-

al, even necessary, to provide for ‘unintended offspring’

by channeling their biological procreators into the

bonds of matrimony.” Pet. App. 72a (Daughtrey, J.,

dissenting).* This rationale and other theories claim-

ing vague state-related interests in child rearing simp-

ly ignore the destabilizing and stigmatizing effect the

Marriage Bans and similar laws have on over 200,000

children throughout the United States.

There are approximately 125,000 same-sex couples

raising nearly 220,000 children in the United States.

Gary J. Gates, Williams Institute, UCLA School of Law,

LGBT Parenting in the United States 3 (2013),

http-//williamsinstitute.law.ucla.edu/wp-

content/uploads/igbt-parenting.pdf Some of these

® The illogic of this theory was highlighted with some exasper-

ation by the Baskin court as follows: “Heterosexuals get drunk

and pregnant, producing unwanted children; their reward is to

be allowed to marry. Homosexual couples do not produce un-

wanted children; their reward is to be denied the right to marry.

Go figure.” Baskin, 766 F.3d at 662.

families live in states where joint or second-parent

adoption by same-sex couples is legal. In these states,

the rationale simply proves that there is truly no basis

for differentiating between same-sex and opposite-sex

couples in conferring the right to marry.

To the extent that children are better off in families

in which the parents are married, they are better off

whether they are raised by their biological parents

or by adoptive parents. The discrimination against

same-sex couples is irrational, and therefore uncon-

stitutional even if the discrimination is not subject-

ed to heightened scrutiny[.]

Baskin, 766 F.3d at 656. This regime exemplifies the

impermissible “classification whose relationship to an

asserted goal is so attenuated as to render the distinc-

tion arbitrary or irrational.” Cleburne, 473 U.S. at 446.

In truth, “[t]o allow same-sex couples to adopt children

and then to label their families as second-class because

the adoptive parents are of the same sex is cruel as

well as unconstitutional.” Latta v. Otter, 771 F.3d 456,

474 (9th Cir. 2014).

Other states—including all the states of the Sixth

Circuit—prohibit adoption by a second parent of the

same sex, creating a legal void in the family relation-

ship between the child and the non-adoptive parent.

These states too lack a rational basis for prohibiting

same-sex marriage simply because the evidence is

overwhelming that all marriage, “whether between

same-sex or opposite-sex partners, increases stability

within the family unit.” Pet. App. 84a-85a (Daughtrey,

J., dissenting). As the DeBoer district court found,

same-sex couples are just as able to provide for the

welfare and development of children as opposite-sex

couples. 14-571 Pet. App. 127a-13la. By contrast, the

ramifications of a ban on marriage (and by conse-

quence, on adoption) can be life-altering. What hap-

pens if the adoptive or biological parent is not available

in an emergency? Can the non-adoptive parent make

medical decisions for the child? Will the non-adoptive

parent be able to gain custody and care for the child if

the recognized parent dies or becomes incapacitated?

Because of the Marriage Bans, the answers to these

fundamental] questions are left uncertain.’

Every district court decision overturned by the

Sixth Circuit found that the Marriage Bans had no

rational basis and instead actively harmed children.

Pet. App. 209a-210a (“Even if it were rational for legis-

lators to speculate that children raised by heterosexual

couples are better off than children raised by gay or

lesbian couples, which it is not, there is simply no ra-

tional connection between the Ohio marriage recogni-

tion bans and the asserted goal, as Ohio’s marriage

recognition bans do not prevent gay couples from hav-

ing children.”); 14-574 Pet. App. 147a (“The Court fails

to see how having a [same-sex parent] family could

conceivably harm children.”); 14-571 Pet. App. 129a

(finding “no differences” between outcomes in raising

children in same-sex versus opposite-sex households

and that the Michigan marriage law “actually fosters

the potential for childhood destabilization”); 14-562

* As noted by the dissent in DeBoer, for example, in Michigan

“(elven though one person can legally adopt a child, should

anything happen to that adoptive parent, there is no provision

in Michigan’s legal framework that would ‘ensure that the

children would necessarily remain with the surviving non-legal

parent,’ even if that parent went through the arduous, time-

consuming, expensive adoption-approval process.” Pet. App. 78a

(Daughtrey, J. dissenting).

Pet. App. 126a (issuing injunction due to “an imminent

risk of potential harm to [Plaintiffs] children during

their developing years from the stigmatization and

denigration of their family relationship”).

The Sixth Circuit’s rationale does not withstand ra-

tional-basis scrutiny, and the Court should reject it out

of hand.

2. Legal And Economic Harm

Aside from the harm to children, of course, is the

harm to the couple themselves. This harm, too, “out-

run{s} and belie[s]” any purported state justification for

the Marriage Bans. Romer, 517 U.S. at 635. Exclusion

of same-sex couples from the institution of marriage

results in the denial of many real and concrete legal

and economic benefits that are premised upon married

status. See generally M.V. Lee Badgett, The Economic

Value of Marriage for Same-Sex Couples, 58 Drake L.

Rev. 1081 (2010).

The legal harms suffered by same-sex couples

barred from marriage are myriad: limits on medical

access, death and inheritance benefits, federal benefits,

and parental rights (as discussed above). In Tunco v.

Haslam, 14-562 Pet. App. 108a-130a, the district court

granted a preliminary injunction prohibiting Tennes-

see from enforcing its Marriage Ban against three

couples who married outside Tennessee. The “irrepa-

rable harm” was extensive, affecting joint home owner-

ship; availability of employer-sponsored health insur-

ance plans; and parental rights, among other rights

and privileges. The court called “particularly compel-

ling” the circumstances of one couple whose

baby is due any day, and any complications or medi-

cal emergencies associated with the baby’s birth—

particularly one incapacitating Dr. Tanco—might

require Dr. Jesty to make medical decisions for Dr.

Tanco or their child. Furthermore, if Dr. Jesty were

to die, it appears that her child would not be enti-

tled to Social Security benefits as a surviving child.

Finally, Dr. Tanco reasonably fears that Dr. Jesty

will not be permitted to see the baby in the hospital

if Dr. Tanco is otherwise unable to give consent.

14-562 Pet. App. 126a.

The availability of federal benefits to married cou-

ples post-Windsor further demonstrates that the Mar-

riage Bans inflict real economic and legal harm on

same-sex couples. As Windsor’s holding was limited to

“lawful marriages,” Windsor, 133 S. Ct. at 2696, certain

federal agencies have extended protections and re-

sponsibilities to married same-sex couples; but many

agencies have stated explicitly that they will not ex-

tend protections to registered domestic partners. ®

Thus, statutory schemes that allow same-sex couples to

enter domestic partnerships or civil unions, but that do

not allow them to marry, result in the deprivation of

federal benefits because many federal agencies offer

® For example, the Office of Personnel Management expressly

provided that “[bJenefits coverage is now available to a legally

married same-sex spouse of a Federal employee or annuitant,”

but “same-sex couples who are in a civil union or other forms of

domestic partnership . . . will remain ineligible for most Federal

benefits programs.” Office of Personnel Management, Coverage

of Same-Sex Spouses, No. 13-203 (July 17, 2013),

http//www.opm.gov/retirement-services/publications-

forms/benefits-administration-letters/2013/13-203.pdf; see also

Rev. Rul. 2013-17, 2013-38 1.R.B. 201 (extending federal tax

benefits to same-sex marriages but not domestic partnerships

or civil unions).

such benefits only to lawfully married couples. Per-

haps the most striking example of the resulting dispar-

ity arises in the immigration context, where the ques-

tion of whether a same-sex couple is lawfully married

or merely in a domestic partnership or civil union could

mean the difference between deportation and a valid

basis for a family-based immigration visa. USCIS,

Same Sex Marriages, http:/Awww.uscis.gov/family/

same-sex-marriages (last updated Apr. 3, 2014). And

by denying same-sex couples the right to marry, Ken-

tucky, Michigan, Ohio, and Tennessee have placed

those federal protections and responsibilities entirely

off-limits to them. See generally Garden State Equality

v. Dow, 79 A.3d 1036 (N.J. 2013).

More generally, marriage confers numerous econom-

ic benefits that stem from the unique commitment it

represents. For example, marriage fosters greater

specialization of labor, which can increase a couple’s

income and the time available for family. Badgett,

supra, at 1101. Marriage also tends to reduce a cou-

ple’s transaction costs: Marriage “promotes economic

efficiency by reducing transaction costs for couples,

mainly by removing the need to renegotiate the terms

of the legal relationship as couples experience changed

circumstances.” Jd. Furthermore, married individuals

enjoy greater employment-related economic gains,

whereas same-sex couples who cannot marry face

uncertainty and pressures that may adversely affect

their work performance and reduce their economic

rewards. Id. at 1102-03. Though difficult to quantify,

these economic benefits of marriage are well-known

and acknowledged in the field of economics. Id.

3. Emotional And Physical Harm

Aside from harming children, divesting couples of

state, federal, and constitutional legal rights, and de-

priving them of economic benefits, the Marriage Bans

can have devastating emotional and physical conse-

quences on individual gay and lesbian people. This is

because the Marriage Bans legitimize and magnify

societal prejudice and discrimination against gay and

lesbian individuals—whose “moral and sexual choices

the Constitution protects.” Windsor, 133 S. Ct. at 2694

(emphasis added) (citing Lawrence v. Texas, 539 US.

558 (2003)).

The tragic results of that discrimination are well

documented. It can cause gay men and lesbians to

suffer “minority stress,” which manifests itself through

“prejudice events”: expectations of rejection and dis-

crimination, concealment of identity, and internalized

homophobia. See [lan H. Meyer, Prejudice, Social

Stress, and Mental Health in Lesbian, Gay and Bisexu-

al Populations: Conceptual Issues and Research Evi-

dence, 129 Psychol. Bull. 674 (2003). Such stresses

negatively affect the mental health and well-being of

gay and lesbian individuals. See, eg., Gilbert Herdt &

Robert Kertzner, J Do, But I Can’t: The Impact of Mar-

riage Denial on the Mental Health and Sexual Citizen-

ship of Lesbians and Gay Men in the United States, 3 J.

Sexuality Res. Soc. Pol’y 33 (2006). “Greater exposure

to discrimination and perceptions of stigma have been

linked with poorer mental health in sexual minority

individuals.” Adam W. Fingerhut et al., Identity, Mi-

nority Stress and Psychological Well-Being Among Gay

Men and Lesbians, 1 Psychol. & Sexuality 101, 105

(2010).

Internalized homophobia, for example, can lead to

lowered self-esteem, anxiety, substance abuse, and

depression. Gregory M. Herek et al., Correlates of

Internalized Homophobia in a Community Sample of

Lesbians and Gay Men, 2 J. Gay & Lesbian Med. Ass’n

17 (1997). And frequent suicides by gay teenagers

have “drawn national attention to the insidious peer

harassment that lesbian, gay, bisexual, and

transgender (LGBT) youth face on a daily basis.” Lisa

C. Connolly, Anti-Gay Bullying in Schools—Are Anti-

Bullying Statutes the Solution?, 87 N.Y.U. L. Rev. 248,

249 (2012); see, e.g., Ashley Fantz, An Ohio Transgender

Teen’s Suicide; A Mother’s Anguish, Jan. 4, 2015, CNN,

http://www.cnn.com/2014/12/3 1/us/ohio-transgender-

teen-suicide/ (discussing the Dec. 28, 2014 death of

transgender teen Leelah Alcorn, whose suicide note

pleaded, “The only way I will rest in peace is if one day

transgender people aren’t treated the way I was,

they're treated like humans, with valid feelings and

human rights. ... Fix society. Please.”).

C.The Marriage Bans Communicate Gov-

ernmental Animus Toward Same-Sex Re-

lationships

The harms outlined above are consequences of the

legal operation of state prohibitions on same-sex mar-

riage. This Court has long recognized that state-

condoned discrimination and separate-but-unequal

institutions inflict injuries even beyond the deprivation

of particular benefits and can themselves be markers

of official denigration which serve to perpetuate dis-

crimination. See, eg., Strauder v. West Virginia, 100

US. 303, 308 (1879) (noting that exclusion of non-white

citizens from juries was “practically a brand upon

them, affixed by the law, an assertion of their inferiori-

ty”) (abrogated on other grounds by Taylor v. Louisiana,

419 US. 522 (1975)). First, barring one group from a

valued institution demeans the group’s members by

officially designating them as somehow inferior. Sec-

ond, exclusion of an unpopular group leads to stigmati-

zation, which, in turn, leads to further discrimination.

1. The Marriage Bans Stigmatize Same-

Sex Relationships

As the Court noted in Windsor when it struck down

the Defense of Marriage Act, “The avowed purpose and

practical effect of the law here in question are to im-

pose a disadvantage, a separate status, and so a stig-

ma” on same-sex couples. Windsor, 133 S. Ct. at 2693.

“Responsibilities, as well as rights, enhance the dignity

and integrity of the person.” Id. at 2694. In depriving

same-sex couples of the opportunity to take part in

those rights and responsibilities, the Marriage Bans,

like DOMA, “tell[] those couples, and all the world, that

their” relationships are “unworthy of . . . recognition.”

Id. As was true for DOMA, the Marriage Bans’ “prin-

cipal effect is to identify a subset of [relationships] and

make them unequal. The principal purpose is to im-

pose inequality.” Id.

That the Marriage Bans and similar laws convey of-

ficial disapproval of same-sex relationships was noted

as far back as 2008, when the California Supreme

Court held that domestic partnership was not a consti-

tutionally adequate substitute for marriage:

[T]he statutory provisions that continue to limit ac-

cess to [marriage] exclusively to opposite-sex cou-

ples—while providing only a novel, alternative insti-

tution for same-sex couples—likely will be viewed

as an official statement that the family relationship

of same-sex couples is not of comparable stature or

equal dignity to the family relationship of opposite-

sex couples.

In re Marriage Cases, 183 P.3d 384, 452 (Cal. 2008). To

that end, the court reasoned:

[T}here is a very significant risk that retaining a

distinction in nomenclature with regard to this most

fundamental of relationships whereby the term

‘marriage’ is denied only to same-sex couples inevi-

tably will cause the new parallel institution that

has been made available to those couples to be

viewed as of a lesser stature than marriage and, in

effect, as a mark of second-class citizenship.

Id. at 445; see also Kerrigan, 957 A.2d at 474 (citing Jn

re Marriage Cases, 183 P.3d at 445) (“[Blecause of the

long and celebrated history of the term ‘marriage’ and

the widespread understanding that this word describes

a family relationship unreservedly sanctioned by the

community, the statutory provisions that continue to

limit access to this designation exclusively to opposite-

sex couples—while providing only a novel, alternative

institution for same-sex couples—likely will be viewed

as an official statement that the family relationship of

same-sex couples is not of comparable stature or equal

dignity to the family relationship of opposite-sex cou-

ples.”); Goodridge, 798 N.E.2d at 962 (statutory bar on

marriage for same-sex couples “confers an official

stamp of approval on the destructive stereotype that

same-sex relationships are inherently unstable and

inferior to opposite-sex relationships and are not wor-

thy of respect”).

As the district court found in Obergefell, “no hypo-

thetical justification’—such as fostering natural pro-

creation—“can overcome the clear [] purpose” of the

Marriage Bans, which is to “disparage and demean”

same-sex relationships. Pet. App. 212a. The court

noted that Ohio grants full faith and credit to out-of-

state marriages that Ohio itself does not perform (eg.,

marriages between first cousins, marriages of mi-

nors)}—Sut not to same-sex marriages. Id. at 190a-

192a. Ohio singles out same-sex marriage for special,

unfavorable treatment by refusing to recognize such

marriages even when they were validly performed in

another state. “The constitutional issue is clear[]”

when a state treats one group differently from all the

others: the law must be based on “irrational prejudice.”

See Cleburne, 473 US. at 447, 450.

That purpose to disparage and demean same-sex re-

lationships is made even clearer by the fact that three

states’ Marriage Bans prohibit state legislatures or any

political subdivision within the state from creating or

recognizing even domestic partnerships (which, as this

brief demonstrates, arc inferior to marriage and insuf-

ficient to remedy the constitutional harms). See Ohio

Const. art. XV, § 11 (“This state and its political subdi-

visions shall not create or recognize a legal status for

relationships of unmarried individuals that intends to

approximate the design, qualities, . . . or effect of mar-

riage.”); Ky. Const. § 233A (“A legal status . . . substan-

tially similar to that of marriage . . . shall not be valid

or recognized.”); Mich. Const. art. I, § 25 (ban on recog-

nizing a “similar union” to marriage, such as a civil

union).®

* Tennessee is the only state in the Sixth Circuit which does

not prohibit the creation of domestic partnerships that approx-

imate the legal rights associated with marriage. See Tenn.

Const. art. XI, § 18 (prohibiting state and local governments

The effect of the Marriage Bans is therefore not just

exclusion from a set of “rights and responsibilities”

associated with the legal institution of marriage, but

official disapproval of same-sex couples that results in

stigma. They have been enacted “for the purpose of

disadvantaging the group burdened by the law.”

Romer, 517 U.S. at 633. “[I]f the constitutional concep-

tion of ‘equal protection of the laws’ means anything, it

must at the very least mean that a bare .. . desire to

harm a politically unpopular group cannot constitute a

legitimate governmental interest.” Jd. at 634-35 (quot-

ing Moreno, 413 U.S. at 534). In Romer, the Court

invalidated a voter-enacted constitutional amendment

that, it stated, “classifie[d) homosexuals not to further

a proper legislative end but to make them unequal to

everyone else.” Id. at 635. The Court should do like-

wise here for the Marriage Bans, whose broad harms

betray the lack of any rational basis.

2. The Marriage Bans’ Stigma Perpetuates

Societal Discrimination Against Gay

Men And Lesbians

When disapproval of same-sex marriage is en-

shrined in the law, moral disapproval and discrimina-

tion in society can fester and spread. By making sexu-

al orientation a legally salient characteristic, the Mar-

riage Bans encourage and provide “cover” for those who

seek to treat gay men and lesbians differently based on

their sexual orientation. See, eg. Perry v.

Schwarzenegger, 704 F. Supp. 2d 921, 973 (N.D. Cal.

2010) (describing how Proposition 8 sent “a message

that gay relationships are not to be respected; that

from allowing or recognizing same-sex marriages, but not do-

mestic partnerships); Tenn. Code Ann. § 36-3-113 (2013) (same).

they are of secondary value, if of any value at all; that

they are certainly not equal to those of heterosexuals”).

Because the state provides for separate and lesser

treatment of gay men and lesbians, certain individuals

may logically conclude that it is permissible to treat

them as inferior.*° Cf Lawrence, 539 U.S. at 575 (crim-

inalizing sexual conduct between same-sex couples was

“an invitation to subject homosexual persons to dis-

crimination both in the public and in the private

spheres”); Strauder, 100 U.S. at 308 (exclusion of non-

white citizens from juries was “a stimulant to... race

prejudice”). As the California Supreme Court ex-

plained, “providing only a separate and distinct desig-

nation [of civil unions} for same-sex couples may well

have the effect of perpetuating a more general premise

. that gay individuals and same-sex couples . . . may,

under the law, be treated differently from, and less

favorably than, heterosexual individuals or opposite-

sex couples.” In re Marriage Cases, 183 P.3d at 402; cf

Baskin, 766 F.3d at 658 (“Not that allowing same-sex

marriage will change in the short run the negative

views many Americans hold of same-sex marriage. But

it will enhance the status of these marriages in the

eyes of other Americans, and in the long run it may

One need look no further than the headlines for anecdotal

evidence: when the Chief Justice of the Alabama Supreme

Court directed counties to refuse to follow a federal court deci-

sion invalidating a gay marriage ban, news reports highlighted

coverage of a South Carolina pastor's prayer vigil, literally in

the shadow of the Alabama State Capitol, at which he “urged

southerners to [ ] refuse to recognize marriages that he said

came ‘from the devil’s hell’[.)” Kim Chandler, Alabama Set to

Become 37" State to Allow Gay Marriage, Associated Press, Feb.

7, 2015, available at http://news.yahoo.com/gay-marriage-

arrives-alabama-183946121.html.

convert some of the opponents of such marriage by

demonstrating that homosexual married couples are in

essential respects, notably in the care of their adopted

children, like other married couples.”).

Moreover, by segregating gay men and lesbians, the

Marriage Bans cause society to focus on sexual orienta-

tion to the exclusion of other characteristics. As with

segregation on the basis of race, when gay men and

lesbians are singled out, and hence stigmatized, then

an individual’s sexual orientation

and all the negative connotations generally imputed

to it—eventually overshadows or ‘eclipses all other

aspects’ of his or her self, essentially becoming all

that anyone sees. [Sexual orientation] becomes a

sort of mask, a barrier that both makes it impossi-

ble for the stigmatized person’s true self to be seen

and fixes the range of responses that others will

have to that person.

Robin A. Lenhardt, Understanding the Mark: Race,

Stigma, and Equality in Context, 79 N.Y.U. L. Rev. 803,

818-19 (2004). Thus, when gay men or lesbians dis-

close that they are in a domestic partnership, others

often see them only as gay—and treat them according-

ly—rather than viewing them as full persons entitled

to the same respect and dignity given to other mem-

bers of society. See generally Marc R. Poirier, Name

Calling: Identifying Stigma in the “Civil Un-

ion” /“Marriage” Distinction, 41 Conn. L. Rev. 1425,

1429-30, 1479-89 (2009) (describing the way in which

the nomenclature distinction perpetuates bias and

facilitates discrimination). There is no doubt that the

effect of the Marriage Bans is “immediate, continuing,

and real injurly]” to gay and lesbian individuals.

Romer, 517 U.S. at 635.

CONCLUSION

A number of racial, religious, and ethnic minorities

have, at various times in history, faced restrictions on

their right to marry. See Nancy F. Cott, Public Vows: A

History of Marriage and the Nation 4 (2000) (discussing

for example Native Americans, African Americans, and

Asian Americans). But “[a) prime part of the history of

our Constitution ... is the story of the extension of consti-

tutional rights and protections to people once ignored or

excluded.” United States v. Virginia, 518 U.S. 515, 557

(1996). The Marriage Bans create a separate and une-

qual regime for a disfavored class. Continuing to exclude,

demean, and stigmatize gay and lesbian individuals and

families is inconsistent with that constitutional tradition.

The judgment of the Court of Appeals should be re-

versed.

Respectfully submitted.

JEROME C. ROTH

AMELIA L.B. SARGENT

MUNGER, TOLLES &

OLSON LLP

560 Mission Street

27th Floor

San Francisco, CA 94105

Jerome. Roth@mto.com

(415) 512-4000

MARCH 5, 2015

APPENDIX

LIST OF AMICI CURIAE

AIDS Legal Referral Panel (ALRP)

The AIDS Legal Referral Panel (ALRP) provides le-

gal services to people living with HIV/AIDS in the San

Francisco Bay Area. ALRP is committed to ensuring

justice for our clients in facing discrimination. Since

roughly 80% of ALRP’s clients are LGBT, discrimina-

tion against LGBT people directly impacts our clients.

API Equality-LA

API Equality-LA is a coalition of organizations and

individuals who are committed to working in the

Asian/Pacific Islander (API) community in the greater

Los Angeles area for equal marriage rights and the

recognition and fair treatment of LGBT families

through community education and advocacy. API

Equality-LA recognizes that the long history of dis-

crimination against the API community, especially

California's history of anti-miscegenation laws and

exclusionary efforts targeted at Asian immigrants,

parallels the contemporary exclusion of gays and lesbi-

ans from marriage.

The Asian American Bar Association of the

Greater Bay Area (AABA)

The Asian American Bar Association of the Greater

Bay Area (AABA) is one of the largest Asian American

bar associations in the nation and one of the largest

minority bar associations in the State of California.

From its inception in 1976, AABA and its attorneys

(la)

have been actively involved in civil rights issues and

community service. AABA members filed an amicus

brief in the Bakke affirmative action case, filed a suc-

cessful petition overturning the conviction of Fred

Korematsu in the landmark Korematsu v. United

States case, worked on the successful campaign to

release Chol Soo Lee from prison, and were involved in

efforts to release Wen Ho Lee and to unseal documents

in his case.

The Asian Pacific American Bar Association of

Los Angeles County (APABA-LA)

The Asian Pacific American Bar Association of Los

Angeles County (APABA-LA) is a membership organi-

zation comprised of over 700 attorneys, judges and law

students. Since its formation in 1998, APABA-LA has

advocated on issues that impact the APA community

and has demonstrated a commitment to civil rights,

racial justice, and equal opportunity. APABA-LA has,

and continues to, oppose initiatives designed to deprive

immigrants, people of color, and other minorities of

their civil rights, including initiatives that discriminate

based upon sexual orientation. APABA-LA strives to

address all issues relevant to the equal treatment of

those in the APA community.

Atlanta Bar Association

The Atlanta Bar Association has approximately

6,000 members and is interested in supporting this

effort as a matter of justice.

Atlanta Women for Equality

Atlanta Women for Equality is a nonprofit organiza-

tion dedicated to providing free legal advocacy to wom-

en and girls facing sex discrimination in the workplace

or school and to helping our community build employ-

ment and educational environments according to true

standards of equal treatment. Our central goal is to

use the law to overcome the oppressive power differen-

tials socially predetermined gender roles impose and to

empower those who suffer adverse treatment because

they do not fit within the confines of sex-based stereo-

types. We believe that statutes banning same-sex

marriage enforce precisely the kind of gender categori-

zation that undermines the basic principles of equality,

freedom, and justice it is our mission to serve and our

Constitution’s purpose to protect.

California Empioyment Lawyers Association

(CELA)

The California Employment Lawyers Association

(CELA) is an organization of approximately 1,200

attorneys who represent primarily plaintiffs in termi-

nation, discrimination, wage and hour, civil rights and

other civil cases arising in the workplace. CELA helps

its members protect and expand the legal rights of

working women and men through litigation, education,

legislative activities and advocacy.

Dallas Gay and Lesbian Bar Association

(DGLBA)

The Dallas Gay and Lesbian Bar Association

(DGLBA) is composed of approximately 35 lawyers, law

students, para-professionals, and related professional

allies who share an interest in the laws that affect and

protect the gay, lesbian, bisexual, and transgendered

community. The DGLBA issues a monthly newsletter

to nearly 200 subscribers on current topics of interest

in LGBT law and the community and has over 800

Facebook followers. The DGLBA holds monthly lunch-

eon meetings for its members where speakers provide

continuing legal education on a broad range of topics

affecting lawyers who represent LBGT clients. The

DGLBA also holds networking events, gives scholar-

ships to deserving law students, profiles its members

on its website, and educates and promotes legal issues

affecting the LGBT community.

Georgia Association for Women Lawyers

The Georgia Association for Women Lawyers’

(GAWL) mission is to enhance the welfare and devel-

opment of women lawyers and to support their inter-

ests. GAWLs Amicus Policy provides for filing or join-

ing amicus briefs in cases which will advance or clarify

the law regarding issues that fall within our mission or

that relate to the administration of justice. GAWL has

found this brief to fall within these categories and is

pleased to support this effort.

Georgia Trial Lawyers Association

Pursuant to our constitution, the Georgia Trial

Lawyers Association is founded for the purpose of

supporting and defending the civil justice system, the

right to trial by jury, and individual rights of our mem-

bership and our clients.

Japanese American Bar Association (JABA)

Japanese American Bar Association (JABA) is one of

the oldest Asian Pacific American bar associations in

the country and consists of a diverse membership of

over 300 attorneys, judicial officers, and law students of

Japanese and Asian Pacific Islander ancestry in the

greater Los Angeles area and beyond, including gay

and lesbian individuals. With a deep appreciation of

the unique history of Japanese Americans in the Unit-

ed States and the failure of constitutional protections

that led to their internment during World War II,

JABA has a proud history of actively advocating and

devoting resources to issues of civil rights and social

justice, especially for those members of society who

continue to suffer from discrimination and unequal

treatment.

LGBT & Allied Lawyers of Utah Bar Association

LGBT & Allied Lawyers of Utah is a non-profit or-

ganization of associated legal professionals and mem-

bers of the Utah State Bar, whose mission is to pro-

mote education, advocacy, and equality with regard to

sexual orientation, gender identity, and gender expres-

sion.

LGBT Bar Association of Greater New York

(LeGaL)

The LGBT Bar Association of Greater New York

(LeGaL) was one of the nation’s first bar associations of

the lesbian, gay, bisexual, and transgender legal com-

munity and remains one of the largest and most active

organizations of its kind in the country. Serving the

New York metropolitan area, LeGaL is dedicated to

improving the administration of the law, ensuring full

equality for members of the LGBT community, and

promoting the expertise and advancement of LGBT

legal professionals.

Lesbian and Gay Bar Association of Chicago

(LAGBAC)

The Lesbian and Gay Bar Association of Chicago

(LAGBAC), founded in 1987, is one of the country’s

oldest bar associations dedicated to serving the lesbian,

gay, bisexual and transgender (LGBT) community and

the only bar association in the Chicagoland area dedi-

cated to serving the LGBT community. LAGBAC pro-

vides judges, attorneys and law students with educa-

tional experiences and career opportunities that sup-

port them throughout their career. LAGBAC hosts

countless CLE seminars, networking programs and

social events throughout the year for its members and

nonmembers, alike.

With over 200 members, including practitioners,

agency heads, professors, and law students, and dozens

of judicial affiliates, LAGBAC has long been a leader in

shaping public policy in Illinois and across the country.

We, the board of directors, fully support the submission

of this amicus brief to further achieve the organiza-

tion's mission and to provide the Court with important

insight on matters affecting public policy.

Lesbian and Gay Lawyers Association of Los

Angeles (LGLA)

The Lesbian and Gay Lawyers Association of Los

Angeles (LGLA) was founded in 1979 and has grown

into a relevant, multi-cultural, open and active bar

association of gay, lesbian, bisexual and transgender

lawyers, judges, law students and other legal Profes-

sionals. LGLA is dedicated to furthering justice and

equality and the advancement of gay, lesbian, bisexual

and transgender issues throughout California and

around the nation by making judicial endorsements,

appearing amicus curiae in cases such as this one,

holding representation on the Conference of Delegates

for the State Bar of California, and providing educa-

tional and networking opportunities for its members.

LGLA has fought for equal justice for all persons with-

out regard for their sexual orientation for more than

thirty-five years.

Lesbian, Gay, Bisexual, And Transgender (LGBT)

Bar Association Of Maryland

The Lesbian, Gay, Bisexual and Transgender

(LGBT) Bar Association of Maryland is a state associa-

tion of lawyers, judges and other legal professionals,

law students, activists, and affiliate lesbians, gay, bi-

sexual, and transgender legal organizations.

Love Honor Cherish

Love Honor Cherish (LHC) is the largest grassroots

marriage equality organization in Southern California.

Founded in May 2008 to defend the California Su-

preme Court’s decision Jn re Marriage Cases, 43 Cal.

4th 757 (2008), LHC has strategically moved marriage

equality forward since its inception. In 2010 and 2012,

LHC launched efforts to gather signatures to put re-

peal of Proposition 8 on the ballot in California due to

its unwavering dedication to restore marriage equality

in California as soon as possible. While those efforts

were unsuccessful due to the prohibitive cost of fund-

ing a signature gathering campaign, LHC’s volunteers

had more than one million conversations about the

importance of marriage equality with California voters.

LHC continues to advance marriage equality through

public education, community empowerment and out-

reach in collaboration its coalition partners.

Minnesota Lavender Bar Association (MLBA)

The Minnesota Lavender Bar Association (MLBA) is

a voluntary professional association of LGBT attorneys

and allies, promoting fairness and equality for the

LGBT community within the legal industry and for the

Minnesota community. The MLBA envisions a Minne-

sota where LGBT attorneys. clients, and community

members are treated equally and without discrimina-

tion. The MLBA’s mission is to promote equality and

justice in the legal profession and the LGBT communi-

ty in Minnesota.

New Mexico Lesbian And Gay Lawyers Associa-

tion (NMLGLA)

The New Mexico Lesbian and Gay Lawyers Associa-

tion (NMLGLA), formed in 1995, is a non-profit, volun-

tary bar organization committed to promoting and

protecting the interest of the lesbian, gay, bisexual and

transgender lawyers and to achieving their full partic-

ipation in all rights, privileges and benefits of the legal

profession. The NMLGLA also strives to promote the

efficient administration of justice and the constant

improvement of the law, especially as it relates to les-

bians, gay men, bisexual and transgender individuals.

New York State Bar Association

The New York State Bar Association (NYSBA) was

founded in 1876, and is the largest voluntary bar asso-

ciation in the United States, with over 74,000 mem-

bers. NYSBA serves the profession and the public by,

inter alia, promoting reform in the law and facilitating

the administration of justice. NYSBA has long sup-

ported marriage equality for same-sex couples. In

2009, NYSBA passed a resolution supporting same-sex

marriage; and in 2010 the NYSBA was a lead sponsor

of the American Bar Association’s resolution in support

of same-sex marriage. The NYSBA supports allowing

same-sex couples to marry and recognizing marriages

if contracted elsewhere as the Association believes only

marriage can grant full equality to same-sex couples

and their families.

OGALLA: The LGBT Bar Association of Oregon

The LGBT Bar Association of Oregon is a voluntary

organization of legal practitioners — including attor-

neys, judges, paraprofessionals, and educators — dedi-

cated to the promotion of the fair and just treatment of

all people under the law regardless of sexual orienta-

tion, gender identity, or gender expression, to providing

visibility for LGBT persons in the law, to educating the

public, the legal profession and the courts about legal

issues of particular concern to the LGBT community, to

identifying and eliminating the causes and conditions

of prejudice in society, and to promoting a spirit of

unity, while valuing the diversity of our community.

Philippine American Bar Association of Los An-

geles (PABA)

The Philippine American Bar Association (PABA) is

an organization of attorneys, students, and community

leaders who have been dedicated to advancing the

interests of the Filipino-American community and the

Asian-American community-at-large for thirty years.

PABA is fervently committed to creating a more com-

passionate and just future, and proudly joins its col-

leagues on this amicus brief to ensure the preservation

of equality for persons from every walk of life.

10a

Public Counsel

Public Counsel is the largest pro bono law firm in

the nation. Founded in 1970, Public Counsel is the

public interest law office of the Los Angeles County

and Beverly Hills Bar Associations and the Southern

California affiliate of the Lawyers’ Committee for Civil

Rights Under Law. Public Counsel is dedicated to

advancing equal! justice under law by delivering free

legal services to indigent and underrepresented chil-

dren, adults and families throughout Los Angeles

County, ensuring that other community-based organi-

zations serving this population have legal support, and

mobilizing the pro bono resources of attorneys, law

students and other professionals. Public Counsel's

staff of 71 attorneys and 50 support staff, along with

over 5,000 volunteer lawyers, law students, and legal

professionals, assists over 30,000 children, youth, fami-

lies, and community organizations every year. Public

Counsel’s clients include lesbian, gay, bisexual, and

transgender youth and adults who are homeless or at

risk of homelessness or who seek asylum in the US.

because of persecution in their country of origin. As a

civil rights organization, Public Counsel has steadfast-

ly supported marriage equality.

QLaw: The GLBT Bar Association of Washington

QLaw, the GLBT Bar Association of Washington, is

an association of gay, lesbian, bisexual, and

transgender (GLBT) legal professionals and their

friends. QLaw serves as a voice for gay, lesbian, bisex-

ual, and transgender lawyers and other legal profes-

sionals in the state of Washington on issues relating to

diversity and equality in the legal profession, in the

courts, and under the law. The organization has five

lla

purposes: to provide opportunities for members of the

GLBT legal community to meet in a supportive, profes-

sional atmosphere to exchange ideas and information;

to further the professional development of GLBT legal

professionals and law students; to educate the public,

the legal profession, and the courts about legal issues

of particular concern to the GLBT community; to em-

power members of the GLBT community by improving

access to the legal and judicial system and sponsoring

education programs; and to promote and encourage the

advancement of lesbian, gay, bisexual, and transgender

attorneys in the legal profession.

Queen’s Bench Bar Association

Queen’s Bench Bar Association is a non-profit vol-

untary membership organization made up of judges,

lawyers, and law students in the San Francisco Bay

Area. Established in 1921, Queen’s Bench is one of the

oldest women’s bar associations in the country.

Queen’s Bench seeks to advance the interests of wom-

en in law and society, and to serve the professional

needs of women lawyers, judges, and law students.

Queen’s Bench has a strong and demonstrated interest

in the preservation of the Constitutional right to equal

protection of the laws.

San Francisco La Rava Lawyers Association

(SFLRLA)

San Francisco La Raza Lawyers Association

(SFLRLA) is a professional membership organization

of San Francisco Bay Area Latino/a attorneys. Central

to its mission is SFLRLA’s interest in protecting fun-

damental constitutional rights and minority interests.

Accordingly, in March 2004, SFLRLA filed the first

12a

amicus brief to be filed by a bar association with the

San Francisco Superior Court in what eventually be-

came In re Marriage Cases, 43 Cal.4th 757 (2008).

SFLRLA’s core mission is to serve the public interest

by cultivating the science of jurisprudence, promoting

reform in the law, facilitating the administration of

justice, and cooperating with other professional and

community organizations in the furtherance of our

Stonewall Bar Association of Georgia, Inc.

Stonewall Bar Association of Georgia, Inc. was es-

tablished in 1995 as a coalition of attorneys, judges,

law students, paralegals, and other legal professionals

to utilize their expertise to support the rights of lesbi-

an, gay, bisexual, and transgender people and oppose

discrimination based on sexual orientation and gender

identity. A voluntary bar association, consisting of

almost 300 dues-paying members, SBA publishes an

on-line directory of attorneys who are eager to serve

gay, lesbian, bisexual and transgender clients. The

organization also publishes a monthly newsletter that

is emailed to approximately 800 legal professionals,

provides scholarships to law students, conducts contin-

uing education for attorneys, and provides opportuni-

ties for networking with judges and other legal profes-

sionals. SBA has worked with other organizations to

file amicus briefs in cases that impact our community

in Georgia. Such briefs have been submitted in Hol-

lingsworth v. Perry and cases that overturned Georgia’s

sodomy law and secured the rights of local govern-

ments and private corporations to offer domestic part-

nership benefits to company employees and their life

partners.

13a

Stonewall Law Association of Greater Houston

(SLAGH)

Stonewall Law Association of Greater Houston is a

voluntary professional association of gay, lesbian, bi-

sexual and transgender attorneys, judges, paralegals,

law students and allies who provide a LGBT presence

within the greater Houston legal community. SLAGH

encourages the recognition of civil and human rights,

promotes sensitivity to legal issues faced by LGBT

community and those living with HIV, assures the fair

and just treatment of members of the LGBT communi-

ty, provides opportunities for LGBT attorneys, judges,

law students and their allies to interact in a profes-

sional setting, builds alliances with other minority bar

associations and legal organizations, and enhances the

practice and professional expertise of lawyers who

serve or are members of the LGBT community.

Tom Homann LGBT Law Association (THLA)

The Tom Homann LGBT Law Association (THLA) is

a non-profit voluntary membership bar association of

attorneys, law students, judges, and other legal profes-

sionals dedicated to the advancement of gay, lesbian,

bisexual and transgender issues throughout California

and the nation. We are the place for San Diego’s LGBT

lawyers to network, build friendships, and develop

their careers. THLA members are also committed to

establishing and maintaining personal connections

with local law student community. Through our suc-

cessful mentor program, we provide encouragement,

guidance, insight and friendship to the next generation

of LGBT lawyers entering the San Diego legal commu-

nity.

l4a

Women Lawyers Association of Los Angeles

(WLALA)

Women Lawyers Association of Los Angeles

(WLALA) is a nonprofit organization comprised pri-

marily of attorneys and judges in Los Angeles County.

Founded in 1919, WLALA is dedicated to promoting

the full participation of women lawyers and judges in

the legal profession, maintaining the integrity of our

legal system by advocating principles of fairness and

equality, and improving the status of women in our

society. WLALA believes that lawyer groups have a

special obligation to protect the core guarantees of our

Constitution from unlawful abrogation when a majori-

ty of voters has attempted to deprive a minority of its

constitutionally protected rights.

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.