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

Nos. 14-556, 14-562, 14-571, 14-574

IN THE

Supreme Court of the United States

OBERGEFELL, JAMES, ET AL.,

PETITIONERS,

Vv.

HODGES, RICHARD, ET AL.,

RESPONDENTS.

On Writs of Certiorari to the United States

Court of Appeals for the Sixth Circuit

BRIEF FOR AMICI CURIAE EQUALITY OHIO,

EQUALITY OHIO EDUCATION FUND, AND

THREE GAY AND LESBIAN COUPLES IN

SUPPORT OF PETITIONERS

ALANA C. JOCHUM ALAN B. MORRISON

EQUALITY OHIO (COUNSEL OF RECORD)

1375 EUCLID AVE, THE GEORGE WASHINGTON

SUTTE 310 UNIVERSITY LAW SCHOOL

Cleveland, OH 44115 2000 H STREET NW

(614) 224-0400 Washington, DC 20052

Alana@equalityohio.org (202) 994-7120

(202) 994 5157 (Fax)

March 4, 2015

abmorrison@law.gwu.edu

TABLE OF CONTENTS

Page

pe FG Be, ee i

ype UU Fi, SEE ii

INTEREST OF AMICI CURTAE.,Q...........ccccecceeeeeeeees 1

STATEMENT OF THE CASE. .......cccccccccsccsccsccsccseees 2

OHIO’S CONSTITUTION DEPRIVES SAME-SEX

COUPLES OF IMPORTANT RIGHTS AND

OBLIGATIONS AVAILABLE TO OPPOSITE-

EE CO a iii cocccescecesssesscsscecssccssceveccensssccssecssocsseesss 4

SUMMARY OF ARGUMENT. ................0ccceeceeseeeees 12

ATRASUREEREN © cccsccccecccsceccscccccccsscnscsscesscccsencssescocsoscooses 14

The Justifications Offered by the Court of

Appeals for the Ohio Laws Precluding the

Provision of Any Rights to Gay Couples in Ohio

Cannot Withstand Analysis No Matter What

Standard of Review the Court Applies. ............ 14

BGO cesncccnsncecescssscesnecesessssavecsnssnenccsssensaseccezenee 16

Encouraging Responsible Procreation......... 18

I Ie cccncncsscecesecesecessssvessesssessecessenssssnsnesenens 22

TABLE OF AUTHORITIES

Cases

Goodridge v. Department of Public Health, 798

GE ienirnsncsnsevescnninonemtamnensnimnemmnneys 17

In re Adoption of Doe, 719 N.E.2d 1071 (Ohio Ct. App.

GE sicislarscnscimnescncinsiteimsnsteninsinpithinntnnantanmenpentinennenntntis 8

Lawrence v. Texas, 539 U.S. 558 (2003) ................... 14

Romer v. Evans, 517 U.S. 620 (1996) ........................ 12

United States v. Windsor, 133 S. Ct. 2675

SIRT cietnisinenindneenainnnnsacieunninninaneiiniedininn 12, 13, 14, 15

Constitions

Ohio Const. art. XV, § 11 .....-.cecceccecceocesceneeeeneeees 2, 5, 21

Statutes

Ohio Rev. Code Ann. § 102.01(D) ................cccceceeeeeees 10

Ohio Rev. Code Ann. § 102.02(A)(1) .......2............22200 10

Ohio Rev. Code Ann. § 102.03(C)................ccccceeeeeeeees 10

Ohio Rev. Code Ann. § 144.02...............0..ccccccceeeeeeeeeeees 8

Ohio Rev.

Ohio Rev.

Ohio Rev.

Ohio Rev.

Ohio Rev.

Ohio Rev.

Ohio Rev.

Ohio Rev.

Ohio Rev.

Ohio Rev.

Ohio Rev.

Ohio Rev.

Ohio Rev.

Ohio Rev.

Ohio Rev.

Ohio Rev.

Ohio Rev.

es Se EE ctietnicecttntantiicneniicictiieid 6

Code Ann. § 2105.06 ..................cccssesececeseees 9

Ny Oe I cccitciiccitnicictnietnctinmincedsiinainendn 9

Code Ann. § 2125.02(A)(1) ...............cceeeeeeees 9

Code Ann. § 2133.06(B) ...........ccccccccscocccceees 9

Code Amn. § 2007.01(L)) .......cccscccosescsesccccscees 8

Code Ann. § 2907.02(A).................cecseeeceeeees 8

I 4

Se hs Oe GE cicecisineencessinscectemvenevsediai 8

Code Ann. § 3105.10(A) .................cceeceeees 10

ING OF EIA U ED ccessnicsendescssuniomnnsesens 10

Rs Oe SUITE aciinteineavedunetentnnncnscdsunii 7

FS eee 8

Code Ann. § 4123.59(D)(1)..................cceeee 10

Code Ann. § 5747.08(E) ................ccccecceeeeees 6

SD SE, FI cccccctncncnccssnscesenstinennennane 8

ee 6, 10

Other Authorities

Brief of the National Association for the

Advancement of Colored People as Amicus Curiae,

Loving v. Virginia, 388 U.S. 1 (1967)1967 WL

a eee em eee eS

Ohio Dep’t of Taxation, Individual Income Tax: Who

SII senicicnpyennnnneniidettiennneieneiincidmannenspenendnats

Ohio Police & Fire Pension Fund, Member’s Guide to

Health Care Coverage for 2014...............ccccccceseeeeeees

State of Ohio Employee Benefits Guide 5

Ee nen nC

INTEREST OF AMICI CURIAE!?

This brief is being submitted on behalf of

Equality Ohio and Equality Ohio Education Fund,

along with three gay and lesbian couples, each ‘of

whom is in a committed, long-term relationshin.

Equality Ohio is a 501(c)(4) non-profit organization

whose mission is to achieve fair treatment and

equal opportunity for all Ohioans, regardless of

their sexual orientation. It was founded in 2005

after Ohio voters passed the constitutional

amendment banning gay marriage and civil unions

that is at issue in this case. Equality Ohio

Education Fund is a 501(c)(3) non-profit educational

organization sharing the same goals. Together,

they are supported by more than 135,000 Ohioans

from around the state. The particular harms

suffered by the three amici same-sex couples are

more fully described infra at 11.

Amici, who filed a brief in support of

petitioners-plaintiffs in the Court of Appeals, seek

to obtain equal treatment with other Ohioans, and

in particular to secure the very significant and

concrete rights and benefits, and to accept the

obligations, that come with marriage for straight

couples in Ohio. The ban on marriage for same-sex

couples in Ohio is particularly egregious because it

! This brief is filed with the consent of all parties. No counsel

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

other than the amici or their counsel contributed money that

was intended to fund the preparation or submission of this

brief. Amici had additional counsel for their brief in the Court

of Appeals who conducted much of the research for this brief.

None of those counsel is counsel for a party in this Court.

not only denies gay couples access to marriage, but

expressly prohibits civil unions or any other similar

legal relationship.

STATEMENT OF THE CASE

The petition in this case covers two

separate cases from Ohio. The first, on which this

brief will focus, was originally filed by petitioner

James Obergefell on behalf of his husband, John

Arthur, whom he had legally married in

Maryland. Petitioner sought to have his spouse’s

death certificate reflect that marriage, but Ohio

officials refused, insisting that the couple was not

married. That refusal was based on Article XV,

section 11 of the Ohio Constitution (the

“Constitutional Amendment”), which states that:

Only a union between one man

and one woman may be a marriage

valid in or recognized by this state

and its political subdivisions. This

state and its political subdivisions

shall not create or recognize a legal

status for relationships of unmarried

individuals that intends to

approximate the design, qualities,

significance or effect of marriage.

Obergefell was subsequently joined as a

plaintiff by petitioner David Michener, who also

sought to correct the death certificate of his

deceased spouse William Ives, whom Michener

legally married in Delaware.

The District Court held that Ohio’s ban on

marriages by same-sex couples was

unconstitutional, and another District Court in

Ohio sustained a similar challenge by petitioners

Brittani Henry and others. On appeal, the two Ohio

cases were heard along with similar challenges to

similar laws from judgments favoring the plaintiffs

in cases from Michigan, Kentucky, and Tennessee.

A divided Court of Appeals reversed. In upholding

the laws of all four states, the majority essentially

,ustified its ruling on two bases: (1) the states were

doing no more than upholding the traditional

definition of marriage, even though they enshrined

their bans in their Constitutions; and (2) the states

had done no more that decide to subsidize opposite-

sex marriages in order to create an incentive for

opposite-sex couples to procreate in marriage,

instead of outside of it. It so ruled even though the

benefits of marriage extend far beyond opposite-sex

couples who wish to have children, while the law

also denies same-sex couples who have children

and are raising them as their joint parents the

benefits afforded opposite-sex couples whether they

have children or not. Before demonstrating why

those purported justifications are legally

insufficient, we first explain the harms that same-

sex couples are denied as a result of Ohio's ban on

marriages by same-sex couples, as well as banning

any other relationship “that intends _ to

approximate the design, qualities, significance or

effect of marriage.”

OHIO’S CONSTITUTION DEPRIVES SAME-

SEX COUPLES OF IMPORTANT RIGHTS AND

OBLIGATIONS AVAILABLE TO OPPOSITE-

SEX MARRIED COUPLES.

For generations the laws of Ohio have

recognized the institution of marriage. As shown in

the Addendum to this brief, Ohio Revised Code

Annotated § 3101.01 today limits the mght to marry

to one man and one woman, and states the ages at

which they may marry, as well as precluding

marriage if the persons are “nearer of kin than

second cousins.” At one time Ohio banned inter-

racial marriages, but that ended in 1877.2 Other

than those limits, until the issue of marriages for

same-sex couples arose, there is no history of Ohio

treating marriage as anything other than the state’s

recognition that a couple that wished to marry

agreed to accept the benefits and burdens of

marriage. There is no evidence that the state created

the institution of marriage in order to confer a

subsidy or benefit to those who chose to marry. To

the extent that benefits now flow from marriage, it is

because Ohio created such benefits and decided that

married couples should be among the beneficiaries.

And there is not a hint anywhere that Ohio choose to

limit marriages to opposite-sex couples because, like

taxi medallions in New York City, they were in short

supply, and the State could not afford more. But with

2 Brief of the National Association for the Advancement of

Colored People as Amicus Curiae, Loving v. Virginia, 388

U.S. 1 (1967)1967 WL 113930, at 2, note 2.

the enactment of the Constitutional Amendment,

Ohio has now excluded otherwise eligible couples

from being married solely because the couple are

both of the same gender.

Ohio not only prohibits lesbian and gay

couples from marrying in Ohio and refuses to

recognize their lawful, out-of-state marriages

(including recognition of non-Ohio marriages on a

death certificate), but also bars civil unions or any

formal relationship resembling marriage Ohio's

Constitutional Amendment could hardly be more

explicit when it states that “[t]his state and its

political subdivisions shall not create or recognize a

legal status for relationships of unmarried

individuals that intends to approximate the design,

qualities, significance or effect of marriage.” Ohio

Const. art. XV, § 11 (emphasis added).

This language on its face prohibits Ohio from

providing even specific, discrete benefits to gay and

lesbian couples, such as the right to make medical

decisions for one’s partner in case of emergency, or

the right to participate as a family member in a

health insurance plan. In other words, gays and

lesbians in Ohio are permanently disabled under

Ohio law from being treated as anything other than

second-class citizens. This is as true for the corrected

death certificates sought by the Obergefell petitioners

as it is for the more expansive benefits and

recognition sought by amici. Because the

Constitutional Amendment applies to marriage and

to any legal status that might provide benefits as an

alternative to marriage. the issue before the Court is

whether Ohio’s prohibition on lesbian and gay people

from ever obtaining any rights as committed couples

passes constitutional muster.

Set forth below are an illustrative, although

not exhaustive, description of the more significant

rights and benefits that are not available to same-sex

couples in Ohio:

* Income tax. Ohio law authorizes only

married couples to file joint tax returns. See Ohio

Rev. Code Ann. § 5747.08(E); see also Ohio Dep’t of

Taxation, Individual Income Tax: Who Must File,

available at

http://www.tax.ohio.gov/ohio_individual/individual

/who_raust_file.aspx (explaining that gay and

lesbian couples who file federal income taxes

jointly must still file Ohio state income taxes

separately’. For couples such as amici, who keep

joint accounts and co-own property, being able to

file joint returns that reflect their financial

interconnectedness, would obviate the unnecessary

complication and expense of filing taxes as if they

lived separate financial lives. In addition, for some

couples, filing jointly would reduce their overall

tax burden.

° Retirement and health benefits for

public employees. Public employees in Ohio are

entitled to participate in generous state retirement

plans and access affordable healthcare for their

families. However, some of the most favorable

benefits available under the Ohio Public Employees

Retirement System and the Ohio Police & Fire

Pension Fund are available only to the “spouse” of

a retiree, and not to any other designated

beneficiary. See, e.g., Ohio Rev. Code Ann. §

145.45(B)(2)(a) (providing benefits to “qualified

survivors, including a “surviving spouse”); Ohio

Rev. Code Ann. § 742.02 (creating the Ohio Police &

Fire Pension Fund “for the purpose of providing

disability benefits and pensions to members of the

fund and their surviving spouses, children, and

dependent parents”). Some public employees,

including amicus Sarah Marshall, purchase health

insurance through a medical plan sponsored by the

State. An employee’s spouse can join the plan for a

nominal fee, but gay and lesbian partners, including

Sarah’s partner Tara, are not allowed to do so.3

* Family and parenthood. Ohio law

has been interpreted as barring lesbian and gay

partners from jointly adopting children. Ohio Rev.

Code Ann. § 3107.03(A) (permitting joint adoptions

by “husband and wife”). Even where a gay or lesbian

individual, prior to cohabitating, lawfully adopted a

child, Ohio law prevents a same-sex partner from

later becoming a second parent to that child.

Curiously (and irrationally), state law nonetheless

authorizes single individuals — gay and straight - to

adopt. Ohio Rev. Code Ann. § 3107.03(B) (an

“unmarried adult” may adopt). However, if a gay or

lesbian individual enters into a committed, long-

3 See Ohio Police & Fire Pension Fund, Member's Guide to

Health Care Coverage for 2014 at 5-7, available at

http://www.op-f.org/Files/HCmemberGuide2014.pdf (listing

eligible beneficiaries as a spouse, child, or dependent parent);

Ohio Dep’t of Admin. Servs, State of Ohio Employee Benefits

Guide 5 (2014-15), available at

http:/ /das.ohio.gov/Portals/0/DASDivisions / HumanResou

rces/BA/pdf/New%20Emplovee%20Guide%2020 1 4-15%20-

%20Updated%2020150210.repdf (listing as _ eligible

beneficiaries “[yjour current legal spouse as recognized by

Ohio law.”); id. at 7 (“Examples of persons NOT eligible for

coverage as a dependent include ... Same-sex partners”

(emphasis in original)).

term relationship and lives with his or her partner,

the State prevents that child from benefiting from

having two loving parents rather than only one. See

In re Adoption of Doe, 719 N.E.2d 1071 (Ohio Ct.

App. 1998) (prohibiting “second parent” adoption by

lesbian partner of child’s biological mother).

Further, the inability to establish a legally

recognized parent-child relationship excludes gay

and lesbian couples and their children from the

many nmghts and obligations attendant to the

parent-child relationship arising under other

provisions of Ohio.‘

° Healthcare decisions. Ohio law

presumes that gays and lesbians are not qualified

or permitted to make medical decisions on behalf of

their committed, long-term partners. In the

absence of an advance health-care directive, the

following individuals, in order of priority, are

appointed as surrogates: the patient’s guardian,

spouse (which does not include a same-sex partner),

adult child, parent, sibling, or the nearest adult

‘ See generally, e.g., Ohio Rev. Code Ann. Title 1 (State

Government § 144.02 benefits for “dependents and survivors”

of municipal employees); Ohio Rev. Code Ann. Title 29

(Crimes §§ 2907.01(L), 2907.02(A), rape exception for spouse);

Ohio Rev. Code Ann. Title 31 (Domestic Relations § 3103.03,

obligations to support only extends to spouse and minor

children of parent); Ohio Rev. Code Ann. Title 33(Education -

§ 3331.12, prohibiting child under age of 14 from working for

person not parent or guardian); Ohio Rev. Code Ann. Title 58

(Transfer to Minors Act, § 5814.01(J) (“Member of the minor's

family” means “a parent, stepparent, spouse, grandparent,

brother, sister, uncle, or aunt of the minor, whether of the

whole or half blood, or by adoption”).

relative not already described. Ohio Rev. Code

Ann. § 2133.08(B). Ohio does not authorize a gay

or lesbian partner to be in that line of succession.

* Probate, transfer of assets, and

statutory claims. Ohio estate law protects and

provides for surviving spouses, but denies those

rights to surviving gay and lesbian partners. Same-

sex partners are prevented from obtaining the

elective share a surviving spouse is able to take from

the decedent’s estate, even when the decedent’s will

makes no provision for such support. Ohio Rev. Code

Ann. § 2106.01.5 That property can be used to

support the surviving spouse and the couple’s minor

children. The surviving spouse may also elect to

receive the decedent spouse’s entire interest in the

couple’s home. See Ohio Rev. Code Ann. § 2106.10.

Additionally, same-sex partners are not included in

the laws of intestate succession. See Ohio Rev. Code

Ann. § 2105.06.

Gay men and lesbians in Ohio are also

excluded from statutory rights of action for wrongful

death—the cause of action is “for the exclusive

benefit of the surviving spouse, the children, and

parents of the decedent,” which excludes a surviving

same-sex partner. Ohio Rev. Code Ann. §

2125.02(A)(1). Similarly, if there is a workplace

accident resulting in death, a spouse—but again,

> Other laws are also interrelated with Ohio’s scheme of intestate

succession. For example, where an owner of securities has not

filled out a “beneficiary form,” upon death the security is

transferred in accordance with the order of precedence

established by the Trusts Code, which does not include same-sex

spouses. See Ohio Rev. Code Ann. § 1709.01.

10

not a gay or lesbian partner—is authorized to collect

worker's compensation. Ohio Rev. Code Ann. §

4123.59(D)(1). And while spouses of certain public

employees (such as firefighters, like Sarah

Marshall) who die in the line of duty are entitled to

statutory death benefits, same-sex partners are

excluded from these benefits. Ohio Rev. Code Ann.

§ 742.02.

. Misc. Duties. With rights, of course,

come obligations. Gay and lesbian couples in Ohio

are not only prohibited from receiving any of the

benefits of marriage, but they are also exempt from

any of its responsibilities. Thus, when a gay or

lesbian couple separate, there are no available

options for legally-sanctioned divorce, alimony, or

child support. See Ohio Rev. Code Ann. § 3105.10(A)

(divorce only available for those in a “marriage”);

Ohio Rev. Code Ann. § 3105.171, 3105.21 (divorce

proceeding needed to enter orders related to the

disposition of property, alimony, and child custody).

Other duties outside the family also do not

apply to gay and lesbian couples. Thus, a state

employee who is gay or lesbian is not required to

disclose information about his or her partner for

conflict of interest purposes. See, e.g., Ohio Rev.

Code Ann. § 102.01(D) (defining “immediate family”

as “a spouse residing in the person’s household and

any dependent child”); Ohio Rev. Code Ann. §

102.02(A)(1) (requiring disclosure by state

government officials of names under which a spouse

conducts business); Ohio Rev. Code Ann. §

102.03(C) (prohibiting public officials and

employees from participating in any license or rate-

making proceeding that affects the license or rates

11

of a business owned or controlled by immediate

family).

These harms have directly injured the three

amici couples as well as other gay and lesbian

couples represented by Equality Ohio. Thus, Tara

Robertson and Sarah Marshall] have been together

in a committed relationship for the past four years.

Both have lived in Ohio their entire lives, and would

like to marry in their home state. Sarah works as a

firefighter and paramedic for the City of Dayton,

and Tara works as an auto mechanic. They would

like to file joint tax returns and participate jointly

in the state health system. They are not permitted to

do either solely because they are lesbians.

Timothy Broud and Richard Moore have been

together for approximately twenty-four years and

plan to marry. Each has lived in Ohio his entire

life. Timothy has suffered from major health issues

in the past, and Richard has always been there for

him during hospital stays. On many occasions,

however, hospitals have refused to speak to

Richard about Timothy’s treatment because he is

not a legal spouse.

Angela Wellman and Julie Lamere have been

in a relationship for twelve years. In 2005, they

traveled from Ohio, where both have lived their

entire lives, to Vermont in order to enter into a civil

union. Julie works in human resources for a

private, non-profit organization, and Angela works

as a Student Life Coordinator for the Multicultural

Center at Ohio State University. Angela and Julie

would like to marry in their home state of Ohio.

These harms are inflicted on amici and all

other gay and lesbian couples in Ohio solely

12

because they wish to marry a person of the same

gender. As this Court observed, the protections

afforded by these laws are “taken for granted by

most people either because they already have

them or do not need them [yet same-sex couples

are excluded] from an almost limitless number of

transactions and endeavors that constitute

ordinary civic life in a free society.” Romer uv.

Evans, 517 U.S. 620, 631 (1996). In addition to

these harms under Ohio law, now that Section 3

of DOMA has been declared unconstitutional,

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

same-sex couples in Ohio who wish to marry are

also denied all benefits under federal law that

apply only to couples married under state law.

SUMMARY OF ARGUMENT

No matter what standard of review is applied,

the two reasons given by the Court of Appeals do not

suffice to sustain the ban on marriages for same-sex

couples, civil unions, and all other relationships that

might “approximate” marriage. The principal

substantive defense offered is that limiting marriage

to opposite-sex couples “subsidizes” those marriages,

thereby encouraging those couples — and only those

couples — to raise their children as a married couple,

which will bring stability and other benefits to the

children. That rationale is both vastly over and

vastly under inclusive. It is over inclusive because

(a) marriage among opposite-sex couples is not

limited tu those who either have or promise to have

children; (b) the “subsidy” of marriage extends to

many benefits that have nothing to do with children;

13

(c) the subsidy is not conditioned on parents staying

together until all their children reach majority; and

(d) the subsidy continues long after the children have

left home and are having children of their own.

It is under inclusive because it excludes same-

sex couples whose children need the same benefits as

do the children of opposite-sex couples in order to

develop into happy and productive adults. Moreover,

the ban extends beyond marriage to civil unions and

similar relationships, yet there is no rationale

comparable to the marriage subsidy that could

possibly justify applying the ban to civil unions,

which denies same-sex couples the other benefits of

marriage under Ohio and, after Windsor, federal] law.

The Sixth Circuit’s other justification —

“tradition” or, as it sometimes put, the desire to

“proceed slowly” — fares no better. Erecting a

constitutional barrier against marriage for same-sex

couples does not conform to any recognized tradition

in Ohio. Moreover, that barrier is a “full stop,” not a

“go slow” sign, because the amendment makes it

impossible for the Ohio legislature alone to change

directions in the future. Furthermore, because civil

unions are a phenomenon of the 21*t century, there is

surely no “tradition” as to them, and especially no

tradition of denying the legislature the authority to

create civil unions and extend the rights available to

straight couples to same-sex couples who are

ineligible to marry under Ohio law.

The utter irrationality of these laws is clear

from total lack of fit between the stated justifications

and what Ohio law actually does. Indeed, the State

denied the requests of petitioners Obergefell and

Michener to correct the death certificates of their

14

deceased spouses, to whom they were lawfully

married out of state, solely because Ohio law bans

marriages between same-sex couples. But those

denials have no connection whatsoever to the

tradition and subsidy justifications accepted by the

majority below. Instead, they send out the clearest

message that the reasons offered to support Ohio’s

laws relating to the marriages of same-sex couples

are a facade, designed to cover up Ohio’s disapproval

of the lives of same-sex couples, which this Court

made clear in United States v. Windsor, 133 S. Ct

2675 (2013), and Lawrence v. Texas, 539 U.S. 558

(2003), are constitutionally insufficient.

ARGUMENT

The Justifications Offered by the Court of

Appeals for the Ohio Laws Precluding the

Provision of Any Rights to Gay Couples in Ohio

Cannot Withstand Analysis No Matter What

Standard of Review the Court Applies.

Section 3 of the Defense of Marriage Act

(“DOMA”) excluded same-sex couples from the

definition of marriage under all federal laws. In his

opinion holding section 3 unconstitutional in

Windsor, Justice Kennedy emphasized that the ban

“touches many aspects of married and family life,

from the mundane to the profound .. . [and] divests

married same-sex couples of the duties and

responsibilities that are an essential part of married

life and that they in most cases would be honored to

accept were DOMA not in force.” 133 S. Ct. at 2694,

95. Many of the same kind of injuries wrought by

DOMA are present here: DOMA “prevent[ed]” access

15

to “government healthcare benefits”; “deprive[d]” gay

and lesbian couples “of the Bankruptcy Code’s special

protections”; “prohibit[ed]” same-sex couples “from

being buried together in veterans’ cemeteries”;

rendered “inapplicable” protections for the family

members of United States officials, judges, and

federal law enforcement officers; “br[ought] financial

harm to children of same-sex couples ... [by]

rais[ing] the cost of health care for families by taxing

health benefits provided by employers to their

workers’ same-sex spouses’; and “denie[d] or

reduce[d] benefits allowed to families pon the loss

of a spouse and parent, . . . [which] are an integral

part of family security.” Id. at 2694—95.

It cannot be seriously disputed that Ohio's

Constitutional Amendment does exactly the same

thing here. Just as DOMA worked to “impose

restrictions and disabilities” on gays and lesbians, the

Ohio Constitution imposes on the Ohio Code and

administrative regulations the requirement to deny

scores of significant benefits and rights to Ohio

citizens, “from the mundane to the profound.”

Windsor, 133 S. Ct. at 2692, 2694. They include

financial decisions and financial security, familial

relationships and parental obligations, access to

healthcare and the authority to make medical

decisions for a loved one, and estate planning and the

transfer of assets — most of which accrue to married

couples without regard to the presence of children.

The deliberate withholding of these statutory

protections from committed gay and lesbian couples

in Ohio offends basic principles of equal protection.

The briefs of the parties and other amici will

demonstrate why heightened scrutiny is required. In

our view, even if rational basis applied, the Ohio laws

16

at issue cannot be upheld. The majority opinion of

Circuit Judge Sutton essentially offers two reasons

why the ans are constitutional: (1) they encourage

procreation in marriage by opposite-sex couples, and

(2) they uphold traditional marriage, while allowing

for future changes. Neither suffices.

At the outset, we note three undisputed facts

that, as we explain below, demonstrate conclusively

that those reasons cannot sustain Ohio’s ban: (1)

most of the benefits of marriage for opposite-sex

couples are unrelated to encouraging procreation; (2)

the laws also preclude civil unions or any other legal

arrangement that confers the benefits of marriage on

same-sex couples; and (3) the Ohio ban was applied

to deny the surviving members of a same-sex

marriage performed out of state the mght to include

on the death certificate of his husband the

indisputable fact that he was “married.”

Tradition

This argument asserts that the states did no

more than maintain a centuries-old tradition of

recognizing that marriage is only between a man and

a woman, whi.e proceeding cautiously and leaving

open the door to marriages by same-sex couples. But

if tradition were a legitimate basis for bans on

certain kinds of marriages, the challenge to the ban

on inter-racial marriages struck down in Loving v.

Virginia, 388 U.S. 1 (1967), would have come out the

other way.

Second, in denying the right of same-sex

couples to marry, Ohio did much more than retain

the status quo. Such marriages are already

precluded by statute, see Addendum. The

amendment enshrined their second-class status in

17

the state constitution, hardly the equivalent of going

slowly. Judge Sutton also asserted that a

constitutional amendment imposing a ban on same-

sex marriages was necessary to prevent “courts from

seizing control over an issue that people of good faith

care deeply about” (Pet. App. 42a), as the

Massachusetts Supreme Court did when it found

that denying the right to marry to same-sex couples

violated its state constitution. See Goodridge uv.

Department of Public Health, 798 N.E.2d 941 (2003).

But if that is all that was intended, a much narrower

amendment would do the job, either by barring state

courts from hearing such claims, or adding to the

state constitution a provision stating that “Nothing

herein shall be construed to create a right to

marriage by persons of the same sex.” Either route

would have made it clear that the state legislature

could end the ban, but that the state courts could not.

Third, Ohio also bans civil unions that would

at least allow same-sex couples to enjoy benefits such

as the right to adopt the partner’s children, to visit a

partner in the hospital, and to file joint income tax

returns. Because civil unions are less than two

decades old, there is no tradition at all with respect

to them, let alone a tradition of excluding same-sex

couples from tangible benefits enjoyed by opposite-

sex couples. And by amending its constitution to

forbid the Ohio legislature from enacting laws

permitting civil unions — or anything resembling

them — Ohio went full speed ahead to deny rights and

did not simply act to preserve the status quo.

Fourth, Ohio's refusal to allow a same-sex

plaintiff who was legally married in another state

from stating on his spouse’s death certificate that

they were “married,” is totally unprecedented. Ohio

18

made no effort to show that it ever questions the

asserted marital status of a deceased, let alone that

it ever challenged that status. If there had been such

a tradition, Ohio wouid surely have offered evidence

that what it did here was no more than a variation of

what it regularly does in completing death

certificates.

In the end, invoking tradition is another way

of saying, “this is the way we've always done it, and

we have no obligation to change.” That may be an

explanation of how the law got to where it is now, but

it cannot provide a justification for why it should

remain that way, let alone how it comports with the

requirements of Equal Protection.

Encouraging Responsible Procreation

The initial premise of this argument is the

undisputed fact that only opposite-sex couples can

cause unintended pregnancies. The Court of Appeals

majority also contended that a state could reasonably

conclude that children produced by individuals who

are not married have less favorable outcomes than

are children raised by parents who are married. Even

if that second conclusion were correct, it does not in

any way justify denying same-sex couples the same

opportunity to marry and raise their children as dual

parents, just like opposite-sex couples. To sustain

the exclusion, the Court of Appeals asserted that

permitting marriage for opposite-sex couples only

was a legitimate means of “subsidizing” the decision

to have children within a marriage, rather than

outside it. Pet. App. 35a.

That conclusion cannot withstand analysis

because there is not the slightest evidence — historic

or submitted in the courts below — that anyone, until

19

this case, claimed that marriage was a form of

subsidy, like providing free lunches for school

children whose families have income below the

poverty level. Moreover, the remedy — limiting

marriage to opposite-sex couples — sweeps in vast

numbers of people for whom no such incentive is

needed or even relevant. Those include the old, the

infertile, and those who have no intention of have

children. It is also vastly over-inclusive because

marriage confers a range of benefits — such as filing

joint tax returns, obtaining spousal health

insurance, and making health care decisions for a

partner who is unable to act on his own — that having

nothing to do with procreation of children. In

addition, the subsidy is not conditioned on the

married couple staying married until their children

reach majority, and it continues long after the

children have left the home.

Nor is it reasonable to refer to marriage as a

form of subsidization of a decision to procreate within

a marriage. If that kind of subsidization were

actually intended. it would have taken the form of

cash payments or tax credits to those who give birth

to children in a marriage and stay married until the

children reach majority. No rational person would

conclude that a one-time “payment” of a marriage

certificate could possibly be appropriate

compens2tion for what in theory is a promise to raise

their children as a married couple, let alone that such

subsidy can be justified for the married couples who

never have children.

If the government is actually providing a

subsidy, such as school lunches, it makes sense to set

limits in order to control costs. But there is no hint

that there is a limited supply of either marriage

20

certificates or the benefits that flow from marriage.

No one has suggested that Ohio would repeal the

laws allowing the filing of joint income taxes, or

granting health benefits to married couples, or

allowing married couples to make health care

decisions for their spouses or inherit their property if

there were no will, even if tens of thousands of Ohio

residents suddenly decided to marry, thereby vastly

increasing the level of the current “subsidy.” That is

because the decision to deny same-sex couples the

right to marry has nothing to do with any form of

traditional subsidy known in the law, and is nothing

more than an effort to defend the indefensible.

Furthermore, if encouraging families to have

stable relations is a goal of the ban, it is irrational to

deny children of same-sex couples the benefits of

stable families by having two legally recognized

parents instead of one. Ohio already allows

responsible single adults, including gays and

lesbians, to adopt a child; only irrationality can

possibly explain why such a child would not be better

off having two responsible adult to raise him or her,

no matter what their sexual orientation may be.

The ban also applies to civil unions between

same-sex couples. By definition, same-sex couples do

not need an incentive for responsible procreation, but

the desire to reward opposite-sex couples for

procreating responsibly cannot justify a ban on the

wholly separate status of civil unions. If the ban did

not extend to civil unions, same-sex couples would

still not receive the “subsidy” of being able to say that

they are married, although they would be able to

receive the other benefits of such a status. However,

the inclusion of the ban on same-sex civil unions and

ail similar relationships further demonstrates that

21

the procreation subsidy theory cannot support that

aspect of the ban, yet there is no other justification

offered to sustain it.

Finally, in Ohio (and not disclaimed by any

other state or Judge Sutton), the prohibition extends

to denying the surviving member of a same-sex

marriage the right to have the status of the

relationship with his deceased spouse listed on the

death certificate as “married,” which is a description

of what lawfully occurred in another state. There

could not possibly be any connection between the

subsidy of encouraging opposite-sex couples in Ohio

to procreate within a marriage, and refusing to allow

same-sex couples married outside of Ohio to state on

the death certificate of one member of a couple the

fact that they were legally married elsewhere. The

Obergefell petitioners were not seeking any state-

conferred benefit or subsidy; all they asked was that

the State correct the facts asserted on the death

certificates of their spouse, so that they are true, and

not false. Even accepting every rationale offered by

the State to justify banning marriages by same-sex

couples, none of them has even the most remote—i.e.,

rational—connection with what Ohio did here.

Actions speak louder than words. Ohio's

decision to reject petitioners’ request to correct

factually-inaccurate death certificates, to defend that

decision in the trial court, and then to appeal the

adverse ruling, reveals what is really going on here.

Ohio’s effort to apply Article XV, section 11 of its

Constitution to the facts of this case leaves no doubt

that the true reason behind that Amendment is

animus against gays and lesbians. Indeed, that

application of the ban on marriages for same-sex

couples is the proverbial thirteenth stroke of the

22

clock, making all that came before suspect, not just

as anplied to death certificates, but to marriages by

same-sex couples and civil unions as well.

When all of the rhetoric is stripped away, the

ban on same-sex marriages cannot be justified by the

reasons given by Judge Sutton. Unless the Court is

willing to sustain the prohibitions on marriage by

same-sex couples based on no more than “it’s OK

because we say so, even if we have no good reasons

to support it,” these bans cannot survive.

CONCLUSION

The judgment of the Court of Appeals should

be reversed, and the case remanded with directions

to re-enter the judgments of the District Courts in

these cases.

ALANA C. JOCHUM ALAN B. MORRISON

EQUALITY OHIO (COUNSEL OF RECORD)

1375 EUCLID AVE, THE GEORGE

SUITE 310 WASHINGTON

Cleveland, OH 44115 UNIVERSITY LAW

(614) 224-0400 SCHOOL

Alana@equalityohio.org 2000 H STREET NW

Washington, DC 20052

March 4, 2015 (202) 994-7120

(202) 994 5157 (Fax)

abmorrison@law.gwu.edu

A-1

ADDENDUM

Ohio Revised Code Annotated § 3101.01

Persons who may marry; same sex marriages

against public policy; recognition or extension by

state of specific statutory benefits of legal marriage

to nonmarita] relationships against public policy

(A) Male persons of the age of eighteen years.

and female persons of the age of sixteen vears, not

nearer of kin than second cousins, and not having a

husband or wife living, may be joined in marriage. A

marriage may only be entered into by one man and

one woman. A minor shall first obtain the consent of

the minor's parents, surviving parent, parent who is

designated the residential parent and legal

custodian of the minor by a court of competent

jurisdiction, guardian, or any one of the following

who has been awarded permanent custody of the

minor by a court exercising juvenile jurisdiction:

(1) An adult person;

(2) The department of job and family services

or any child welfare organization certified by the

department;

(3) A public children services agency.

(B) For the purposes of division (A) of this

section, a minor shall not be required to obtain the

consent of a parent who resides in a foreign country,

has neglected or abandoned the minor for a period of

one year or longer immediately preceding the minor's

application for a marriage license, has been adjudged

incompetent, is an inmate of a state mental or

A-2

correctional institution, has been permanently

deprived of parental rights and responsibilities for

the care of the minor and the right to have the minor

live with the parent and to be the legal custodian of

the minor by a court exercising juvenile jurisdiction,

or has been deprived of parental rights and

responsibilities for the care of the minor and the

right to have the minor live with the parent and to

be the legal custodian of the minor by the

appointment of a guardian of the person of the minor

by the probate court or by another court of competent

jurisdiction.

(C)(1) Any marriage between persons of the

same sex is against the strong public policy of this

state. Any marriage between persons of the same sex

shall have no legal force or effect in this state and, if

attempted to be entered into in this state, is void ab

initio and shall not be recognized by this state.

(2) Any marriage entered into by persons of

the same sex in any other jurisdiction shall be

considered and treated in all respects as having no

legal force or effect in this state and shall not be

recognized by this state.

(3) The recognition or extension by the state of

the specific statutory benefits of a legal marriage to

nonmarital relationships between persons of the

same sex or different sexes is against the strong

public policy of this state. Any public act, record, or

judicial proceeding of this state, as defined in section

9.82 of the Revised Code, that extends the specific

statutory benefits of legal marriage to nonmarital

relationships between persons of the same sex or

different sexes is void ab initio. Nothing in division

(C)(3) of this section shall be construed to do either of

A-3

the following:

(a) Prohibit the extension of specific benefits

otherwise enjoyed by all persons, married or

unmarried, to nonmarital relationships between

persons of the same sex or different sexes, including

the extension of benefits conferred by any statute

that is not expressly limited to married persons,

which includes but is not limited to benefits available

under Chapter 4117 of the Revised Code;

(b) Affect the validity of private agreements

that are otherwise valid under the laws of this state.

(4) Any public act. record, or judicial

proceeding of any other state, country, or other

jurisdiction outside this state that extends the

specific benefits of legal marriage to nonmarital

relationships between persons of the same sex or

different sexes shall be considered and treated in all

respects as having no legal force or effect in this state

and shall not be recognized by this state.

AMICUS

CURIAE

BRIEF

Nos. 14-556, 14-562, 14-571 & 14-574

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 AMICUS CURIAE

EXPERIENTIAL LEARNING LAB AT

NEW YORK UNIVERSITY SCHOOL OF LAW

IN SUPPORT OF PETITIONERS

ADERSON BELLEGARDE FRANCOIS PEGGY COOPER DAVIS

Civil Rights Clinic Counsel of Record

HOWARD UNIVERSITY Experiential Learning Lab

SCHOOL OF LAW NEW YORK UNIVERSITY

2900 Van Ness Street, N.W. SCHOOL OF LAW

Washington, DC 20008 40 Washington Square

(202) 806-8065 South, 301

afrancoisGlaw-.howard.edu New York, NY 10012

(212) 998-6465

peggy.cooper.davis@nyu.edu

VAL S0nN-EPES Pruwtine Co., inc. — (202) 789-0086 — WASHINGTON, D. C. 20002

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES. ...................ccc00000000- ii

STATEMENT OF INTEREST .................000..0.0--. 1

SUMMARY OF ARGUMENT .....000000...0.000ccccceeee 1

ST incieltciiihcdaiaddehdanniiiaiiadaiiaiiitaaaitiiaes 3

I. REPUDIATION OF SLAVERY AND

THE EMBRACE OF UNIVERSAL

FREEDOM WERE MOTIVATED BY

ABHORRENCE OF SLAVERY’S

DENIAL OF FAMILY RECOGNITION ... 6

Il. SECURING THE RIGHT OF

MARRIAGE RE-COGNITION WAS AN

EXPLICIT OBJECTIVE OF THE

FOURTEENTH AMENDMENT’S

te hincacnninccnenninevnccinniitisanndabianinauiinines 13

Ill. WITH PASSAGE OF THE

THIRTEENTH AND FOURTEENTH

AMENDMENTS EXTENSION OF THE

RIGHT OF MARRIAGE RECOG-

NITION WAS PRESUMED TO BE

REQUIRED IN EVERY STATE ............... 18

IIIT (nicstshisninttiniiaibiundiebiiadipabbinadidunnenapendentedd 20

APPENDIX

Contributors in Alphabetical Order ................ la

(i)

ii

TABLE OF AUTHORITIES

CASES Page(s)

Andrews v. Page, 50 Tenn. 653 (1870)......... 7

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

TERETE IA I 21

Bishop v. Smith, 760 F.3d 1070 (10th Cir.

NARS Ra IC aioe eee 21

Bostic v. Schaefer, 760 F.3d 352 (4th Cir.

NACE AI 2, 21

Campaign for S. Equal. v. Bryant, No. 3:14-

CV-818-CWR-LRA, 2014 WL 6680570

(S.D. Miss. Nov. 25, 2014) ........................ 21

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

AE RES e Nearer ee eee ee ae 2,6

Hall v. United States, 92 U.S. 27 (18785)...... 7

Hamby v. Parnell, No. 3:14-CV-00089-

TMB, 2014 WL 5089399 (D. Alaska Oct.

SREP EE Ri eae cere 21

Jennings v. Webb, 8 App. D.C. 43

STITT cnn nasicnsnseniiimenamnaiabeiataiiatieiibinaniens 8, 19, 21

Johnson v. Johnson, 45 Mo. 595 (1870)....... &

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

IIE ichceneiheeeitaaiestialaiiaitbibiediaiitiniipiaintanas 2

Latta v. Otter, 771 F.3d 456 (9th Cir. 2014) 21

Lawrence v. Texas, 539 U.S. 558 (2003) ...... 5

Loving v. Virginia, 388 U.S. 1 (1967) .......... 2

Malinda v. Gardner, 24 Ala. 719 (1864)...... 6

TABLE OF AUTHORITIES—Continued

Page(s)

McDonald v. City of Chicago, Iil., 561 U.S.

EEE Ana an 4

McReynolds v. State, 45 Tenn. 18 (1867)..... 9

Meister v. Moore, 96 U.S. 76 (1877 .............. 2

Munn v. Illinois, 94 U.S. 113 (1876)............ 5

Planned Parenthood of Se. Pennsylvania v.

Casey, 505 U.S. 833 (1992)..................0.24 22

Powell v. Pennsylvania, 127 U.S. 678

III cicciinitiegniiidinstibinbiiinbpisesitapmiiasisnthigaan 5

Rosenbrahn v. Daugaard, No. 4:14-CV-

04081-KES, 2015 WL 144567 (D.S.D.

By FE inicisceunitnniapainnnindaabahiatnadeneieennds 21

Scott v. Raub, 14 S.E. 178 (Va. 1891).......... 7

Slaughter-House Cases, 16 Wall 36 (1873).. 4

Taylor v. Beckham, 178 U.S. 548, 602

TSE Re ae ee ee 4-5

Turner v. Safley, 482 U.S. 78 (1987)............ 2, 22

United States v. Windsor, 133 S. Ct. 2675

a ne ee ee 1

Zablocki v. Redhail, 434 U.S. 374 (1978) .... 2

CONSTITUTION

U.S. Const. amend. XTIT....................... 3, 6, 13, 17

ee CE, CIE, BIT ceniccccncesscnecssssecesesenl passim

U.S. Const. amend. XIV, § 1 .................. 2, 3, 5,19

rs ER, CIEE, TIPO cncicccccscccscccesccsesisnsess 3, 6,14

OTHER AUTHORITIES

iv

TABLE OF AUTHORITIES—Continued

Danielle Allen, Our Declaration: A

Reading of the Declaration of

Independence in Defense of Equality

Akhil R. Amar, The Bill of Rights: Creation

and Reconstruction (1998)........................

Akhil R. Amar, Substance and Method in

the Year 2000, 28 Pepperdine L. Rev. 601

Cee ae ee

Aderson Bellegarde Francois, To Go into

Battle with Space and Time:

Emancipated Slave Marriage, Interracial

Marriage, and Same-Sex Marriage, 13 J.

Gender Race & Just. 105 (2009)...............

Henry Bibb, Narrative of the Life and

Adventures of Henry Bibb, an American

Slave (3d ed. 1969) (1850).........................

B.A. Botkin, Lay My Burden Down: A Folk

History of Slavery (1989).....................000-

Steven G. Calabresi & Hannah Begley,

Originalism and Same Sex Marriage

TIT iadtncsienacinniiipiniunmieaidninienidneetedinniadianinadones

Thomas R.R. Cobb, An Inquiry into the Law

of Negro Slavery in the United States of

incncniiccntncensiieiasemebmniedannepotens

Cong. Globe, 38th Cong., Ist Sess. 1324

SII ntihenenshndidinisiashianiidimmamienmniabeninmunsiniiniin

Page(s)

22

18

15

Vv

TABLE OF AUTHORITIES—Continued

Page(s)

Cong. Globe, 38th Cong., Ist Sess. 1439,

| ET ESS aa a 16

Cong. Globe, 38th Cong., lst Sess. 2984

EPP eee ne 17

Cong. Globe, 38th Cong., 2d Sess. 120, 193,

iat neater ited ili 17

Cong. Globe, 38th Cong., 2d Sess. 221

EEE ree nrn nee een nnn ne 15

Cong. Globe, 39th Cong., Ist Sess. 474, 504

SEER ERS ARS a ma 18

Peggy Cooper Davis, Neglected Stories and

the Lawfulness of Roe v. Wade, 28 Harv.

C.R.-C.L. L. Rev. 299 (1993)..................... 15

Court annuls San Francisco gay marriages,

ASSOCIATED PRESS (Aug. 12, 2004, 4:23 p.

m.), http://Awww.nbcnews.com/id/5685429

/na/politics/t/court-annuls-san-francisco-

gay-marriages /#.VO7YcxbF_Ec. .............. 12

Declaration of Independence (U.S. 1776)..... 1,3

W.E.B. Dubois, Black Reconstruction 1860-

Ee en 11, 13, 14

1 Freedom: A Documentary History of

Emancipation 1861-1867 (Ira Berlin et

" _ “A 12,13

3 Freedom: A Documentary History of

Emancipation 1861-1867 (Ira Berlin et

is SHEE cccansccnstctedscnonnsttiacininiadentinantess 12

vi

TABLE OF AUTHORITIES—Continued

Page(s)

Eric Foner, The Supreme Court and the

History of Reconstruction-and Vice-

Versa, 112 Colum. L. Rev. 1585 (2012)....

Shelby Foote, The Civil War: A Narrative

Paula Giddings, When and Where I Enter:

The Impact of Black Women on Race and

Sex in America (1984)..............cccccscscssesees

William Goodell, The American Slave Code

in Theory and Practice; its Distinctive

Features Shown by its Statutes, Judicial

Opinions and [Illustrative Facts (1853),

microformed on 19th Century Legal

Treatises Nos. 27329-27333 (Research

TE

Darlene C. Goring, The History of Slave

Marriage in the United States, 39 J.

Marshall L. Rev. 299 (2006) .....................

Tiffany C. Graham, Something Old,

Something New: Civic Virtue and the

Case for Same-Sex Marriage, 17 UCLA

Women’s L.J. 53 (2008)...................2-02e00-0

Herbert G. Gutman, The Black Family in

Slavery and Freedom 1750-1925 (1976) ..

Linda C. McClain, The Domain of Civic

Virtue in a Good Society: Families,

Schools, and Sex Equality, 69 Fordham

Ree TD. BEG GERD cocveccscereccnscqsesencesvenesones

James Mcpherson, Battle Cry of Freedom:

The Civil War Era (1988) .........................

14

11

9,10

7, 20

14

8,9

Vii

TABLE OF AUTHORITIES—Continued

Page(s)

Orlando Patterson, Freedom in the Making

of Western Culture (BasicBooks 1991)....

Orlando Patterson, Slavery and Social

6

Death (Harvard University Press 1982)..5, 6, 7

Petition, dated May 25, 1774, to the

Governor, the Council and the House of

Representatives of Massachusetts,

reprinted in Herbert Aptheker, A

Documentary History of the Negro

People in the United States (1969) ..........

Report of the Joint Committee on

Reconstruction, Part II, 39th Cong., 1st

EET ne orem eee me

S.F.D., People of Color, 1 New York’s

Freedom J. No. 7 (Apr. 27, 1827) .............

Harriet Beecher Stowe, A Key to Uncle

_ — = ESC oncaee

Succession of George Devezin, 7 Orleans

App. 111 (La. App. Orleans 1910)............

The Disruption of Family Ties, Antislavery

SEE

Ronald G. Walters, The Antislavery

Appeal: American Nationalism After

ERISA IE AE REIN AE ee TO

10

10

10

TABLE OF AUTHORITIES—Continued

Page(s)

Richard Wolf, Michigan couple poised

to make gay marriage history, USA

Today (Jan. 16, 2015, 5:33 p.m.),

http://www.usatoday.com/story/news/201

5/01/15/supreme-court-gay-marriage-

michigan/2 17688497 ..............sccssccssccsceessess 6

William Wells, Family Government, The

Liberator (Dec. 1, 1837) ..................2..002000+ i]

Heather Andrea Williams, Help Me to Find

My People: The African American Search

for Family Lost in Slavery (2012)............. 11

STATEMENT OF INTEREST"

Since its founding, our country has aspired to

respect the dignity and liberty of all people.? We

floundered at our birth as we tried to reconcile

principles of equal dignity with laws that supported

human enslavement. The contradictions between

respect for human dignity and protection of the rights

of some to own and control others plunged us into Civil

War. At the end of that war, we reconstructed our

Constitution to make the blessings of democratic

liberty secure for all of our people.

We are students and scholars*® with an interest

in assuring that the enlightened heritage of emancipa-

tion guides interpretation of our reconstructed

Constitution.

SUMMARY OF ARGUMENT

Little more than a decade after the Fourteenth

Amendment reconstructed our federal system, this

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

and no counsel or party made a monetary contribution intended

to fund the preparation of this brief. The parties have consented

to the filing of amici curiae briefs.

2 The Declaration of Independence para. 2 (U.S. 1776) (“We

hold these truths to be self-evident, that all men are created

equal, that they are endowed by their Creator with certain

unalienable Rights, that among these are Life, Liberty and the

pursuit of Happiness.”); see also Danielle Allen, Our Declaration:

A Reading of the Declaration of Independence in Defense of

Equality 268-269 (2014) (“Equality is the foundation of freedom

because from a commitment to equality emerges the people

itself—we, the people—with the power... to create a shared

world in which all can flourish. .. .”).

* This brief was a project of the Experiential Learning Lab at

New York University School of Law and is submitted in its name

as Amicus Curiae. The names of contributors are attached as an

Appendix.

2

Court described marriage as “a thing of common

right.”* The Court has subsequently affirmed the right

to marry as fundamental to democratic liberty." In

doing so, the Court has upheld a principle that was

avowed by the Founders,® deepened by the experience

of slavery, and formalized by the Fourteenth Amend-

ment’s charter of freedom.

Many have expressed concern that because mar-

riage rights are “unenumerated” their constitutional

grounding is uncertain.’ A judge in one of the cases

below seemed to express this concern when he said

that “[nJobody .. . understood [the Fourteenth

Amendment] to require the States to change the

definition of marriage.” We write to answer concerns

about the constitutional grounding of marriage rights

* Meister v. Moore, 96 U.S. 76, 79 (1877).

®° See Turner v. Safley, 482 U.S. 78, 96 (1987); Zablocki v.

Redhail, 434 U.S. 374, 384 (1978); Loving v. Virginia, 388 U.S. 1,

12 (1967).

® See generally Steven G. Calabresi & Hannah Begley,

Originalism and Same Sex Marriage (2014) (unpublished) (on file

with authors) (providing an originalist argument in support of

same-sex marriage).

’ See United States v. Windsor, 133 S. Ct. 2675, 2707 (2013)

(Scalia, J., dissenting) (“[T]he Constitution neither requires nor

forbids our society to approve of same-sex marriage, much as it

neither requires nor forbids us to approve of no-fault divorce,

polygamy, or the consumption of alcohol.”); see also Bostic v.

Schaefer, 760 F.3d 352, 389 (4th Cir. 2014) (Niemeyer, J., dissent-

ing) (“The Constitution contains no language directly protecting

the right to same-sex marriage or even traditional marriage”);

Kitchen v. Herbert, 755 F.3d 1193, 1230 (10th Cir. 2014) (Kelly,

J., dissenting) (“The Constitution is silent on the regulation of

marriage; accordingly, that power is reserved to the States, albeit

consistent with federal constitutional guarantees.”).

® DeBoer v. Snyder, 772 F.3d 388, 403 (6th Cir. 2014).

3

and to establish that a broadening of state definitions

of marriage was immediately understood to be neces-

sary upon ratification of the Fourteenth Amendment.

As students and heirs of antislavery traditions, we

argue that unjustified denials of the right of family

recognition violate the privileges we hold under the

Fourteenth Amendment’s Citizenship Clause and the

Liberty we are guaranteed under its Due Process

Clause.

We embrace, but do not repeat here, Petitioners’

argument that to deny recognition of same sex mar-

riages is to deny the equal protection of the laws.

Similarily, we embrace, but do not repeat here,

Petitioners’ argument that there is no legitimate

justification for denying same-sex marriage recogni-

tion. Our focus is on the constitutional need to give

skeptical scrutiny to a state’s failure to honor a

couple’s commitment to marry.

In what follows, we demonstrate that the

Fourteenth Amendment’s Citizenship, Privileges or

Immunities, and Due Process Clauses were designed

and rightfully understood in the postbellum period

to encompass rights of family recognition. We make

that demonstration first with reference to popular

understandings of what it meant to repudiate slavery

and eliminate its defining constraints, then with

reference to the statements of Reconstruction lawmak-

ers, and finally with documentation that the right of

family recognition was in every state presumed to

have been assured by passage of the Thirteenth and

Fourteenth Amendments.

Our argument is not simply that slavery teaches the

importance of family recognition or the hurtfulness

of its denial. Our argument is that our ancestors

4

understood the inalienability of rights of family

recognition through the experience of slavery and

secured those rights when they drafted and ratified

the Thirteenth and Fourteenth Amendments.

ARGUMENT

The Fourteenth Amendment restructured the rela-

tionship between the Federal Government and the

States to ensure protection of human liberty after the

abolition of slavery. This establishment of federally

guaranteed civic freedom “represented a radical

change in the nature of American public life.” As

Justice Field explained in his Slaughterhouse dissent,

“[t]he fundamental rights, privileges, and immunities

which belong to . . . free people and free citizens, now

belong to all as . . . citizen[s] of the United States... .

They do not derive their existence from .. . [state]

legislation, and can not be destroyed by .. . [state]

power.”"° Nationalization of fundamental rights was

necessary, for, as Justice Thomas has observed,

“liberty would be assured little protection if [the

Fourteenth Amendment] left each state to decide

which privileges or immunities of United States

citizenship it would protect.”"' Emancipation, Recon-

struction, and the explicit conferral of United States

citizenship brought to every person born or natura)-

ized in our nation a bundle of federally protected

rights that are appropriately understood as privileges

® Eric Foner, The Supreme Court and the History of Recon-

struction-and Vice-Versa, 112 Colum. L. Rev. 1585, 1586 (2012).

” Slaughter-House Cases, 16 Wall 36, 95-96 (1873) (Field, J.,

dissenting).

" McDonald v. City of Chicago, Ill., 561 U.S. 742, 834-35 (2010)

(Thomas, J., concurring).

5

of citizenship,”* but have more often been recognized

by this Court as aspects of the liberty guaranteed

by the Due Process Clauses.** Over a century of

constitutional deliberation, we have come to under-

stand “the respect the Constitution demands for the

autonomy of the person” in making “decisions relating

to marriage, procreation, contraception, family rela-

tionships, child rearing and education.”"* This evolved

understanding of free and autonomous citizenship

should not surprise us. It is a predictable result of our

experience and repudiation of slevery.

Slavery has been described by one of its most

thoughtful and learned students as social death."®

The social death of slaves resulted from three

overlapping factors: degradation, powerlessness and

18 The Slaughter-House Court’s narrower interpretation of the

Privileges or Immunities Clause has been roundly criticized. See

generally, e.g., Akhil R. Amar, The Bill of Rights: Creation and

Reconstruction (1998); Akhil R. Amar, Substance and Method in

the Year 2000, 28 Pepperdine L. Rev. 601, 631, n.178 (2001)

(“Virtually no serious modern scholar—left, right, and center—

thinks that this [interpretation] is a plausible reading of the

Amendment.”); James Blacksher & Lani Guinier, Free at Last:

Right to Vote Shelby County v. Holder, 8 Harv. L. & Pol’y Rev. 39,

42 & n.19 (2014) (“There is, in fact, a growing ‘academic

consensus [that] Slaughter-House was wrong... .”).

'3 Since the Fourteenth Amendment’s ratification, the “liberty”

protected by its Due Process Clause has been understood by this

Court as “something more than freedom from the enslavement of

the body or from physical restraint.” Taylor v. Beckham, 178 U.S.

548, 602 (1900); see also, e.g., Munn v. Illinois, 94 U.S. 113, 142

(1876); Powell v. Pennsylvania, 127 U.S. 678, 691 (1888).

™ Lawrence v. Texas, 539 U.S. 558, 574 (2003).

‘Ss See generally Orlando Patterson, Slavery and Social Death

(1982).

6

“natal alienation.”** Natal alienation is the outsider

status that results when a society refuses to recognize

one’s kin or kind. It was a defining feature of

enslavement:

American slaves, like their ancient Greco-Roman

counterparts, had regular sexual unions, but such

unions were never recognized as marriages; .. .

both sets of parents were deeply attached to their

children, but the parental bond had no social

support.’’

Natal alienation is also a defining feature of the status

your Petitioners endure. For example, although Peti-

tioners April DeBoer and Jayne Rowse are life

partners raising three children together, Rowse is the

legal guardian of two children, and DeBoer is the legal

guardian of only one.’* The laws of Michigan do not

allow DeBoer and Rowse to marry, nor do they allow

two unmarried people to adopt the same child.’ The

children’s parental ties could be broken on the death

or incapacity of either of their parents. In Rowse’s

words, “in Michigan, we’re legal strangers. ... Ajudge

could give our kids to anybody.””°

As we shall show, the American people, the United

States Congress, and the courts and legislators of the

reconstructed states appreciated the profound social

% Orlando Patterson, Freedom in the Making of Western

Culture 77—78 (1991).

7 Orlando Patterson, Slavery and Social Death 6 (1982).

18 DeBoer v. Snyder, 772 F.3d 388, 423 (6th Cir. 2014).

1 Td.

® Richard Wolf, Michigan couple poised to make gay marriage

history, USA Today (Jan. 16, 2015, 5:33 pm), http:/Awww.usatoday.

com/story/news/20 15/0 1/15/supreme-court-gay-marriage-michigan/

21768849/.

7

isolation of natal alientation. They understood family

recognition as an essential component of democratic

freedom.

I. REPUDIATION OF SLAVERY AND THE

CONSTITUTIONALIZATION OF UNIVER-

SAL FREEDOM WERE MOTIVATED BY

ABHORRENCE OF SLAVERY’S DENIAL

OF FAMILY RECOGNITION

The laws of every slave-holding state made it

impossible for a slave to enter a legally binding

marriage,”' and the laws of every slave-holding state

permitted the separation, by sale or otherwise, of

slaves who considered themselves married. The

categorical exclusion of slaves and former slaves from

this aspect of civic life was generally undisputed.” It

was said to arise out of slaves’ incapacity to make

contracts and the “incompatability” of the duties and

obligations of marriage with “the relation of slavery.”™

71 Darlene C. Goring, The History of Slave Marriage in the

United States, 39 J. Marshall L. Rev. 299, 303-04 (2006).

= Thomas R.R. Cobb, An Inquiry Into the Law of Negro Slavery

in the United States of America x (1858); Orlando Patterson,

Slavery and Social Death: A Comparative Study 189 (1982)

(“Throughout the modern Americas the union of slaves and the

integrity of their households rarely received legal sanction.”).

*® Although Tennessee recognized that slaves had a limited

right to marry, the benefits and obligations of slave marriages did

not rise to the level of formal, civic marriage. Andrews v. Page,

50 Tenn. 653, 666 (1870) (“We do not hold that [slaves’) marriages

were followed by all the legal consequences, resulting from the

marriage of white persons.”).

* Id. at 660; see also Scott v. Raub, 14 8.E. 178, 179 (Va. 1891)

(“It was an inflexible rule of the law of African slavery, wherever

it existed, that the slave was incapable of entering into any

contract, not excepting the contract of marriage.”) (quoting Hall

8

Henry Bibb, an American slave, provided a first-

hand account of the legal and social situation that

ensued. Bibb described the process by which he and

his “wife” were “married” by clasping hands, pledging

to be true, and calling “on high heaven to witness the

rectitude of [their] purpose.” Bibb wrote in 1850 that

no more binding ceremony was available, “for

marriage among American slaves is disregarded by

the laws of this country.” Bibb’s marriage was

disrupted when he was sold to a distant master. It

v. United States, 92 U.S. 27, 30 (1875)); Johnson v. Johnson, 45

Mo. 595, 598 (1870) (“Persons in that condition are incapable of

contracting marriage, because that relation brings with it certain

duties and rights with reference to which it is supposed to be

entered into. But the duties and rights which are deemed

essential to this contract are necessarily incompatible with the

nature of slavery, as the one can not be discharged nor the other

be recognized without doing violence to the rights of the owner.”

(quoting Malinda v. Gardner, 24 Ala. 719, 727 (1854)); Jennings

v. Webb, 8 App. D.C. 43, 53 (1896) (“That the legal relation of

husband and wife could not exist among slaves, was not an

arbitrary rule, prompted by a spirit of cruelty and oppression, but

a necessary condition of the institution of slavery whilst it

existed. Slaves could make no contracts, own no property; they

were themselves property. The recognition of duties, obligations

and rights of the legal relation of husband and wife was

necessarily incompatible with those conditions.”).

*® Henry Bibb, Narrative of the Life and Adventures of Henry

Bibb, an American Slave 38 (3d ed. 1969) (1850).

* Id. at 38. A former slave interviewed in the 1930s described

the process more simply: “When they got married on the places,

mostly they just jumped over a broom and that made ‘em married.

Sometimes one the white folks read a little out of the Scriptures

to ‘em, and they felt more married.” B.A. Botkin, Lay My Burden

Down: A Folk History of Slavery 86 (1989). For a description of

slave marriage rituals and suggestions concerning their origins,

see Herbert G. Gutman, The Black Family in Slavery and

Freedom 1750-1925, at 273-81 (1976).

9

ended years later when he learned that his wife was

the mistress of a slaveowner and mother of several of

the slaveowner’s children. Stories like that of Henry

Bibb were common and notorious in the mid-

nineteenth century. Herbert Gutman’s comprehensive

analysis of the slave family probes “[t]he best available

evidence — that reported by Mississippi and northern

Louisiana ex-slaves [to Union Army clergy registering

marriages} — [and] discloses that about one in six (or

seven) slave marriages were [sic] ended by force or

sale. ...”

The importance of family independence and integ-

rity and the devastating effects of slavery upon the

African-American family were paramount themes of

the antislavery movement. Harriet Beecher Stowe

wrote in 1853 that “[t}he worst abuse of the system of

slavery is its outrage upon the family; and ... it is

one which is more notorious and undeniable than

any other.” An essay on the family appearing in

The Liberator in 1837 declared: “the most appalling

feature of our slave system is, the annihilation of the

family institution.”* William Goodell’s treatise on

slave law was published by the American and Foreign

Anti-Slavery Society to “test the moral character

of American slaveholding” by exhibiting statutes

7 Gutman, supra note 25, at 318.

* Harriet Beecher Stowe, A Key to Uncle Tom’s Cabin 133

(1853). Stowe writes in response to charges that family separa-

tions depicted in Uncle Tom’s Cabin were unrealistic or atypical.

Her evidence of the prevalence of slave family disruption includes

eye-witness accounts of family separations resulting from slave

auctions, id. at 137, and advertisements for the sale of slaves in

South Carolina, id. at 134-36, 138-42.

*” William Wells, Family Government, The Liberator 192 (Dec.

1, 1837).

10

governing American slavery and documenting their

effects.” To make vivid the effects of laws governing

the slave family, Goodell supplemented his legal

treatise with anecdotal accounts of families separated

by sale and distanced by the demands of servitude,

and with a collection of advertisements from Southern

newspapers offering rewards for the capture or killing

of slaves reported to have run away attempting to

rejoin their families.”

Slaves did, of course, run away to reunite their

families, and free antislavery advocates maintained

an Underground Railroad in part to facilitate family

reunifications.** Moreover, slaves and other antislav-

ery advocates consistently undergirded the demand

for release from bondage with the argument that

rights of marriage and family were necessary to

fulfillment of religious and moral duty and therefore

inalienable.” To be recognized as human was to be

recognized as morally autonomous, and moral and

religious autonomy required family autonomy. As

early as 1773, slaves claiming “a natural right to

* William Goodell, The American Slave Code in Theory and

Practice; its Distinctive Features Shown by its Statutes, Judicial

Opinions and Illustrative Facts 3 (1853), microformed on 19th

Century Legal Treatises Nos. 27329-27333 (Research Publica-

tions 1987).

31 Id.

® Eric Foner, Gateway to Freedom: The Hidden History of the

Underground Railroad 200—205 (2015).

% The Disruption of Family Ties, Antislavery Record 9 (Mar.

1836); Ronald G. Walters, The Antislavery Appeal: American

Nationalism After 1830, at 91-92, 95 (1976); Petition, dated May

25, 1774, to the Governor, the Council and the House of Repre-

sentatives of Massachusetts, reprinted in Herbert Aptheker, A

Documentary History of the Negro People in the United States 8-

9 (1969).

11

[their] freedoms” petitioned the Massachusetts

legislature demanding the liberty to fulfill Christian

familial obligations. “How,” they asked, “can a

husband leave master and work and cleave to his wife?

. . How can the wilves] submit themselves to

husbands in all things?”* The remedy was clear:

“(Sllaves must be immediately recognized as human

beings by the laws, their persons and their rights must

be protected. Provisions must be made to establish

marriage among them.”**

As the institution of slavery began to crumble, the

right to marry was enthusiastically seized by former

slaves, not only for its private meaning, but also for its

social meaning.” By formalizing family relationships,

African-Americans consciously claimed the status

and responsibilities of spouse, of parent, and of citizen.

The formation of legally recognized marriage bonds

marked them as human beings and members of the

political community, rather than as chattel.

The rush of former slaves to take a place in the

American political community by forming marriages

under American law resonates with the rush of many

gay and lesbian couples to legalize their commitments

when same-sex marriage bans are overturned. Like

the nearly 4,0000 same-sex couples who thronged to

San Francisco during a one-month period in 2004

when same-sex marriage was newly (and briefly)

* Paula Giddings, When and Where I Enter: The Impact of

Black Women on Race and Sex in America 60 (1984).

% S.F.D., People of Color, 1 New York’s Freedom J. No. 7, p. 1

(Apr. 27, 1827).

% This process is well documented in Heather Andrea

Williams, Help Me to Find My People: The African American

Search for Family Lost in Slavery (2012).

12

available there,*’ former slaves rushed to legalize their

partnerships as soon as legalization was possible. For

many, it began on Civil War battlefields. In what

W.E.B. Du Bois described as a labor strike against

the slave system, blacks abandoned Confederate

plantations and swarmed to Union camps.” Many

traveled in families, for family members left behind

were at risk of retaliatory abuse and eviction.” After

a period of consternation, the Union army put the

labor of these people to the service of the Union cause

on the theory that they were “contraband.” When

black enlistment was belatedly authorized, black

regiments were created, consisting both of escaped

slaves and of free blacks. As “contrabands” and free

blacks became soldiers, they moved to claim rights of

family and take their places as free citizens. As a

*’ Court Annuls San Francisco gay marriages, ASSOCIATED

PRESS (Aug. 12, 2004, 4:23 pm), http://www.nbcnews.com/

id/5685429/na/politics/t/court-annuls-san-francisco-gay-marriages

/# VOTYcxbF_Ec. Although the marriages were later invali-

dated, the number of couples who traveled to San Francisco in

hopes that they would receive official recognition was significant.

See generally Tiffany C. Graham, Something Old, Something

New: Civic Virtue and the Case for Same-Sex Marriage, 17 UCLA

Women’s L.J. 53, 57 & n.17 (2008) (discussing the relationship

between family recognition and participation in civic life); Linda

C. McClain, The Domain of Civic Virtue in a Good Society:

Families, Schools, and Sex Equality, 69 Fordham L. Rev. 1617,

1642-43 (2001) (explaining that the care-giving function of a

family unit nurtures civic virtue).

% W.E.B. Dubois, Black Reconstruction 1860-1880, at 57

(1935).

%° 1 Freedom: A Documentary History of Emancipation 1861-

1867, ser. 2 at 658 (Ira Berlin et al. eds., 1982) [hereinafter A

Documentary History].

“ 3 A Documentary History, supra note 35, ser. 1 at 625-26

(1990).

13

result, in 1865, before passage of the Thirteenth

Amendment, Congress passed and President Lincoln

signed a bill freeing the families of black Union

soldiers who had not been freed by the Emancipation

Proclamation.‘ Military chaplains authorized to

solemnize marriages between African-Americans,

were innundated with requests. A Freedman’s

Bureau agent, who reported legalizing seventy-nine

marriages in a single day, quoted the response of a

black soldier whose character was such “that every

word had power”:*

Fellow Soldiers: J praise God for this day! I have

long been praying for it. The Marriage Covenant

is at the foundation of all our rights. In slavery

we could not have legalised marriage: now we

have it. Let us conduct ourselves worthy of such

a blessing — and all the people will respect us —

God will bless us, and we shall be established as a

people.

The chaplain of a Mississippi Black Regiment reported

the legalization of forty-three marriages, saying “I

think I witness a very decided improvement in the

social and domestic feelings of those married by the

authority and protection of Law. It causes them to feel

that they are beginning to be regarded and treated as

human beings.™* The chaplain of an Arkansas Black

‘*t Amy Dru Stanley, Instead of Waiting for the Thirteenth

Amendment: The War Power, Slave Marriage and Inviolate

Human Rights, 115 Am. Hist. Rev. 332 (2010).

*? 1 A Documentary History, supra note 35, ser. 2 at 672.

* Td.

“ Id. at 604.

14

Regiment reported registration of twenty-five mar-

riages during the month of January 1865 alone.“ He

added, “The Colored People here, generally consider,

this war not only their exodus, from bondage; but the

road, to Responsibility; Competency; and an honorable

Citizenship... .”“

Il. SECURING THE RIGHT OF MARRIAGE

RECOGNITION WAS AN EXPLICIT

OBJECTIVE OF THE FOURTEENTH

AMENDMENT’S FRAMERS

The legislators who drafted and approved the Four-

teenth Amendment had lived through a passionate

national debate over slavery and a prolonged and

bloody civil war fought, ostensibly if not entirely,*’ to

resolve the slavery question. Like all politically

conscious Americans, federal legislators had been

bombarded with stories of slavery’s denial of formal

family ties and its brutal disregard of extra-legal

kinship. Members of the Reconstruction Congress also

knew that despite emancipation, rights of family

remained fragile in the former Confederacy. As Carl

Schurz reported to Congress, southern whites still

had “an ingrained feeling that the blacks at large

* Id. at 712.

© Td.

*’ DuBois writes that “(t]he duty then of saving the Union

became the great rallying cry of [the] war . . . . The only thing that

really threatened the Union was slavery and the only remedy was

Abolition.” Dubois, supra note 34, at 56. For other analyses of the

causes of the Civil War, see James Mcpherson, Battle Cry of

Freedom: The Civil War Era 36 (1988); Shelby Foote, The Civil

War: A Narrative (1974).

15

belong{[ed] to the whites at large.“* Schurz used the

example of a southern planter to describe how the

deeply engrained habit of regarding black people as

property rather than as free citizens persisted:

As to recognizing the rights of freedmen to their

children, I will say there is not one man or woman

in all the South who believes they are free, but we

consider them as stolen property — stolen by the

bayonets of the damnable United States govern-

ment.“

Working with an awareness of the notorious and

continuing deprivation of African-American family

integrity, members of Congress repeatedly acknowl-

edged during debates over the Reconstruction Amend-

ments and related legislation that freedom required

restoration of family rights. We include here a

representative sample of their remarks.™

Senator Clark declared that slavery had “practiced

concubinage, destroyed the sanctity of marriage, and

sundered and broken the domestic ties.”*"' Representa-

tive Broomall pronounced it,

strange that an appeal should be made to

humanity in favor of an institution which allows

the husband to be separated from the wife, that

allows the children to be taken from the mother;

* Dubois, supra note 36, at 136 (quoting S. Exec. Doc. No. 2,

39th Cong., lst Sess., Report of Carl Schurz (1865)).

* Td. at 142 (quoting Report of the Joint Committee on

Reconstruction, Part I, 39th Cong., Ist Sess. 1866).

* For a more comprehensive account, see Peggy Cooper Davia,

Neglected Stories: The Constitution and Family Values 38-40,

112-17 (1997).

51 Cong. Globe, 38th Cong., lst Sess. 1369 (1864).

16

ah! that allows the very children of the deceased

slaveholder himself to be sold to satisfy his

merciless creditors.

In response to the claim that slavery had biblical

or divine sanction, Representative Shannon asked,

“What divinity [is there] in tearing from the mother’s

arms the sucking child, and selling them to different

and distant owners?” Senator Harlan spoke of

“incidents of slavery” that did violence to divine law.

The first mentioned were denials of the rights to marry

and to parent: “[I]n none of the slave States .. . was

[the marriage] relation tolerated in opposition to the

will of the slaveowner; and .. . in many of them . .. it

... was prohibited absolutely by their statute laws.”™

Senator Sumner asked his colleagues to imagine an

extraterrestrial visitor beholding the spectacle of

slavery: “[A]stonishment . . . would swell into marvel

as he learned that in this Republic . . . there were four

million human beings in abject bondage, degraded to

be chattels . . . despoiled of all rights, even the...

sacred right of family." Representative Kelly

borrowed language from 1780 legislation abolishing

slavery in Pennsylvania to say that enslaved African-

Americans had been “deprived . . . of the common

blessings that they were by nature entitled to [and] .. .

cast .. . into the deepest afflictions, by an unnatural

separation and sale of husband and wife from each

53 Cong. Globe, 38th Cong., 2d Sess. 221 (1865).

5 Cong. Globe, 38th Cong., Ist Sess. 2948 (1864).

* Id. at 1439 (statement of Sen. Harlan).

* Id. at 1479.

17

other and from their children. .. ."“ Congressman

Creswell reminded the House that:

[t]he slave could sustain none of those relations

which give life all its charms. He could not say my

home, my father, my mother, my wife, my child,

my body. It is for God to judge whether he could

say my soul. The law pronounced him a chattel,

and these are not the rights or attributes of

chattels.”

In response to the slaveholders’ claim of vested rights

in their slave property, Congressman Farnsworth

exclaimed,

Vested rights! What vested rights so high or so

sacred as a man’s right to himself, to his wife and

children, to his liberty, and to the fruits of his own

industry? Did not our fathers declare that those

rights were inalienable?™

Congressman Kasson identified the marital relation,

the parental relation, and the right of personal liberty

as the “three great fundamental natural rights of

human society” and pronounced them inalienable.™

Expressing faith that freedom encompassed rights of

family integrity, Senator Wilson declared that upon

ratification of the Thirteenth Amendment, “[t]he

sharp cry of the agonizing hearts of severed families

% Id. at 2984 (emphasis added).

5? Cong. Globe, 38th Cong., 2d Sess. 120 (1865) (statement of

Rep. Creswell).

5% Cong. Globe, 38th Cong., 2d Sess. 200 (1865) (emphasis

added).

® Id. at 193 (emphasis added).

18

[would] cease to vex the weary ear of the nation... .”~

During a discussion of civil rights legislation, Senator

Trumbull offered an amendment to make former

slaves citizens.*' His subsequent remarks describe the

intended scope of the rights to be conferred:

It is difficult, perhaps, to define accurately what

slavery is and what liberty is. Liberty and slavery

are opposite terms; one is opposed to the other... .

Civil liberty . . . is thus defined by Blackstone:

“Civil liberty is no other than natural liberty, so

far restrained by human laws and no further, as

is necessary and expedient for the general

advantage of the public.” That is the liberty to

which every citizen is entitled.”

When consideration of the Trumbull amendment

resumed on the following day, Senator Howard

responded to colleagues who claimed that Congress

lacked the authority to enforce general citizenship

rights on behalf of freedmen. In doing so, he spoke

specifically of rights of home and family:

[The slave] had no rights, nor nothing which he

could call his own. He had not the right to become

a husband or a father in the eye of the law, he had

no child, he was not at liberty to indulge the

natural affections of the human heart for children,

for wife, or even for friend. ... What definition

will you attach to the word “freeman” that does

not include these ideas?™

© Cong. Globe, 38th Cong., Ist Sess. 1324 (1864) (emphasis

added).

*! Cong. Globe, 39th Cong., Ist Sess. 474 (1866).

@ Id. (emphasis added).

S Id. at 504.

19

Citizenship and all of its privileges and immunities

were indisputably conferred with ratification of the

14th Amendment.“ As we shall see, there was no

dispute that this conferral encompassed a right of

marriage recognition.

Ill. WITH PASSAGE OF THE THIRTEENTH

AND FOURTEENTH AMENDMENTS

EXTENSION OF THE RIGHT OF MAR-

RIAGE RECOGNITION WAS PRESUMED

TO BE REQUIRED IN EVERY STATE

As we discussed in Section I of our Argument, the

laws of every slave-holding state, including the eleven

states of the former Confederacy, made it impossible

for a slave to enter a legally-binding marriage. Upon

emancipation, however, the former Confederate states

recognized that “domestic relations of that class of

persons who have been recently released from the

condition of slaves and given the rights and privileges

of free persons” was “of great importance. In

response, they found that, “justice and humanity, as

well as sound public policy, demanded legislation

giving legal sanction, as far as possible, to the moral

obligations of [former slave marriages}, and rendering

legitimate the offspring thereof.”™

Accordingly, between 1865 and 1870 all eleven

states of the former Confederacy revised their laws to

“U.S. Const. amend. XIV, § 1 (“All persons born or naturalized

in the United States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State wherein they reside.

No State shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United States.”)

® McReynolds v. State, 45 Tenn. 18, 20 (1867).

Jennings v. Webb, 8 App. D.C. 43, 54 (1896).

20

recognize marriages between former slaves.“’ The

mechanism for recognizing former slave marriages

varied from state to state. Some states, like Tennes-

see,™ Virginia,® and South Carolina,” considered the

marriage right to vest automatically in couples who

had entered customary slave marriages, so long as the

couple continued to cohabitate after both partners had

been emancipated. North Carolina” and Louisiana™

required that the partners declare their intent to be

married before a public official. Some states made the

marriage right available retroactively, recognizing

even those marriages that had dissolved before eman-

cipation, legitimizing the children of those marriages,

and protecting their inheritance rights.”*

As the reactions of the formerly Confederate states

show, the right to marry was not only incompatible

®’ See Goring, supra note 20, at 316 n. 87, 316 n.100, 324 n.123,

325 n.127, 326 n.131, 331 n.167, 332, 334 n.185, 335 n.193 & 336

n.196 (compiling Tennessee (1866), Louisiana (1868), Virginia

(1866), South Carolina (1865, modified in 1872), North Carolina

(1866), Florida (1866), Arkansas (1866), Mississippi (1865), and

Georgia (1866) statutes respectively); Washington, supra note 3

(describing Alabama (1865) and Texas (1870) statutes).

% See, e.g., Goring, supra note 20, at 316.

® Id. at 324—25 n.123.

7 Td. at 326 n.131.

" Td. at 331 n.169.

™ Although the Act of 1868 provided that “slave couples were

required to acknowledge their moral marriage before a notary

public or other authorized governmental entity before 1870,

Goring, supra note 20, at 322, Louisiana courts recognized

marriages between former slaves who had failed to do so.

Succession of George Devezin, 7 Teiss 111, 114 (La. Ct. App. 1910).

™ See, e.g., Goring, supra note 19, at 326-27 (discussing the

retroactive application of South Carolina’s act legalizing certain

marriages).

21

with slavery, but also requisite to citizenship. Accord-

ingly, the highest court in our nation’s Capitol created

an enhanced presumption of legitimacy when

retroactively examining slave marriages. Holding

that any set of circumstances giving rise to the

inference of actual marriage among white persons,

should operate similarly, if not more strongly, when

experienced by former slaves, the court wrote: “The

liberality of the presumption, that may be indulged in

a case of this kind, beyond that in the case of free white

people, has a foundation in reason as well as in natural

justice.” ”*

CONCLUSION

Judges considering marriage rights cases have

frequently analogized the failure to recognize same-

sex marriages and the prohibition of miscegenation.”

An analogy with the denial of slave marriages is even

more apt, for the denial of marriage rights goes beyond

the insult of segregation to the indifference of

exclusion. To bar a group altogether from an institu-

tion as central to civic and social life as marriage is

akin to imposing the social death that isolated slaves

from the body politic. Both exclusions are “rooted in a

fundamental refusal to provide social recognition

to the humanity” and dignity of the excluded

™ Jennings v. Webb, 8 App. D.C. 43, 56 (1896).

Bishop v. Smith, 760 F.3d 1070, 1113 (10th Cir. 2014); Latta

v. Otter, 771 F.3d 456, 478 (9th Cir. 2014) (Reinhardt, J.,

concurring); Baskin v. Bogan, 766 F.3d 648, 666 (7th Cir. 2014);

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

Parnell, No. 3:14-CV-00089-TMB, 2014 WL 5089399, at *5 (D.

Alaska Oct. 12, 2014); Rosenbrahn v. Daugaard, No. 4:14-CV-

04081-KES, 2015 WL 144567, at *7-8 (D.S.D. Jan. 12, 2015);

Campaign for S. Equal. v. Bryant, No. 3:14~-CV-818-CWR-LRA,

2014 WL 6680570, at *13-14 (S.). Miss. Nov. 25, 2014).

22

group.” Both are resisted in order that the excluded

group might acquire the measure of civil and political

autonomy appropriate to a scheme of ordered liberty.

The fundamental human right to own and define

ourselves and to exercise moral autonomy is justly

limited to prevent tangible harms to others or to

achieve material advances of the common welfare. It

should never be limited for the purpose of imposing a

majoritarian choice about the beauty, morality, or

religious acceptability of a particular family form.”

Respectfully submitted,

ADERSON BELLEGARDE FRANCOIS PEGGY COOPER DAVIS

Civil Rights Clinic Counsel of Record

HOWARD UNIVERSITY Experiential Learning Lab

SCHOOL OF LAW NEW YORK UNIVERSITY

2900 Van Ness Street, N.W. SCHOOL OF LAW

Washington, DC 20008 40 Washington Square

(202) 806-8065 South, 301

afrancois@law.howard.edu New York, NY 10012

(212) 998-6465

peggy.cooper.davis@nyu.edu

7 Aderson Bellegarde Francois, To Go into Battle with Space

and Time: Emancipated Slave Marriage, Interracial Marriage,

and Same-Sex Marriage, 13 J. Gender Race & Just. 105, 108, 147

(2009) (“[Wlhite society faced no greater obstacle to recognizing

marriage for newly-emancipated slaves than the belief best

expressed by Thomas Jefferson that African American [intimate]

relationships were based on ‘eager desire.”). To recognize a

people’s marriages is, rather, to appreciate the depth and com-

plexity of their life partnerships. Turner v. Safley, 482 U.S. 78,

95 (187) (describing marriage as an expression “of emotional

support and public commitment” and an aspect of religious life).

™ Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S.

833, 851 (1992) (“At the heart of liberty is the right to define one’s

own concept of existence, of meaning, of the universe, and of the

mystery of human life. Beliefs about these matters could not

define the attributes of personhood were they formed under

compulsion of the State.”).

APPENDIX

la

APPENDIX

Contributors in Alphabetical Order

Omomah I. Abebe

Student

Howard University School of Law

Anthony Appiah

University Professor

New York University

James Blacksher

Attorney at Law

Lauren Brachman

Student

New York University School of Law

Elsie Chandler

Attorney at Law

Peggy Cooper Davis

John S.R. Shad Professor of Lawyering and Ethics

New York University School of Law

Norman Dorsen

Stokes Professor of Law and

Counselor to the President

New York University

Aderson Bellegarde Francois

Professor

Howard University School of Law

Darlene Goring

Sam D'Amico Endowed Professor of Law and Nolan

J. Edwards Professor of Law

Louisiana State University Law School

2a

Andrew Jondahl

Student

New York University School of Law

Adeoye Johnson

Student

Howard University School of Law

Kimberly Jones

Student

Howard University School of Law

Summer Lee

Student

Howard University School of Law

Andrew A. Ortiz

Student

Howard University School of Law

Orlando Patterson

John Cowles Professor of Sociology

Harvard University

Anna Roberts

Assistant Professor

Seattle University School of Law

Colin Starger

Associate Professor

University of Baltimore School of Law

Martin R. Stolar

Attorney at Law

Kendall Thomas

Nash Professor of Law

Columbia University