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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0308%3A054

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2015

## Text

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
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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

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0308%3A054. Public record. Not legal advice.