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

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

In the

Supreme Court of the United States

James Obergefell, et al , Petitioners, vs.

Richard Hodges, et al., Respondents

Valeria Tanco, et al, Petitioners, vs.

William Haslam, Governor of Tennessee, eft al,

Respondents

April DeBoer, et al , Petitioners, vs.

Richard Snyder, Governor of Michigan, et al,

Respondents

Gregory Bourke, et al, Petitioners, vs.

Steve Beshear, Governor of Kentucky, et al.,

Respondents

On Writs of Certiorari to the United States

Court of Appeals for the Sixth Circuit

Brief Amicus Curiae of the Family Research

Council in Support of Respondents and Affirmance

Paul Benjamin Linton Christopher M. Gacek

Counsel of Record Family Research Council]

921 Keystone Avenue 801 G Street, N.W.

Northbrook, Dlinois 60062 § Washington, D.C. 20001

(847) 291-3848 (tel) (202) 393-2100 (tel)

PBLCONLAW@AOL.COM

Counsel for Amicus Curiae

TABLE OF CONTENTS

ee EL Sched necceusecereescedeedes il

DCTERIEGT OF AAGCUB CUMBAR,. 2. cccccccccccccscccces: 1

EO GS croccevccocceccceesoeceses 2

ARGUMENT:

I.

THE RESERVATION OF MARRIAGE TO

OPPOSITE-SEX COUPLES DOES NOT

INTERFERE WITH THE FUNDAMENTAL

RIGHT TO MARRY PROTECTED BY THE

DUE PROCESS CLAUSE. .....cccccccccccecs 7

THE RESERVATION OF MARRIAGE TO

OPPOSITE-SEX COUPLES DOES NOT

DISCRIMINATE ON THE BASIS OF SEX

IN VIOLATION OF THE EQUAL

PROTEC TIN CLAUSE « cc cccccccccccccces 20

THE RESERVATION OF MARRIAGE TO

OPPOSITE-SEX COUPLES DOES NOT

DISCRIMINATE ON THE BASIS OF SEXUAL

ORIENTATION IN VIOLATION OF THE

EQUAL PROTECTION CLAUSE............. 26

Ee re 31

Appendix

Partial List Of Same-Sex Marriage Cases In

Which One Or More Of The Plaintiffs

Acknowledged That They Had Previously Been

Married To A Person Of The Opposite Sex. .... la

TABLE OF AUTHORITIES

Cases:

Andersen v. King County, 138 P.3d 963

et cesaeeeadenkeanedescwee 21, 27

Baehr v. Lewin, 852 P.2d 44 (Haw. 1993). ....... 5, 23, 27

Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971),

appeal dismissed for want of a substantial

federal question, 409 U.S. 810 (1972)... ........ 21

Baker v. State, 744 A.2d 864

Dl iccstesaueecestdadteneens 21-22, 27

Baskin v. Bogan, 12 ¥ .Supp.3d 1144 (S.D. Ind. 2014),

aff'd, 766 F.3d 648 (7th Cir. 2014)............. 22

Baskin v. Bogan, 766 F.3d 648 (7th Cir. 2014). ........ 28

Bishop v. United States ex rel. Holder, 962 F. Supp. 2d 1252

(N.D. Okla. 2014), aff'd sub nom. Bishop v. Smith,

760 F.3d 1070 (10th Cir. 2014).............+.. 22

Bishop v. Smith, 760 F.3d 1070 (10th Cir. 2014)........ 30

Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014). ....... 17

Bowers v. Hardwick, 478 U.S. 186 (1986). ........... 4,5

Bronson v. Swensen, 395 F. Supp. 2d 1329

(D. Utah 2005), aff'd in part and vacated

in part and remanded with directions,

500 F.3d 1099 (10th Cir. 2007)................ 15

Brown v. Board of Education, 347 U.S. 483 (1954)... ... 24

Butler v. Wilson, 415 U.S. 953 (1974). ............... 11

Carey v. Population Services Int'l,

es oe. oegukenedueeenneees 16

City of Cleburne v. Cleburne Living Center,

en os ccudedunsunedeanweees 30

Collins v. City of Harker Heights, Texas,

Ni redid aducenestenent 8

Conaway v. Deane, 932 A.2d 571 (Md. 2010). ..... passim

Conde-Vidal v. Garcia-Padilla, Civil No. 14-1253 (PG) (D.

P.R.), Oct. 21, 2014, appeal pending,

Case No. 14-2184 (Ist Cir.). ................. 18

Craig v. Boren, 429 U.S. 190 (1976)..............24.. 24

Dean v. District of Columbia, 653 A.2d 307

A SIE vcccecueudevesosaes 21, 27

District Attorney’s Office for the Third Judicial District v.

Caberne, S67 US. SB GGG)... ccc ccccccccs 8,12

Dudgeon v. United Kingdom,

45 Eur. Ct. H.R. (ser. A) (1981)................ 5

Ex parte State of Alabama ex rel. Alabama Policy Institute,

No. 1140460, Alabama Supreme Court,

re eee ei de este needa ckaws 21

Force by Force v. Pierce City R-VI School District,

570 F. Supp. 1020 (W.D. Mo. 1983)............ 24

Frontiero v. Richardson, 411 U.S. 677 (1973).......... 24

Geiger v. Kitzhaber, 994 F.Supp.2d 1128

eed 22

Goodridge v. Dep’t of Public Health,

798 N.E.2d 941 (Mass. 2003)............. passim

Griego v. Oliver, 316 P.3d 865 (N.M. 2013)......... 21, 28

Griswold v. Connecticut, 381 U.S. 479 (1965). ......... 16

Hamalainen v. Finland, No. 37359/09, ECHR 2014

(Grand Chamber) (July 16, 2014)............... 5

Hernandez v. Robles, 805 N.Y.S.2d 354 (App. Div. 2005),

aff'd, 855 N.E.2d 1 (N.Y. 2006)............. 22, 25

Hernandez v. Robles, 855 N.E.2d 1

EERIE ePaper ey ree eee ete 9, 21, 27

Hollingsworth v. Perry, 133 S.Ct. 2652 (2013). ......... 19

In re Kane, 808 N.Y.S.2d 566 (N.Y. App. Div. 2006),

aff'd 855 N.E.2d 1 (N.Y. 2006). ............... 22

iV

In re Marriage Cases, 49 Cal. Rptr. 3d 675

(Cal. Ct. App. 2006), rev'd on other grounds,

a 22

In re Marriage Cases, 183 P.3d 384 (Cal. 2008)... ... 21, 28

In re Parentage of L.B., 89 P.3d 271 (Wash. Ct. App. 2004),

aff'd in part, rev'd in part on other grounds,

pr ee FT 6} rere 27

Jackson v. Abercrombie, 884 F. Supp. 2d 1065

(D. Haw. 2012), vacated and remanded with

directions to dismiss on grounds of mootness,

585 Fed. App’x 413 (9th Cir. 2014). ........... 22

Jernigan v. Crane, Case No. 4:13-cv-00410 KGB

(E.D. Ark.), Opinion and Order, Nov. 25, 2014,

appeal pending, No. 15-1022 (8th Cir.).......... 22

Jones v. Hallahan, 501 S.W.2d 588 (Ky. 1973).......... 21

Kerrigan v. Comm'r of Public Health,

S57 A.26 407 (Womm. BOGS)... 0c cc cccccccccces 28

Kitchen v. Herbert, 961 F. Supp. 2d 1181 (D. Utah 2013),

aff'd, 755 F.3d 1193 (10th Cir. 2014). ......... 22

Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014)... 18-19

Latta v. Otter, 19 F. Supp. 3d 1054 (D. Idaho 2014),

aff'd, 771 F.3d 456 (9th Cir. 2014), petitions for

certiorari pending, Nos. 14-765, 14-788......... 22

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

certiorari pending, Nos. 14-765, 14-788... 23, 28, 29

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

Lawson v. Kelly, Case No. 14-0622-CV-W-ODS

(W.D. Mo.), Opinion and Order, Nov. 7, 2014,

appeals pending, Nos. 14-3779, 3780 (8th Cir.). . . 22

Lewts v. Harris, 875 A.2d 259 (NJ. Super Ct. App. Div.

2005), aff'd in part and modified in part,

$08 A.2d 196 GN J. BO0G).. ..cccccccccccceces 18

Louisiana High School Athletic Ass’n v. St. Augustine

High School, 396 F.2d 224 (Sth Cir. 1968)....... 26

Loving v. Virginia, 388 U.S. 1 (1967)...........+- passim

Maynard v. Hill, 125 U.S. 190 (1888).............. 10-11

McLaughlin v. Florida, 379 U.S. 184 (1964). .......... 24

Meyer v. Nebraska, 262 U.S. 390 (1923)...........-... 10

Mississippi University for Women v. Hogan,

oR 4 err 24

Moe v. Dinkins, 533 F. Supp. 623 (S.D.N.Y. 1981),

Morrison v. Sadler, Cause No. 49D13-0211-PL-00196,

Order on Motion to Dismiss (May 7, 2003), aff'd,

821 N.E.2d 15 (Ind. Ct. App. 2005). ........... 18

Muth v. Frank, 412 F.3d 808 (7th Cir. 2005)... . .. ccoos

Perry v. Schwarzenegger, 704 F. Supp. 2d 921

(N.D. Cal. 2010), aff'd sub nom. Perry v. Brown,

671 F.3d 1052 (9th Cir. 2012), vacated and

remanded with instructions to dismiss appeal for lack

of standing sub nom. Hollingsworth v. Perry,

re 22, 28

Personnel Administrator of Mossachusetts v.

Feeney, 442 U.S. 256 (1979). ..........-05005- 29

Planned Parenthood v. Casey, 505 U.S. 833 (1992). ..... 13

Potter v. Murray City, 760 F.2d 1065

ee eecedceecekesens 15-16

Reed v. Reed, 404 U.S. 71 (1971). ............20000.- 24

Reno v. Flores, 507 U.S. 292 (1993). ... 2.2.66 0 2c eceeeee 8

Robicheaux v. Caldwell, 2 F. Supp. 3d 910 (E.D. La. 2014),

appeal pending, No. 14-31037 (5th Cir.).. . 17, 19, 22

Roe v. Wade, 410 U.S. 113 (1973)... .. 2.2.26... eee eee 16

Romer v. Evans, 517 U.S. 620 (1996)... . 2.2.0... eee 30

Samuels v. New York State Dep't of Health,

811 N.Y.S.2d 136 (App. Div. 2006), aff'd,

— ) § Se oT Le | eee 9, 22

Schalk & Kopf v. Austria, No. 30141/04, ECHR 2010

(First Section) (June 24, 2010)................. 5

vii

Sevcik v. Sandoval, 911 F. Supp. 2d 997 (D. Nev. 2012),

rev'd, 771 F.3d 456 (9th Cir. 2014). ........ 22, 27

Seymour v. Holcomb, 811 N.Y.S.2d 134 (N.Y. App. Div.

2006), aff'd 855 N.E.2d 1 (N.Y. 2006). ......... 22

Singer v. Hara, 522 P.2d 1187 (Wash. Ct. App. 1974)... . 21

Skinner v. Oklahoma ex rel. Williamson,

i ae 3, 10, 16

Smelt v. County of Orange, 374 F. Supp.2d 861

(C.D. Cal. 2005), aff'd tn part, vacated in part and

remanded with directions to dismiss for lack of

standing, 447 F.3d 673 (9th Cir. 2006)... ... 24, 27

Standhardt v. Superior Court, 77 P.3d 451

Se ee be bccenesseceseucececese 10

State v. Holm, 2006 UT 31, 137 P.3d 726.............. 15

State v. Allen M., 571 N.W.2d 872

Sy SE SED 4d ncvcceccceveceecceces 16

Turner v. Safley, 482 U.S. 78 (1987)......... 10, 11, 12, 14

United States v. Virginia, 518 U.S. 515 (1996)... ........ 24

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

Varnum v. Brien, 763 N.W.2d 862 (lowa 2009)........ 28

Village of Ariington Heights v. Metropolitan Housing

Development Corp., 429 U.S. 252 (1977). ....... 29

Vili

Vorchheimer v. School District of Philadelphia,

532 F.2d 880 (3d Cir. 1976), aff'd mem. by an

equally divided Court, 430 U.S. 703 (1977). ..... 24

Washington v. Davis, 426 U.S. 229 (1976)............. 29

Washington v. Glucksberg, 521 U.S. 702 (1997)........ 3,8

Waters v. Ricketts, Case No. 8:14CV536 (D. Neb.),

Memorandum and Order, March 2, 2015,

appeal pending, No. 15-1452 (8th Cir.).......... 22

Wightman v. Wightman, 4 Johns. Ch. 343 (1820)... .... 15

Zablocki v. Redhail, 434 U.S. 374 (1978). ....... 10, 14, 16

Statutes:

ee MIE EE, co cnncesceecessonesons passim

Defense of Marriage Act, § 3, 1 U.S.C. § 7 (2008). .... 4,6

A is cn cdeccctacecsonesscceasencanes 2

Ps GR OU BE oc cccccccctcnscccssvcessons 2

A Eh Br ccncecccccnsecevoesesceess 2

Pe SI, Ba © Bc ccccccecccccccescoccceses 2

Other Authorities:

Be ED CTE cccceccsccccccoevcsesss 26

David H. Fowler, Northern Attitudes Towards Interracial

i crocheeenwehetnéeesundees 13

Andrew Koppelman, Response: Sexual Disorientation,

BP , Bel, UD Gc oc osccccccccecess 28

Irving G. Tragen, Statutory Prohibitions against Interracial

Marriage, 32 Cal. L. Rev. 269 (1944)........... 13

Lynn Wardle & Lincoln C. Oliphant, Jn Praise of Loving:

Reflections on the “Loving Analogy” for Same-Sex

Marniage, 51 How. L. Rev. 117 (2007).......... 13

Note, Punishing the Innocent: Unconstitutional Restrictions

on Prison Marriage and Visitation, 60 N.Y.U.L.

i i sc c tea pecan eeeoseeseusseee 14

Hollingsworth v. Perry, 133 S.Ct. 2652 (2013),

tr. of oral argument (March 26, 2013).......... 19

INTEREST OF AMICUS CURIAE

The Family Research Council (FRC) was founded

in 1983 as an organization dedicated to the promotion of

marriage and family and the sanctity of human life in

national policy. Through publications, media appearances,

public events, debates and testimony, FRC’s team of

policy experts reviews data and analyzes Congressional

and executive branch proposals that affect the family. FRC

also strives to assure that the unique attributes of the

family are recognized and respected in the decisions of

courts and regulatory bodies.

FRC champions marriage and family as the

foundation of civilization, the source of virtue and the

wellspring of society. Believing that God is the author of

life, liberty and the family, FRC promotes the Judeo-

Christian world view as the basis for a just, free and stable

society. Consistent with its mission statement, FRC is

committed to strengthening traditional families.

Having publicly supported the efforts to adopt the

constitutional amendments challenged here, FRC has a

particular interest in the outcome of these cases. In

FRC’s judgment, the legalization of same-sex marriage,

through legislation or litigation, inevitably would be

detrimental to the institution of marriage, children and

society as a whole. And for the reasons set forth herein,

nothing in the Constitution, properly understood, requires

the States to license or recognize such marriages. Thus,

the judgment of the court of appeals should be affirmed.

” Letters of consent have been filed with the Clerk. None of

the counsel for the parties authored this brief in whole or in part, and

no one other than amicus or its counsel has contributed money or

services to the preparation or submission of this brief.

SUMMARY OF ARGUMENT

On November 2, 2004, the People of the States of

Kentucky, Michigan and Ohio overwhelmingly approved

amendments to their state constitutions reserving

marriage to opposite-sex couples and denying recognition

to all other marriages, wherever performed. Ky. Const.

§ 233A, Mich. Const. art. I, § 25, Ohio Const. art. 15, § 11.

Two years later, on November 7, 2006, the People of

Tennessee, by an even greater margin, approved a similar

amendment to their state constitution. Tenn. Const. art.

XI, § 18. In all four States, the amendments codified both

recent and longstanding statutes reserving marriage to

opposite-sex couples, see Op. 9-13 (tracing history of laws

back to the late eighteenth and early nineteenth

centuries), which, in turn, confirmed the common law

understanding of marriage as a relationship that can exist

only between a man and a woman.

Petitioners in these consolidated cases challenged

the amendments and related statutes alleging, inter alia,

that the laws impermissibly interfere with the fundamental

right to marry protected by the Due Process Clause and

also discriminate on the basis of sex and sexual orientation

in violation of the Equal Protection Clause. In each case,

the district court struck down the amendment and related

statutes. In a divided opinion, the court of appeals

reversed the district courts and upheld the laws. On

January 16, 2015, this Court granted certiorari to review

the judgment of the court of appeals.

1. Petitioners’ substantive due process analysis is

deeply flawed. The fundamental constitutional right to

marry that has been recognized by this Court has always

been understood to be limited, by the nature of marnage

itself, to opposite-sex couples who, as a class, are capable

of procreating children. See, e.g., Skinner v. Oklahoma ex

rel. Williamson, 316 U.S. 535, 541 (1942) (“[mJarriage and

procreation are fundamental to the very existence and

survival of the race”). Although marriage serves a variety

of purposes, it is a privileged legal and social institution

primarily to channel the potential procreative sexual

activity of opposite-sex couples into stable relationships in

which the children so procreated may be raised by their

biological mothers and fathers.’ Unlike the sexual activity

of opposite-sex couples, the sexual activity of same-sex

couples can never result in the procreation of children.

Given the nature of marriage as it has been understood

since colonial days, no right to same-sex marriage can be

derived from “the Nation’s history, legal traditions, and

practices.” Washington v. Glucksberg, 521 U.S. 702, 710

(1997).

In arguing that same-sex couples enjoy the same

fundamental right to marry as opposite-sex couples,

petitioners rely principally on this Court’s decisions in

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

v. Windsor, 133 S.Ct. 2675 (2013). See Ky. Pet. Br. 2-3, 5,

7, 14-15, 17-24, Mich. Pet. Br. 22, 24, 26, 28, 57-60, 63,

Ohio Pet. Br. 4, 18-32, Tenn. Pet. Br. 14, 17, 20-23. But

' “Civil marriage is the product of society's critical need to

manage procreation as the inevitable consequence of intercourse

between members of the opposite sex. Procreation has always been

at the root of marriage and the reasons for its existence as a social

institution. Its structure, one man and one woman committed for life,

reflects society's judgment as how optimally to manage procreation

and the resultant child rearing.” Goodridge v. Dep't of Health, 798

N.E.2d 941, 1002 n. 34 (Mass. 2003) (Cordy, J., dissenting).

3

neither case supports their argument.

First, the holdings in Lawrence and Windsor are not

controlling on the precise issue presented here—whether

same-sex couples have a fundamental right to marry. In

Lawrence, which struck down a Texas statute criminalizing

private, non-commercial sexual activity between

consenting adults, the Court expressly stated that its

decision “does not involve whether the government must

give formal recognition to any relationship that

homosexual persons seek to enter.” 539 U.S. at 578. In

Windsor, which struck down § 3 of the federal Defense of

Marriage Act, 1 U.S.C. § 7 (2008), the Court emphasized

that “This opinion and its holding are confined to those

lawful marriages,” 133 S.Ct. at 2696, referring to same-

sex marriages that a State has chosen to recognize. In

other words, neither the holding nor the opinion has any

application outside the issue presented therein.

Second, the reasoning in Lawrence and Windsor

does not support petitioners, either. In overruling Bowers

v. Hardwick, 478 U.S. 186 (1986), the Court in Lawrence

observed that “there is no longstanding history in this

country of laws directed at homosexual conduct as a

distinct matter[;}” that “[lJaws prohibiting sodomy do not

seem to have been enforced against consenting adults

acting in private[;]” that “American laws targeting same-

sex couples did not develop until the last third of the 20th

century[;]” that “our laws and traditions in the past half

century are of most relevance here[;]’” and that, almost

? Focusing on the dwindling number of States that prohibited

sodomy and the even fewer States that enforced their sodomy laws

against private consensual conduct.

4

five years before Bowers was decided, the European Court

of Human Rights had struck down a Northern Ireland law

prohibiting “consensual homosexual conduct.” Lawrence,

539 U.S. at 568, 569, 570, 571-72, 573 (citing Dudgeon v.

United Kingdom, 45 Eur. Ct. H.R. (ser. A) (1981)). These

observations were critical to its holding striking down the

Texas sodomy statute.

By way of contrast, there has been a “longstanding

history in this country of laws” reserving marriage to

opposite-sex couples; the laws forbidding same-sex

marriages have been consistently enforced (by the denial

of marriage licenses to same-sex couples who have applied

for them); the prohibition of same-sex marriage ts an

unbroken continuum from the common law, to state

statutes and, in the majority of States, to state

constitutional amendments; before the Massachusetts

Supreme Judicial Court’s decision in Goodridge v. Dep't of

Health, 798 N.E.2d 941 (Mass. 2003), twelve years ago, no

State had allowed same-sex marriage, and since the

Hawaii Supreme Court’s decision in Baehr v. Lewin, 852

P.2d 44 (Haw. 1993), three times as many States have

codified their traditional prohibition of same-sex marriage

in their statutes and/or constitutions as have allowed such

marriages (in the absence of a court order); and, finally,

the European Court of Human Rights has recently

reaffirmed its earlier judgment holding that the European

Charter does not require Contracting States “to grant

same-sex couples access to marriage.” Hamalainen v.

Finland, No. 37359/09, 1 71, ECHR 2014 (Grand

Chamber) (July 16, 2014), reaffirming Schalk and Kopf v.

Austria, No. 30141/ 04, 1 101, ECHR 2010 (First Section)

(June 24, 2010). The analysis in Lawrence is not

controlling on the question presented here.

In Windsor, the Court, stressing the unusual nature

of the federal government’s wholesale intrusion into a

matter of traditional state concern, 133 S.Ct. at 2689-92,

held that § 3 of DOMA violated the Fifth Amendment

because it “singles out a class of persons deemed by a

State entitled to recognition and protection to enhance

their own liberty” and “imposes a disability on the class by

refusing to acknowledge a status the State finds to be

dignified and proper.” Jd. at 2695-96 (emphasis added).

The focus of the Court’s analysis was the federal

government’s devaluation of same-sex marriages that a

State had chosen to recognize. Nothing in Windsor

dictates or even suggests the appropriate resolution of the

present cases. Indeed, the Court recognized that “[t]he

definition of marriage is the foundation of the State’s

broader authority to regulate the subject of domestic

relations ....” Jd. at 2691 (citation and internal quotation

marks omitted). Reserving marriage to opposite-sex

couples does not violate the fundamental nght to marry

protected by the Due Process Clause.

2. Nor do the challenged amendments and statutes

deny the equal protection of the laws on the basis of sex in

violation of the Equal Protection Clause. The

classification in the laws is not between men and women,

but between opposite-sex couples and same-sex couples of

either sex. The amendments and statutes treat men and

women equally: both may marry someone of the opposite

sex; neither may marry someone of the same sex. There

is no discrimination between men and women.

3. Finally, the challenged amendments and

statutes do not discriminate on the basis of sexual

orientation. The laws are neutral on their face with

respect to a person’s sexual orientation. And the fact that

they may have a disparate impact on homosexuals is of no

constitutional relevance in the absence of competent

evidence (which is lacking here) that they were adopted

and enacted with the intent or purpose of discriminating

against homosexuals, as opposed to the mere knowledge

that the laws could have such an impact. There is no

discrimination on the basis of sexual orientation.

ARGUMENT

I.

THE RESERVATION OF MARRIAGE TO

OPPOSITE-SEX COUPLES DOES NOT

INTERFERE WITH THE FUNDAMENTAL

RIGHT TO MARRY PROTECTED BY THE

DUE PROCESS CLAUSE.

Petitioners contend that the fundamental night to

marry protected by the Due Process Clause includes the

right to marry someone of the same sex. See Ky. Pet. Br.

18-23, Mich. Pet. Br. 56-64, Tenn. Pet. Br. 18-21. The

court of appeals rejected this contention, Op. 28-31, and

properly so. Petitioners’ fundamental rights analysis

cannot be reconciled with the Court’s precedents or with

the nature of marriage as a protected social and legal

institution.

In determining whether an asserted liberty interest

(or right) should be regarded as fundamental for purposes

of substantive due process analysis under the Due Process

Clause of the Fourteenth Amendment (infringement of

which would call for strict scrutiny review), this Court

applies a two-prong test. First, there must be a “careful

description” of the asserted fundamental liberty interest.

Washington v. Glucksberg, 521 U.S. 702, 721 (1997)

(citation and internal quotation marks omitted).’? Second,

the interest, so described, must be “deeply rooted” in “the

Nation’s history, legal traditions, and practices.” Jd. at

710, 721.

In Glucksberg, the Court characterized the asserted

liberty interest as “a right to commit suicide which itself

includes a right to assistance in doing so,” not whether

there is “a liberty interest in determining the time and

manner of one’s death,” “a nght to die,” “a liberty to

choose how to die,” “[a] right to choose a humane,

dignified death” or “[a] liberty to shape death.” Jd. at 722-

23 (citations and internal quotation marks omitted).

* Glucksberg was not an anomaly in demanding precision in

defining the nature of the interest (or right) being asserted. See, e.g.,

Reno v. Flores, 507 U.S. 292, 302 (1993) (describing alleged right as

“the . . . right of a child who has no available parent, close relative, or

legal guardian, and for whom the government is responsible, to be

placed in the custody of a willing-and-able private custodian rather

than that of a government-operated or government-selected child-care

institution,” not whether there is a right to “freedom from physicai

restraint,” “a right to come and go at will” or “the right of a child to be

released from all other custody into the custody of its parents, Jegal

guardians, or even close relatives”); Collins v. City of Harker Heights,

Texas, 503 U.S. 115, 125-26 (1992) (describing asserted interest as a

government employer's duty “to provide its employees with a safe

working environment”). See also District Attorney's Office for the Third

Judicial District v. Osborne, 557 U.S. 52, 72-73 (2009) (convicted felon

has no freestanding “substantive due process right” to obtain the

State’s DNA evidence in order to apply new DNA-testing technology

that was not available at the time of his trial) (relying upon Glucksberg,

Reno and Collins).

For purposes of substantive due process analysis,

the issue in these cases is not who may marry, but “what

marriage is.” Windsor, 133 S.Ct. at 2716 (Alito, J.,

dissenting) (emphasis added). The principal defining

characteristic of marriage as it has been understood

throughout Western Civilization is the union of a man and

a woman.‘ As the New York Court of Appeals observed,

“The idea that same-sex marriage is even possible is a

relatively new one. Until a few decades ago, it was an

accepted truth for almost everyone who every lived, in any

society in which marriage existed, that there could be

marriages only between participants of different sex.”

Hernandez v. Robles, 855 N.E.2d 1, 8 (N.Y. 2006). See also

Windsor, 133 S.Ct. at 2689 (“until recent years, many

citizens had not even considered the possibility that two

persons of the same sex might aspire to occupy the same

status and dignity as that of a man and woman in lawful

marriage”), id., (“[t]he limitation of lawful marriage to

heterosexual couples. . . for centuries had been deemed

both necessary and fundamental”). Properly framed,

therefore, the issue before this Court is not whether there

is a fundamental right to enter into a marriage with the

person of one’s choice, but whether there is a night to

enter into a same-sex marmiage.

The Court has recognized a substantive due

process right to marry. Loving v. Virginia, 388 U.S. 1

*“To remove from ‘marriage’ a definitional component of that

institution (i.e., one woman, one man) which long predates the

constitutions of this country and state. . . would, to a certain extent,

extract some of the deep roots that support its elevation to a

fundamental right.” Samuels v. New York State Dep't of Health, 811

N.Y.S.2d 136, 141 (App. Div. 2006) (citation and internal quotation

marks omitted), aff'd, 855 N.E.2d 1 (N.Y. 2006).

9

(1967), Zablocki v. Ratihail, 434 U.S. 374 (1978), and

Turner v. Safley, 482 U.S. 78 (1987). But the nght

recognized in these decisions all concerned opposite-sex,

not same-sex, couples. Loving, 388 U.S. at 12, Zablocki,

434 U.S. at 384, Turner, 482 U.S. at 94-97. That the right

to marry 1s limited to opposite-sex couples is clearly

implied in a series of cases relating marriage to

procreation and childrearing.® See Skinner v. Oklahoma ex

rel. Williamson, 316 U.S. 535, 541 (1942) (“[mJarriage and

procreation are fundamental to the very existence and

survival of the race”); Loving, 388 U.S. at 12 (same); Meyer

v. Nebraska, 262 U.S. 390, 399 (1923) (liberty language in

Due Process Clause includes “the right of the individual

... to marry, establish a home and bring up children”);

Maynard v. Hill, 125 U.S. 190, 211 (1888) (referring to

marriage as “the foundation of the family and of society,

without which there would be neither civilization nor

° Contrary to the understanding of the petitioners, see Ky.

Pet. Br. 47, Mich. Pet. Br. 62-65, Ohio Pet. Br. 55-58, Tenn. Pet. Br.

18, the linkage of the right to marry to procreation is not undermined

by the fact that married persons have a right to choose not to

reproduce. After all, “[t]he ability to bear or beget children is

inherently a characteristic requiring at some level the participation of

a man and a woman... .” Conaway v. Deane, 932 A.2d 571, 621-22

n.64 (Md. 2007). Moreover, only the sexual activity of opposite-sex

couples is capable of producing children; by definition, the sexual

activity of same-sex couples cannot. Accordingly, it is only the

potential procreative sexual activity of opposite-sex couples that

needs to be channeled into a stable social and legal relationship —

marriage — that will protect and benefit the children so procreated.

Finally, it is (or should be) obvious that, on both principled and

practical grounds, the State could not inquire into an opposite-sex

couple’s willingness or ability to procreate before issuing a marriage

license. See Standhardt v. Superior Court, 77 P.3d 451, 462 (Ariz. Ct.

App. 2003) (explaining why such an inquiry would be constitutionally

barred and impossible to administer).

10

progress”).°

* Notwithstanding petitioners’ reading of the case, see Ky.

Pet. Br. 47, Mich. Pet. Br. 63, Ohio Pet. Br. 56, the Court’s decision in

Turner o. Safley does not undercut the contention that the right to

marry is tied to its procreative potential. At issue in Turner was a

state prison regulation that prohibited inmates from marrying, absent

a compelling reason for allowing their marriage (generally understood

to be limited to “a pregnancy or the birth of an illegitimate child,”

Turner, 482 U.S. at 82). In holding that the right to marry applies to

prison inmates, id. at 95, the Court acknowledged that “[t]he right to

marry, like many other nights, is subject to substantial restrictions as

a result of incarceration,” but determined that “[m]any important

attributes of marriage remain . . . after taking into account the

limitations imposed by prison life.” Jd. The Court noted that “most

inmates eventually will be released by parole or commutation, and

therefore most inmate marriages are formed in the expectation that

they ultimately will be fully consummated.” Jd. at 96. The Court also

observed that marriage often serves as a precondition to certain

tangible and intangible benefits, including the “legitimation of children

born out of wedlock.” Id. Admittedly, the reasons given in support of

recognizing the right of inmates to marry were not linked in express

terms to procreation. And some of the reasons given, “expressions of

emotional support and public commitment,” “an exercise of religious

faith as well as an expression of personal dedication,” id. at 95-96,

were wholly independent of procreation. That said, “it is clear that

the Court was contemplating marriage between a man and woman

when it declared unconstitutional the [prison] regulation.” Conaway

v. Deane, 932 A.2d at 621. “The case involved challenges by opposite

sex couples, and a number, although not all, of the reasons given in

support of the nght to marry applied only to opposite-sex couples, i.e.,

consummation of the marriage and legitimization of children born

outside the marital relationship.” Jd. Significantly, in Turner, the

Court distinguished its summary affirmance in Butler v. Wilson, 415

U.S. 953 (1974), upholding a prohibition on marriage for inmates

sentenced to life imprisonment. Turner, 482 U.S. at 96. In the

absence of a pardon or a commutation, inmates serving a life sentence

would not be able to consummate a marriage or procreate children.

Petitioners do not cite or attempt to distinguish Butler.

ll

This Court has never stated or even implied that

the federal right to marry extends to same-sex couples.

Until the Massachusetts Supreme Judicial Court’s decision

in Goodridge v. Dep’t of Public Health in 2003, no State

allowed or recognized same-sex marriages. And, in the

absence of a court order, no State allowed same-sex

marriage until 2009, only six years ago. While eleven

States have freely chosen to allow same-sex marriage,’

more than three times as many States have approved state

constitutional amendments (thirty States) or have enacted

statutory equivalents (four States) codifying the common

law and statutory reservation of marriage to opposite-sex

couples. Given that same-sex marriage has been allowed

only since 2003 (and then only in one State), it cannot be

said that same-sex marriage is “deeply rooted” in “the

Nation’s history, legal traditions, and practices.” There is

no “long history” of a right to enter into a same-sex

marriage and “[t]he mere novelty of such a claim is reason

enough to doubt that ‘substantive due process’ sustains

it.” Osborne, 557 U.S. at 72 (citation and internal quotation

marks omitted).

Petitioners make no attempt to demonstrate that a

right to same-sex marriage is “deeply rooted” in our

“Nation's history, legal traditions, and practices.” But, in

their view, that is the wrong question to ask. Rather, the

only question is whether there is a fundamental right to

marry the person of one’s choice and, if so, then same-sex

couples are entitled to exercise that nght in the same

” Two (New Hampshire, Vermont) in 2009, one (New York) in

2011 and eight (Delaware, Hawaii, Illinois, Maine, Maryland,

Minnesota, Rhode Island and Washington) at various times since

November 2012.

12

manner as opposite-sex couples. See Ky. Pet. Br. 18-23,

Mich. Pet. Br. 56-62, Tenn. Pet. Br. 18-21." They note

that this Court did not ask, in Loving, whether there was a

right to “interracial marriage” or, in Turner, whether

there was a right to “inmate marriage.” Mich. Pet. Br. 60-

61.

Petitioners, however, confuse a restriction on the

exercise of a fundamental nght with the nature of the right.

itself. See Op. 29 (“Loving addressed . . . an

unconstitutional eligibility requirement for marriage; it did

not create a new definition of marriage”). Interracial

marriages were legal at common law, in many of the

original thirteen colonies and in a number of other States

that never banned them.’ In short, there was no uniform

tradition of prohibiting such marriages. Moreover, to the

extent that there was a (non-uniform) “tradition” banning

interracial marriages, any such “tradition” “was

contradicted by a text—an Equal Protection Clause that

explicitly establishes racial equality as a constitutional

value.” Planned Parenthood v. Casey, 505 U.S. 833, 980 n.

1 (Scalia, J., concurring in the judgment in part and

dissenting in part). There is no comparable text that

® Petitioners quote this Court’s due process holding in Loving

out of context. The Court did not characterize the right at issue as

“the freedom of choice to marry,” simpliciter, Tenn. Pet. Br. 17, but as

“the freedom of choice to marry not. . . restricted by invidious racial

discriminations.” Loving, 388 U.S. at 12 (emphasis added).

* See Irving G. Tragen, Statutory Prohibitions against

Interracial Marriage, 32 Cal. L. Rev. 269, 269-70 & n. 2 (1944)

(common law); David H. Fowler, Northern Attitudes Towards

Interracial Marriage 62-63 (1987) (colonies); Lynn Wardle & Lincoln

C. Oliphant, J» Praise of Loving: Reflections on the “Loving Analogy” for

Same-Sex Marriage, 51 How. LJ. 117, 180-81 (2007) (other States).

13

establishes sexual orientation equality as a constitutional

value from which one could derive a subsidiary right to

enter into a same-sex marriage. In Turner, the Court

noted that before adoption of the prison regulation

challenged therein no regulation specifically authorized

correctional officers to prohibit inmates from getting

married and prison authorities had routinely allowed male

inmates to marry and female inmates to marry civilians

who were not ex-felons. 482 U.S. at 82, 98-99."

Unlike the facts in Loving, Zablocki and Turner,

until very recently (and then only in a minority of

jurisdictions) marriage has always and everywhere been

understood as a relationship that may exist only between a

man and woman. See Windsor, 133 S.Ct. at 2715 (Alito, J.,

dissenting) (noting that “no State permitted same-sex

marriage” until the Massachusetts Supreme Judicial

Court’s decided Goodridge in 2003, and “[nJo country

allowed same-sex couples to marry until the Netherlands

did so in 2000”) (citation omitted). Regardless of the

changes to marriage laws over the years, the fundamental

right to marry mever has been understood historically to

include the right to marry someone of the same sex, to

marry someone who was already married and whose

marriage had not been dissolved by a decree of divorce or

© Petitioners’ representation that “prisoners had traditionally

not been allowed to marry,” Mich. Pet. Br. 61, is not supported by the

only source cited, which merely noted the “broad discretion” prison

authorities had “to permit or deny prisoner marriage.” Note,

Punishing the Innocent: Unconstitutional Restrictions on Prison

Marriage and Visitation, 6&0 N.Y.U.L. Rev. 275, 277 (1985). With

respect to Zablocki, petitioners do not even allege that there was ever

a widespread tradition of prohibiting persons who had outstanding

child support obligations from marrying.

14

annulment (bigamy or polygamy), to marry someone who

was incompetent or lacked the mental ability to enter into

a marriage (contractual capacity), to marry an underage

minor without parental consent and/or judicial

authorization (nonage) or to marry a close relative (incest).

See Conaway v. Deane, 932 A.2d at 622-23 (summarizing

historically recognized limitations on marriage)."’

Under current constitutional doctrine, the

prohibition of bigamous (or polygamous) marriages, the

prohibition of incestuous marmniages, the prohibition of

marriages of minors and the prohibition of marriages of

persons lacking contractual capacity would all be reviewed

(or have been reviewed) under the rational basis

standard.” Rational basis review would apply (or was

" Although States have sometimes differed in determining

the outer limits of consanguinity that would bar two persons from

marrying (e.g., first cousins), they have always and everywhere

prohibited and denied recognition to marriages between siblings and

between ancestors and descendants. Almost two hundred years ago,

Chancellor Kent noted that, “independent of any church canon, or of

any statut[ory] prohibition,” marriages in the “direct lineal line of

consanguinity,” as well as marriages between brothers and sisters, are

unlawful and void “by the law of nature.” Wightman v. Wightman, 4

Johns. Ch. 343, 348-49 (1820).

” See, e.g., Bronson v. Swensen, 395 F.Supp.2d 1329, 1332-34

(D. Utah. 2005) (rejecting challenge to state laws prohibiting bigamy

and polygamy and holding that nothing in Lawrence v. Texas requires

the State of Utah “to sanction . . . polygamous marriage”), aff'd in part

and vacated in part and remanded with directions, 500 F 3d 1099 (10th

Cir. 2007); State v. Holm, 2006 UT 31, 137 P.3d 726, 742-45

(defendant had no fundamental due process liberty interest to engage

in polygamy by marrying his wife’s sixteen-year-old sister) (also

holding Lawrence inapplicable); Potter v. Murray City, 760 F.2d 1065,

1070-71 (10th Cir. 1985) (termination of officer from police force for

15

applied) precisely because neither the fundamental due

process liberty interest in marriage nor any protected

privacy interest is implicated. Indeed, in Zablocki, several

Justices noted the States’ authority to prohibit polygamous

marriages, incestuous marriages and/or underage

marriages. See Zablocki, 434 U.S. at 392 (Stewart, J.,

concurring in the judgment) (“[sJurely . . . a State may

legitimately say that no one can marry his or her sibling,

that no one can marry who is not at least 14 years old, . . .

or that no one can marry who has a living husband or

wife”); id. at 399 (Powell, J., concurring in the judgment)

(“[s}tate regulation [of marriage] has included bans on

incest, bigamy, and homosexuality”); id. at 404 (Stevens,

J., concurring in the judgment) (“laws prohibiting marriage

to a child [or] a close relative . . . are unchallenged here

even though they ‘interfere directly and substantially with

the night to marry’”) (quoting majority opinion, td. at 387).

In divorcing the right to marry from its historical

engaging in “plural marriage” did not violate his right to privacy,

finding “no authority for extending the right of privacy so far that it

would protect polygamous marriages”); State v. Allen M., 571 N.W.2d

872, 877 (Wis. Ct. App. 1997) (State may “legitimately bar [siblings]

from marriage”) (dictum in case terminating parental rights over

incestuously conceived children); Muth v. Frank, 412 F. 3d 808, 817

(7th Cir. 2005) (affirming denial of habeas corpus relief to criminal

defendant who was convicted of incest for marrying his sister)

(rejecting application of Lawrence); Moe v. Dinkins, 533 F Supp. 623,

627-31 (S.D.N.Y. 1981) (rejecting a class action challenging the

constitutionality of a state statute prohibiting the marriage of minors

between the ages of 14 and 18 absent parental consent and holding

that none of this Court’s marriage or privacy cases — including

Skinner, Loving, Zablocki, Griswold v. Connecticut, 381 U.S. 479

(1965), Roe v. Wade, 410 U.S. 113 (1973), and Carey v. Population

Services Int’l, 431 U.S. 678 (1977) — required a heightened standard of

review), aff'd, 669 F.2d 67 (2d Cir. 1982) (per curiam).

16

roots, petitioners formulate an abstract “right to marry the

person of one’s choice,” Mich. Pet. Br. 1, that, as the court

of appeals observed,” would subject any traditional

limitation on the right to marry to the strict scrutiny

standard of review. See Mich. Pet. Br. 57, Tenn. Pet. Br.

17-21. Presumably, statutes regulating the age at which a

person may marry could be justified by the State’s

compelling interest in protecting children against abuse

and coercion," and statutes not allowing a person who

lacks contractual capacity to marry could be justified by

similar considerations. But could prohibitions of bigamous,

polygamous and incestuous marriages (between related

adults) withstand strict scrutiny review? Having

abandoned the historical meaning of marriage and the

8 “The upshot of fundamental-rights status . . . is strict

scrutiny-status, subjecting all state eligibility rules for marriage to

rigorous, usually unforgiving, review.” Op. 30. See also Robicheaux v.

Caldwell, 2 F.Supp.3d 910, 926 (E.D. La. 2014) (strict scrutiny analysis

would apply to prohibitions of polygamous marriages, incestuous

marriages, marriages of transgendered persons and marriages of

minors) (rejecting challenge to Louisiana laws reserving marriage to

opposite-sex couples), appeal pending, No. 14-31037 (5th Cir.); Bostic

v. Schaefer, 760 F.3d 352, 392-93 (4th Cir. 2014) (Niemeyer, J.,

dissenting) (“because laws prohibiting polygamous or incestuous

marriages restrict individuals’ right to choose whom they would like

to marry, they would, under the plaintiffs’ approach, have to be

examined under strict scrutiny”); Conaway v. Deane, 932 A.2d at 623

(same with respect to marriages between closely related adults).

“ Yet, under the strict scrutiny standard of review, would not

the requirement that such statutes be “narrowly tailored” to promote

such an interest necessarily have to allow for “as-applied” challenges

to be brought by mature minors questioning the generalizations

regarding age and maturity underlying the statute? See Moe v.

Dinkins, 533 F.Supp. at 630 (rejecting, on rational basis review,

plaintiffs’ contention that the minimum age statute “denied them the

opportunity to make an individualized showing of maturity”).

17

limitations that have always and everywhere been placed

on the right to marry, petitioners, as the court of appeals

noted (Op. 22-23, 30-31), are unable to offer any principled

rationale for limiting marriage to one spouse or to non-

relatives." Nor is there such a rationale, as multiple courts

and judges have recognized.”

‘S In an effort to avoid the obvious implications of their own

argument, certain petitioners attempt to distinguish polygamous

marriages from same-sex marriages on the basis that the present

cases involve only “consenting adult couples,” Ky. Pet. Br. 23 n. 4

(emphasis added), but surely that is a distinction without a difference.

Why, if all the parties are consenting adults, should the number of

adults affect their right to marry under petitioners’ theory of

marriage? Nor does their purported “distinction” explain the basis for

barring incestuous marriages between closely related adults. In both

cases — polygamous marriages and incestuous marriages — the

prohibition would “directly and substantially” interfere with the nght

to marry, id., which would not be permissible under petitioners’

formulation of the nght to marry.

"6 See Conde-Vidal v. Garcia-Padilla, Civil No. 14-1253 (PG),

(D. P.R.), Opinion and Order, Oct. 21, 2014, 20 (under the “legal

structure” some courts have “constructed” for “this new form of

marriage [referring to same-sex marriage) are laws barring polygamy,

or, say the marriage of fathers and daughters, now of doubtful validity?

.... It would seem so, if we follow the plaintiffs’ logic, that the

fundamental right to marriage is based on ‘the constitutional liberty to

select the partner of one’s choice’”) (rejecting challenge to Puerto

Rico’s reservation of marriage to opposite-sex couples), appeal

pending, No. 14-2184 (1st Cir.) See also Lewis v. Harris, 875 A.2d 259,

270 (N_J. Super. Ct. App. Div. 2005) (same with respect to polygamy),

aff'd in part and modified in part, 908 A.2d 196 (NJ. 2006); Mornson v.

Sadler, Cause No. 49D13-0211-PL-00197, Order on Motion to Dismiss

13 (May 7, 2003) (noting that plaintiffs “have not posited a principled

theory of marriage that would include members of the same sex but

still limit marriage to couples”), aff'd 821 N.E.2d 15 (Ind. Ct. App.

2005); Goodridge, 798 N.E.2d at 984 n. 2 (Cordy, J., dissenting)

(same); Kitchen v. Herbert, 755 F.3d 1193, 1234 (10th Cir. 2014)

18

“When a federal court is obliged to confront a

constitutional struggle over what is marriage, a singularly

pivotal issue, the consequence of outcomes, intended or

otherwise, seems an equally compelling part of the

equation” which it would be “unjust to ignore.”

Robicheaux, 2 F.Supp.3d at 926. In the oral argument in

Hollingsworth v. Perry, 133 S.Ct. 2652 (2013), Justice

Sotomayor asked respondents’ counsel, under his

formulation of the nght to marry (the same as the one

petitioners advance), “what State restrictions could ever

exist? Meaning, what State restrictions with respect to

the number of people, with respect to . . . the incest laws,

the mother and child, assuming that they are [of] age... ,

but what’s left?” Tr. 46-47 (March 26, 2013). Counsel

could not provide plausible answers to these questions.

And neither have petitioners or any of the courts that have

mandated same-sex marmiage.

The amendments and statutes challenged in these

cases do not implicate the fundamental nght to marry.

Accordingly, they are subject to rational basis review. For

the reasons set forth in the briefs of the respondents, the

laws are reasonably related to multiple, legitimate state

interests, including promoting responsible procreation and

(Kelly, J., concurring in part and dissenting in part) (plaintiffs’

formulation of right at issue could not be limited to same-sex

marriages). As the district court noted in Robicheaux v. Caldwell,

under the same tlieory of marriage petitioners urge upon this Court,

“inconvenient questions persist. For example, must the [S]tates

permit or recognize a marriage between an aunt and niece? Aunt and

nephew? Brother/brother? Father and child? May minors marry?

Must marriage be limited to only two people? What about a

transgender spouse? Is such a union same-gender or male-female?

All such unions would undeniably be equally committed to love and

caring for one another, just like the plaintiffs.” 2 F.Supp.3d at 926.

19

channeling such procreation into stable family

relationships where the children so procreated will be

raised by their biological mothers and fathers.

Il.

THE RESERVATION OF MARRIAGE TO

OPPOSITE-SEX COUPLES DOES NOT

DISCRIMINATE ON THE BASIS OF SEX

IN VIOLATION OF THE

EQUAL PROTECTION CLAUSE.

Petitioners contend that the challenged

amendments and statutes discriminate on the basis of sex

in violation of the Equal Protection Clause. Ky. Pet. Br.

38-39, Ohio Pet. Br. 48-49, Tenn. Pet. Br. 34-39." In

applying rational basis review, Op. at 19-24, the court of

appeals implicitly rejected this contention. The

classification in the law is not between men and women, as

individuals, but between opposite-sex couples and same-

sex couples of either sex.

The fundamental flaw with petitioners’ argument is

that “the marriage laws are facially neutral; they do not

single out men or women as a class for disparate

'? The challenged laws are intended to channel potentially

procreative opposite-sex sexual activity into a stable legal and social

institution — marriage — in which the children so procreated may be

raised by their biological mothers and fathers. The sexual activity of

same-sex couples can mever result in procreation. Thus, the

distinction in the law is based on “biological reality,” Op. 21, not, as

petitioners argue, “gender-based” “stereotypes regarding the

respective roles of women and men in relationships and marriage . . .

Tenn. Pet. Br. 36.

20

treatment, but rather prohibit men and women equally

from marrying a person of the same sex.” Baker v. State,

744 A.2d 864, 880 n. 13 (Vt. 1999). “[T]here is no

discrete class subject to differential treatment solely on

the basis of sex; each sex is equally prohibited from

precisely the same conduct.” Jd. Other state courts have

also rejected the claim that “defining marriage as the

union of one man and one woman discriminates on the

basis of sex.”

In the last nine years, the Alabama Supreme Court,

the California Supreme Court, the Maryland Court of

Appeals, the New Mexico Supreme Court, the New York

Court of Appeals and the Washington Supreme Court have

all held that laws reserving marriage to opposite-sex

couples do not discriminate on the basis of sex. Ex parte

State of Alabama ex rel. Alabama Policy Institute, No.

1140460, Alabama Supreme Court, Op. 85-87, March 3,

2015, In re Marriage Cases, 183 P.3d 384, 436-40 (Cal.

2008); Conaway v. Deane, 932 A.2d 571, 585-602 (Md.

2007); Grego v. Oltver, 316 P.3d 865, 979-80 (N.M. 2013);

Hernandez v. Robles, 855 N.E.2d 1, 10-11 (N.Y. 2006)

(plurality); id. at 20 (Graffeo, J., concurring); Andersen v.

King County, 138 P.3d 963, 988 (Wash. 2006) (plurality);

id. at 1010 (J.M. Johnson, J., concurring in judgment only).

And the majority of federal district courts to have

'® Id. (citing Baker v. Nelson, 191 N.W.2d 185, 186-87 (Minn.

1971), appeal dismtssed for want of a substantial federal question, 409

U.S. 910 (1972), and Singer v Hara, 522 P.2d 1187, 1191-92 (Wash. Ct.

App. 1974)). See also Jones v. Hallahan, 5301 S.W.2d 588, 590 (Ky.

1973) (same); Dean v. District of Columbia, 653 A.2d 307, 363 n. 2

(D.C. App. 1995) (Op. of Steadman, J.) (same).

21

considered the issue are in accord with these decisions.”

In sum, fifteen state reviewing courts,” seven

'® See Jackson v. Abercrombie, 884 F Supp.2d 1065, 1098-99

(D. Haw. 2012), vacated and remanded with directions to dismiss on

grounds of mootness, 585 Fed. App’x 413 (9th Cir. 2014); Latta v. Otter,

19 F.Supp.3d 1054, 1073-74 (D. Idaho 2014), aff'd, 771 F.3d 456 (9th

Cir. 2014), petitions for certiorari pending, Nos. 14-765, 14-788; Baskin

v. Bogan, 12 F.Supp.3d 1144, 1159-60 (S.D. Ind. 2014), aff'd, 766 F.3d

648 (7th Cir. 2014); Robicheaux v. Caldwell, 2 F.Supp.3d 910, 919 (E.D.

La. 2014); Sevcik v. Sandoval, 911 F.Supp.2d 997, 1004-05 (D. Nev.

2012), rev'd on other grounds, 771F 3d 456 (9th Cir. 2014); Bishop v.

United States ex rel. Holder, 962 F .Supp.2d 1252, 1286-87 (N.D. Okla.

2014), aff'd sub nom. Bishop v. Smith, 760 F.3d 1070 (10th Cir. 2014);

Geiger v. Kitzhaber, 994 F.Supp.2d 1128, 1139-40 (D. Or. 2014); but see

Perry v. Schwarzenegger, 704 F .Supp.2d 921, 996 (N.D. Cal. 2010)

(contra) (alternative holding), aff'd sub nom. Perry v. Brown, 671 F.3d

1052 (9th Cir. 2012), vacated and remanded with instructions to dismiss

appeal for lack of standing sub nom. Hollingsworth v. Perry, 133 S.Ct.

2652 (2013); Kitchen v. Herbert, 961 F.Supp.2d 1181, 1206 (D. Utah

2013) (same), aff'd, 755 F.3d 1193 (10th Cir. 2014); Lawson v. Kelly,

Case No. 14-0622-CV-W-ODS (W.D. Mo.), Opinion and Order 15, Nov.

7, 2014 (same), appeals pending, Nos. 14-3779, 3780 (8th Cir.);

Jernigan v. Crane, Case No. 4:13-cv-00410 KGB (E.D. Ark.), Opinion

and Order 39-41, Nov. 25, 2014 (same), appeal pending, No. 15-1022

(8th Cir.); Waters v. Ricketts, Case No. 8:14CV536 (D. Neb.),

Memorandum and Order 17, 26-28, March 2, 2015 (same) (preliminary

injunction), appeal pending, No. 15-1452 (8th Cir.).

* In addition to the ten state decisions previously cited are

the decision of the California Court of Appeal in Jn re Marriage Cases,

49 Cal. Rptr. 3d 675, 706 (Cal. Ct. App. 2006), rev'd on other grounds,

183 P.3d 384 (Cal. 2008), and four decisions of the New York Supreme

Court, Appellate Division, later affirmed by the New York Court of

Appeals: Hernandez v. Robles, 805 N.Y.S.2d 354, 370 (N.Y. App. Div.

2005) (Catterson, J., concurring), Samuels v. New York State Dep't of

Health, 811 N.Y.S.2d 136, 143 (N.Y. App. Div. 2006), Jn re Kane, 808

N.Y.S.2d 566 (N.Y. App. Div. 2006), and Seymour v. Holcomb, 811

N.Y.S.2d 134 (N.Y. App. Div. 2006), aff'd 855 N.E.2d 1 (N.Y. 2006).

22

federal district courts and the District of Columbia Court

of Appeals have all held that amendments and statutes

reserving marriage to opposite-sex couples “do[] not

subject men to different treatment from women; each is

equally prohibited from the same conduct.” Goodridge v.

Dep't of Public Health, 798 N.E.2d at 991 (Cordy, J.,

dissenting) Justice Cordy was addressing an alternative

argument raised by the plaintiffs but not reached by the

majority in their opinion invalidating the marriage statute).

But see Baehr v. Lewin, 852 P.2d 44, 59-63 (Haw. 1993)

(contra) (plurality); Latta v. Otter, 771 F.3d 456, 479-96

(9th Cir. 2014) (Berzon, J., concurring) (same-sex

marriage prohibitions are unconstitutional gender-based

classifications).

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

which struck down state anti-miscegenation statutes,

petitioners argue that the mere fact that the challenged

amendments and statutes have “equal application” to both

men and women does not immunize them from the

heightened burden of justification that the Equal

Protection Clause requires of state laws drawn according

to sex. Tenn. Pet. Br. 35. The analogy to Loving is

unconvincing at several levels.

First, Loving dealt with race, not sex. The two

characteristics are not fungible for purposes of

constitutional analysis. For example, although it is clear

that public high schools and colleges may not field sports

teams segregated by race, see Louisiana High School

Athletic Ass'n v. St. Augustine High School, 396 F.2d 224

(5th Cir. 1968), they may field teams segregated by sex (at

least where equal opportunities are afforded to males and

females on separate teams) without violating the Equal

23

Protection Clause. See Force by Force v. Pierce City R-VI

School District, 570 F.Supp. 1020, 1026 (W.D. Mo. 1983)

(noting that “a number of courts have held that the

establishment of separate male/female teams in a sport is a

constitutionally permissible way of dealing with the

problem of potential male athletic dominance”). Indeed, a

school district may go so far as to provide identical sets of

single-gender public schools without running afoul of the

Equal Protection Clause. Vorchheimer v. School District of

Philadelphia, 532 F.2d 880, 885-88 (3d Cir. 1976), affd

mem. by an equally divided Court, 430 U.S. 703 (1977).

Although, since Brown v. Board of Education, 347 U.S. 483

(1954), classifications based on race have been subjected

to strict scrutiny review without regard to whether a given

classification happens to apply equally to members of

different races, see McLaughlin v. Florida, 379 U.S. 184,

191 (1964) (striking down laws that criminalized interracial

cohabitation), “the laws in which the Supreme Court has

found sex-based classifications have all treated men and

women differently.” Smelt v. County of Orange, 374

F.Supp.2d 861, 876 (C.D. Cal. 2005), aff'd in part, vacated

in part and remanded with directions to dismiss for lack of

standing, 447 F.3d 673 (9th Cir. 2006).”"

! Citing United States v. Virginia, 518 U.S. 515, 519-20 (1996)

(law prevented women from attending military college); Mississippi

University for Women v. Hogan, 458 U.S. 718, 719 (1982) (law

excluded men from attending nursing school); Craig v. Boren, 429 U.S.

190, 191-92 (1976) (law allowed women to buy low-alcohol beer at a

younger age than men); Frontiero v. Richardson, 411 U.S. 677, 678-79

(1973) (law imposed a higher burden on female servicewomen than on

male servicemen to establish dependency of their spouses); Reed v.

Reed, 404 U.S. 71, 73 (1971) (law created an automatic preference of

men over women in the administration of estates).

24

Second, anti-miscegenation statutes were intended

to keep persons of different races separate. Marriage

statutes, on the other hand, are intended to bring persons

of the oppostte sex together. Statutes that mandated

segregation of the races with respect to marriage cannot be

compared in any relevant sense to statutes that promote

integration of the sexes in marriage. Hernandez v. Robles,

805 N.Y.S.2d at 370-71 (Catterson, J., concurring).”

Third, unlike the history of the statutes struck

down in Loving, which stigmatized blacks as inferior to

whites, “there is mo evidence that laws reserving marriage

to opposite-sex couples were enacted with an intent to

discriminate against either men or women. Accordingly,

such laws cannot be equated in a facile manner with anti-

miscegenation laws.” Hernandez, 805 N.Y.S.2d at 370

(Catterson, J., concurring). As in Goodridge, there is no

evidence that the challenged amendments and statutes

were “motivated by sexism in general or a desire to

disadvantage men or women in particular,” 798 N.E.2d at

992 (Cordy, J., dissenting), as petitioners tacitly admit, see

Ky. Pet. Br. 38, nor has either sex been subjected to “any

harm, burden, disadvantage, or advantage,” id., from their

adoption, as petitioners also admit, see Ohio Pet. Br. 48.

The reservation of marriage to opposite-sex

couples does not discriminate on the basis of sex in

= Thus, the comparison petitioners make between the

marriage laws and a hypothetical law “providing that men may enter

business partnerships only with other men and that women may enter

into business partnerships only with other women,” Tenn. Pet. Br. 36,

is singularly inapt.

25

violation of the Equal Protection Clause.”

Il.

THE RESERVATION OF MARRIAGE TO

OPPOSITE-SEX COUPLES DOES NOT

DISCRIMINATE ON THE BASIS OF

SEXUAL ORIENTATION IN VIOLATION

OF THE EQUAL PROTECTION CLAUSE.

Petitioners contend that the challenged

amendments and statutes discriminate on the basis of

sexual orientation in violation of the Equal Protection

Clause. Ky. Pet. Br. 32-38, Mich. Pet. Br. 50-53, Ohio Pet.

Br. 38-58, Tenn. Pet. Br. 39-45. The court of appeals

rejected this contention, Op. 31-35, and properly so.

It is unnecessary to determine whether

classifications based upon a person’s sexual orientation

should be subject to the strict or intermediate scrutiny

that applies to suspect (race, national origin or alienage) or

quasi-suspect classifications (sex or illegitimacy) because

the challenged laws do not discriminate on the basis of

sexual orientation. Conspicuous by its absence from any

of the petitioners’ briefs is any analysis as to whether the

challenged amendments and statutes discriminate on their

face between heterosexuals and homosexuals and, if not,

whether they may be challenged on equal protection

grounds.

* In the debate over the proposed federal Equal Rights

Amendment, the principal Senate sponsor acknowledged that the

amendment would not affect the authority of the States to prohibit

same-sex marriages so long as the prohibition applied to both men and

women. 118 Cong. Rec. 9331 (1972) (statement of Senator Bayh).

26

The classification in the laws is not between

heterosexuals and homosexuals, but between opposite-sex

couples and same-sex couples of either sex. As multiple

courts have recognized, “Parties to ‘a union between a

man and a woman’ may or may not be homosexuals.

Parties to a same-sex marriage could theoretically be

either homosexuals or heterosexuals.” Baehr v. Lewin,

852 P.2d 44, 51 n. 11 (Haw. 1993) (plurality). See also

Dean v. District of Columbia, 653 A.2d 307, 362 n. 1 (D.C.

App. 1995) (following Baehr) (“just as not all opposite-sex

marriages are between heterosexuals, not all same-sex

marriages would necessarily be between homosexuals”);

Goodridge v. Dep't of Health, 798 N.E.2d 94, 953 n. 11

(Mass. 2003) (same); Smelt v. County of Orange, 374

F.Supp.2d 861, 874 (C.D. Cal. 2005) (same); Sevctk v.

Sandoval, 911 F .Supp.2d 996, 1004 (D. Nev. 2012)

(“{aJ}ithough the distinction the State has drawn .. . largely

burdens homosexuals, the distinction is not by its own

terms drawn according to sexual orientation”).™ But see

** Several judges in other cases have made the same

observation. See, eg., Baker v. State, 744 A.2d 864, 890 (Vt. 1999)

(Dooley, J., concurring) (“[tJhe marriage statutes do not facially

discriminate on the basis of sexual orientation”), id. at 905 (Johnson,

J., concurring in part and dissenting in part) (“sexual orientation does

not appear as a qualification for marriage under the marriage statutes”

and the State “makes no inquiry into the sexual practices or identities

of a couple seeking a license”); Hernandez v. Robles, 855 N.E.2d 1, 20

(N.Y. 2006) (Graffeo, J., concurring) (same); Andersen v. King County,

138 P.3d 963, 991, 996-97 (Wash. 2006) J.M. Johnson, J., concurring

in judgment only) (noting that the state DOMA “does not distinguish

between persons of heterosexual orientation and homosexual

orientation,” and identifying a case in which a man and a woman, both

identified as “gay,” entered into a valid opposite-sex marriage) (citing

In re Parentage of L.B., 89 P.3d 271, 273 (Wash. Ct. App. 2004), aff'd in

part, rev'd in part on other grounds, 122 P.3d 161 (Wash. 2005)).

27

Baskin v. Bogan, 766 F.3d 648, 657 (7th Cir. 2014)

(contra); Latta v. Otter, 771 F.3d 456, 467-68 (9th Cir.

2014) (same); Kerrigan v. Comm'r of Public Health, 957

A.2d 407, 431 n. 24 (Conn. 2008) (same in case decided on

state constitutional grounds); Varnum v. Brien, 763

N.W.2d 862, 884-85 (Iowa 2009) (same); Griego v. Oliver,

316 P.3d 865, 881 (N.M. 2013) (same) (by implication); Jn

re Marriage Cases, 183 P.3d 384, 440-41 (Cal. 2008)

(same).

In Perry v. Schwarzenegger, the district court found

that “Some gay men and lesbians have married members

of the opposite sex . . . .” 704 F.Supp.2d 921, 970 (N.D.

Cal. 2010). That laws reserving marriage to opposite-sex

couples do not discriminate on their face between

heterosexuals and homosexuals is borne out by the

remarkable (but heretofore unnoticed) fact that dozens of

the plaintiffs in the same-sex marriage cases that have

been brought over the last twenty-four years previously

had been married to a person of the opposite sex.” In

issuing marriage licenses, government officials do not

inquire into the applicants’ sexual orientation and, even if

the applicants volunteered that they were homosexual, the

license would stil] issue if they were of the opposite sex.

Conversely, no license would be issued to two

heterosexuals of the same sex. See Andrew Koppelman,

Response: Sexual Disorientation, 100 Geo. LJ. 1083, 1087

(2012) (laws reserving marriage to opposite-sex couples

do not discriminate on the basis of sexual orientation).

Admittedly, the challenged amendments and

statutes have a greater impact on homosexuals who, if

See Appendix (listing cases and plaintiffs).

28

they wish to marry, presumably would want to marry

someone of the same sex, than on heterosexuals who

would want to marry someone of the opposite sex.”

Nevertheless, disparate impact alone is insufficient to

invalidate a classification, even with respect to suspect or

quasi-suspect classes such as race and sex. Under well-

established federal equal protection doctrine, a facially

neutral law (or other official act) may not be challenged on

the basis that it has a disparate impact on a particular race

or sex unless that impact can be traced back to a

discriminatory purpose or intent. The challenger must

show that the law was enacted (or the act taken) because

of, not im spite of, its foreseeable disparate impact. See

Washington v. Davis, 426 U.S. 229, 238-48 (1976) (race);

Village of Arlington Heights v. Metropolitan Housing

Development Corp., 429 U.S. 252, 264-71 (1977) (race);

Personnel Administrator of Massachusetts v. Feeney, 442

U.S. 256, 271-80 (1979) (sex).

Petitioners have cited no competent evidence that

supports the conclusion that in adopting the challenged

amendments, the People of Kentucky, Michigan, Ohio and

Tennessee had the intent or purpose to discriminate

against homosexuals who wish to marry someone of the

same sex,” as opposed to the mere knowledge that the

© See Latta, 771 F.3d at 482 n. 5 (Berzon, J., concurring)

(“[w]hile the same-sex marriage prohibitions obviously operate to the

disadvantage of the people likely to wish to marry someone of the

same gender — i.e. lesbians, gay men, bisexuals, and otherwise-

identified persons with same-sex attraction—the individuals’ actual

orientation is irrelevant to the application of the laws”).

7? Petitioners tacitly admit that the marriage laws were not

enacted and approved on the basis of “[aJnimosity — that is, outright

29

proposed amendments, codifying the traditional

understanding of marriage, could have a disparate impact

on them (nor do they explain how one would go about

determining the subjective motivations of millions of

voters in four States).” Moreover, as the court of appea!s

noted, Op. 24, the challenged amendments merely

“codified a long-existing, widely held social normal already

reflected in state law.” Petitioners have made no

argument that either the common law definition of

marriage as a relationship that may exist only between a

man and a woman or the longstanding statutory

codifications of that rule “were motivated by ill will.” Jd. at

28.

The reservation of marriage to opposite-sex

couples does not discriminate on the basis of sexual

orientation in violation of the Equal Protection Clause.

hostility or bigotry” toward homosexuals. Ky. Pet. Br. 30. See also

Ohio Pet. Br. 24 (same), Mich. Pet. Br. 45-46 (no need to consider

whether laws “were motivated by an impermissible purpose”). And

for the reasons articulated by the court of appeals, see Op. 24-28, and

by Judge Holmes in his concurring opinion in Bishop v. Smith, 760

F.3d 1070, 1096-1109 (10th Cir. 2014) (Holmes, J., concurring),

neither City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985),

nor Lawrence nor Romer v. Evans, 517 U.S. 620 (1996), provides a

basis for inferring such a purpose, either.

% See Op. 26 (“{i]f assessing the motives of multimember

legislatures is difficult, assessing the motives of ail voters in a

statewide initiative strains judicial competence”) (noting that almost

ten million people voted for the four state constitutional

amendments).

30

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted,

Paul Benjamin Linton Christopher M. Gacek

Counsel of Record Family Research Council

921 Keystone Avenue 801 G Street, N.W.

Northbrook, Illinois 60062 § Washington, D.C. 20001

(847) 291-3848 (tel) (202) 393-2100 (tel)

PBLCONLAW @AOL.COM

Counsel for Amicus Curiae

31

APPENDIX

Appendix

Partial List Of Same-Sex Marriage Cases In Which

One Or More Of The Plaintiffs Acknowledged That

They Had Previously Been Married To A Person

Of The Opposite Sex’

Alaska, Kansas

Brief of Ninety-Two Plaintiffs in Marriage Cases in

Alabama, Alaska, Arkansas, Indiana, Kansas, Louisiana,

Mississippi, Missouri, Montana, Nebraska, North Carolina,

North Dakota, South Carolina, South Dakota and Texas as

Amici Curiae in Support of Petitioners, Nos. 14-556, 15-

562, 15-571 and 14-574, Appendix 3a (Tracey Wiese), 9a

(Carrie Fowler)

California

Perry v. Schwarzenegger, 704 F .Supp.2d 921, 972

(N.D. Cal. 2010), Findings of Fact, No. 54(1) (Sandra Stier)

Florida

Pareto v. Ruvin, Case No. 14-1661 CA 24, Circuit

Court, Eleventh Judicial Circuit (Miami-Dade County),

Florida, Complaint for Declaratory and Injunctive Relief

(Jan. 21, 2014), 1 22, p. 9 (Pamela Faerber)

* It should be noted that this list does not include the names

of many other plaintiffs who alleged in their complaints or declarations

that they had had children by a “prior relationship” without expressly

stating whether that “relationship” had been formalized in a marriage.

la

Illinots

Darby v. Orr, Case No. 12 CH 19718, Circuit Court,

Cook County, Illinois, Complaint for Declaratory Judgment

and Injunctive Relief (May 30, 2012), 1 35, p. 10 (Lynn

Sprout), 1 70, p. 19 (Suzanna Hutton)

Lazaro v. Orr, Case No. 12 CH 19719, Circuit

Court, Cook County, Illinois, Complaint for Declaratory

Judgment and Injunctive Rehef (May 30, 2012), 16, p. 6

(Bert Morton), 1 8, p. 7 (Daphne Scott-Henderson, 4 12, p.

10 (Patricia Garcia)

Indiana

Baskin v. Bogan, 12 F.Supp.3d 1144 (S.D. Ind.

2014), First Amended Complaint for Declaratory and

Injunctive Relief (March 31, 2014), 1 17, p. 7 (Bonnie

Everly, Linda Judkins); Decl. of Dawn Lynn Carter, 4 6, p.

2

Iowa

Varnum v. Brien, Case No. CV 5965, District

Court, Polk County, lowa, Amended Petition for

Declaratory Judgment and Supplemental Injunctive and

Mandamus Relief (Aug. 30, 2006), 1 8, p. 6 (Larry Hoch)

Maryland

Conaway v. Deane, Case No. 24-C-04-005390,

Circuit Court, Baltimore City, Maryland, Complaint for

Declaratory and Injunctive Relief (July 7, 2004), 1 114, p.

26 (Lisa Kebreau)

Massachusetts

Goodridge v. Dep't of Public Health, Civil Action No.

2001-1647-A, Superior Court, Suffolk County,

Massachusetts, Verified Complaint (April 11, 2001), 19 35,

36, p. 7 (David Wilson, Robert Compton)

Montana

Rolando v. Fox, 23 F.Supp.3d 1227 (D. Mont. 2014),

Complaint for Declaratory and Injunctive Relief (May 21,

2014), 1 23, p. 9 (Angela Rolando, Tonya Rolando)

Nebraska

Waters v. Heineman, Case No. 8:14-cv-00356,

United States District Court, District of Nebraska,

Complaint (Nov. 17, 2014). 91 28, p. 7 (Carla Morris-Von

Kampen)

South Dakota

Rosenbrahn v. Daugaard, Civ. No. 4:14-CV-04081-

KES, United States District Court, District of South

Dakota, Complaint for Permanent Injunction and

Declaratory Relief (May 22, 2014), § 57, p. 16 (Lynn

Serling-Swank), § 74, p. 21 (Barbara Wright, Ashley

Wright)

3a

West Virginia

McGee v. Cole, Civil Action No. 3:13-24068, United

States District Court, Southern District of West Virginia

(Oct. 1, 2014), 1 15, p. 6 Qustin Murdock)

Wisconsin

Wolf v. Walker, 26 F.Supp.3d 866 (W.D. Wis. 2014),

Complaint for Declaratory and Injunctive Relief (Feb. 3,

2014) 9 49, p. 14 (Charvonne Kemp)