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

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## Record

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

## Text

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

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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)

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0308%3A057. Public record. Not legal advice.