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

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

Su The

Supreme Court of the United States

JAMES OBERGEFELL, ET AL., AND BRITTANI HENRY, ET AL.,

PETITIONERS,

We

RICHARD HODGES, DIRECTOR, OHIO DEPARTMENT OF

HEALTH, ET AL., RESPONDENTS.

VALERIA TANCO, ET AL., PETITIONERS,

Vv.

WILLIAM EDWARD “BILL” HASLAM, GOVERNOR OF

TENNESSEE, ET AL., RESPONDENTS.

APRIL DEBOER, ET AL., PETITIONERS,

Vv.

Rick SNYDER, GOVERNOR OF MICHIGAN, ET AL., RESPONDENTS.

GREGORY BOURKE, ET AL., AND TIMOTHY LOVE, ET AL.,

PETITIONERS,

We

STEVE BESHEAR, GOVERNOR OF KENTUCKY, ET AL., RESPONDENTS.

On Writ of Certiorari to the United States Court of

Appeals for the Sixth Circuit

BRIEF OF HISTORIANS OF MARRIAGE AND THE

AMERICAN HISTORICAL ASSOCIATION AS AMICI

CURIAE IN SUPPORT OF PETITIONERS

Jessica M. Weisel Pratik A. Shah

AKIN GUMP STRAUSS Counsel of Record

HAUER & FELD LLP AKIN GUMP STRAUSS

2029 Century Park East HAUER & FELD LLP

Suite 2400 1333 New Hampshire Ave., NW

Los Angeles, CA 90067 Washington, DC 20036

(202) 887-4000

Daniel McNeel Lane, Jr. pshah@akingump.com

Matthew E. Pepping

AKIN GUMP STRAUSS

HAUER & FELD LLP

300 Convent Street, Suite 1600

San Antonio, TX 78205

QUESTIONS PRESENTED

1) Does the Fourteenth Amendment require a state

to license a marriage between two people of the same

sex?

2) Does the Fourteenth Amendment require a state

to recognize a marriage between two people of the

same sex when their marriage was lawfully licensed

and performed out-of-state?

(a)

i

TABLE OF CONTENTS

QUESTIONS PRESENTED.......................ccceeseeeseeeeeees i

INTEREST OF AMICI CURIAE ...............0cccccceeeeeeeees 1

INTRODUCTION AND SUMMARY OF

ITT :sthicohbinnpharitiiniiouiiiandtindghnaaibeniiaabiadsiandipeiieseds 4

TEE ctnecticrienntenstaccntiessntinenssmranapiniansnnttenineiescnsess 6

I. MARRIAGE HAS SERVED MULTIPLE

PURPOSES BEYOND PROCREATION

THROUGHOUT AMERICAN HISTORY. ............ 6

A. Marriage Historically Has Served

Important Political And Economic

PUI icchenthicichiindnatannduniinnemebediaieiietiaatenieediins 7

1. Marriage developed in relation to

I cnciccnccocnscscsinnsnndiadibonestesesnentinssetnses 7

2. Marriage has created public order and

ia cuseninesanancens 10

B. Marriage Has Always Been About More

i cittammnannntnnsel 11

1. Neither eligibility for marriage nor

sexual intimacy within marriage has

turned on the ability to procreate. ............ 12

2. Non-biological children have long

been integral to the American family. ...... 14

Il. MARRIAGE HAS CHANGED TO REJECT

DISCRIMINATORY RULES AND

AE ae eR A 16

A. Marriage Laws Have Changed To Reflect

Changing Understandings Of Spouses’

Respective Roles and Rights. ......................... 16

iii

B. Race-Based Restrictions On Marriage

Eligibility Have Been Eliminated. ................. 19

C. Courts Have Played An Instrumental

Role In Changes To Marriage Laws............... 22

TE ae ene ae ON ee 24

APPENDIX

LIST OF AMICI CURIAE HISTORIANS OF

lv

TABLE OF AUTHORITIES

CASES:

Califano v. Goldfarb,

TIEN, SPIT TD «ccc cicnbiacimepnbiinedebesmmnenibenns 18,

DeBoer v. Snyder,

772 F.3d 388 (6th Cir. 2014).............00000000000.. 12,

Frontiero v. Richardson,

ee Ny I ciccnccrsispnitintocinmmntecidliesbinmeidiiainiinnee 18,

Griswold v. Connecticut,

EELS screener

Loving v. Virginia,

| Sf ene eae ne 21,

Meyer v. Nebraska,

I I ine cen tnemantnienisinibianestinieis

Orr v. Orr,

elmo

Perez v. Lippold,

ae TED Gs I icccmincicccccdencsveccnccecs 21, 22,

Skinner v. Oklahoma ex rel. Williamson,

I, Si ici ner natieninenen

State v. Bell,

I acl

Turner v. Safley,

I aes

United States v. Windsor,

| Teer TE ae 10

Weinberger v. Wiesenfeld,

ee SE iccerircccnsineinnsinmnctnitcteeiiniaiatinse 18, 23

STATUTES:

1867 Idaho Terr. Gen. Laws Chapter 11 § 3............ 21

I TT scrtsin dieitesetaepeemnaadamnbeliinaniniininiiensie 19

1990 Ky. Laws H.B. 38 (CH. 448).................... cece eeee eee 19

a iy EE Ns CIID TIE ncpcninnienicoccectncapestnnensonninnnn 20

eae errr e 20

Laws of the Territory of Nev. 1861, Ch. 32

EINE sckesiceshsesiisiteplabeiasieihdiasincibeneididsiceinbineitiaiinispeeninnmanaadnies 21

MICH. COMP. LAWS ANN. § 750.5201 (West 1988)...... 19

Rs Ste HIG TIT ccinntsenssasbadensenennsnccussamenéunns 20, 21

I a i i ial eaten 21

TENN. CODE ANN. § 39-13-507 (Supp. 1989)............. 19

OTHER AUTHORITIES:

Allen, Douglas W. and Margaret Brinig, Chart

3: Child Support Guidelines, 45 Fam. L.Q.

RS ee 11

BARDAGLIO, PETER W., RECONSTRUCTING THE

HOUSEHOLD: FAMILIES, SEX, AND THE LAW IN

THE NINETEENTH-CENTURY SOUTH (1995) ............. 2

BASCH, NORMA, FRAMING AMERICAN DIVORCE

BASCH, NORMA, IN THE EYES OF THE LAW:

WOMEN, MARRIAGE, AND PROPERTY IN 19TH

CENTURY NEW YORK (1982).................... 2,3, 17,18

BOLLER, PAUL F., JR., PRESIDENTIAL

ID GED cociicctccccncsccsccccssccescccccscccncses 15

Burnham, Margaret, An Impossible Marriage:

Slave Law and Family Law, 5 LAW & INEQ.

I i ereeeelenlesthebiienenioniidl 19

Chused, Richard H., Married Women’s

Property Law: 1800-1850, 71 GEO. L.J. 1359

SE Se ae ae eee ee ee 17

Cohler, Anne M., Montesquieu’s Comparative

Politics and the Spirit of American

Constitutionalism, 23 EIGHTEENTH-

CITE BTID BG ncecccciccccccccscccccscccccccscccscsccecees 8

Vii

COONTZ, STEPHANIE, THE SOCIAL ORIGINS OF

PRIVATE LIFE: A HISTORY OF AMERICAN

FAMILIES, 1600-1900 (1988) ........... 2.0... cc ccc cc cece ee ewes 3

CoTtT, NANCY F., PUBLIC Vows: A HISTORY OF

MARRIAGE AND THE NATION (2000)...............-. 3, 7,8

D’EMILIO, JOHN AND ESTELLE B. FREEDMAN,

INTIMATE MATTERS: A HISTORY OF

SEXUALITY IN AMERICA (1988) ....................00000008 13

DAVIS, REBECCA L., MORE PERFECT UNIONS:

THE AMERICAN SEARCH FOR MARITAL

TESTO: EEN ae 3,14

DEYLE, STEVEN, CARRY ME BACK: THE

DOMESTIC SLAVE TRADE IN AMERICAN LIFE

Ditz, TOBY L., PROPERTY AND KINSHIP:

INHERITANCE IN EARLY CONNECTICUT (1986)......... 3

EDWARDS, LAURA F., GENDERED STRIFE AND

CONFUSION: THE POLITICAL CULTURE OF

CITRIC TINE C1 GBF nccccccccccccccccccccccsccccccocccscccces 3

Edwards, Laura, The Marriage Covenant is the

Foundation of All our Rights, 14 LAW &

TER Ra aoe ee 20

FOWLER, DAVID H., NORTHERN ATTITUDES

TOWARDS INTERRACIAL MARRIAGE:

LEGISLATION AND PUBLIC OPINION IN THE

MIDDLE ATLANTIC AND THE STATES OF THE

OLD NORTHWEST, 1780-1930 (1987)..................6 20

Vill

GLENDON, MARY ANN, THE TRANSFORMATION OF

FAMILY LAW: STATE, LAW, AND FAMILY IN

THE UNITED STATES AND WESTERN EUROPE

SITET ciccecenunteuisededesoremmisduniasaniiianadenmeniamunmanande 7,8

GLOVER, LORRI, FOUNDERS AS FATHERS: THE

PRIVATE LIVES AND POLITICS OF THE

AMERICAN REVOLUTIONARIES (2014) ................... 15

GORDON, SARAH BARRINGER, THE MORMON

QUESTION: POLYGAMY AND CONSTITUTIONAL

CONFLICT IN NINETEENTH-CENTURY

I Se cevcninscencntviisiitninimiiaaasitniinsaiipamabidiitiel 3

GORDON, SARAH BARRINGER, THE SPIRIT OF THE

LAW: RELIGIOUS VOICES AND THE

CONSTITUTION IN MODERN AMERICA (2010)........... 3

GROSSBERG, MICHAEL, GOVERNING THE

HEARTH: LAW AND THE FAMILY IN

NINETEENTH-CENTURY AMERICA (1985) .... 3, 12, 19

GUTMAN, HERBERT G., THE BLACK FAMILY IN

SLAVERY AND FREEDOM 1750-1925 (1976) ........... 19

Hanley, Sarah Hanley, Engendering the State:

Family Formation and State Building in

Early Modern France, 16 FRENCH

HISTORICAL STUDIES 4 (1989)..................ccccccececeeeees 8

HARTOG, HENDRIK, MAN & WIFE IN AMERICA, A

ET GTI cxcucsnitnessicntieniedssenieamiadeeiaadaaedatl 8, 17

HARTOG, HENDRIK, SOMEDAY ALL THIS WILL BE

Yours: A HISTORY OF INHERITANCE AND OLD

Be cncceccsenstsscindsiiniisibensstimanniiensnne 3, 15, 17

ix

Hasday, Jill Elaine, Contest and Consent: A

Legal History of Marital Rape, 88 CALIF. L.

ES SIE icececsccreccccsscececssccecenscesees 18, 19

HASDAY, JILL ELAINE, FAMILY LAW REIMAGINED

i cuseesonene 3, 18

HERMAN, ELLEN, KINSHIP BY DESIGN: A

HISTORY OF ADOPTION IN THE MODERN

UNITED STATES (BOOB) ......ccccccccccccccccccccccccccccccces 3, 15

HODES, MARTHA, WHITE WOMEN, BLACK MEN:

ILLICIT SEX IN THE 19TH CENTURY SOUTH

1 Howard, GEORGE ELLIoTT, A HISTORY OF

MATRIMONIAL INSTITUTIONS CHIEFLY IN

ENGLAND AND THE UNITED STATES (1904) ........... 10

3 Howard, GEORGE ELLIOTT, A HISTORY OF

MATRIMONIAL INSTITUTIONS CHIEFLY IN

ENGLAND AND THE UNITED STATES (1904) ........... 12

JOHNSON, WALTER, RIVER OF DARK DREAMS:

SLAVERY AND EMPIRE IN THE COTTON

Te 20

JOHNSON, WALTER, SOUL BY SOUL: LIFE INSIDE

THE ANTEBELLUM SLAVE MARKET (1999)....... 19, 20

KERBER, LINDA K., NO CONSTITUTIONAL RIGHT

TO BE LADIES: WOMEN AND THE OBLIGATIONS

BP SE CRD cccecccccocccccccccccccsccececcees 3,9,17

x

KESSLER-HARRIS, ALICE, IN PURSUIT OF EQUITY:

WOMEN, MEN, AND THE QUEST FOR

ECONOMIC CITIZENSHIP IN 20TH-CENTURY

a nnsicsiaicnrcceniaiiiahichiniiclaanictatniitaiaianiatatmetaas 3, 18

Knight, M.M., The Companionate and the

Family, 10 J. oF SOC. HYGIENE 258 (1924).......... 14

LEWIS, JAN ELLEN, THE PURSUIT OF

HAPPINESS: FAMILY AND VALUES IN

JEFFERSON'S VIRGINIA (19838) ...............cccececeeeceeeeees 3

Lewis, Jan, The Republican Wife: Virtue and

Seduction in the Early Republic, 44 WM. &

MARY Q. 3d ser. 689 (1987) ....................220000005 8,13

MAY, ELAINE TYLER, BARREN IN THE PROMISED

I ina nistreeciachncea eee gedaan cena aelaeliciteniia 3

MAY, ELAINE TYLER, HOMEWARD BOUND:

AMERICAN FAMILIES IN THE COLD WAR ERA

[TIT ninecncusnmennesinnienstnunnnauddetiinetiamsnerieniidetiabintaeimeieeaamein 3

MINTZ, STEVEN, DOMESTIC REVOLUTIONS: A

SOCIAL HISTORY OF AMERICAN FAMILY LIFE

MORGAN, LAURA W., CHILD SUPPORT

GUIDELINES: INTERPRETATION AND

APPLICATION (2d ed. 2013) .................cccccecececeeeeees 11

NORTON, MARY BETH, FOUNDING MOTHERS AND

EE i iccscensnccsnscapctsansieniqpatensteinnsetniconneinia 10

xi

PASCOE, PEGGY, WHAT COMES NATURALLY:

MISCEGENATION LAW AND THE MAKING OF

RACE IN AMERICA (2009) ................cccccececeeeesees 20, 21

PLECK, ELIZABETH H., CELEBRATING THE

FAMILY: ETHNICITY, CONSUMER CULTURE,

AND FAMILY RITUALS (2000) .................2c.eeceeceeeeeeees 3

PLECK, ELIZABETH H., NoT JUST ROOMMATES:

COHABITATION AFTER THE SEXUAL

ETA A a 3

SHAMMAS, CAROLE, A HISTORY OF HOUSEHOLD

GOVERNMENT IN AMERICA (2002) ................-.2---. 3,9

SHANLEY, MARY L., JUST MARRIAGE (2004)................. 3

SHANLEY, MARY L., MAKING BABIES, MAKING

eit 3, 14

Shanley, Mary, Marriage Contract and Social

Contract in 17th-Century English Political

Thought, 32 THE FAMILY IN POLITICAL

THOUGHT 79 (J.B. Elshtain ed., 1982)................... 8

SIMMONS, CHRISTINA, MAKING MARRIAGE

ac seaaial 14

STANLEY, AMY DRU, FROM BONDAGE TO

CONTRACT: WAGE LABOR, MARRIAGE AND

THE MARKET IN THE AGE OF SLAVE

Eee 4,9

2 THE WORKS OF JAMES WILSON (Robert G.

DieC etna, OF... BBD) ..ccccccccccccccsccccccsescceese 9, 16, 17

xii

TONE, ANDREA, DEVICES AND DESIRES: A

HISTORY OF CONTRACEPTIVES IN AMERICA

U.S. Gov’t ACCOUNTABILITY OFFICE, GAO-04-

353R, Defense of Marriage Act: Update to

i acl 9,10

1 VERNIER, CHESTER G., AMERICAN FAMILY

LAws: A COMPARATIVE STUDY OF THE

FAMILY LAW OF THE FORTY-EIGHT AMERICAN

techn eceat niacin iiinbaieel 13

2 VERNIER, CHESTER G., AMERICAN FAMILY

LAWS: A COMPARATIVE STUDY OF THE

FAMILY LAW OF THE FORTY-EIGHT AMERICAN

ECE PSSM ENaC ce pCR 13

3 VERNIER, CHESTER G., AMERICAN FAMILY

LAws: A COMPARATIVE STUDY OF THE

FAMILY LAW OF THE FORTY-EIGHT AMERICAN

TATTLE ALENT LOTT ETI ES 17, 19

WELKE, BARBARA YOUNG, LAW AND THE

BORDERS OF BELONGING IN THE LONG

NINETEENTH CENTURY UNITED STATES

IEEE RDA ER re CAEL Seo ee 4

2 WELKE, BARBARA YOUNG, LAW, PERSONHOOD

AND CITIZENSHIP IN THE LONG 19TH

CENTURY, CAMBRIDGE HISTORY OF

pO I eo 4,9

3n The

Supreme Court of the United States

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

JAMES OBERGEFELL, ET AL., AND BRITTANI HENRY, ET AL.,

PETITIONERS,

We

RICHARD HODGES, DIRECTOR, OHIO DEPARTMENT OF

HEALTH, ET AL., RESPONDENTS.

VALERIA TANCO, ET AL., PETITIONERS,

Vv.

WILLIAM EDWARD “BILL” HASLAM, GOVERNOR OF

TENNESSEE, ET AL., RESPONDENTS.

APRIL, DEBOER, ET AL., PETITIONERS,

Vv.

RICK SNYDER, GOVERNOR OF MICHIGAN, ET AL., RESPONDENTS.

GREGORY BOURKE, ET AL., AND TIMOTHY LOVE, ET AL.,

PETITIONERS,

Vv

STEVE BESHEAR, GOVERNOR OF KENTUCKY, ET AL., RESPONDENTS.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

BRIEF OF HISTORIANS OF MARRIAGE AND THE

AMERICAN HISTORICAL ASSOCIATION AS AMICI

CURIAE IN SUPPORT OF PETITIONERS

INTEREST OF AMICI CURIAE'

Amici are the American Historical Association

(AHA) and leading historians of American marriage,

family, and law whose research documents how the

1 This brief is filed with the written consent of all parties

through letters of consent on file with the Clerk. No counsel for

either party authored this brief in whole or in part, nor did any

party or other person make a monetary contribution to the

briefs preparation or submission.

(1)

2

institution of marriage has functioned and changed

over time. The AHA is the largest professional

organization in the United States devoted to the

study and promotion of history and historical

thinking. It is a non-profit membership organization,

founded in 1884 and incorporated by Congress in

1889 for the promotion of historical studies. The

AHA provides leadership to the discipline on such

issues as academic freedom, access to archives,

professional standards, and the centrality of history

to public culture. The appended List of Scholars

identifies the individual amici. App. la-4a.

This brief, based on decades of study and

research by amici, aims to provide accurate historical

perspective as the Court considers state purposes for

marriage. Contrary to the Sixth Circuit’s premise

below, procreation and the rearing of biological

children have never been the exclusive (or even

predominant) purpose of marriage—a multifaceted

institution that has, over time, shed _ several

discriminatory elements, in part through this Court’s

intervention. Based on their historical perspective,

amici support Petitioners’ position that the important

and varied interests that states have in marriage

warrant inclusion of same-sex couples within that

institution. ?

2 The historical discussion in this brief is supported by amici’s

collective scholarship, whether or not expressly cited, including:

PETER W. BARDAGLIO, RECONSTRUCTING THE HOUSEHOLD:

FAMILIES, SEX, AND THE LAW IN THE NINETEENTH-CENTURY

SOUTH (1995); NORMA BASCH, FRAMING AMERICAN DIVORCE

(1999) and IN THE EYES OF THE LAW: WOMEN, MARRIAGE, AND

3

PROPERTY IN 19TH CENTURY NEW YORK (1982); STEPHANIE

COONTZ, THE SOCIAL ORIGINS OF PRIVATE LIFE: A HISTORY OF

AMERICAN FAMILIES, 1600-1900 (1988) and MARRIAGE, A

HISTORY (2006); NANCY F. CoTT, PUBLIC Vows: A HISTORY OF

MARRIAGE AND THE NATION (2000); REBECCA L. DAVIS, MORE

PERFECT UNIONS: THE AMERICAN SEARCH FOR MARITAL

Biss (2010); Tospy L. DITZ, PROPERTY AND KINSHIP:

INHERITANCE IN EARLY CONNECTICUT (1986); LAURA F.

EDWARDS, GENDERED STRIFE AND CONFUSION: THE POLITICAL

CULTURE OF RECONSTRUCTION (1997); SARAH BARRINGER

GORDON, THE SPIRIT OF THE LAW: RELIGIOUS VOICES AND THE

CONSTITUTION IN MODERN AMERICA (2010), and THE MORMON

QUESTION: POLYGAMY AND CONSTITUTIONAL CONFLICT IN

NINETEENTH-CENTURY AMERICA (2002); MICHAEL GROSSBERG,

GOVERNING THE HEARTH: LAW AND THE FAMILY IN NINETEENTH-

CENTURY AMERICA (1985); HENDRIK HARTOG, MAN & WIFE IN

AMERICA, A HISTORY (2000) and SOMEDAY ALL THIS WILL BE

Yours: A HISTORY OF INHERITANCE AND OLD AGE (2012); JILL

ELAINE HASDAY, FAMILY LAW REIMAGINED (2014); ELLEN

HERMAN, KINSHIP BY DESIGN: A HISTORY OF ADOPTION IN THE

MODERN UNITED STATES (2008); MARTHA HODES, WHITE

WOMEN, BLACK MEN: ILLICIT SEX IN THE 19TH CENTURY SOUTH

(1997); LINDA K. KERBER, NO CONSTITUTIONAL RIGHT TO BE

LADIES: WOMEN AND THE OBLIGATIONS OF CITIZENSHIP (1998);

ALICE KESSLER-HARRIS, IN PURSUIT OF EQUITY: WOMEN, MEN,

AND THE QUEST FOR ECONOMIC CITIZENSHIP IN 20TH-CENTURY

AMERICA (2001); JAN ELLEN LEWIS, THE PURSUIT OF

HAPPINESS: FAMILY AND VALUES IN JEFFERSON’S VIRGINIA

(1983); ELAINE TYLER MAY, HOMEWARD BOUND: AMERICAN

FAMILIES IN THE COLD WAR ERA (1988) and BARREN IN THE

PROMISED LAND (1995); STEVEN MINTZ, DOMESTIC REVOLUTIONS:

A SOCIAL HISTORY OF AMERICAN FAMILY LIFE (1988); ELIZABETH

H. PLECK, CELEBRATING THE FAMILY: ETHNICITY, CONSUMER

CULTURE, AND FAMILY RITUALS (2000) and NoT JUST

ROOMMATES: COHABITATION AFTER THE SEXUAL REVOLUTION

(2012); CAROLE SHAMMAS, A _ HISTORY OF HOUSEHOLD

GOVERNMENT IN AMERICA (2002); MARY L. SHANLEY, MAKING

BABIES, MAKING FAMILIES (2001) and JUST MARRIAGE (2004);

4

INTRODUCTION AND

SUMMARY OF ARGUMENT

Throughout American history, marriage has

served multiple state interests and has evolved to

reflect social and legal changes. The historical record

contradicts attempts to cast marriage as serving any

single, overriding purpose. And it contradicts

attempts to present marriage as a static institution

so rooted in “tradition” as to insulate it from

constitutional challenge.

The assertion of Respondents and the Sixth

Circuit below that marriage laws derived from

biological imperatives and were grounded exclusively

in a state interest in procreation cannot be reconciled

with the multitude of interests that led the American

colonies and early states to enact marriage laws. By

authorizing and regulating marriage, states have

pursued political, economic, social, and legal

interests, while also recognizing the important

personal nature of marriage. Those interests have

included complementing the state’s governance of the

population; creating stable households; fostering

social order; increasing economic. benefit to

individuals; minimizing public support of the

indigent, vulnerable and dependent (including the

AMY DRU STANLEY, FROM BONDAGE TO CONTRACT: WAGE LABOR,

MARRIAGE AND THE MARKET IN THE AGE OF SLAVE EMANCIPATION

(1998); BARBARA YOUNG WELKE, LAW AND THE BORDERS OF

BELONGING IN THE LONG NINETEENTH CENTURY UNITED STATES

(2010) and 2 LAW, PERSONHOOD AND CITIZENSHIP IN THE LONG

19TH CENTURY, CAMBRIDGE HISTORY OF AMERICAN LAW (2008).

5

very young, the very old, and the disabled); and

facilitating property transmission.

Other historical features of marriage laws

undermine the notion that their sole purpose was a

state interest in responsible procreation. Procreative

ability has never been a requirement of marriage; no

state has ever prevented the infertile or elderly, nor

those who have no intention to have children, from

marrying. Indeed, American society has long viewed

sexual intimacy and romance within marriage in

ways untethered to procreation, highlighting the

importance of a “love-match” between the couple who

will consent to marry. Since the colonial era,

moreover, non-biological children have formed an

important component of American families. States

have long extended support obligations beyond

biological progeny, and adopted children have long

been accorded equivalent legal status.

Equally devoid of credence is the notion that

civil marriage is so deeply entrenched in tradition

that it resists competing constitutional imperatives.

To the contrary, marriage has remained a vital

institution because it is not static. Marriage has

retained its basis in voluntary and mutual consent,

as well as in love and economic partnership, while

states have, over time, altered many of its

dimensions to adapt to economic change and to

shifting social and sexual mores. Courts and

legislatures have used their power over marriage to

lessen inequality between spouses and to lift rules

restricting eligibility to marry. Laws and traditions

enforcing gender hierarchy (through coverture) and

white supremacy (through anti-miscegenation laws)

6

have been overturned. Today, in part from this

Court's actions, those “traditional” restrictions are

readily accepted as unconstitutional.

That marriage remains a vital and relevant

institution testifies to the law’s ability to recognize

the need for change, rather than adhere rigidly to

values or practices of earlier times. As this Court

now considers whether the right to marriage extends

to same-sex couples, it should be mindful that laws

governing marriage have evolved—in some cases

through decisions of this Court—uxus this Nation has

recognized the injustice of restricting some citizens

from exercising equal marriage rights. Enabling

couples of the same sex to enjoy full rights to

marriage choice would continue and comport with

these historical trends.

ARGUMENT

I MARRIAGE HAS SERVED MULTIPLE

PURPOSES BEYOND PROCREATION

THROUGHOUT AMERICAN HISTORY.

Marriage is a capacious and complex institution.

Though religion, sentiment, and custom may color an

individual’s understanding of marriage, marriage as

a civil institution in the United States has served a

number of complementary purposes—political, social,

economic, legal, and personal. Over this Nation’s

history, states have recognized that marriage serves

to facilitate the state’s regulation of the population;

to create stable households; to foster social order; to

increase economic welfare and minimize public

support of the indigent or vulnerable; to legitimate

7

children; to assign providers to care for dependents;

to facilitate the ownership and transmission of

property; and to compose the body politic. COTT,

supra note 2, at 2, 11-12, 52-53, 190-194, 221-224.

The basis of marriage is voluntary consent

between the couple, their free choice of one another

for love (a value explicitly enshrined in American

ideals since the era of the American Revolution), and

the couple’s acknowledged right to create a private

haven in their home are all aspects of the personal

liberty associated with marriage. In licensing

marriages, states affirm that a couple’s marital vows

also produce economic benefit, residential stability,

and social good, whether or not biological children

ensue. Consequently, the attempt to rank

procreation or rearing of biological children as the

core interest of marriage defies the historical record.

A. Marriage Historically Has Served

Important Political And Economic

Purposes.

1. Marriage developed in relation to

governance.

Civil marriage in Western political culture has

been closely intertwined with sovereigns’ efforts to

govern their people. In Western Europe, when

sovereigns wrested control over marriage from

ecclesiastical authorities, they sought to create

governable subgroups by treating male household

heads effectively as their delegates, each of whom

ruled his own household. MARY ANN GLENDON, THE

TRANSFORMATION OF FAMILY LAW: STATE, LAW, AND

8

FAMILY IN THE UNITED STATES AND WESTERN EUROPE

23-34 (1989); Sarah Hanley, Engendering the State:

Family Formation and State Building in Early

Modern France, 16 FRENCH HISTORICAL STUDIES 4, 6-

15 (1989); Mary L. Shanley, Marriage Contract and

Social Contract in 17th-Century English Political

Thought, 32 THE FAMILY IN POLITICAL THOUGHT 79,

81 (J.B. Elshtain ed., 1982).

Laws creating and regulating civil marriage

were among the first passed by the American colonies

after declaring independence from Great Britain.

When those colonies formed a republic, marriage and

governance remained linked, and that connection

reflected the republican principles of the new nation.

Influenced by Montesquieu’s The Spirit of the Laws,

Revolutionary-era statesmen believed that the only

marriage form consistent with and suitable for their

republican form of government was consent-based

monogamy. Anne M. Cohler, Montesquieu’s

Comparative Politics and the Spirit of American

Constitutionalism, 23 EIGHTEENTH-CENTURY STUDIES

343. Revolutionary spokesmen even modeled a

citizen’s voluntary allegiance to the new United

States on an individual’s voluntary choice of a

marriage partner. COTT, supra note 2, at 15-17, 21-

23; Jan Lewis, The Republican Wife: Virtue and

Seduction in the Early Republic, 44 WM. & MARY Q.

3d ser. 689, 695-99, 706-710 (1987).

James Wilson, a Revolutionary-era jurist, saw

consent—more than even cohabitation—as_ the

essence of marriage. His lectures on law of 1792

spoke of marriage as a civil contract, in which “the

agreement of the parties, the essence of every

9

rational contract, is indispensably required.” 2 THE

WORKS OF JAMES WILSON 600 (Robert G. McCloskey,

ed., 1967). The individual’s ability to consent to

marriage in early America was a mark of the free

person in possession of basic civil rights—a fact

illustrated in the history of slavery in the United

States. Slaves could not contract valid marriages

because they lacked the ability to consent fully and

freely, owing all to their masters.

Until the early twentieth century, married

men’s citizenship and voting rights were seen as tied

to their headship of and responsibilities for their

families. Anglo-American legal doctrine made a

married man the head of his household. In return for

his legal obligation to control and support his wife,

dependent children, dependent’ relatives, and

others—e.g., orphans, apprentices, servants and

slaves—the married man became their public

representative. In turn, a wife’s subordinate status

in the marital relationship was consistent with her

inferior citizenship and inability to vote. SHAMMAS,

supra note 2, at 24-25; STANLEY, supra note 2, at 7-

12, 181-82; KERBER, supra note 2, at 11-15; 2 WELKE,

LAW, PERSONHOOD AND CITIZENSHIP, supra note 2, at

345-50.

Social and legal changes eroded the rule that the

male is the head of household who exercises dominion

over his wife and other dependents. But the

historical link between marriage and _ civic

governance persists. Federal and state laws channel

obligations and many benefits to individuals through

marital status. See U.S. GOV'T ACCOUNTABILITY

OFFICE, GAO-04-353R, Defense of Marriage Act:

10

Update to Prior Report (2004); see also United States

v. Windsor, 133 S. Ct. 2675, 2683 (2013); Turner v.

Safley, 482 U.S. 78, 96 (1987) (voiding restriction on

prison inmate marriages in part because “marital

status often is a precondition to the receipt of

government benefits”).

2. Marriage has created public order and

economic benefits.

In early America, legal marriages served public

order by establishing governable and economically

viable households. MARY BETH NORTON, FOUNDING

MOTHERS AND FATHERS 27-56, 96-137 (1996)

(paternal power over families governing social and

economic order). A household managed food,

clothing, and shelter for all its members. Marriage

organized households and figured largely in property

ownership and inheritance, matters of civil society

important to public authorities. E.g., 1 GEORGE

ELLIOTT HOWARD, A HISTORY OF MATRIMONIAL

INSTITUTIONS CHIEFLY IN ENGLAND AND THE UNITED

STATES 121-226 (1904) (colonial precedents); id. at

388-497 (early state marriage laws).

Today, state governments retain strong

economic interests in marriage. States offer financial

advantages to married couples on the premise that

their households promise social stability and

economic benefit to the public, and thus minimize

public expense for indigents. The marriage bond

obliges the mutually consenting couple to support one

another, which is not the case for unmarried couples.

In addition, states have sought to limit the public’s

responsibility for children by looking to married

11

couples to provide support for minor dependents.

That historically has included but not been limited to

the married couple's biological children.

The responsibilities for governance in early

America extended to all children within the

household, whether they were adopted, step-, or

biological children, and even extended to unrelated

members of the household such as apprentices and

slaves. See p. 9, supra. Further, states currently

impose a separate legal obligation on individual

parents to support biological children, which applies

regardless of the parents’ marital status. LAURA W.

MORGAN, CHILD SUPPORT GUIDELINES:

INTERPRETATION AND APPLICATION § 1.07 (2d ed.

2013); Douglas W. Allen and Margaret Brinig, Chart

3: Child Support Guidelines, 45 Fam. L.Q. 498, 498-

99 (Winter 2012).

The economic dimension of the marriage-based

family took on new scope when federal government

benefits expanded during the twentieth century. As

noted above (p. 10, supra), state and federal

governments now channel many economic benefits

through marital relationships. Federal benefits such

as veterans’ survivors’ benefits and immigration

preferences are available to legally married spouses,

but not to unmarried partners.

B. Marriage Has Always Been About

More Than Childbearing.

The Sixth Circuit and Respondents below

“start[ed] from the premise that governments got into

the business of defining marriage, and remain in the

business of defining marriage, not to regulate love

12

but to regulate sex, most especially the intended and

unintended effects of male-female intercourse.”

DeBoer v. Snyder, 772 F.3d 388, 404 (6th Cir. 2014);

see also Br. of Defendants-Appellants 25, Tanco uv.

Haslam, No. 14-5297 (6th Cir. May 7, 2014), ECF No.

32 (“Biology alone . . . provides a rational explanation

for Tennessee’s decision not to extend marriage to

same-sex couples.”). But that premise is historically

flawed. Although state interests in authorizing and

regulating marriage have surely related in part to

children, those interests have never been limited to

procreation or the rearing of the couple’s biological

children (intended or otherwise).

1. Neither eligibility for marriage nor

sexual intimacy within marriage has

turned on the ability to procreate.

In licensing marriage, state governments have

bundled legal obligations together with social

rewards to encourage couples to choose committed

relationships over transient ones, whether or not

children will result. Sexual intimacy in marriage has

always been presumed, but couples’ ability or

willingness to produce progeny has never been

necessary for valid marriage in any state. Men or

women known to be sterile have not been prevented

from marrying. Post-menopausal women are not

barred from marrying, nor is divorce mandated after

a certain age. 3 HOWARD, supra, at 3-160;

GROSSBERG, supra note 2, at 108-110.

To be sure, the Anglo-American common law

and many early state statutes made impotence or

other debility preventing sexual intimacy a reason for

13

annulment or divorce. Thus, the inability to have

sexual relations could invalidate a marriage, but

sterility or infertility did not. Annulment for sexual

incapacity depended, moreover, upon a complaint by

one of the marital partners, and if neither spouse

objected, a non-sexual marriage remained valid in

the eyes of the state. CHESTER G. VERNIER, AMERICAN

FAMILY LAWs: A COMPARATIVE STUDY OF THE FAMILY

LAW OF THE FORTY-EIGHT AMERICAN STATES 1

(grounds for annulment), 2 (grounds for divorce)

(1931 and 1932).

The notion that marriage historically has been

dedicated to the procreation and welfare of children

rather than to the relationship of the adult couple

presents a false dichotomy. Adults’ intentions for

themselves have been central to marriage in the

history of the United States. Romantic and sexual

attachment, companionship and love, as well as

economic partnership, were no less intrinsic to

marriage than the possibility of children. Even when

it has been clear that no children would result,

couples married for love, companionship, and

stability. Lewis, supra, at 695-699, 706-710.

By the 1920s, when contraception became

readily available in influential sectors of American

society, marital sexual intimacy was increasingly

acknowledged to be a value in itself quite separable

from reproduction. JOHN D’EMILIO AND ESTELLE B.

FREEDMAN, INTIMATE MATTERS: A HISTORY OF

SEXUALITY IN AMERICA 239-274 (1988); ANDREA TONE,

DEVICES AND DESIRES: A HISTORY OF CONTRACEPTIVES

IN AMERICA (2001). Intentionally non-procreative

marriages became prevalent enough that social

14

scientists coined the term “companionate marriage”

to refer to them (though the term is used more

generally now). Dr. M.M. Knight, for example, used

this new term in 1924 to acknowledge that “[wje

cannot reestablish the old family, founded on

involuntary parenthood, any more than we can set

the years back or turn bullfrogs into tadpoles.” M.M.

Knight, The Companionate and the Family, 10 J.

Soc. HYGIENE 258, 267 (1924); see also CHRISTINA

SIMMONS, MAKING MARRIAGE MODERN 113-134

(2009); DAVIS, supra note 2, at 21-53.

In the late 1930s, the American Medical

Association embraced contraception as a medical

service and soon thereafter most states legalized

physicians’ dispensing of birth control to married

couples. The Supreme Court struck down

Connecticut’s ban on married couples’ use of birth

control in 1965. Griswold v. Connecticut, 381 U.S.

479 (1965). More recently, reproductive technologies

have multiplied methods to bring wanted children

into being, with or without biological links to the

parents who intend to rear them. SHANLEY, MAKING

BABIES, supra note 2, at 76-147.

2. Non-biological children have long been

integral to the American family.

Far from viewing the marital relationship as one

centered on procreation, state laws have long

encouraged married couples to incorporate non-

biological children into the family structure.

Historically, marriages in which step-parents took

responsibility for non-biological children were

common because of early deaths of a biological

15

parent. Families also sometimes took in orphans.

HARTOG, SOMEDAY, supra note 2, at 169-205. The

historical trend in state laws has been to equalize the

rights of legally adopted children with those of

biological children.

The very first “First Family,” established by the

“Father of our Country,” George Washington,

supplied the nation with a non-biological family

model: he was assumed to be sterile, since he and his

wife Martha had no children, but she brought two

children from her first marriage into their marital

household. LORRI GLOVER, FOUNDERS AS FATHERS:

THE PRIVATE LIVES AND POLITICS OF THE AMERICAN

REVOLUTIONARIES 17 (2014) (noting historians’

speculation that a bout with smallpox in 1751 left

Washington infertile). Washington’s inaugural

address initially included a reference (later deleted)

to his own lack of offspring. PAUL F. BOLLER, JR.,

PRESIDENTIAL INAUGURATIONS 4 (2001). George and

Martha Washington also raised their grandchildren

after her son died in the Revolutionary War.

This willingness to include _ non-biological

children in the marital family then and now suggests

states have not promoted a favored status for

biologically based parenting among the public

purposes of marriage. To the contrary, American

history suggests that states have intended to

recognize intentional and deliberate parenting as

much as “accidental” procreation. HERMAN, supra

note 2, at 203-204, 292-293.

16

Il MARRIAGE HAS CHANGED TO REJECT

DISCRIMINATORY RULES AND

RESTRICTIONS.

Like other successful civil institutions, marriage

has evolved to reflect societal changes and judicial

recognition of legal rights. Adjustments in key

features of marital eligibility, roles, duties, and

obligations have kept marriage vigorous and

appealing. These changes—whether settled by

legislatures or courts—were not readily welcomed by

everyone. Some opponents at first fiercely resisted

features of marriage that we now take for granted.

Notably, changes in gender-based rules and

elimination of racial restrictions in marriage mark

the institution’s path toward the present.

A. Marriage Laws Have Changed To

Reflect Changing Understandings Of

Spouses’ Respective Roles and Rights.

Adopted from Anglo-American common law,

early American marriage laws treated men and

women unequally and asymmetrically. Those laws

rested on the legal fiction that the married couple

composed a_ single unit, which the husband

represented legally, economically and politically. As

James Wilson asserted in 1792: “The most important

consequence of marriage is, that the husband and the

wife become, in law, only one person: the legal

existence of the wife is consolidated into that of the

husband.” 2 WILSON, supra, at 601.

This doctrine of marital unity or coverture

required a husband to support his wife and family,

and a wife to obey her husband. Because her

17

husband represented her publicly, a married woman

could not own or dispose of property, earn money,

have a debt, make a valid contract, or sue or be sued

under her own name. Because the two were

considered one person, neither spouse could testify

for or against the other in court or commit a tort

against the other. 2 WILSON, supra, at 602-03;

KERBER, supra note 2, at 11-15; HARTOG, SOMEDAY,

supra note 2, at 105-09.

Coverture reflected the degree to which

marriage was understood to be an economic

arrangement. Marriage-based households were

fundamental economic units in early America. But

by the mid-1800s, the notion that married women

lacked economic and legal personhood began to clash

with societal realities. Women’s rights advocates

began to demand rights for wives to property and

wages. Courts and legislatures saw advantages in

treating spouses’ assets separately: a wife’s property

could keep a family solvent if a husband’s creditors

claimed his assets, and employed married women

could support their children if their husbands were

profligate. In response, states began unraveling the

requirements of marital unity. BASCH, IN THE EYES

OF THE LAW, supra note 2, at 113-161; Richard H.

Chused, Married Women’s Property Law: 1800-1850,

71 GEO. L.J. 1359 (1982-1983). By 1900, most states

enabled wives to keep and control their own property

and earnings; by the 1930s, wives in many states

could act as economic individuals. 3 VERNIER, supra,

at 24-30 (1935); HARTOG, MAN & WIFE, supra note 2,

at 110-135, 287-308.

18

Dismantling coverture however, was extremely

controversial. Opponents of change contended that

coverture was the essence of marriage. To eliminate

it was blasphemous and unnatural; the marriage

bargain was govert.ed by laws of “Divine origin” and

subordination was “the price which female wants and

weakness must pay for their protection.” BASCH, IN

THE EYES OF THE LAW, supra note 2, at 154 (quoting

prominent New York opponent).

As a result, certain gender-based discriminatory

rules persisted. For example, government benefit

programs in the 1930s adopted the expectation that

the husband was the economic provider and the wife

his dependent. The 1935 Social Security Act

significantly differentiated between husbands and

wives with respect to entitlement to benefits.

KESSLER-HARRIS, supra note 2, at 132-141. When

plaintiffs challenged such spousal sex differentiation

in the 1970s, the Supreme Court found

discrimination between husband and wife in Social

Security and veterans’ entitlements unconstitutional.

See Califano v. Goldfarb, 430 U.S. 199 (1977);

Weinberger v. Wiesenfeld, 420 U.S. 636 (1975);

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

then, federal benefits channeled through marriage

have been gender-neutral.

Of all the legal features of marital unity, the

husband’s right of access to his wife’s body lasted

longest. Not until the 1980s did most states,

including the Respondent States, end husbands’

complete exemption from prosecution for rape of their

wives. HASDAY, FAMILY LAW REIMAGINED, supra note

2, at 119; Jill Elaine Hasday, Contest and Consent: A

19

Legal History of Marital Rape, 88 CALIF. L. REv.,

1375-1505 (Oct. 2000); see, e.g., 1985 H 475 (Ohio);

MICH. COMP. LAWS ANN. § 750.5201 (West 1988);

TENN. CODE ANN. § 39-13-507 (Supp. 1989); 1990 Ky.

Laws H.B. 38 (Ch. 448).

B. Race-Based Restrictions On Marriage

Eligibility Have Been Eliminated.

In a number of instances, state marriage laws

created and enforced inequalities that were declared

“natural” and right at the time, although today the

laws seem patently unfair and discriminatory.

GROSSBERG, supra note 2, at 70-74, 86-113, 144-145;

3 VERNIER, supra, at 183-209. Starting from slavery,

these race-based restrictions on marriage survived

into the latter part of the twentieth century.

As noted above (p. 8-9, supra), slaves were

unable to marry under the laws of slaveholding

states because they lacked basic civil rights and thus

were unable to give the free consent required for

lawful marriage. A slave’s obligatory service to the

master also made it impossible to fulfill the legal

obligations of marriage. Margaret Burnham, An

Impossible Marriage: Slave Law and Family Law, 5

LAW & INEQ. 187 (1987-1988). Where slaveholders

permitted, slave couples wed informally, creating

families of great value to themselves and to the slave

commur.ity. HERBERT G. GUTMAN, THE BLACK FAMILY

IN SLAVERY AND FREEDOM 1750-1925 (1976). Those

unions were not respected by slaveholders, however,

who dissolved families with impunity when they sold

or moved slaves. WALTER JOHNSON, SOUL BY SOUL:

LIFE INSIDE THE ANTEBELLUM SLAVE MARKET 19

20

(1999); WALTER JOHNSON, RIVER OF DARK DREAMS:

SLAVERY AND EMPIRE IN THE COTTON KINGDOM 14

(2013) (half of interstate slave sales broke up a

nuclear family); STEVEN DEYLE, CARRY ME BACK: THE

DOMESTIC SLAVE TRADE IN AMERICAN LIFE, passim

(2005) (pervasive disruption of slave families by sale).

After emancipation, many former slaves

welcomed the ability to marry their chosen partner as

a civil right. It constituted an important expression

of their newly gained freedom. Laura Edwards, The

Marriage Covenant is the Foundation of All our

Rights, 14 LAW & HIST. REV. 81 (1996).

Even after slavery ended, however, race-based

discrimination in marriage persisted—and even

proliferated—in the form of nullification and/or

criminalization of marriages of whites to persons of

color. Those measures served to deny public approval

to those who chose to love across the color line. By

preventing interracial relationships from ever

gaining the status of marriage, and thus conflating

them with “illicit sex,” state courts sought to

delegitimize them altogether. PEGGY PASCOE, WHAT

COMES NATURALLY: MISCEGENATION LAW AND THE

MAKING OF RACE IN AMERICA 22-40, 56-74 (2009).

As many as 41 states and U.S. territories

banned and/or criminalized marriage across the color

line for some period, including each of the

Respondent States. DaAvip H. FOWLER, NORTHERN

ATTITUDES TOWARDS’ INTERRACIAL MARRIAGE:

LEGISLATION AND PUBLIC OPINION IN THE MIDDLE

ATLANTIC AND THE STATES OF THE OLD NORTHWEST,

1780-1930 (1987) (Appendix); see also Ky. Const., art.

VIll, § 6; Ch. 19, 1822 Tenn. Acts 22; MICH. REV.

21

STAT. 1838; OHIO REV. STAT. § 6987; PASCOE, WHAT

COMES NATURALLY 343 n.43. States north and south

adopted similar prohibitions, and in fifteen states

(mainly in the West), marriages between whites and

additional categories of nonwhites (such as Indians,

Chinese and “Mongolians”) were also prohibited.

PASCOE, WHAT COMES NATURALLY 77-108; see, e.g.,

Perez v. Lippold, 198 P.2d 17, 18 (Cal. 1948) (striking

down law that prohibited “marriages of white persons

with negroes, Mongolians, members of the Malay

race, or mulattoes” which had been in effect since

1872); Laws of the Territory of Nev. 1861, Ch. 32

(1861); 1867 Idaho Terr. Gen. Laws ch. 11, § 3, at 72.

Defenders of these laws insisted that permitting

cross-racial couples to marry would fatally degrade

the institution of marriage, for marriages across the

color line were against nature, and against the

Divine plan (as some opponents argue today against

same-sex marriage). In Tennessee, for example, the

court opined that “natural as well as municipal law”

mandated marriage, but cross-racial marriages were

“revolting” and “unnatural.” State v. Bell, 66 Tenn. 9,

11 (1872); PASCOE, WHAT COMES NATURALLY 69-73.

Slowly but unmistakably, social and legal

opinion began to see these laws as inconsistent with

principles of equality and damaging to society. Still,

race-based marriage restrictions remained in force in

more than thirty states when this Court in 1923

recognized the right to marry as a fundamental right.

Meyer v. Nebraska, 262 U.S. 390, 399 (1923); see also

Skinner v. Oklahoma ex rel. Williamson, 316 U.S.

535, 541 (1942). Even at the time of this Court’s

decision in Loving v. Virginia, 388 U.S. 1 (1967), 16

22

states restricted interracial marriages. JId. at 6.

Only after the Loving Court struck down Virginia’s

“Racial Integrity” law, thereby invalidating all

remaining state anti-miscegenation laws, were such

restrictions on the basic freedom to choose one’s

spouse finally laid to rest.

C. Courts Have Played An Instrumental

Role In Changes To Marriage Laws.

Several of the fundamental changes discussed

above did not result from what the Sixth Circuit

described as “allow[ing] state democratic forces to fix

the problems as they emerge and as evolving

community mores show they should be fixed.”

DeBoer, 772 F.3d at 407. Instead, judicial review has

often led to the recognition that traditional or

discriminatory views of marriage (and marriage-

related laws) must give way in the face of evolving

understandings of race and gender embodied in

constitutional guarantees under the Fourteenth

Amendment.

Loving is perhaps the most obvious example, but

not the only one. Twenty years before Loving, the

California Supreme Court struck down a similar anti-

miscegenation law. Perez, 198 P.2d 17. In both Perez

and Loving, proponents of the laws made many of the

same arguments now being advanced by Respondents

and adopted by the Sixth Circuit below in the defense

of the bans on same-sex marriage: e.g., that biology

justifies the restrictions; that the Constitution does

not address restrictions on marriage; that the

question of who can marry should be left to the

political process; and that the restrictions have been

23

widely accepted and are supported by tradition. See,

e.g., Br. on Behalf of Appellee, Loving v. Virginia (No.

395), 1967 WL 93641, at *4-7, 31-38, 40-49; Perez,

198 P.2d at 40, 43, 44, 46 (Shenk, J., dissenting).

As noted above, this Court also held

unconstitutional gender-based distinctions relating to

marriage. It prohibited asymmetrical treatment of

husbands and wives under Social Security and

veterans’ benefit laws. Califano, 430 U.S. 199;

Weinberger, 420 U.S. 636; Frontiero, 411 U.S. 677.

Similarly, this Court held that unequal treatment of

spouses in divorce proceedings—a law requiring

husbands, but not wives, to pay alimony—could not

withstand constitutional scrutiny. Orr v. Orr, 440

U.S. 268, 278-83 (1979).

These cases establish that state laws rooted in

“traditional” notions about marriage are not immune

from judicial review, particularly when they interfere

with equality and individual liberty. When such laws

contradict constitutional mandates, this Court has

not abdicated its role in deference to the “democratic

process.” Instead, it has found such laws

unconstitutional.

zxk*xxkk«x

Throughout American history, the rights to

marry and to choose one’s spouse have been profound

exercises of the individual liberty central to the

American polity and way of life. The past century

has witnessed societal and constitutional emphasis

on freedom in choice of marital partner and freedom

from racial and gender-based restrictions in

marriage. Recognizing the right of individuals of the

24

same sex to marry is the next step in this historical

trend.

CONCLUSION

The judgment of the court of appeals should be

reversed.

Respectfully submitted,

Pratik A. Shah

Counsel of Record

Daniel McNeel Lane

Jessica M. Weisel

Matthew E. Pepping

AKIN GUMP STRAUSS

HAUER & FELD LLP

March 6, 2015

APPENDIX

la

APPENDIX

LIST OF AMICI CURIAE

HISTORIANS OF MARRIAGE*

Peter W. Bardaglio, Ph.D.

Senior Advisor, Second Nature

Formerly Professor of History

Ithaca College

Norma Basch

Professor Emerita of History

Rutgers University

Stephanie Coontz

Professor of History and Family Studies

The Evergreen State College

Nancy F. Cott

Jonathan Trumball Professor of American History

Harvard University

Rebecca L. Davis

Associate Professor and Director of Graduate

Studies History Department

University of Delaware

Deborah Dinner

Associate Professor of Law

Washington University School of Law

* The amici listed in this appendix appear in their individual

capacities; institutional affiliations are listed for identification

purposes only.

2a

Toby L. Ditz

Professor of History

Johns Hopkins University

Laura F. Edwards

Professor of History

Duke University

Sarah Barringer Gordon

Arlin M Adams Professor of Constitutional Law and

Professor of History

University of Pennsylvania

Michael Grossberg

Sally M. Reahard Professor of History

& Professor of Law

Indiana University

Hendrik Hartog

Class of 1921 Bicentennial Professor in the

History of American Law and Liberty

Princeton University

Jill Hasday

Distinguished McKnight University Professor

Centennial! Professor of Law

Lead Editor, Constitutional Commentary

University of Minnesota Law School

Ellen Herman

Professor of History

University of Oregon

3a

Martha Hodes

Professor of History

New York University

Linda K. Kerber

May Brodbeck Professor in the Liberal Arts

Emerita and Lecturer in Law

University of Iowa

Alice Kessler-Harris

R. Gordon Hoxie Professor of History

Columbia University

Jan Ellen Lewis

Professor of History

Rutgers University-Newark

Elaine Tyler May

Regents Professor of American Studies and History

University of Minnesota

Serena Mayeri

Professor of Law and History

University of Pennsylvania Law School

Steven Mintz

Professor of History

University of Texas at Austin

Elizabeth Pleck

Professor Emerita of History

University of Illinois, Urbana-Champaign

4a

Carole Shammas

Professor Emerita and John R. Hubbard

Chair Emerita in History

University of Southern California

Mary L. Shanley

Margaret Stiles Halleck Professor of Political Science

Vassar College

Amy Dru Stanley

Associate Professor of History and the Law School

University of Chicago

Barbara Welke

Distinguished McKnight University Professor,

Professor of History and Professor of Law

University of Minnesota

Diane I. Williams

Assistant Professor of History and Law

University of Southern California