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

~

Cour,

FILED

Nos. 14-556, 14-562, 14-571, 14-574 APR 2 - 2015

“In the Supreme Court of the Ani

JAMES OBERGEFELL, et al., Petitioners,

RICHARD HopGEs, inne Ou10 DEPARTMENT

or HEALTH, et al., Respondents.

VALERIA TANCO, et al., Petitioners,

BiLL HasLaM, GOVERNOR OF Geseen et al., Respondents.

Apri. DeBoer, et al., Petitioners,

Rick SNYDER, GOVERNOR OF et al., Respondents.

Grecory Bourke, et al., Petitioners,

Vv.

STEVE BesHEAR, GOVERNOR OF KENTUCKY, et al., Respondents.

On Writs of Certiorari to the United States

Court of Appeals for the Sixth Circuit

Georgia, Idaho, Kansas, Montana, Nebraska, North Dakota,

Oklahoma, South Dakota, and West Virginia as

Amici Curiae Supporting Respondents

JAMES D. “Buppy” CALDWELL S. Kyte DUNCAN

Attorney General of Louisiana Special Assistant Attorney

Genera)! for Louisiana

Sean D. ReEYEs

Counsel of Record

Attorney Genera! of Utah Duncan PLLC

PARKER DOUGLAS 1629 K St. NW, Ste. 300

Utah Federal Solicitor Washington, DC 20006

Blues Panvons 202.714.9492

Attorney General of Texas kduncan@duncanplic.com

Counsel for Amici Curiae

(Complete counsel listed on inside cover)

Becker Gallagher - Cincinnati, OH Washington, D.C. 800.890.5000)

REPRINTED COPY

Craic W. RicHARDS

Attorney General of Alaska

P.O. Box 110300

Juneau, AK 99811

Mark BrNovicH

Attorney General of Arizona

1275 West Washington

Phoenix, AZ 85007

LESLIE RUTLEDGE

Attorney General of Arkansas

323 Center St.

Little Rock, AR 72201

SAMUEL S. OLENS

Attorney General of Georgia

40 Capitol Square, SW

Atlanta, GA 30334

LAWRENCE G. WASDEN

Attorney General of Idaho

P.O. Box 83720

Boise, ID 83720

DEREK SCHMIDT

Attorney General of Kansas

Memorial Hall

120 SW 10th Ave., 2nd Floor

Topeka, KS 66612

JAMES D. “Buppy” CALDWELL

Attorney General of Louisiana

P.O. Box 94005

Baton Rouge, LA 70804

Timotny C. Fox

Attorney Genera! of Montana

P.O. Box 201401

Helena, MT 59620-1401

DouG PETERSON

Attorney General of Nebraska

2115 State Capitol

Lincoln, NE 68509

WAyYNE STENEHJEM

Attorney General of North Dakota

600 E. Boulevard Avenue

Dept. 125

Bismarck, ND 58505-0040

E. Scorr Pruitt

Attorney General of Oklahoma

313 N.E. 21st Street

Oklahoma City, OK 73105-4894

Marty J. JACKLEY

Attorney General of South

Dakota

1302 E. Highway 14, Suite 1

Pierre, SD 57501-8501

KEN PAXTON

Attorney General of Texas

P.O. Box 12548

Austin, TX 78711-2548

Sean D. Reves

Attorney General of Utah

PARKER DouGLas

Utah Federal Solicitor

350 North State Street, Ste. 230

Salt Lake City, UT 84114

PATRICK MorIsSEY

Attorney General of West Virginia

State Capitol Complex,

Bldg. 1, Room E-26

Charleston, WV 25305

i

QUESTIONS PRESENTED

1.

Does the Fourteenth Amendment require a state to

license a marriage between two people of the same

sex?

a

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?

Questions Presented

Table of Authorities

I.

II.

ss

TABLE OF CONTENTS

Determining the shape and meaning of

marriage is a fundamental exercise of self-

government by state citizens ......................2.....

A. Our Constitution ensures that state

citizens have the sovereign authority to

ee EE iciectnsicactinseitaniincidnninttinadiinaandiiceinnies

B. The States’ exercise of sovereign

authority is at its apex in domestic

I iiiccicietecininceercnsetniteiiiineidocnctesdeabaaeidiiniaapitidin

C. In deciding whether to adopt same-sex

marriage, state citizens exercise their

sovereign authority to determine the

RGIS GE TET 2000 cccccesccectbeecesccessesesesees

A decision constitutionalizing same-sex

marriage would erase the sovereignty of

state citizens to determine the meaning of

SSPE EERE EEE EEE COO eee ee ee

ed enn Pee eee

lil

A. Such a decision would abandon the

TE HEINE sctsicssincnbiiceanennidnndseismindnnesie 13

B. Such a _ decision would dilute the

numerous democratic victories recently

won in the States by proponents of

te GD ccetccccnsncscnntccssennencesacsonaee 20

C. Such a decision would eliminate the

States’ role as laboratories of democracy

in the realm of domestic relations............... 23

D. Such a decision would announce that

state citizens are incapable of resolving

this issue through constructive civil

RRR TEESE eto aa cin en DN MD 25

ELIE RL TEN ROOT aaa Ae 32

iv

TABLE OF AUTHORITIES

Cases

Alden v. Maine,

I is ik ee 3,4

Ankenbrandt v. Richards,

Se Certs Gi I i cincissiirsaittiuseinindliiresiniaeniaaieioitceneaianmaanananal 6

Baker v. Gen. Motors Corp.,

EE SPE HEED CIID cccceiscnsinicssntiacascimmnipeaaniaiel 8,18

Baker v. Nelson,

191 N.W.2d 185 (Minn. 1971)...................00..00ceeee 29

Baker v. Nelson,

Se rs Ce CD vcicttikicccncccnsteneniiedtentenmmmumanle 30

Barber v. Barber,

ee FG, Be cc tccceciincsececnasenctvenmneasmannaiantiiad 6

Baskin v. Bogan,

766 F.3d 648 (7th Cir. 2014).............. 12, 16, 27, 28

Bloom v. Willis,

7 8 fF i seen TEER ens 19

Bond v. United States,

SF Es & = |__| | en ernerren rere 4, 26

Bond v. United States,

FR Bg 5

Bostic v. Rainey,

970 F.Supp.2d 456 (E.D. Va. 2014) ............... 28, 29

Bostic v. Schaefer,

760 F.3d 363 (4th Cir. 2014)............................... 16

Brinson v. Brinson,

a 19

Brown v. Buhman,

947 F.Supp.2d 1170 (D. Utah 2013).................... 25

Campaign for Southern Equality v. Bryant,

_. F.Supp.3d __, 2014 WL 6680570 (S.D.

a ccuauiensuecioosoncsacese 28

Cohens v. Virginia,

i ccunsesioeen 5

Conde-Vidal v. Garcia-Padilla,

F.Supp.3d _, 2014 WL 5361987 (D.

Puerto Rico Oct. 21, 2014) ....ccccccccccscessessesesseeneeees 16

DeBoer v. Snyder,

772 F.3d 388 (6th Cir. 2014)........................ passim

De Leon v. Perry,

975 F.Supp.2d 632 (W.D. Tx. 2014)..........0.0........ 28

Franchise Tax Bd. of Cal. v. Hyatt,

Ee 18

Garcia v. San Antonio Metropolitan Transit

Auth.,

Ee 5

Geiger v. Kitzhaber,

994 F.Supp.2d 1128 (D. Ore. 2014) ........cccccseeese 27

vl

Goodridge v. Dept. of Public Health,

798 N.E.2d 941 (Mass. 2003) .....................ccccccceeees 9

Gregory v. Ashcroft,

ER ee 5

Haddock v. Haddock,

ke Seen 6,14

Hernandez v. Robles,

GBS PUTED 1 CBBOG).....nccccccccccccccccccccccccccccccescs: 10, 30

In re Burrus,

ELE eve ee Ber 6

Kirchberg v. Feenstra,

TERE eer AP 8

Kitchen v. Herbert,

961 F.Supp.2d 1181 (D. Utah 2013).........0.......... 27

Kitchen v. Herbert,

755 F.3d 1193 (10th Cir. 2014)................ 16, 17, 24

Latta v. Otter,

771 F.3d 456 (9th Cir. 2014)............0.0.....cce. 9, 28

Latta v. Otter,

__ F.3d__, 2015 WL 128117

I I ie 17

Lochner v. New York,

ee Gi I tcirisesceninniiensininntnmncininasionein 1, 5, 30

vil

Loving v. Virginia,

I, 8, 13, 28, 29, 30

Massachusetts v. United States Dept. of Health

and Human Servs.,

I 7

Nevada v. Hall,

EAL SAI eee ry me orem 19

New State Ice Co. v. Liebmann,

SARL CEILS a LER 5, 24

New York v. United States,

I 3,4

Nguyen v. I.N.S.,

EERE ERNE San eeeU Cece NTs 12

Ohio ex rel. Popovici v. Agler,

I ia 14

Pennoyer v. Neff,

TL ee a es 7

Printz v. United States,

A OT Sa Are 3

Robicheaux v. Caldwell,

2 F.Supp.3d 910 (E.D. La. 2014).............. 11, 12,13

Rosenbrahn v. Daugaard,

__ F.Supp.3d __, 2015 WL 144567 (D.S.D.

i, Be EE tectienieictinnenniermnennaninssnetpininneanaiias 28

vill

Schuette v. Coalition to Defend Affirmative

Action,

st oo ee |. | | 25, 26, 27, 31

Sevcik v. Sandoval,

911 F.Supp.2d 996 (D. Nev. 2012)......................... i]

Silkwood v. Kerr—McGee Corp.,

ESSERE eet se 5

Sosna v. Iowa,

| ESTAR AOD oa Nero ane Rees 7

Sun Oil v. Wortman,

I a cael 19

Turner v. Safley,

a eeaitieniaaenaiele 13

United States v. Windsor,

8 passim

Washington v. Glucksberg,

| CER eT ee 13

Williams v. North Carolina,

og tS ene 6, 7, 8, 14

Whitewood v. Wolf,

992 F.Supp.2d 410 (M.D. Pa. 2014)..................... 28

Wolf v. Walker,

986 F.Supp.2d 982 (W.D. Wis.)................ 16, 27, 29

ix

Wos v. E.M.A.,

es Ce Se CD criesapccscsntinnniesnscentiuansianenniens 5

Zablockhi v. Redhail,

a re Se Oe encsciesiscncinicincnccmsennnnecnennnseniinntii 13

Statutes

FES Ue SEINE ceetcnrsenecnniensionnmeapsasesinemmeinnsnaiainid 6

Defense of Marriage Act, 110 Stat. 2419..........000..... 14

ee I, CTD GE Wi irrccctesscsncnssnnsnnsnneniasetnemsesensete 20

ele is ISA, © ncccccncensscantineninnssnsemmenssnmeesnedinnn 20

es CI eit. SF Oe Se iceccrceensnvecnnsasenimenttonscmninitnnniactitii 20

I i a ll 20

ee Rs EA CaO INUED sencsicsinscinensisniniestinimsnsiiiiiahiatiiaanninid 20

Marriage Equality Act, 2011 N.Y. Laws 749............ 10

Md. Fam. Law Code Ann. §2—201..............0.0.000..00000 20

Me. Rev. Stat. Ann. tit. 19-A §650-A ........0.0..0.. 20

Eee 20

N.Y. Dom. Rel. Law Ann. §§ 10—a, 10~b, 13....... 10, 20

rs I, Gaia ee Bi GP setenencnnenccnnenscnienensccsuantnsamniie 20

Wash. Rev. Code §26.04.010 ...............00..0cc cece eee eee 20

X

Constitutional Provisions

ls I, Os SO ccneunsnnndnnasanendll 8, 18, 19

a passim

Other Authorities

Brief for Petitioners, DeBoer v. Snyder, No. 14-

7g f) & & 5 eee 11

Brief for Petitioners, Obergefell v. Hodges, No.

eS 8 a eene 15

Fahima Haque, Meet the “World’s First” Gay

Married “Throuple,” N.Y. Post, Feb. 27,

2015, http://nypost.com/2015/02/27/thai-

throuple-believed-to-be-worlds-first-gay-

ET ceccensdnsidunentenpetieipiiansscttinipinesnaseesscntinta 23

Henry J. Friendly, Federalism: A Foreword,

DD WED Bae BD GG UP cerccensacescsessennsctensensenetncceses 4

Martha C. Nussbaum, From Disgust to

Humanity: Sexual Orientation and _ the

Constitution (Oxford Univ. Press 2010).............. 29

Mildred Loving, Loving for All, Public

Statement on the 40th Anniversary of Loving

SB Ere 29

RESTATEMENT (FIRST) CONFLICT OF LAWS § 134....... 19

RESTATEMENT (SECOND) CONFLICT OF LAWS §

as 19

xi

Steven Hopkins, “J Do, I Do, I Do”: Three Men

Tie the Knot in Thailand to Become the

World’s First Wedded Threesome, THE

MIRROR, Feb. 27, 2015,

http://www.mirror.co.uk/news/uk-news/i-do-

REEL LSE S IRE SO AE ae 23

, a 3

INTEREST OF AMICI STATES

The citizens of the amici States have always

defined marriage as a man-woman institution. In

choosing to retain that definition, they engaged in

the most elementary form of self-government

guaranteed by our Constitution. That authority will

be lost irretrievably, however, if the Court accepts

the plaintiffs’ arguments in these cases. The amici

States therefore have a keen interest in the outcome.

INTRODUCTION AND SUMMARY OF THE ARGUMENT

When state citizens determine the shape and

meaning of civil marriage, they reflect as a

community about an institution more fundamental to

our civilization than any other. In recent years, some

States have concluded that marriage should include

couples of the same sex. Accordingly, they have

altered their marriage laws through the democratic

process. Others have come to the different conclusion

that marriage has always been, and should remain,

intrinsically a man-woman relationship. They have

accordingly declined to alter their marriage laws.

Whether taking one path or the other, these citizens

have acted upon their “considered perspective on the

historical roots of the institution of marriage.” United

States v. Windsor, 133 S. Ct. 2675, 2692-93 (2013).

Our federal system peacefully accommodates

Americans on both sides of this profound issue. This

is why Justice Holmes wiote that our “Constitution

... is made for people of fundamentally differing

views.” Lochner v. New York, 198 U.S. 45, 75-76

(1905) (Holmes, J., dissenting).

2

These cases ask whether States and their citizens

may continue to govern themselves on this issue. The

plaintiffs, and even some States, assert that the

Fourteenth Amendment removes same-sex marriage

from democratic deliberation. They urge the Court to

declare that the Constitution compels all fifty States

to adopt this new form of marriage that did not exist

in a single State twelve years ago. The Court should

decline that invitation.

The Constitution takes no sides on same-sex

marriage, and therefore leaves the issue up to the

free deliberations of state citizens. The fact that

Americans have reached different conclusions about

this novel question is not a sign of a constitutional

crisis that requires correction by this Court. It is

rather a sign that our Constitution is working as it

should. In our federal system, this issue must be

resolved by the “formation of consensus” at the state

level. Windsor, 133 S. Ct. at 2692. To resolve it

instead through federal judicial decree would demean

the democratic process, marginalize the views of

millions of Americans, and do incalculable damage to

our civic life in this country.

ARGUMENT

I. DETERMINING THE SHAPE AND MEANING OF

MARRIAGE IS A FUNDAMENTAL EXERCISE OF SELF-

GOVERNMENT BY STATE CITIZENS.

A. Our Constitution ensures that state

citizens have the sovereign authority to

govern themselves.

1. The structure of our Constitution is premised

on the dignity of the sovereign States. Today, this is

one of those “truths ... so basic that, like the air

3

around us, they are easily overlooked.” New York v.

United States, 505 U.S. 144, 187 (1992). It was not as

obvious during the Constitution’s drafting and

ratification. In the ratification debates, James

Madison explained that the people would approve the

Constitution, “not as individuals composing one

entire nation, but as composing the distinct and

independent states to which they respectively

belong.” THE FEDERALIST No. 39, at 196 (Madison)

(Gideon ed., 2001). Likewise, Alexander Hamilton

assured his readers that “[t]he proposed constitution,

so far from implying an abolition of the state

governments, makes them constituent parts of the

national sovereignty, ... and leaves in_ their

possession certain exclusive, and very important,

portions of the sovereign power.” THE FEDERALIST

No. 9, at 41 (Hamilton). As Madison and Hamilton

promised, the Constitution ultimately ratified by the

people “specifically recognizes the States as sovereign

entities.” Alden v. Maine, 527 U.S. 706, 713 (1999)

(internal quotations omitted).

2. To have any vital meaning at all, the state

sovereignty recognized by the Constitution means

that state citizens must retain the basic ability to

govern themselves. This Court has explained that the

Constitution “assume[s] the States’ ... active

participation in the fundamental processes of

governance.” Id.; see also Printz v. United States, 521

U.S. 898, 935 (1997) (commanding state officers to

administer a federal program is “fundamentally

incompatible with our constitutional system of dual

sovereignty’). “States are not mere political

subdivisions of the United States,” New York, 505

U.S. at 188, nor are they “relegated to the role of

mere provinces or political corporations.” Alden, 527

4

U.S. at 715. Rather, as this Court has correctly and

consistently taught, States “retain the dignity ... of

sovereignty.” Id.

3. The fact that the United States has multiple

sovereigns means the American people have more

freedom, not less. “The federal system rests on what

might at first seem a counterintuitive insight, that

‘freedom is enhanced by the creation of two

governments, not one.” Bond v. United States, 131 S.

Ct. 2355, 2364 (2011) (quoting Alden, 527 U.S. at

758). Federalism enhances. collective freedom

through “the diffusion of sovereign power.” New York,

505 U.S. at 181. This diffusion enhances individual

freedom by promoting self-government:

Federalism secures the freedom of the

individual. It allows States to respond,

through the enactment of positive law, to the

initiative of those who seek a voice in shaping

the destiny of their own times without having

to rely solely upon the politica] processes that

control a remote central power.

Bond, 131 S. Ct. at 2364. Judge Friendly previously

reached a similar insight: “We must stand in awe and

admiration” of our federal republic, which “leav(es] to

the states the final decision on the bulk of day-to-day

matters that can be best be decided by those who are

closest to them.” Henry J. Friendly, Federalism: A

Foreword, 86 Yale L.J. 1019, 1034 (1977).

4. By protecting state sovereignty, our

Constitution reinforces the _ stability of an

increasingly diverse Nation. A century ago, Justice

Holmes rightly observed that our Constitution “is

made for people of fundamentally differing views.”

5

Lochner, 198 U.S. at 75-76 (Holmes, J., dissenting).

The Constitution remains such a document because

of its federal structure. By allowing States to differ

on important matters, the Constitution ensures the

States’ vital ability to serve as “laboratories for social

and economic experiment.” Garcia v. San Antonio

Metropolitan Transit Auth., 469 U.S. 528, 546 (1985)

(citing New State Ice Co. v. Liebmann, 285 U.S. 262,

311 (1932) (Brandeis, J., dissenting)). Federalism

thus “assures a decentralized government that will

be more sensitive to the diverse needs of a

heterogeneous society.” Gregory v. Ashcroft, 501 U.S.

452, 458 (1991).

B. The States’ exercise of sovereign

authority is at its apex in domestic

relations law.

1. Numerous areas of law lie squarely within state

sovereign authority. One thinks of laws on crime,

property, contracts, education, and public health.

See, e.g., Bond v. United States, 134 S. Ct. 2077, 2086

(2014) (“For nearly two centuries it has been ‘clear’

that, lacking a police power, ‘Congress cannot punish

felonies generally.”) (quoting Cohens v. Virginia, 6

Wheat. 264, 428 (1821)); Wos v. E.M.A., 133 S. Ct.

1391, 1400 (2013) (“In our federal system, there is no

question that States possess the ‘traditional

authority to provide tort remedies to their citizens’ as

they see fit.”) (quoting Silkwood v. Kerr—-McGee Corp.,

464 U.S. 238, 248 (1984)). States are in the heartland

of their authority, however, when they act in the

realm of domestic relations.

2. This Court has long affirmed the centrality of

domestic relations law to state sovereignty. Near the

end of the twentieth century, the Court repeated this

6

maxim from the end of the nineteenth: “The whole

subject of the domestic relations of husband and wife,

parent and child, belongs to the laws of the States

and not to the laws of the United States.”

Ankenbrandt v. Richards, 504 U.S. 689, 703 (1992)

(quoting In re Burrus, 136 U.S. 586, 593-94 (1890)).

That principle explains why federal courts avoid

adjudicating marital status, even when they

otherwise have jurisdiction. Windsor, 133 S. Ct. at

2691. It also explains why the diversity statute has

been construed to “divest{] the federal courts of

power to issue divorce, alimony, and child custody

decrees.” Ankenbrandt, 504 U.S. at 703; see generally

id. at 695-704 (discussing “domestic relations

exception” incorporated into 28 U.S.C. § 1332);

Barber v. Barber, 21 How. 582 (1859) (determining

federal courts have no jurisdiction over divorce or

alimony suits). These venerable limits on federal

power reflect what the Court has called “the

virtually exclusive primacy ... of the States in the

regulation of domestic relations.” Windsor, 133 S. Ct.

at 2691 (quoting Ankenbrandt, 504 U.S. at 714

(Blackmun, J., concurring in judgment)); see also,

e.g., Williams v. North Carolina, 317 U.S. 287, 304

(1947) (Frankfurter, J., concurring) (“We are not

authorized nor are we qualified to formulate a

national code of domestic relations.”).

3. a. Among the facets of domestic relations law,

states have a keen interest in regulating marriage.

See, e.g., Haddock v. Haddock, 201 U.S. 562, 575

(1906) (noting “the Constitution delegated no

authority to the Government of the United States on

the subject of marriage and divorce”). This is because

“It}he marriage relation creates problems of large

social importance.” Williams, 317 U.S. at 298. Such

7

problems ripple across vital areas of law, including

the “[p]rotection of offspring, property interests, and

the enforcement of marital responsibilities.” Jd. One

could add to that list laws regulating adoption,

taxation, inheritance, insurance, health care,

reproductive technology, and employment.

b. Within marriage law States have a paramount

interest in how the marital relation is defined. The

Court has endorsed the broad statement from

Pennoyer v. Neff that “[t]he State ... has absolute

right to prescribe the conditions upon which the

marriage relation between its own citizens shall be

created, and the causes for which it may be

dissolved.” Sosna v. Jowa, 419 U.S. 393, 404 (1975)

(quoting Pennoyer v. Neff, 95 U.S. 714, 734-35

(1878)). More recently, the Court confirmed that

“(t]he definition of marriage is the foundation of the

State’s broader authority to regulate the subject of

domestic relations[.]” Windsor, 133 S. Ct. at 2691

(citing Williams, 317 U.S. at 298); see also id. (noting

that “[t]he significance of state responsibilities for the

definition and regulation of marriage dates to the

Nation’s beginning”) (emphases added). Windsor

called States’ “authority to define the marital

relation” not just important but “essential.” Jd. at

2692. This explains the outcome in Windsor: the

Court struck down a broad federal marriage

definition because it sought to “interfere with state

sovereign choices about who may be married” and to

“influence a state’s decision as to how to shape its

own marriage laws.” Id. at 2693 (quoting

Massachusetts v. United States Dept. of Health and

Human Servs., 682 F.3d 1, 12-13 (1st Cir. 2012))

(emphases added); see infra II.A.

8

4. None of this is to say that States’ authority over

marriage somehow immunizes marriage laws from

constitutional constraints. Far from it: “[s]tate laws

defining and regulating marriage, of course, must

respect the constitutional rights of persons.”

Windsor, 133 S. Ct. at 2691 (citing Loving v. Virginia,

388 U.S. 1 (1967)). For instance, it is settled that the

Fourteenth Amendment forbids States from defining

marriage or its incidents to perpetuate racial or

gender discrimination. See Loving, 388 U.S. at 12

(“The Fourteenth Amendment requires that the

freedom of choice to marry not be restricted by

invidious racial discrimination.”); Kirchberg v.

Feenstra, 450 U.S. 455, 460 (1981) (Fourteenth

Amendment violated by “express gender-based

discrimination” in marital property law).

Furthermore, the Full Faith and Credit Clause

requires interstate recognition of a divorce decree,

given that divorce (unlike marriage) arises from a

judgment. See Williams, 317 U.S. at 303-04; see

generally Baker v. Gen. Motors Corp., 522 U.S. 222,

232-33 (1998) (explaining that the Clause

“differentiates the credit owed to laws ... and to

judgments”). But the fact that constitutional

guarantees apply to marriage laws—as they do to

every other state law—does not dilute the States’

particular authority to regulate and define marriage.

It there were any doubt of that, this Court recently

laid it to rest by confirming that “[t)he definition of

marriage is the foundation of the State’s broader

authority to regulate the subject of domestic

relations.” Windsor, 133 S. Ct. at 2691.

9

C. In deciding whether to adopt same-sex

marriage, state citizens exercise their

sovereign authority to determine the

meaning of marriage.

1. The past decade has seen the rapid emergence

of the idea that civil marriage should include couples

of the same sex. See, e.g., Sevcik v. Sandoval, 911

F.Supp.2d 996, 1013 (D. Nev. 2012) (observing “[t}he

States are in the midst of an intense democratic

debate about the novel concept of same-sex

marriage”), rev'd by Latta v. Otter, 771 F.3d 456 (9th

Cir. 2014), petition for cert. filed (U.S. Dec. 30, 2014)

(No. 14-765). When the Court decided Windsor in

June 2013, twelve States and the District of

Columbia had democratically adopted same-sex

marriage. See Windsor, 133 S. Ct. at 2689, 2690.

Whether one sees this development as encouraging or

alarming, it is obviously brand new. No State

recognized same-sex marriage until Massachusetts in

2003; no country in the world did until the

Netherlands in 2000. See, e.g., Windsor, 133 S. Ct. at

2715 (Alito, J., dissenting); see also Goodridge v.

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

2. What should also be obvious is that the step

from the older to the newer version of marriage is a

momentous one, both culturally and legally. The

concept of marriage as a man-woman institution is

“measuied in millennia, not centuries or decades,”

and “until recently [it] had been adopted by all

governments and major religions of the world.”

DeBoer v. Snyder, 772 F.3d 388, 395-96 (6th Cir.

2014), cert granted, 83 U.S.L.W. 3315 (U.S. Jan. 16,

2015) (No. 14-571). In Windsor, this Court made the

similar observation that “marriage between a man

10

and a woman had been thought of by most people as

essential to the very definition of that term and to its

role and function throughout the history of

civilization.” Windsor, 133 S. Ct. at 2689.

3. Thus, when state citizens decide whether to

adopt same-sex marriage, one thing appears

inescapably true: those citizens are exercising

sovereign authority over their domestic relations law.

This is perhaps self-evident. For confirmation,

however, one need only read the Court’s opinion

Windsor. In 2006, the New York Court of Appeals

ruled that the state constitution did not guarantee a

right to same-sex marriage, but “express[ed] [its]

hope that the participants in the controversy over

same sex marriage will address their arguments to

the Legislature.” Hernandez v. Robles, 855 N.E.2d 1,

12 (2006). New Yorkers’ responded ffirst by

recognizing out-of-state same-sex marriages and then

by amending New York law to adopt same-sex

marriage. As the Court described this development,

New Yorkers undertook “a statewide deliberative

process that enabled [them] to discuss and weigh

arguments for and against same-sex marriage.”

Windsor, 133 S. Ct. at 2689. Only then did they “act(]

to enlarge the definition of marriage.” Jd. (citing

MARRIAGE EQUALITY ACT, 2011 N.Y. Laws 749

(codified at N.Y. DoM. REL. LAW ANN. §§ 10—a, 10—b,

13 (West 2013)). What New Yorkers did was “without

doubt a proper exercise of ... sovereign authority

within our federal system, all in the way that the

Framers of the Constitution intended.” Windsor, 133

S. Ct. at 2692.

11

Il. A DECISION CONSTITUTIONALIZING SAME-SEX

MARRIAGE WOULD ERASE THE SOVEREIGNTY OF

STATE CITIZENS TO DETERMINE THE MEANING OF

MARRIAGE.

1. The plaintiffs in these cases claim that the

Fourteenth Amendment overrides the States’

sovereign choices about same-sex marriage. In their

view, the Fourteenth Amendment decrees that every

State must recognize and adopt same-sex marriage,

and that is the beginning and end of the matter. See,

e.g., Brief for Petitioners at 19, 21, DeBoer v. Snyder,

No. 14-571 (U.S. Feb. 27, 2015) (asserting Michigan’s

laws “violate the Equal Protection Clause under any

standard of scrutiny” and “den[y] the fundamental

right to marry guaranteed by the Due Process

Clause”). The plaintiffs are mistaken for the reasons

set forth in the Sixth Circuit’s majority opinion in

DeBoer and in Judge Martin Feldman’s opinion in

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

2014), appeal docketed, No. 14-31037 (5th Cir. Sept. 4

& 5, 2014). The respondent States have argued these

points at length, and the amici States will only

briefly address them here:

a. Defining marriage in man-woman terms does

not violate equal protection for two principal reasons.

i. First, States may rationally structure marriage

around the biological reality that the sexual union of

a man and a woman—unique among all human

relationships—produces children. See DeBoer, 772

F.3d at 404-05 (man-woman marriage furthers

society's “need to regulate male-female relationships

and the unique procreative possibilities of them”);

Robicheaux, 2 F.Supp.3d at 920 (man-woman

marriage is “directly related to achieving marriage’s

12

historically preeminent purpose of linking children to

their biological parents”). Many lower courts have

dismissed this understanding of traditional marriage

laws as not merely out-of-date but irrational. See,

e.g., Baskin v. Bogan, 766 F.3d 648, 665 (7th Cir.

2014) (concluding Indiana’s marriage law “flunks

[the] undemanding test” of rational basis review),

cert. denied, 135 S. Ct. 316 (2014). They are

profoundly mistaken. “To fail to acknowledge even

our most basic biological differences ... risks making

the guarantee of equal protection superficial, and so

disserving it.” Nguyen v. I.N.S., 533 U.S. 53, 73

(2001).

ii. Second, States may rationally place the man-

woman definition in their constitutions—as many

States have done—to ensure that the definition of

marriage is altered only through the consensus of

their citizens, and not’ through judicial

interpretation. See DeBoer, 772 F.3d at 408 (nineteen

States placed the man-woman definition in their

constitutions out of concern that “the courts would

seize control over an issue that people of good faith

care deeply about”); Robicheaux, 2 F.Supp.3d at 920

(States have “a legitimate ... interest in safeguarding

that fundamental social change ... is_ better

cultivated through democratic consensus”). Not only

is this practice rational, but it has been commended

by this Court. On this issue, Windsor taught that

“[t}he dynamics of state government in our federal

system are to allow the formation of consensus|.]”

Windsor, 133 S. Ct. at 2692.

b. Defining marriage in man-woman terms does

not violate due process because the right to marry

someone of the same sex is not “objectively, deeply

13

rooted in this Nation’s history and _ tradition.”

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

(internal quotation marks omitted); see DeBoer, 772

F.3d at 410-13 (explaining this Court’s marriage

cases “did not redefine [marriage] but accepted its

traditional meaning”) (discussing Loving, 388 U.S. 1;

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

Safley, 482 U.S. 78 (1987)); Robicheaux, 2 F.Supp.3d

at 923 (concluding that, “until recent years, [same-

sex marriage] had no place at all in this nation’s

history and tradition”). As this Court has explained,

marriage “between two persons of the same sex”

began to arise only in a minority of States over the

last decade and involves “a new perspective” on an

institution that had been viewed across time and

cultures as defined by man-woman relationships.

Windsor, 133 S. Ct. at 2689.

2. Instead of duplicating the merits arguments on

these points, the amici States will highlight the

negative consequences that would flow from a

decision that the Fourteenth Amendment compels

recognition and adoption of same-sex marriage.

Those consequences would be severe, unavoidable,

and irreversible.

A. Such a decision would abandon the

premise of Windsor.

The first casualty of a decision constitutionalizing

same-sex marriage would be the coherence of this

Court’s precedent, which just last term emphatically

reaffirmed the authority of States to decide this very

question on the basis of democratic deliberation.

Although they avoid saying so, the plaintiffs ask this

Court to jettison the underpinnings of that precedent

and the two centuries of historical practice that

14

undergird it. The Court should decline that

invitation.

1. In Windsor, this Court confirmed the States’

“historic and essential authority to define the marital

relation.” 133 S. Ct. at 2692. “The definition of

marriage,” Windsor explained, is “the foundation of

the State’s broader authority to regulate the subject

of domestic relations with respect to the ‘[p]rotection

of offspring, property interests, and the enforcement

of marital responsibilities.” Id. at 2691 (quoting

Williams, 317 U.S. at 298). The Court traced this

state authority “to the Nation’s beginning.” See

Windsor, 133 S. Ct. at 2691 (observing that “(t]he

significance of state responsibilities for the definition

of marriage dates to the Nation’s beginning”) (citing

Ohio ex rel. Popovici v. Agler, 280 U.S. 379, 383-84

(1930)); see also Windsor, 133 S. Ct. at 2691 (noting

that “|t]he states, at the time of the adoption of the

Constitution, possessed full power over the subject of

marriage and divorce”) (quoting Haddock, 201 U.S.

at 575).

2. This longstanding state authority to define

marriage was “of central relevance” to Windsor’s

invalidation of the federal marriage definition in

section 3 of the Defense of Marriage Act (“DOMA”),

110 Stat. 2419. Windsor, 133 S. Ct. at 2692. DOMA

broadly defined marriage at the federal level, an

“unusual deviation from the usual tradition of

recognizing and accepting state definitions of

marriage.” Jd. at 2693. This intrusion on state

authority marked DOMA as a “discrimination[] of

unusual character,” leading the Court to find that it

infringed the rights of same-sex couples married

under New York law. 7d. (internal quotations

15

omitted). DOMA’s central flaw was that it

undermined New York’s sovereign authority to

extend marriage to same-sex couples. As the Court

put it, DOMA’s illegitimate “purpose [was] to

influence or interfere with state sovereign choices

about who may be married,” and “to put a thumb on

the scales and influence a state’s decision as to how to

shape its own marriage laws.” Id. at 2693 (emphasis

added) (internal quotations omitted).

3. Windsor thus vindicated the rights of married

same-sex couples against federal intrusion by

affirming New York’s authority “to allow same-sex

marriages” in the first place. Jd. at 2692. New York’s

decision was “without doubt a proper exercise of its

sovereign authority within our federal system, all in

the way that the Framers of the Constitution

intended.” Jd. Confirming its reliance on _ state

authority, the Court limited its holding to those

couples “joined in same-sex marriages made lawful

by the State.” Id. at 2695 (emphasis added); see also

id. (“This opinion and holding are confined to those

lawful marriages.”).

4. a. Ironically, the plaintiffs ground their

arguments for overturning state marriage laws on

Windsor itself. See, e.g., Brief for Petitioners at 18,

Obergefell v. Hodges, No. 14-556 (U.S. Feb. 27, 2015)

(arguing that Ohio’s marriage law “violate[s] the

Fourteenth Amendment for all the reasons this Court

struck down DOMA as unconstitutional in Windsor”).

They can do so, however, only by maintaining a

studied silence about Windsor’s affirmation of state

authority over marriage—an authority this Court

identified as “of central relevance” to its outcome. See

Windsor, 133 S. Ct. at 2692 (“The State’s power in

16

defining the marital relation is of central relevance in

this case quite apart from principles of federalism.”);

see also id. at 2691 (observing “it is necessary to

discuss the extent of the state power and authority

over marriage”). That plaintiffs avoid discussing

what Windsor actually said about state authority is

unsurprising, because “it takes inexplicable

contortions of the mind ... to interpret Windsor’s

endorsement of the state control of marriage as

eliminating the state control of marriage.” Conde-

Vidal v. Garcia-Padilla, __ F.Supp.3d __, 2014 WL

5361987, at *8 (D. Puerto Rico Oct. 21, 2014), appeal

docketed, No. 14-2184 (1st Cir. Nov. 13, 2014).

b. Several lower courts have also mistakenly

discounted Windsor’s grounding in state authority.

For instance, a split panel of the Tenth Circuit

reduced Windsor’s reliance on state sovereignty to a

“prudential concern[]” and “a mere preference that

[the] arguments be settled elsewhere.” Kitchen v.

Herbert, 755 F.3d 1193, 1228 (10th Cir. 2014), cert.

denied, 83 U.S.L.W. 3102 (U.S. Oct. 6, 2014).! Judge

Kelly’s dissent rightly rejected this reading. “Windsor

recognized the authority of the States to redefine

marriage and stressed the need for popular

1 See also, e.g., Bostic v. Schaefer, 760 F.3d 352, 378 (4th Cir.

2014) (compelling recognition of same-sex marriage, despite

recognizing that “Windsor ... rested in part on the Supreme

Court’s respect for states’ supremacy in the domestic relations

sphere”), cert denied, 135 S. Ct. 308 (2014); Wolf v. Walker, 986

F.Supp.2d 982, 996 (W.D. Wis.), affd sub nom. Baskin v. Bogan,

766 F.3d 648 (7th Cir. 2014), cert. denied, 83 U.S.L.W. 3127

(Oct. 6, 2014) (invalidating Wisconsin marriage law, despite

admitting that Windsor “noted multiple times ... that the

regulation of marriage is a traditional concern of the states”).

17

consensus in making such change.” Jd. at 1235-36

(Kelly, J., dissenting) (citing Windsor, 133 S. Ct. at

2692). Ignoring that “the States are laboratories of

democracy” on this issue would “turn[] the notion of a

limited national government on its head.” 7d. at 1231

(Kelly, J., dissenting); see also, e.g., Latta v. Otter, _

F.3d _, 2015 WL 128117, at *9 (9th Cir. Jan. 9,

2015) (O’Scannlain, J., dissenting from denial of

rehearing en banc) (“In the latest Supreme Court

opinion addressing the issue of same-sex marriage,

the Court gave a ringing endorsement of the central

role of the states in fashioning their own marriage

policy.”) (citing Windsor, 133 S. Ct. at 2689-93).

5. Simply because Windsor required the federal

government to recognize state marriage definitions,

the decision does not mean that a State must

recognize another State’s same-sex marriage. That

reading fundamentally misunderstands both Windsor

and our federal system.

a. Windsor’s reasoning depended on the starkly

different authority possessed by federal and state

governments over the law of marriage. The federal

government has limited authority in this area and,

thus, has historically deferred to state marriage laws.

By contrast, the States have always exercised

virtually exclusive authority over marriage. See, e.g.,

Windsor, 133 S. Ct. at 2689-90 (while “Congress, in

enacting discrete statutes, can make determinations

that bear on marital rights and privileges,”

nonetheless “[bly history and tradition the definition

and regulation of marriage ... has been treated as

being within the authority and realm of the separate

States”). That dichotomy explains Windsor’s

outcome—i.e., that DOQMA’s federal marriage

18

definition was an ahistorical intrusion on a State’s

authority to shape its own marriage laws. See, e.g.,

id. at 2692 (concluding that “DOMA, because of its

reach and extent, departs from this [federal] history

and tradition of reliance on state law to define

marriage”). But Windsor never taught the simplistic

and erroneous view that one sovereign must always

and everywhere recognize another sovereign’s

marriage laws.

b. That view is foreclosed by basic principles of

interstate comity. It is settled that the Full Faith and

Credit Clause “does not compel a state to substitute

the statutes of other states for its own statues

dealing with a subject matter concerning which it is

competent to legislate.” Baker, 522 U.S. at 232-33

(internal quotations omitted). To be sure, the

judgments of one State receive exacting credit in

other States, id. at 233, but nu one contends that

marriages arise from judgments. One State may thus

apply its own marriage laws to its domiciliaries. See,

e.g., Franchise Tax Bd. of Cal. v. Hyatt, 538 U.S. 488,

494-95 (2003) (a State may apply its laws if it has “a

significant contact or significant aggregation of

contacts, such that choice of its law is neither

arbitrary nor fundamentally unfair”); DeBoer, 772

F.3d at 418 (“If defining marriage as an opposite-sex

relationship amounts to a legitimate public policy ...

the Full Faith and Credit Clause does not prevent a

State from applying that policy to couples who move

from one State to another.”).

Nor is there anything unusual in one State

refusing to recognize an out-of-state marriage on

public policy grounds. The field of conflicts-of-laws is

based on the premise that States have wide latitude

19

in determining whether to apply their own or another

sovereign’s laws to legal disputes within their

borders. See, e.g., Sun Oil v. Wortman, 486 U.S. 717,

727 (1988) (explaining “it is frequently the case

under the Full Faith and Credit Clause that a court

can lawfully apply either the law of one State or the

contrary law of another”). It is established that

States may refuse to enforce out-of-state rules on

public policy grounds, and “[e]ven more telling,

States in many instances have refused to recognize

marriage performed in other States on the grounds

that these marriages depart from cardinal principles

of the States domestic-relations laws.” DeBoer, 772

F.3d at 419 (citing RESTATEMENT (FIRST) CONFLICT OF

LAWS § 134; RESTATEMENT (SECOND) CONFLICT OF

LAWS § 283)); see also, e.g., Brinson v. Brinson, 96

So.2d 653, 659 (La. 1957) (refusing to recognize

fraudulent Mississippi common-law marriage). To be

sure, States may decide to recognize out-of-state

marriages as a matter of comity. See, e.g., Bloom v.

Willis, 60 So.2d 415, 417 (La. 1952) (recognizing non-

ceremonial marriage “out of comity”). But when

States decide their public policy prevents them from

doing so, they exercise the same domestic relations

authority that empowers them to define marriage in

the first place. See, e.g., Nevada v. Hall, 440 U.S. 410,

422 (1979) (full faith and credit “does not require a

State to apply another State’s law in violation of its

own legitimate public policy”).

20

B. Such a decision would dilute the

numerous democratic victories recently

won in the States by proponents of

same-sex marriage.

A decision constitutionalizing this issue would

sweep away not only Windsor’s affirmation of state

authority, but also the value of the democratic

process in those States whose citizens have recently

decided to confer the benefits of marriage on same-

sex couples.

1. Over the past decade, proponents of same-sex

marriage have achieved a remarkable string of

successes by convincing their fellow citizens that they

have the better argument about the meaning of

marriage. Despite numbering from 1.5% to 3.5% of

the population, in the space of about five years they

have used the political process to change the

marriage laws in Delaware, Hawaii, Illinois, Maine,

Maryland, Minnesota, New Hampshire, New York,

Rhode Island, Vermont, and Washington.” That is a

stunning feat, given that the man-woman concept of

marriage had been so deeply ingrained in American

history and culture. See, e.g., Windsor, 133 S. Ct. at

2689 (noting that, “until recent years, many citizens

had not even considered the possibility” of same-sex

marriage).

2 See Del. Stat. Tit. 13 § 101; Haw. Rev. Stat. § 572-1; Ill. St.

Ch. 750 § 5/213.1; Me. Rev. Stat. Ann. tit. 19-A §650-A; Md.

Fam. Law Code Ann. §2—201; 2013 Minn. Laws ch. 74; N. H.

Rev. Stat. Ann. §457:1-a; N. Y. Dom. Rel. Law Ann. §10-a; 2013

R. I. Laws ch. 4; Vt. Stat. Ann., Tit. 15, §8; Wash. Rev. Code

§26.04.010.

21

2. One should not lightly conclude that these

democratic victories arose merely from savvy politics

or the movement of a few thousand voters from one

side of the ledger to the other. To the contrary, the

removal of the man-woman definition from marriage

laws may well be the political outcome of a

significant cultural shift towards a new vision of

marriage in those States. This is evident in the

Court’s description of the process that led New

Yorkers to alter their marriage definition in 2011.

Windsor taught that New Yorkers’ decision to

confer “acknowledgment” and “dignity” on a new

form of marriage was a matter of epochal

significance. Windsor, 133 S. Ct. at 2692. This was no

mere technical alteration of statutory language. New

Yorkers acted on “the understanding that marriage is

more than a routine classification for the purposes of

certain statutory benefits,” but is instead a “far-

reaching legal acknowledgment of the intimate

relationship between two people.” Jd. The move

represented a philosophical and cultural shift, as

much as a legal one. What New Yorkers did, the

Court explained, demanded “both the community’s

considered perspective on the historical roots of the

institution of marriage and _ its’ evolving

understanding of the meaning of equality.” Id. at

2692-93. This momentous step required the stamp of

legitimacy conferred by citizen deliberation: “The

dynamics of state government in the federal system,”

Windsor explained, “are to allow the formation of

consensus respecting the way the members of a

discrete community treat each other in their daily

contact and constant interaction with each other.” Jd.

at 2692.

22

3. A decision from this Court constitutionalizing

the issue of same-sex marriage would obliterate the

significance of those remarkable democratic victories

by same-sex marriage proponents. This may seem

paradoxical, but it is not.

Again, take New York as an example. Windsor

emphasized that New Yorkers’ “new insight” about

marriage and equality led them to confer the dignity

of marriage on same-sex couples. Jd. at 2689, 2692.

But if the Constitution itself dictates adoption of

same-sex marriage, then New Yorkers’ insights were

beside the point. On that view, New Yorkers were not

enacting a mew perspective on marriage, but

correcting an unconstitutional defect in their

marriage laws. That view is, of course, utterly

contrary to Windsor’s discussion of what New

Yorkers were doing. New Yorkers enlarged their

marriage definition “[a]fter a statewide deliberative

process that enabled [them] to discuss and weigh

arguments for and against same-sex marriage.”

Windsor, 133 S. Ct. at 2689. Windsor thus praised

the democratic deliberation of New Yorkers as they

pondered the profound issues set before them. A

decision that the Constitution compelled them to

reach only one result would make a mockery of those

deliberations.

The same can be said for all the States that have

adopted same-sex marriage through the political

process. Those States altered their marriage laws

based on their “considered perspective on the

historical roots of the institution of marriage and

[their] evolving understanding of the meaning of

equality.” Id. at 2692-93. But why should their

citizens’ perspectives matter, if the Constitution itself

23

demanded the change? A _ decision that the

Fourteenth Amendment compels what those States

spent so much energy to accomplish would dissolve

any democratic legitimacy they conferred on same-

sex couples by granting them the status of marriage.

C. Such a decision would eliminate the

States’ role as laboratories of democracy

in the realm of domestic relations.

A decision constitutionalizing this issue would

damage a related and no less valuable aspect of our

federal system: the ability of States to experiment in

their traditional domain of domestic relations law.

1. Throughout our history, evolution in domestic

relations laws has occurred in the laboratories of the

States. For instance, in the past our federal system

allowed the States to test the ramifications of a no-

fault divorce regime. Today, States are in the midst

of a similar experiment with same-sex marriage.

Tomorrow, the question may be whether to recognize

three-person relationships as marriage. Evidently,

we live in a time of rapid flux in this realm.

Whatever the particular issue, however, decisions on

these matters reflect deep cultural understandings

about what marriage is, what societal benefits it

achieves, and the extent to which evolving visions of

marriage should shape the law. The consequences of

3 See eg., Fahima Haque, Meet the “World's First” Gay

Married “Throuple, N.Y. Post, Feb. 27, 2015, http:/

nypost.com/20 15/02/27/thai-throuple-believed-to-be-worlds-first-

gay-married-trio/; Steven Hopkins, “J Do, I Do, ] Do”: Three Men

Tie the Knot in Thailand to Become the World’s First Wedded

Threesome, THE MIRROR, Feb. 27, #£«°.2015, ihttp/

www.mirror.co.uk/news/uk-news/i-do-do-do-three-524 1726.

24

a decision to take a particular road will not become

apparent for decades. Different States have taken

different positions on these issues over time, and

they continue to learn as other States grapple with

evolving perspectives on matters once thought so

basic to law and culture.

2. These matters are the subject of real

deliberations taking place now in homes, gathering

places, the media, and legislatures. Those

deliberations must be allowed to continue if the

States and their citizens have any real value in our

constitutional system of self-government. See, e.z.,

New State Ice Co., 285 U.S. at 311 (Brandeis, J.,

dissenting) (“There must be power in the States and

the Nation to remould, through experimentation, our

economic practices and institutions to meet changing

social and economic needs. To say

experimentation in things social and economic is a

grave responsibility. Denial of the right to

experiment may be (fraught with serious

consequences to the nation.”). Openness to debate on

this issue should not be closed by the simple

linguistic step of defining the “right” at issue as a

fundamental right “to marry the person of their

choice.” Kitchen, 755 F.3d at 1200. That is a facile

way to resolve a debate of profound complexity. It

would bypass the nationwide conversation now

taking place about the meaning of marriage. It would

elevate a preordained conclusion over reasoned

consideration. And it would inevitably override

legitimate policy differences in other areas, such as

how the institution is to be limited based on age,

25

consanguinity, and number of participants.‘ A crucial

and intended aspect of our federal system is that

state citizens should vigorously debate matters like

these. This Court should not ordain an abrupt end to

that conversation.

D. Such a decision would announce that

state citizens are incapable of resolving

this issue through constructive civil

discourse.

A decision constitutionalizing same-sex marriage

would discount the democratic process in an even

more troubling way. It would send the unmistakable

message that state citizens are incapable of

constructively resolving this issue, and that they

instead require federal tutelage in a area that lies at

the heart of state sovereignty. That would flout

Windsor’s affirmation of democratic consensus, and it

would be utterly false to the Court’s recent teaching

in Schuette v. Coalition to Defend Affirmative Action,

134 S. Ct. 1623 (2014).

1. In Schuette, the Court rejected an equal

protection challenge to a Michigan constitutional

amendment forbidding affirmative action in public

universities. Schuette found that “Michigan voters

fhad] exercised their privilege to enact [the

amendment] as a basic exercise of their democratic

power.” Id. at 1636 (plurality op.). Recognizing the

amendment reflected “the national dialogue

* For instance, the issue of polygamy is pending in the Tenth

Circuit, where the district court struck down Utah’s laws

restricting polygamy. Brown v. Buhman, 947 F.Supp.2d 1170

(D. Utah 2013), appeal docketed, No. 14-4117 (10th Cir. Sept.

25, 2014).

26

regarding the wisdom and practicality of [affirmative

action],” Schuette held that “courts may not

disempower the voters from choosing which path to

follow.” Id. at 1631, 1635 (plurality op.). “It is

demeaning to the democratic process,” Schuette

explained, “to presume that the voters are not

capable of deciding an issue of this sensitivity on

decent and rational grounds,” and even if debates

like these “may shade into rancor ... that does not

justify removing [them] from the voters’ reach.” Jd. at

1637, 1638 (plurality op.).

2. What Schuette taught about affirmative action

underscores the value of democratically resolving the

similarly divisive question of same-sex marriage. As

with affirmative action, there is an ongoing “national

dialogue regarding ... [same-sex marriage],” and

“courts may not disempower the voters from choosing

which path to follow.” Jd. at 1631, 1635 (plurality

op.). As with affirmative action, it would be

“demeaning to the democratic process to presume ...

voters are not capable of deciding an issue of this

sensitivity on decent and rational grounds.” Jd. at

1637 (plurality op.). It is the responsibility of voters—

not the courts—to decide sensitive issues like these,

because “[f]reedom embraces the right, indeed the

duty, to engage in a rational, civic discourse in order

to determine how best to form a consensus to shape

the destiny of the Nation and its people.” Id.; ef.

Windsor, 133 S. Ct. at 2692 (“In acting first to

recognize and then to allow same sex marriages, New

York was responding ‘to the initiative of those who

[sought] a voice in shaping the destiny of their own

times.”) (quoting Bond, 131 S. Ct. at 2359).

27

Schuette thus reinforced the premise, central to

Windsor, that citizens’ deliberation over whether to

adopt same-sex marriage is “without doubt a proper

exercise of [their] sovereign authority within our

federal system.” Windsor, 133 S. Ct. at 2692. Going

further, Schuette taught that when courts override

that sovereign authority, they damage the people’s

ability to govern themselves. If that was true in

Schuette with respect to affirmative action, how

much more is it true in these cases, involving as they

do the “State[s’] ... historic and essential authority to

define the marital relation.” Windsor, 133 S. Ct. at

2692.

3. a. Regrettably, Schuette’s warning that courts

should avoid “demeaning ... the democratic process,”

134 S. Ct. at 1637 (plurality op.), has proven

prophetic. In the wave of post-Windsor decisions

striking down state marriage laws, those citizens

who do not support same-sex marriage have been

called “barking crowds” (Geiger v. Kitzhaber, 994

F.Supp.2d 1128, 1147 (D. Ore. 2014)). They have

been compared to those who “believed that racial]

mixing was just as unnatural and antithetical to

marriage as ... homosexuality” (Wolf, 986 F.Supp.2d

at 1004). They have been told that their marriage

laws “achieve[] the same result” as _ interracial

marriage bans (Kitchen v. Herbert, 961 F.Supp.2d

1181, 1215 (D. Utah 2013)), or worse. See Baskin, 766

F.3d at 667 (asserting that under interracial

marriage bans, people could “find[] a_ suitable

marriage partner of the same race”). Their defense of

marriage as grounded in the biological reality of

procreation has been openly mocked. See id. at 662

(“Heterosexuals get drunk and pregnant, producing

unwanted children; their reward is to be allowed to

28

marry. Homosexual couples do not produce unwanted

children; their reward is to be denied the right to

marry. Go figure.”). They have been lectured that

their views are “callous and cruel,” Latta, 771 F.3d at

470, and should be “discard[ed] into the ash heap of

history.” Whitewood v. Wolf, 992 F.Supp.2d 410, 431

(M.D. Pa. 2014).

b. This unsettling trend is also reflected in the

lower courts’ frequent reliance on Loving v. Virginia.

Courts have repeatedly drawn a direct analogy

between the white supremacist laws correctly

invalidated in Loving and the man-woman marriage

laws challenged here. See, e.g., Latta, 771 F.3d at 478

(Reinhardt, J., concurring) (asserting that, of the

Court’s right-to-marry cases, “Loving is ... the most

directly on point”); Baskin, 766 F.3d at 666

(reasoning that “[tlhe State’s argument from

tradition runs head on into Loving v. Virginia”).5

Indeed, some lower courts have gone so far as to

5 See also, e.g., Rosenbrahn v. Daugaard, __ F.Supp.3d _.,

2015 WL 144567, at *11 (D.S.D. Jan. 12, 2015) (“Little

distinguishes this case from Loving.”); Campaign for Southern

Equality v. Bryant, _ F.Supp.3d __, 2014 WL 6680570, at *13

(S.D. Miss. Nov. 25, 2014) (“Perhaps the most significant case

demonstrating the evolving conception of the right to marry is

Loving v. Virginia.”), appeal docketed, No. 14-60837 (5th Cir.

Nov. 26, 2014); De Leon v. Perry, 975 F.Supp.2d 632, 659 (W.D.

Tx. 2014) (“Plaintiffs ... seek to exercise the right to marry the

partner of their choosing, just as the plaintiffs in Loving did,

despite the State’s purported moral disdain for their choice of

partner.”), appeal docketed, No. 14-50196 (5th Cir. Mar. 1,

2014); Bostic v. Rainey, 970 F.Supp.2d 456, 474 (E.D. Va. 2014)

(rejecting defendants’ arguments as asserting “[n]early identical

concerns about the significance of tradition” that were “resolved

by ... the Supreme Court in its Loving decision”).

29

quote extrajudicial statements by one of the plaintiffs

in Loving in order to link it directly to these cases.

See Wolf, 986 F.Supp.2d at 1004 (observing that

“Mildred Loving herself, one of the plaintiffs in

Loving, saw the parallel between her situation and

that of same-sex couples”) (citing Martha C.

Nussbaum, From Disgust to Humanity: Sexual

Orientation and the Constitution 140 (Oxford Univ.

Press 2010)); Bostic, 970 F.Supp.2d at 460 (epigraph)

(quoting Mildred Loving, Loving for All, Public

Statement on the 40th Anniversary of Loving uv.

Virginia (June 12, 2007)).

That is a troubling misapplication of a landmark

decision. Loving rightly invalidated anti-

miscegenation laws—racist relics of slavery that

violated “the clear and central purpose of the

Fourteenth Amendment.” Loving, 388 U.S at 6, 10.

Those odious laws have nothing—nothing—to do

with the issues in these cases. “[I]n commonsense

and in a constitutional sense ‘there is a clear

distinction between a marital restriction based

merely upon race and one based upon _ the

fundamental difference in sex.” DeBoer, 772 F.3d at

400 (quoting Baker v. Nelson, 191 N.W.2d 185, 187

(Minn. 1971)). While the Fourteenth Amendment

outlaws invidious racial discrimination, this Court in

Windsor recognized that the Constitution leaves

citizens free “to discuss and weigh arguments for and

against same-sex marriage.” Windsor, 133 S. Ct. at

2689. It is laughable to suppose that Windsor would

have praised New Yorkers’ deliberations for and

against same-sex marriage if, unbeknownst to them,

a refusal to recognize same-sex marriage was

equivalent to racism. The two issues are worlds

apart. That should be obvious given that, five short

30

years after Loving, this Court summarily rejected

“for want of a substantial federal question” the claim

that the Fourteenth Amendment requires a State to

recognize same-sex marriage. Baker v. Nelson, 409

U.S. 810 (1972).§

c. When state citizens decline to adopt the novel

institution of same-sex marriage, they are not voting

to roll back the achievements of the Civil Rights

Movement. That insinuation is degrading to millions

of Americans, who simply wish to retain a definition

of marriage “thought of by most people as essential to

... {marriage’s} role and function throughout the

history of civilization.” Windsor, 133 S. Ct. at 2689.

This Court “should not lightly conclude that everyone

who [holds] this belief [is] irrational, ignorant or

bigoted.” Hernandez, 855 N.E.2d at 8. To the

contrary, this Court should roundly denounce any

such notion.

And yet that is the corrosive premise so many

lower court opinions have eagerly adopted over the

past eighteen months. Those decisions, both in their

rhetoric and their reasoning, forget that our

“Constitution ... is made for people of fundamentally

differing views.” Lochner, 198 U.S. at 75-76 (Holmes,

J., dissenting). Many Americans believe in a new

conception of marriage that would extend to same-

6 Four of the Justices who decided Loving sat on the Court

that decided Baker (Justices Douglas, Brennan, Stewart, and

White), and Justice Marshall was nominated to the Court on

June 13, 1967, the day after Loving was decided. If Loving had

any relevance to the issues here, one surely would have

expected to hear that view from these Justices. Instead, they

joined a unanimous Court that summarily rejected any

equivalence between the two.

31

sex relationships. Many do not. This Court has

treated both sides of that debate as deserving

respect, not derision. Of those Americans who hold

that the man-woman aspect of marriage is “essential

to the very definition of that term,” the Court has

observed that their “belief ... became even more

urgent, more cherished, when challenged.” Windsor,

133 S. Ct. at 2689. Of those who advocate for same-

sex marriage, the Court has said they are sincerely

acting on a “new perspective” about marriage. Id.

Accordingly, this Court has held up as a model for

resolving the issue a “statewide deliberative process

that enable[s] [state] citizens to discuss and weigh

arguments for and against same-sex marriage.” /d.

In other words, the Court has treated Americans

holding opposing views on this question as honorable

participants in a strenuous democratic debate over a

question of profound civic importance.

A decision from this Court constitutionalizing the

issue, however, would erase the benefits of that wise

course. Inevitably, it would validate in the public

mind the numerous decisions that have characterized

this issue, not as e debate between good people on

either side, but as a battle between those who love

individual freedom and those who cling blindly to

tradition. That would do incalculable damage to our

civic life in this country. See Schuette, 134 S. Ct. at

1637 (plurality op.) (explaining that “[iJt is

demeaning to the democratic process” to “insist that

a difficult question of public policy must be taken

from the reach of the voters, and thus removed from

the realm of public discussion, dialogue, and debate”).

How much better for this issue to play out, state-by-

state, with citizens locked in urgent conversation.

That is precisely what was happening before the

32

courts began to intervene two years ago. The Court

should let that process of self-governance continue.

CONCLUSION

The Court should affirm the decision of the Sixth

Circuit.

Respectfully submitted,

JAMES D. “BUDDY” S. KYLE DUNCAN

CALDWELL Special Assistant

Attorney General of Attorney General for

Louisiana Louisiana

Counsel of Record

SEAN D. REYES DUNCAN PLLC

Attorney General of Utah 1629 K St. NW, Ste. 300

PARKER DOUGLAS Washington, DC 20006

Utah Federal Solicitor 202.714.9492

kduncan@duncanpllc.com

KEN PAXTON Re

Attorney General of Texas Counsel for Amici Curiae

CRAIG W. RICHARDS

Attorney General of

Alaska

MARK BRNOVICH

Attorney Genera! of

Arizona

LESLIE RUTLEDGE

Attorney General of

Arkansas

33

SAMUEL S. OLENS

Attorney General of

Georgia

LAWRENCE G. WASDEN

Attorney General of Idaho

DEREK SCHMIDT

Attorney General of

Kansas

TIMOTHY C. Fox

Attorney General of

Montana

DOUG PETERSON

Attorney General of

Nebraska

WAYNE STENEHJEM

Attorney General of North

Dakota

E. SCOTT PRUITT

Attorney General of

Oklahoma

MARTY J. JACKLEY

Attorney General of South

Dakota

PATRICK MORISSEY

Attorney General of West

Virginia