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

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[Supreme Cour Ue]

FILED

APR 1- 206

OFFICE OF THE CLERK

No. 14-571

In the Supreme Court of the Gnited States

APRIL DEBOER, et ai,

Petitioners,

Vv.

RICK SNYDER, GOVERNOR OF MICHIGAN, et a/,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

BRIEF OF AMICUS CURIAE MICHIGAN

CATHOLIC CONFERENCE IN SUPPORT OF

RESPONDENTS

James J. Walsh

Counsel of Record

Thomas J. Rheaume, Jr.

BODMAN PLC

1901 St. Antoine Street

6% Floor at Ford Field

Detroit, MI 48226

(313) 259-7777

ywalsh@bodmanlaw.com

Counsel for Amicus Curiae

Michigan Catholic Conference

QUESTION PRESENTED

Does the Fourteenth Amendment require a

state to license a marriage between two people of the

same sex?

TABLE OF CONTENTS

nr eI iercsissiiinnicentinniimioduipecteisenindaihs i

eC BUF I crniitsistnsdctincnnscntictisnsccunsiceen iii

INTEREST OF AMICUS CURIAE...........0...0..0....0.... 1

BUREMARY OF ARGUMENT ......0..ccccesccccccccescvcscccseses 1

I ia li i a gi 3

I. Marriage — Unique for a Reason ................... 3

II. The Fourteenth Amendment....................... 11

A. Marriage is a fundamental right

because of its procreative

RT Enea e Rae 11

B. Michigan's recognition of only the

naturally procreative unions

advances the legitimate state

interest of ensuring the well-being of

I iclacicinndiiiccscnenietheniinadaciienaincnenmeiiniiaiai 18

ili

TABLE OF AUTHORITIES

Cases

Baker v. Nelson,

291 Minn. 310; 191 N.W.2d 185 (19711),

summarily aff'd, 409 U.S. 810 (1972)..............0..... 14

Boddie v. Connecticut,

RR a Re eee 16

Butler v. Wilson,

EET EO cee a A eS 7

Califano v. Jobst,

Ee en eR 24

City of Cleburne, Tex. v. Cleburne Living

Center,

EI ra IS eee ee TERE 19

DeBoer v. Snyder,

772 F.3d 388 (6th Cir. 2014)..........0.....00.0.22... passim

Eisenstadt v. Baird,

IER eI ee aT ee A RA: 16

Engel v. Vitale,

Es Ea eee en schieaiinbbasateaniaes 4

Ex parte State ex rel. Alabama Policy

Institute, No. 1140460, 2015 WL 892752

Ms GR, SIEINS Ot, HI cctiinccrccececessanevstsicecdessses 17

FS. Royster Guano Co. v. Commonwealth of

Virginia,

I EE en 18

Goodridge v. Dep't. of Public Health,

440 Mass. 309; 798 N.E.2d 941 (2003).................. 13

Graham v. Graham,

33 F. Supp. 936 (E.D. Mich. 1940) ......0...00...00..00c.e ee 7

Griswold v. Connecticut,

ER ere eee 13, 16

Heller v. Doe,

REE ee 23, 24, 25

Hernandez v. Robles,

7 N.Y.3d 338; 855 N.E.2d 1 (2006) ..................00.... 13

In re Miller's Estate,

239 Mich. 455; 214 N.W. 429 (1927) ..........0. eee eee. 5

Jackman Vv. Rosenbaum Co.,

ee a 27

Jackson v. Abercrombie,

884 F. Supp. 2d 1065 (D. Haw., 2012)................... 15

Johnson v. Robison,

a ies tiem 19

Johnson v. Rockefeller,

eS ey ee 7

Kitchen v. Herbert,

755 F.3d 1193 (10th Cir. 2014)............000000000... 14, 22

Lawrence v. Texas,

ee rE. ssdupesiuiaunienesisamemuaesdl 15

Lehr v. Robertson,

ee er cudsoudiuensuiidosiuesecaes 22

Lottor v. Sec’y of Dep't of Children & Family

Servs.,

358 F.3d 804 (11th Cir. 2004)....000000. cece 10

Loving v. Virginia,

as dlasioeainiils 11, 12, 14

Maynard v. Hill,

Be Re snorcatenr er 12,14

Millar v. Millar,

ete Be oe ee ye 7

Murphy v. Ramsey,

a Bt Re | ERE urn emmernreuny re 3

Palko v. Connecticut,

fk Cyan Ts Tren 12

Pennoyer v. Neff

«8 1, , Re ancermmeomm PT 2

Reed v. Reed,

RE) L,I MN INREE ee 18

Reynolds v. United States,

gk YS SERRE eee 16, 17

Romer v. Evans,

ly Bok | RR penem mere nr cme rie 18, 23

Sch. Dist. Of Abington Twp., Pa. v. Schempp,

> Eis RNR EneENE he ES = 4

Schalk and Kopf v. Austria,

BS Beer. Ce. FER. BD CIGD cccccvccccccccccstcccdascccccccsccece 25

Schuette v. Coal. To Defend Affirmative

Action,

oT ee BL! ee 24, 25, 27

Skinner v. Oklahoma,

TE: Ba a i cicccctinisvittedbdemetdee 12, 14

Snyder v. Commonwealth of Massachusetts,

aE Sg aoe I 11

Turner v. Safely,

GE UE Fe te ince cies iccsnsistatieseccimeettiaeaeee 7

U_S. v. Windsor,

i epeeted passim

Washington v. Glucksberg,

TN ee ii, 23, 27

Willams v. State of N. Carolina,

ELE AE 20

Zablocki v. Redhaiul,

ee cosensmanssosee 26

Constitutional Authorities

Micn. ConstT. of 1963, art. I, § 25 (2004) ....2, 4, 23, 27

MICH. CONST. of 1963, art. XII, § 2 .......................02.. 27

EE 2

Statutes

EEE TEESE TE 26

I I, I .. . socncinsnoncsecsvoccessocececs 26

EE 26

I I, LIED. « - cecencecetoncceccnccosecesess 26

MD. CODE ANN., Family Law §§ 2-201, 2-202........... 26

Bs ee. Meee. GER, BOA, BS GIA ..ccccccccccccccccccccescceces 26

MICH. COMP. LAWS § 551.1 ...............cccccceeeecseeeeres 20, 26

EE ne Ee 8

Pe, GE, MaNUUUD Te OUR, BO. occ cccccccccccccccccccccocccccsccocees 21

I, GE, MUU We I ccc cccccccccccccccccccsesccccsccecees 20

MIcH. Comp. LAWS § 700.2114(1)(a) ..000..0 ccc 20

I WN WE cc ccoccsccossevccsssoucseces An eae 26

vill

N.H. REV. STAT. ANN. § 457: 1-a..............cccccccecsscceeseees 26

N.Y. DOMESTIC RELATIONS LAW §10<a ...................... 26

OHIO REV. CODE ANN. § 3101.01........................2.02000. 26

I I aa cccinerronineiicemiibieniiniinnbbiminnibaiai 26

TENN. CODE ANN. § 36-3-113............. pecaciietibbanabiblaiidaed 26

ee es en censnmemamedinennaniodiid 26

ey, ts CD Sr IID... .cccccennsneccetoisisinenenadions 26

Other Authorities

A. Dean Byrd, Gender Complementarity and

Child-rearing: Where Tradition and Science

Agree, 6 J.L. FAM. STUD. 213 (2004)....00000.000..00. ccc. 9

Tee ee ee ictcreiinbecinctiintccccintaninciantennti 6

BERTRAND RUSSELL, MARRIAGE AND MORALS

OS” Sp ESSE ners oe Sena e 22

Bruce C. Hafen, The Constitutional Status of

Marriage, 81 MICH. L. REV. 463 (1983) ................. 22

I en mle 8

Catechism of the Catholic Church § 1601.................. 6

Catechism of the Catholic Church 9 1652.................. A

Donald P. Sullins, Emotional Problems among

Children with Same-Sex Parents: Difference

by Definition, 7(2) Brit. J. Epuc. Soc’y &

I eisai )

Genesis 1:28 (New American Bible, Revised

a eeiineiiaiemmealaebaddiemiie deeieded 5

Genesis 2:18 (New American Bible, Revised

a ae ianemnademaneinasidiaadiadeiaa il 4

Vill

Genesis 2:24 (New American Bible, Revised

RRS IRAE SEES SRS SE, AES EINS IR Shs Se

INST. FOR AMERICAN VALUES & INST. FOR

MARRIAGE AND PUB. POL’Y, MARRIAGE AND

THE LAW: A STATEMENT OF PRINCIPLES (2006)

Kristin Anderson Moore et al., Marriage from

a Child's Perspective: How Does Family

Structure Affect Children, and What Can

We Do About It? CHILD TRENDS RESEARCH

38D ON

Legal Recognition of Same-Sex Relationships,

http://www.samesexrelationshipguide.com ....

Lynn D. Wardle, Marriage, “Magic Bullets,”

and Medical Decision-Making:

Contemporary Reflections on Themes tn the

Scholarship of Professor Marygold S. Mell,

29 Wis. J.L. GEND. & Soc’y 87 (2014)..............

Matthew 19:4-5 (New American Bible, Revised

STERIL eee os ES Oe ee AC

NOAH WEBSTER, AN AMERICAN DICTIONARY OF

THE ENGLISH LANGUAGE (lst ed. 1828) ...........

Oliver Wendell] Holmes, Natura/ Law, 32

SI i ee

Paula Y. Goodwin et al., Marriage and

Cohabitation in the United States: A

Statistical Portrait Based on Cycle 6 (2002)

of the National Survey of Family Growth,

NATIONAL CENTER FOR HEALTH STATISTICS,

VITAL HEALTH STAT. 23(28) 4 (2010)................

RESTATEMENT OF LAW OF CONTRACTS § 587

(1932)

Roscoe Pound, /nterests in Domestic Relations,

Si SR UM 8 Fare

Ryan T. Anderson, Marriage: What It Is, Why

It Matters, and the Consequences of

Redefining It, Backgrounder No. 2775 THE

HERITAGE FOUNDATION 3 (2013)...................-.....-.--

United States Survey on Domestic

Partnerships, 22 J. AM. ACAD. MATRIM. LAw.

NT STR SN ae Fs Seer c BE A EERE SOS ETO

WILLIAM BLACKSTONE, 1 COMMENTARIES

I I i DR Be Re ee ee ed

INTEREST OF AMICUS CURIAE

The Michigan Catholic Conference serves as

the official voice of the Catholic Church in Michigan

on matters of public policy. Its mission is to promote

a social order that respects the dignity of all persons

and to serve the common good in accordance with the

teachings of the Catholic Church. Its board of

directors includes the active bishops of Michigan’s

seven Catholic dioceses. The Church teaches that

the well-being of an individual and the family is

intimately linked to a marriage between one man

and one woman. The Michigan Marriage

Amendment, rooted in history and secular in nature,

is consistent with such teachings. Thus, the

Michigan Catholic Conference supports the Michigan

Marriage Amendment, which it believes is beneficial

to families, children, and society. !

SUMMARY OF ARGUMENT

Marriage is not purely a human institution. It

was created in the beginning by God as the intimate

union of one man and one woman in “one flesh.”2

| Pursuant to Rule 37.3, all Petitioners consented to the filing of

this brief and a letter noting consent is on file with the Clerk.

Blanket consent from Respondents in all cases is noted in the

communications on file with the Clerk. No counsel for a party

authored this brief in whole or in part. No person or entity,

other than amicus curiae, made a monetary contribution to the

preparation or submission of the brief.

2 Matthew 19:4-5 (New American Bible, Revised Edition)

(“Have you not read that from the beginning the Creator ‘made

them male and female’ and said, ‘For this reason a man shall

The vocation to marriage is written in the very

nature of man and woman and it is in this union that

marriage’s supreme gift is realized. Marriage — the

foundation of family and society — serves life.

Civil marriage laws followed God’s plan. Until

recently it was universally understood that marriage

is the biological union of man and woman as nature

intended. Michigan has defined marriage as the

union of one man and one woman throughout its

history as was its prerogative.’ In 2004, Michigan's

citizens confirmed that marriage can only exist

between one man and one woman. MICH. CONST. of

1963, art. I, § 25 (2004) (“To secure and preserve the

benefits of marriage for our society and for future

generations of children, the union of one man and

one woman in marriage shall be the only agreement

recognized as a marriage or similar union for any

purpose.”). In doing so, Michigan's citizens did not

vote to ban same-sex marriage. They voted to not

leave his father and mother and be joined to his wife, and the

two shall become one flesh?”).

3 It is the province of the States to define marriage and to

delineate the incidents of that legally recognized institution.

U.S. CONST. amend. X; U.S. v. Windsor, 133 S. Ct. 2675, 2680

(2013) (“By history and tradition the definition and regulation of

marriage has been treated as being within the authority and

realm of the separate States.”); Pennoyer v. Neff, 95 U.S. 714,

734-735 (1877), overruled in part by Shaffer v. Heitner, 433 U.S.

186 (1977) (“The State has [an] 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.”).

permit the redefinition of marriage. They voted that

marriage will retain its biological requirement of a

male-female union rooted in nature, not just

tradition. This ancient understanding reflects the

undeniable fact that only such a union offers the

possibility of procreation. Such _s procreative

possibilities fulfill a societal purpose and alone justify

elevating marriage over all other intimate

relationships.

Marriage so defined is the foundation of family

and society and essential to the survival of our

species. Michigan’s Marriage Amendment is

therefore unassailable from constitutional attack for

“no legislation can be supposed more wholesome and

necessary in the founding of a free, self-governing

commonwealth . .. than that which seeks to establish

it on the basis of the idea of the family, as consisting

in and springing from the union for life of one man

and one woman in the holy estate of matrimony.”

Murphy v. Ramsey, 114 U.S. 15, 45 (1885).

ARGUMENT

I. Marriage — Unique for a Reason

Marriage is not purely a civil institution. It is

rooted in nature and, to the believers, authored by

God. Marriage has common and permanent

characteristics. It unites two persons and through

this union creates life. “By its very nature the

institution of marriage and married love is ordered to

the procreation and education of the offspring and it

is in them that it finds its crowning glory.”

Catechism of the Catholic Church 4 1652.

The People of Michigan decided that only the

union of male and female, ordered as it is to

procreation and the upbringing of offspring,

constitutes a marriage. MICH. CONST. of 1963, art. I,

§ 25. Michigan’s reaffirmation’ of the centuries old

understanding of marriage offends neither nature

nor the Constitution. The decision to honor and

burden only this potentially procreative union

imposes no discrimination, but recognizes that male

and female are in nature complementary to each

other and that their union is essential to the

propagation of our species.

The basis of our government is religion and it

cannot be denied that “[t]he history of man is

inseparable from the history of religion.” Engel v.

Vitale, 370 U.S. 421, 434 (1962); see also Sch. Dist.

Of Abington Twp., Pa. v. Schempp, 374 U.S. 203, 213

(1963) (noting “that the Founding Fathers believed

devotedly that there was a God and that the

unalienable rights of man were rooted in Him”).

Holy Scripture teaches that man and woman were

created for each other. In the beginning, God

recognized that man should not be alone. Genesis

2:18 (New American Bible, Revised Edition). He

4 As the Sixth Circuit noted, Michigan “has defined marriage as

a relationship between a man and a woman since its territorial

days.” DeBoer v. Snyder, 772 F.3d 388, 396 (6th Cir. 2014),

quoting An Act Regulating Marriages § 1 (1820), in | Laws of

the Territory of Michigan, 646, 646 (1871).

created woman as man’s equal and directed man to

leave his father and mother and cling to his wife, in

“one body.” Genesis 2:24 (New American Bible,

Revised Edition). God said to them, “be fertile and

multiply; fill the earth and subdue it.” Genesis 1:28

(New American Bible, Revised Edition). God's

joinder of man and woman in marriage, exemplary as

it is, inspired the secular law governing marriage.°®

The understanding of marriage as the union of

one man and one woman has been shared by many

different societies. DeBoer v. Snyder, 772 F.3d 388,

396 (6th Cir. 2014) (“So widely shared, the tradition

until recently had been adopted by all governments

and major religions of the world.”). Christians, Jews,

and Muslims share the understanding of marriage as

the union of man and woman, a belief shared by

“ancient Greek and Roman thinkers untouched by

these religions.” Ryan T. Anderson, Marriage’ What

It Is, Why It Matters. and the Consequences of

Redefining It, Backgrounder No. 2775 THE HERITAGE

FOUNDATION 3 (2013). “Far from having been

intended to exclude same-sex relationships, marriage

as the union of husband and wife arose in many

places, over several centuries, in which same-sex

marriage was nowhere on the radar.” Jd; see also

Oliver Wendell Holmes, Natura/ Law, 32 HARV. L.

REV. 40, 41 (1918) (opining that “some form of

5 See eg., In re Miller's Estate, 239 Mich. 455, 457: 214 N.W.

429 (1927) (noting that one of the exceptions to the general rule

of law that a marriage, valid when contracted, is valid

everywhere, is if the marriage is “deemed contrary to the law of

nature as generally recognized in Christian countries. .”).

permanent association between the sexes” was

considered, among other things, a necessary element

in any civilized society). Christ raised the unity of

husband and wife in marriage to the dignity of a

sacrament, and this Court raised it to a

fundamental right. This answers the question why

marriage is elevated over all other unions — it has

procreative possibilities.

The procreative possibility of marriage

explains its enduring significance in every society.

Aristotle wrote that, “{iln the first place, there must

be a union of those who cannot exist without each

other; namely, of male and female[.]” Aristotle, Book

I of Politics. This union is formed so that “the race

may continue” because mankind has “a natural

desire to leave behind them an image of

themselves|.]” Jd. Marriage serves this purpose. It

brings together the unique complementarity of the

sexes, as they were made in the beginning, for the

purpose of generating life.

The marital union, founded in nature, is

nevertheless governed by civil society. Nature

directs “man to continue and multiply his species”

and civil society prescribes “the manner in which

that natural impulse must be confined and

6 See Catechism of the Catholic Church 4 1601 (“The

matrimonial covenant, by which a man and a woman establish

themselves a partnership of the whole of life, is by its nature

ordered toward the good of the spouses and the procreation and

education of offspring: this covenant between baptized persons

has been raised by Christ the Lord to the dignity of a

sacrament.”).

regulated.” 1 WILLIAM BLACKSTONE, COMMENTARIES

*126-127.

Civil society confines and regulates the marital

union with due regard to its natural objects. For a

marriage to be complete, it was historically required

to be consummated. See Turner v. Safely, 482 U.S.

78, 96 (1987) (discussing in the context of a prisoner's

fundamental right to marry that “most inmates will

eventually be released by parole or commutation, and

therefore most inmate marriages are formed in the

expectation that they will ultimately be fully

consummated”)?; Graham v. Graham, 33 F. Supp.

936, 938 (E.D. Mich. 1940) (holding that the law is

well settled that the failure to consummate the

marriage through sexual intercourse renders the

marriage void); see also Millar v. Millar, 175 Cal.

797 802; 167 P. 394, 396 (1917) (“The obligation of

the relation in this behalf is such . .. as to be

essential to the very existence of the marriage

relation, a proposition as to which there appears to

be no dissent in the authorities.”) (citations and

internal quotation marks omitted); and

RESTATEMENT OF LAW OF CONTRACTS § 587 (1932).

The civil law of marriage, consistent with Catholic

7 In Turner, this Court recognized a prisoner's fundamental

right to marry but noted its prior ruling in Butler v. Wilson, 415

U.S. 953 (1974), summarily affirming Johnson v. Rockefeller,

365 F. Supp. 377 (S.D.N_-Y. 1973), was not to the contrary.

Turner, 482 U.S. at 96. Johnson held that there was no due

process or equal protection violation if a state denied a prisoner

sentenced to life imprisonment the right to marry. The cases

can be reconciled only by considering the significance of

consummation as a marital requirement.

teaching, required a conjugal act — exclusive to

husband and wife -- that is ordered by its very nature

towards procreation.®

Civil law has also been mindful to ensure not

only that a procreative act occurs, but also with

whom that potentially procreative act occurs. The

laws are replete with such examples. For example,

in Michigan, a woman is prohibited from marrying

her father, brother, grandfather, son, grandson, or

cousin of the first degree. See MICH. COMP. LAWS §

551.4. The restriction as to whom one may marry in

this regard is defensible because of genetic

aberrations offspring may face if a child is conceived

through a procreative act. See United States Survey

on Domestic Partnerships, 22 J. AM. ACAD. MATRIM.

LAW. 125, 136 (2009) (“The state also, with

consanguinity requirements, wants to ensure that

those who decide to have children will not bear

children with someone closely related to them, to

guard against birth defects that could occur in the

agegregate.”).

It follows that marriage, then, far from being a

purely adult-centric institution premised on mutual

affection and commitment, is ordered by its very

nature towards the procreation of offspring and their

upbringing. That civil law elevates this institution is

hardly surprising. Marriage, it has been said, is the

primary unit of society. It serves as a mechanism to

legitimate, provide for, and educate children, a

8 Canon Law is in accord. See Can. 1061 § 1.

paramount concern of society.2 As Roscoe Pound

explained almost a century ago, “in modern social

conditions there are the social interests in the family

as a social institution, in the protection of dependent

persons, and in the rearing and training of sound and

well-bred citizens for the future.” Roscoe Pound,

Interests in Domestic Relations, 14 MICH. L. REv.

177, 196 (1916).

Marriage provides an irreplaceable benefit to

society: “Evidence of the protective effects and

positive advantages (social, economic, developmental,

etc.) for children being raised by married, biological

parents (and the potential disadvantages to children

raised in alternative family forms) is extensive and

well-established.”!° Through marriage, society seeks

9 NOAH WEBSTER, AN AMERICAN DICTIONARY OF THE ENGLISH

LANGUAGE 695 (lst ed. 1828) (stating that marriage was

instituted “for the purpose of preventing the promiscuous

intercourse of the sexes, promoting domestic felicity, and for

securing the maintenance and education of our children”).

10 Lynn D. Wardle, Marriage, “Magic Bullets.” and Medical

Decision-Making: Contemporary Reflections on Themes in the

Scholarship of Professor Marygold S. Melli, 29 Wis. J.L. GEND.

& Soc’y 87, 92 (2014); Donald P. Sullins, Emotional Problems

among Children with Same-Sex Parents: Difference by

Definition, 7(2) Brit. J. Epuc. Soc’y & BEHAV. SclI. (2015)

(concluding based on data from the U.S. National Health

Interview Survey that the optimum environment for child well-

being is common biological parenting): and A. Dean Byrd,

Gender Complementarity and Child-rearing’ Where Tradition

and Science Agree, 6 J.L. FAM. STUD. 213, 214 (2004) (“There is

no fact that has been established by social science literature

more convincingly than the following: all variables considered,

children are best served when reared in a home with a married

mother and father.”).

to ensure that children will be raised by their

biological parents in a stable environment that is

advantageous to their development.!!

Marriage is unique for a reason. “Although

social theorists . . . have proposed alternative child-

rearing arrangements, none has proven as enduring

as the marital family structure, nor has the

accumulated wisdom of several millennia of human

experience discovered a superior model.” Lofton v.

Sec’y of Dep't of Children & Family Servs., 358 F.3d

804, 820 (llth Cir. 2004). Marriage’s uniqueness

fulfills a societal purpose and alone justifies elevating

it over all other intimate relationships. It is on this

foundation that the constitutional inquiry begins and

should end.

11 Paula Y. Goodwin et al., Marriage and Cohabitation in the

United States: A Statistical Portrait Based on Cycle 6 (2002) of

the National Survey of Family Growth, NATIONAL CENTER FOR

HEALTH STATISTICS, VITAL HEALTH STAT. 23(28) 4 (2010),

available at http://www .cdc.gov.nchs/data/series/sr_23/sr23_028.

pdf (“Research also indicates that marriage is positively

associated with the health and well-being of children.”); and

INST. FOR AMERICAN VALUES & INST. FOR MARRIAGE AND PUB.

POL’Y, MARRIAGE AND THE LAW: A STATEMENT OF PRINCIPLES 7

(2006); see also Kristin Anderson Moore et al., Marriage from a

Childs Perspective: How Does Famuilv Structure Affect

Children, and What Can We Do About It? CHiLD TRENDS

RESEARCH BRIEF, at 6 (2002) (“Research clearly demonstrates

that family structure matters for children, and the family

structure that helps children the most is a family headed by two

biological parents in a low-conflict marriage. Children in single-

parent families, children born to unmarried mothers, and

children in stepfamilies or cohabitation relationships face

higher risks of poor outcomes than do children in intact families

headed by two biological parents.”).

II. The Fourteenth Amendment

State law “regulating marriage, of course,

must respect the constitutional rights of persons.”

Windsor, 133 S. Ct. at 2691. Thus, the question

before the Court is whether the decision by Michigan

and other states to retain the centuries old definition

of marriage violates the Fourteenth Amendment. It

does not. Neither the due process clause nor the’

equal protection clause requires a state to redefine

marriage as nothing more than a committed

relationship between any two individuals.

A. Marriage is a fundamental right

because of its procreative possibilities

Marriage is considered a fundamental right.

Loving v. Virginia, 388 U.S. 1, 12 (1967). But, the

fundamental right to “marriage” — the right that is

“objectively, deeply rooted in this Nation's history

and tradition”! — is the right to traditional marriage

between one man and one woman. It is traditional

marriage that is “so rooted in the traditions and

conscience of our people as to be ranked as

fundamental”! and it is traditional marriage that is

so “implicit in the concept of ordered liberty,” such

that “neither liberty nor justice would exist if [it was]

12 Washington v. Glucksberg, 521 U.S. 702, 703 (1997) (internal

quotation marks and citation omitted).

13 Snyder v. Commonwealth of Massachusetts, 291 U.S. 97, 105

(1934), overruled in part by Malloy v. Hogan, 378 U.S. 1 (1964).

sacrificed.”'4 The reason that traditional marriage,

and only traditional marriage, is a fundamental right

is because of its natural, procreative significance. If

marriage lacked its procreative possibilities, the right

to enter into the marital relationship would not be

considered fundamental.

In defining the fundamental right to marry,

this Court has emphasized its_ procreative

consequences. Loving recognized that marriage, one

of the “basic civil rights of man,” is “fundamental to

our very existence and survival.”!5 For its holding,

the Court relied on Skinner v. Oklahoma‘ and

Maynard v. Hill.\7 Skinner held that “(mJarriage and

procreation are fundamental to the very existence

and survival of the race.”'8 Maynard characterized

marriage as “the most important relation in life”

because it is the “foundation of the family and of

society, without which there would be neither

civilization nor progress.”!9 More directly, this Court

described marriage as “intimate to the degree of

being sacred” and an “association for [a] noble

purpose.” Griswold v. Connecticut, 381 U.S. 479, 486

14 Palko v. Connecticut, 302 U.S. 319, 326 (1937), overruled on

other grounds by Benton v. Maryland, 395 U.S. 784 (1969).

15 Loving, 388 U.S. at 12 (citation and internal quotation marks

omitted).

16 316 U.S. 535 (1942).

17 125 U.S. 190 (1888).

18 316 US. at 541.

19 125 U.S. at 211.

(1965). The sacred intimacy described, and the noble

purpose served, is conjugal love with procreative

potential.2°

Petitioners invoke the fundamental right to

marry but they ignore the origin and meaning of that

right. Same-sex marriage is simply not rooted in the

traditions and conscience of our people so as to be

considered fundamental. Windsor, 133 S. Ct. at 2689

(“It seems fair to conclude that, until recent years,

many citizens had not even considered the possibility

that two persons of the same sex might aspire to

occupy the same status and dignity as that of a man

and a woman in lawful marr:age.”); Hernandez v.

Robles, 7 N.Y.3d 338, 361; 855 N.E.2d 1, 8 (2006)

(“Until a few decades ago, it was an accepted truth

for almost everyone who ever lived, in any society, in

which marriage existed, that there could be

marriages only between participants of different

sex.”). Indeed, no state in the Union recognized

same-sex marriage until the four justices of the

Massachusetts Supreme Judicial Court in 2003 held

that limiting marriage to males and females violated

that state’s Constitution. See Goodridge v. Dept. of

Public Health, 440 Mass. 309; 798 N.E.2d 941 (2003).

Petitioners’ argument that the fundamental right to

marry includes the right to marry someone of the

same-sex untethers “marriage” from its natural

20 Because Griswold dealt with contraception, its observations

on intimacy necessarily concerned heterosexual intercourse

within marriage — “a bilateral loyalty.” Griswold, 381 U.S. at

487.

procreative significance and gives it a new, but never

fully explained, meaning.

This Court's caselaw has only recognized a

fundamental right to marry someone of the opposite

sex. See Loving, supra; Maynard, supra; and

Skinner, supra. And while Loving classified the right

to marriage generally, as opposed to interracial

marriage specifically, Loving plainly was referring to

“marriage” as it was then-defined and historically

understood.2! Even if Loving left room for doubt as

to whether the Court was referring only to

traditional marriage, any doubt was removed by the

Court’s summary affirmance in Baker, which rejected

the argument that same-sex marriage was

guaranteed by the Constitution just five years after

Loving. See Baker v. Nelson, 291 Minn. 310, 315;

191 N.W.2d 185 (1971), summarily affd, 409 U-S.

810 (1972), (holding that “in 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”).22

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

(Kelly, J., concurring in part and dissenting in part) (“[NJothing

suggests that the term ‘marriage’ as used in [the Supreme

Court's marriage] cases had any meaning other than what was

commonly understood for centuries. Courts do not decide what

is not before them. That the Court did not refer to a ‘right to

interracial marriage, or a ‘right to inmate marriage’ cannot

obscure what was decided: the Supreme Court announced a

right with objective meaning and contours.”).

22 See also DeBoer, 772 F.3d at 412 (“No doubt, many people,

many States, even some dictionaries, now define marriage in a

Petitioners also argue that the fundamental

right to marry is based on the freedom to choose one’s

spouse, which is “as essential to the happiness,

autonomy, privacy and liberty of gay people and

same-sex couples as it is to other Americans... .”24

The argument begs the question while disregarding

the procreative significance of marriage — the sacred

intimacy and noble biological purpose that elevates it

to a fundamental right.

The fundamental right to marry is not founded

on the respect accorded private decisions of

consenting persons. The government has no interest

in regulating purely private noncriminal decisions or

conduct. See Lawrence v. Texas, 539 U.S. 558, 578

(2003) (“[Petitioners] right to liberty under the Due

Process Clause gives them the full right to engage in

their conduct without intervention of _ the

Government.”). In addition, “there is a difference

between the individual interest in marriage and the

social or public interests in marriage. Although legal

marriage also secures individual interest, it is a

public institution enacted for the benefit of society.”

Jackson v. Abercrombie, 884 F. Supp. 2d 1065, 1109

(D. Haw., 2012). Petitioners advance a newly

way that is untethered to biology. But that does not transform

the fundamental-rights decision of Loving under the old

definition into a constitutional right under the new definition.

The question is whether the old reasoning applies to the new

setting, not whether we can shoehorn new meanings into old

words.”).

23 DeBoer Pet’rs’ Br. 57.

considered perspective on marriage that emphasizes

the private relations of adults, in which the

government has no interest. Traditional marriage,

on the other hand, has significant consequences for

society, i.e., offspring, that merit its promotion and

regulation by government.

Interests in personal happiness, autonomy, or

individual liberty do not compel the constitutional

redefinition of marriage. These components of

human dignity are protected by the Constitution

without respect to marital status. See Griswold v.

Connecticut, 381 U.S. 479 (1965) and Eisenstadt v.

Baird, 405 U.S. 438 (1972). If concerns about

personal autonomy were sufficient to create a

fundamental right to same-sex “marriage,” marriage

laws based on age and consanguinity would

assuredly fail. So too would laws that prohibit

bigamous or plural marriages. Cf Reynolds v.

United States, 98 U.S. 145, 165 (1878) (upholding

criminal conviction for polygamy and noting that

“there never has been a time in any State of the

Union when polygamy has not been an offence

against society, cognizable by the civil courts and

punishable with more or less severity”). At the same

time, many divorce laws would fail as the state’s

intervention in that decision would infringe upon the

happiness, autonomy, privacy, and liberty of persons.

See Boddie v. Connecticut, 401 U.S. 371, 376 (1971)

(“Even where all substantive requirements are

concededly met, we know of no instance where two

consenting adults may divorce and mutually liberate

themselves from the constraints of legal obligations

that go with marriage, and more fundamentally the

prohibition against remarriage, without invoking the

State’s judicial machinery.”).

Marriage, then, gains favor and distinction as

a fundamental right for its procreative significance.?4

Long ago, this Court said that upon marriage “society

may be said to be built, and out of its fruits spring

social relations and social obligations and duties,

with which government is necessarily required to

deal.” Reynolds, 98 U.S. at 165. The same holds true

today. This societal interest also justifies state

intervention in marital relations and this Court’s

decision to elevate marriage to a fundamental right.

Because the fundamental right to marriage is

inextricably linked to procreation, there simply is no

fundamental right to marry someone of the same-

sex.25

24 Ex parte State ex rel. Alabama Policy Institute, No. 1140460,

2015 WL 892752 (Ala. Sup. Ct. Mar. 3, 2015), at *34 (The court

held that the characteristic of marriage that makes it so

fundamental as to warrant constitutional protection is its

natural procreative possibilities. “Men and women complement

each other biologically and socially. Perhaps even more obvious,

the sexual union between men and women (often) produces

children.”).

25 As a consequence, the Michigan Marriage Amendment is

subject only to rational basis review, which is discussed infra

Part I1.B.

B. Michigan’s recognition of only the

naturally procreative unions advances

the legitimate state interest of ensuring

the well-being of our children

Michigan’s choice to retain the traditional

definition of marriage does not violate the equal

protection clause. This Court’s equal protection

clause jurisprudence has “consistently recognized

that the Fourteenth Amendment does not deny to

States the power to treat different classes of persons

in different ways.” Reed v. Reed, 404 U.S. 71, 75

(1971). Classifications drawn, however, “must be

reasonable, not arbitrary, and must rest upon some

ground of difference having a fair and substantial

relation to the object of the legislation, so that all

persons similarly circumstanced shall be treated

alike.” F.S. Royster Guano Co. v. Commonwealth of

Virginia, 253 U.S. 412, 415 (1920). Petitioners’

claims do not involve a fundamental right?® and

sexual orientation is neither a suspect class nor a

quasi-suspect class. See Romer v. Evans, 517 US.

620 (1996) (applying rational basis) and Windsor, 133

S. Ct. at 2706 (Scalia, J., dissenting) (noting that the

Court applied rational basis review to the provisions

of DOMA restricting marriage to a man and a

woman). Thus, plaintiffs’ claims are reviewed under

the rational basis test.

Under rational basis review, “[t]he general

rule is that legislation is presumed to be valid and

will be sustained if the classification drawn by the

26 See discussion supra Part II.A.

statute is rationally related to a legitimate state

interest. When social or economic legislation is at

issue, the Equal Protection Clause allows the States

wide latitude, and the Constitution presumes that

even improvident decisions will eventually be

rectified by the democratic process.” City of

Cleburne, Tex. v. Cleburne Living Center, 473 U.S.

432, 440 (1985) (citations omitted).

The traditional definition of marriage

recognizes its enduring biological origins, that the

complementarity of the sexes, when united, promotes

life. If the law elevates marriage because it offers the

possibility of procreation, and the class of persons

entitled to marry includes only those persons who

can naturally procreate, the classification withstands

constitutional scrutiny. Johnson v. Robison, 415 U.S.

361, 383 (1974) (“When, as in this case, the inclusion

of one group promotes a legitimate governmental

purpose, and the addition of other groups would not,

we cannot say that the statute’s classification of

beneficiaries and nonbeneficiaries is invidiously

discriminatory.”); Cleburne, 473 U.S. at 441 (holding

that under rational basis review, “where individuals

in the group affected by a law have distinguishing

characteristics relevant to interests the State has the

authority to implement,” a state’s decision to act on

those differences does not run afoul of the equal

protection clause).

States’ decisions to recognize, benefit, and

burden only the naturally procreative union serves

legitimate state interests. “One starts from the

premise that governments got into the business of

defining marriage, and remain in the business of

defining marriage, not to regulate love but to

regulate sex, most especially the intended and

unintended effects of male-female intercourse.”

DeBoer, 772 F.3d at 404. Michigan encourages,

supports, and protects this institution as a matter of

public policy “in order to promote, among other goals,

the stability and welfare of society and its children.”

MicH. COMP. LAWS § 551.1. Sex “creates problems of

large social importance. Protection of offspring,

property interests, and the enforcement of martial

responsibilities are but a few of [the] commanding

problems in the field of domestic relations with which

the state must deal.” Williams v. State of N.

Carolina, 317 U.S. 287, 298 (1942). It is not hard to

envision problems that can result without state

regulation of the natural effects of male-female

intercourse.2’ States regulate opposite-sex marriage

to ensure domestic tranquility, for example, by

legitimizing children,?8 ensuring domestic support

27 See DeBoer, 772 F.3d at 404 (“May men and women follow

their procreative urges wherever they take them? Who is

responsible for the children that result? How many mates may

an individual have? How does one decide which set of mates is

responsible for which set of children”?’).

28 See MICH. COMP. LAWS § 700.2114(1)(a) (“If a child is born or

conceived during a marriage, both spouses are presumed to be

the natural parents of the child for purposes of intestate

succession.”); see also MICH. COMP. LAWS § 552.29 (providing

that the “legitimacy of all children begotten before the

commencement of any action under [Michigan’s divorce] act

shall be presumed until the contrary be shown”).

and prohibiting neglect.29 In this way, marriage laws

advance an overriding societal goal — the well-being

of our children:

The State has an important interest in

ensuring the well-being of resulting

offspring, be they planned or unplanned.

To that end, the State can offer

marriage and its benefits to encourage

unmarried parents to marry and

married parents to remain so. Thus, the

State could seek to limit the marriage

benefit to opposite-gender couples

completely apart from history and

tradition. Far more opposite-gender

couples will produce and care for

children than same-gender couples and

perpetuation of the species depends

upon procreation. Consistent with the

greatest good for the greatest number,

the State could rationally and sincerely

believe that children are best raised by

two parents of opposite gender

(including their biological parents) and

that the present arrangement provides

the best incentive for that outcome.

Accordingly, the State could seek to

29 MICH. ComMP. LAWS § 552.16 (“Upon annulling a marriage or

entering a judgment of divorce or separate maintenance, the

court may enter the orders it considers just and proper

concerning the care, custody, and .. . support of a minor child of

the parties.”).

preserve the clarity of what marriage

represents and not extend it.%0

Adoption and assisted reproductive

technologies make it possible for same-sex couples to

participate in child-rearing, but heterosexual unions

will always be the primary source of human life.

Marriage unites a child with his biological parents, a

mother and father who each contribute uniquely to

the child’s upbringing. See Lehr v. Robertson, 463

U.S. 248, 262 (1983) (“The significance of the

biological connection is that it offers the natural

father an opportunity that no other male possesses to

develop a relationship with his offspring. If he

grasps that opportunity and accepts some measure of

responsibility for the child’s future, he may enjoy the

blessings of the parent-child relationship and make

uniquely valuable contributions to the _ child’s

development.”). Families of same-sex couples created

by assisted reproductive technologies or adoptions

deliberately prevent a child from having the most

fundamental of human bonds with both biological

parents.

30 Kiichen, 755 F.3d at 1238-1239 (Kelly, J., concurring in part

and dissenting in part); see also Bruce C. Hafen, The

Constitutional Status of Marriage, 81 MICH. L. REV. 463, 470

(1983) (“{[Rlegulation of marital] status has always been a

fundamental element in helping human society induce the

behavior needed for social as well as individual survival.”); and

BERTRAND RUSSELL, MARRIAGE AND MORALS 156 (Liveright ed.,

1970) (“[I]t is through children alone that sexual relations

become of importance to society, and worthy to be taken

cognizance of by a legal institution.”).

The decision to reaffirm the traditional

definition of marriage is not motivated by animus or

ill-will towards homosexuals. Rather, it represents a

policy choice by the people of Michigan that marriage

between one man and one woman is in the best

interests of both “our society and for future

generations of children.” See MICH. CONST. of 1963,

art. I, § 25. The choice is not unusual or

unprecedented. Cf Romer, 517 U.S. at 633

(“Discriminations of an unusual character especially

suggest careful consideration to determine whether

they are obnoxious to the constitutional provision.”).

The institution of marriage as the primary unit of

society has endured. To attribute Michigan's

decision to reaffirm this institution as motivated by

animus or ill-will, this Court “would have to reverse

centuries of legal doctrine and practice, and strike

down the considered policy choice of almost every

State.” See Washington, 521 U.S. at 723. That the

law has long treated the classes as distinct suggests

that there is a commonsense distinction between

traditional marriage and all other relationships.

Heller v. Doe, 509 U.S. 312, 327 (1993).

Moreover, to attribute the people’s rational

choice in protecting and promoting this institution,

which by its nature is ordered towards our survival,

to the mere disapproval or animus’ towards

homosexuality is to disregard the people’s collective

wisdom that traditional marriage is for the public

good. It also ignores the fact that traditional

marriage, which dates back thousands of years, arose

independently of any claimed _ discrimination.

Indeed, “li]t is demeaning to the democratic process

to presume that the voters are not capable of

ceciding an issue of this sensitivity on decent and

rational grounds.” DeBoer, 772 F3.d at 409, quoting

Schuette v. Coal. to Defend Affirmative Action, 134 S.

Ct. 1623, 1637 (2014) (plurality opinion by Kennedy,

J.).31

Nor is the classification overbroad because it

includes some persons who may not be able to

procreate, such as the elderly or infertile. “[CJourts

are compelled under rational-basis review to accept a

legislature’s generalizations even when there is an

imperfect fit between means and ends.” Heller, 509

U.S. at 321. Marriage, by its nature, is open to

fertility and the gift of life. Same-sex marriage, by

definition, is not. “The broad legislative classification

must be judged by reference to characteristics typical

of the affected classes rather than by focusing on

selected, atypical examples.” Califano v. Jobst, 434

U.S. 47, 55 (1977).

Ill. The Democratic Process

Proponents of same-sex marriage make much

of the fact that same-sex couples are equally capable

of raising children and_ providing _ stable

31 See also H.L.A. Hart, THE CONCEPT OF LAW, 196 (Oxford

Univ. Press 2nd ed. 1994) (“Men are not devils dominated by a

wish to exterminate each other, and the demonstration that,

given only the modest aim of survival, the basic rules of law and

morals are necessities, must not be identified with the false

view that men are predominantly selfish and have no

disinterested interest in the survival and welfare of their

fellows.”).

environments. But that is not the issue in this case.

See Heller, 509 U.S. at 321 (“A classification does not

fail rational-basis review because it is not made with

mathematical nicety or because in practice it results

in some _ inequality.”) (citations and_ internal

quotation marks omitted). Nor is this the proper

forum for making such arguments. Perceived social

inequities must be resolved through the democratic

process:

The idea of democracy is that it can, and

must, mature. Freedom 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. These First Amendment

dynamics would be disserved if this

Court were to say that the question here

at issue is beyond the capacity of the

voters to debate and then to determine.

Schuette, 134 S. Ct. at 1637.32

32 Accord Schalk and Kopf v. Austria, 53 Eur. Ct. H.R. 20, 4 62

(2010) (The court, in connection with its decision that the

European Convention for the Protection of Human Rights and

Fundamental Freedoms does not require member states to

grant same-sex couples access to marriage, observing “that

marriage has deep-rooted social and cultural connotations

which may differ largely from one society to another. The Court

reiterates that it must not rush to substitute its own judgment

in place of that of the national authorities, who are best placed

to assess and respond to the needs of society by |

Since the founding of our Nation, States have

exclusively governed and bestowed rights, privileges,

and duties on family relationships. Windsor, 133 S.

Ct. at 2680 (“By history and tradition the definition

and regulation of marriage has been treated as being

within the authority and realm of the separate

States.”). “The State, representing the collective

expression of moral aspirations, has an undeniable

interest in ensuring that its rules of domestic

relations reflect the widely held values of its people.”

Zablocki v. Redhail, 434 U.S. 374, 399 (1978) (Powell,

J., concurring). States’ attitudes towards same-sex

marriages have evolved, but no consensus has been

reached.35 Eleven states explicitly redefined their

marriage laws to permit same-sex couples to marry.34

Other states have retained marriage’s biological

requirement.*5 Prominently, these states have made

their decisions — decisions that are within the

exclusive realm of the States -— through the

democratic process, a process that, as was intended

33 Similarly, no consensus has been reached among European

countries. In Europe, only 11 countries permit same-sex

couples to marry. See Legal Recognition of Same-Sex

Relationships, http://www.samesexrelationshipguide.com (last

visited March 31, 2015).

34 See 13 DEL. CODE § 101; HAW. REV. STAT. § 572-1; 750 ILL.

Compe. STAT. 5/201: ME. REV. STAT. tit. 19-A, § 650-A; MD. CODE

ANN., Family Law §§ 2-201, 2-202; MINN. STAT. § 517.02; N.H.

REV. STAT. ANN. § 457:l-a; N.Y. DOMESTIC RELATIONS LAW §10-

a; R.I. GEN. LAWS § 15-1-1; VT. STAT. ANN. tit. 15, § 8; and

WASH. REV. CODE § 26.04.010.

35 See, e.g, MICH. COMP. LAWS § 551.1: Ky. REV. STAT. ANN. §

402.005; TENN. CODE ANN. § 36-3-113; and OHIO REV. CODE

ANN. § 3101.01.

by the Framers of our Constitution, allows the people

to debate and decide.

Through the power of constitutional initiative

reserved to the people, MICH. CONST. of 1963, art.

XII, § 2, Michigan voters reaffirmed the traditional

view of marriage and its biological requirement.

MICH. CONST. of 1963, art. I, § 25. This traditional

view is ordered towards our survival as a species, a

state, and a nation. And this traditional view

promotes stability and the upbringing of children.

The traditional marital relationship has its roots in

antiquity, in the founding of our nation, and, until

recently, wes considered unique in every state in the

Union and every country in the world. To disregard

Michigan's law under the auspice of the Fourteenth

Amendment would be “to reverse centuries of legal

doctrine and practice, and strike down the considered

policy choice of almost every State.” Washington, 521

U.S. at 723; Jackman v. Rosenbaum Co., 260 U.S. 22,

31 (1922) (“The Fourteenth Amendment, itself a

historical product, did not destroy history for the

States and substitute mechanical compartments of

law all exactly alike. If a thing has been practiced for

two hundred years by common consent, it will need a

strong case for the Fourteenth Amendment to affect

Rivscct

Moreover, to cast aside the collective wisdom

of the people would be to cast aside democracy itself.

“In the federal system States ‘respond through the

enactment of positive law, to the initiative of those

who seek a voice in shaping the destiny of their own

times.” Schuette, 134 S. Ct. at 1636, quoting Bond v.

United States, 131 S. Ct. 2355, 2364 (2011). The

People of Michigan enacted the Marriage

Amendment through the democratic process. That

process was open to discussion, debate, principled

argument, and most importantly, a vote. In the end,

the People retained the traditional definition of

marriage and its biological requirements; their

reasoning is hardly surprising as all human

generations proceed from this natural union.

CONCLUSION

Marriage — the intimate association of male

and female as nature intended — is unique because of

its procreative capabilities. It is this union that

family and society depends upon for our survival and

development as a species. The People of Michigan

have reaffirmed this union for its intrinsic value and

that decision should not be disturbed.

Respectfully submitted,