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

Supreme Coun, US.

FILED

APR 3 - 2015

OFFICE OF THE CLERK

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

IN THE

Supreme Court of the Anited States

JAMES OBERGEFELL, ET AL., PETITIONERS,

Vv.

RICHARD HODGES, DIRECTOR, OHIO DEPARTMENT OF

HEALTH, ET AL., RESPONDENTS.

[Additional Captions on Inside Front Cover]

On Writs of Certiorari

To the United States Court of Appeals

For the Sixth Circuit

BRIEF OF AMICI CURIAE

SAME-SEX ATTRACTED MEN AND THEIR

WIVES IN SUPPORT OF RESPONDENTS &

AFFIRMANCE

DARRIN K. JOHNS

Couusel of Record

Law Firm of Darrin K. Johns P.C.

12 West 100 North, Suite 201-F

American Fork, UT 84003

(801) 228-7521

darrin.johns@darrinjohnslaw.com

Te eee ee eee

VALERIA TANCO, ET AL., PETITIONERS,

Vv.

BILL HASLAM, GOVERNOR OF TENNESSEE, ET AL.,

RESPONDENTS.

APRIL DEBOER, ET AL., PETITIONERS,

Vv.

RICK SNYDER, GOVERNOR OF MICHIGAN, ET AL.,

RESPONDENTS.

GREGORY BOURKE, ET AL., PETITIONERS,

Vv.

STEVE BESHEAR, GOVERNOR OF KENTUCKY ET AL.,

RESPONDENTS.

i

TABLE OF CONTENTS

INTRODUCTION AND INTEREST OF AMIC1....... 1

SUMMARY OF THE ARGUMENT ............................ 5

I. Contrary to petitioners’ arguments, man-

woman marriage laws do not prohibit fore-

close, disqualify, and/or exclude same-sex

attracted men and women from the insti-

tution of man-woman marriage. ......................... 7

II. Significant numbers of same-sex attracted

men and women choose the unique insti-

tution of man-woman marriage. .....................+- 20

III. The institution of man-woman marriage is

unique because of its procreative power

and complementary capacity......................2...-+- 26

IV A constitutional mandate requiring same-

sex marriage sends a harmful message

that it is impossible, unnatural, and

dangerous for the same-sex attracted to

marry members of the opposite sex. ................. 33

EE ERE eee Ae SRE 38

APPENDIX A: Last Of Ammict .........cccccccccccccccccccccccceces la

3

TABLE OF AUTHORITIES

Cases

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

cert. denied, 135 S. Ct. 316 (2014) ....................... 28

Lawrence v. Texas, 539 U.S. 558 (2008).............. 4, 34

United States v. Windsor, 133 S. Ct. 2675

RES REE PUES eI EE ee en eon AF ee Te 2

Statutes

ee, EN, BON TE GIES. ©... nceocnccececcessonnvessiunsecnnnneoes 27

Other Authorities

Desire of the Everlasing Hills (2014),

https://everlastinghills.org/ .................2..........0000+ 24

Doug Mainwaring, “I’m Gay and I Oppose

Same-Sex Marriage,” Mar. 8, 2013, http:/

/thepublicdiscourse.com/2013/03/9432/.......... 26, 29

Douglas W Allen and Shih En Lu, Matching,

Marriage, and Children: Differences Across

Sexual Orientation, unpublished, Dec. 2014,

available at http://www’.sfu.ca/~allen/

Eve Tushnet, Gay and Catholic: Accepting My

Sexuality, Finding Community, Living My

IIIT aliih dndainonesneonindusdndtinbnepebemianedtininiieneseplees 24

Gary J. Gates, “LBG Families and Relation-

ships: Analyses of the 2013 National

Health Interview Survey,” October 2014,

http://williamsinstitute.law.ucla.edu/

wp-content/uploads/lgb-families-nhis-sep-

ER UE AR PONT SEES toe ae oa 22

Kathleen E. Hull, “Same-Sex, Different Atti-

tudes,” The Society Pages: Social Science

That Matters, Mar. 27, 2014, http://thesoci

etypages.org/papers/same-sex-different-atti

acta hincinichaninaheriininianttitelipaeiiniiai itch nen aah caiaaraamspiars 23

Kathryn Jean Lopez, “Bruised, Battered, Re-

deemed,” National Review, July 22, 2014,

http://www.nationalreview.com .................0.-.....+ 25

Mary Bernstein and Verta Taylor, eds., The

Marrying Kind?: Debating Same-Sex

Marriage within the Lesbian and Gay

SEIS Ae 23

Sharon Jayson, “Not all gays and lesbians

want to marry, research shows: Experts say

many couples may get married at first, but

the numbers will level off,” USA Today,

June 29, 2013, http://www-.usatoday.com/

story/news/nation/2013/06/27/...............2cccceceeeeeees 21

Spiritual Friendship, http://spiritualfriend

I sciences csentschtenationinnieniditddiaanaiasnidineeietieenbienn 24

Unpublished Statement by Doug Mainwaring,

Mar. 24, 2015 (on file with counsel of record) ..... 21

Unpublished Statement by Jeff Bennion, April

1, 2015 (on file with counsel of record) ................ 27

iv

Unpublished Statement by Jeff Bennion, Mar.

27, 2015 (on file with counsel! of record) ........ 21, 27

Unpublished Statement by Joseph Stith, Mar.

25, 2015 (on file with counsel of record) .............. 30

Unpublished Statement by Vicki Stith, Mar.

30, 2015 (on file with counsel of record) .............. 31

Video Essay by Bill and Louise Seger (June

11, 2013), http://idsvoicesofhope.org/voice.

SI iciciiciiinddscaceecehecaaichibtiiinlniadiiaai tia alain 10, 34

Video Essay by Blaine and Lindsay Hickman

(Dec. 9, 2013), http://idsvoicesofhope.org/

I iicidinicieininleiicintiininninidiondmsnmmecesenases 34

Video Essay by Brent and Anissa Olsen (Aug.

26, 2014), http://idsvoicesofhope.org/voice.

Video Essay by Dale and Unhui Larsen (Mar.

27, 2013), http://idsvoicesofhope.org/voice.

(RE ne a Te 11

Video Essay by Danny and Erin Caldwell

(Sept. 23, 2013), http://idsvoicesofhope.org/

i nicccccnantindninnienninsenieninn 7, 10, 35, 36

Video Essay by Garrett and Sallie Ferguson

(Nov. 4, 2013), http://Aidsvoicesofhope.org/

ic itincctnnntiemninciiniinadatiennintdnbininiscscseeucein 17

Video Essay by Jeff and Tanya Bennion (Mar.

27, 2013), http:/idsvoicesofhope.org/voice.

Vv

Video Essay by Josh and Lolly Weed (Feb. 24,

2013), http://idsvoicesofhope.org/voice.php

Video Essay by Joshua and Alyssa Johanson

(July 25, 2013), http:/dsvoicesofhope.org/

EER ene en ee nD 8

Video Essay by Kory and Colleen Koontz

(Mar. 29, 2013), http://Idsvoicesofhope.org/

SERRE IE en Oe a 16

Video Essay by Lucas and Wrylon Jones (Jan.

21, 2014), http://Idsvoicesofhope.org/voice.

Video Essay by Peggy Matheson (Mar. 27,

2013), http://\dsvoicesofhope.org/voice .php

Video Essay by Roland Smith (Sept. 29, 2014),

http://idsvoicesofhope.org/voice.php?v=63........... 13

Video Essay by Travis and Christine Fitz

(May 1, 2014), http:/Mldsvoicesofhope.org/

a taiingtnttenenndsncntndunnsnnasnnitainiatancntinansens 15

Written Essay by Anissa Olsen (Aug. 26,

2014), http://idsvoicesofhope.org/essay.php

Written Essay by Brent Olsen (Aug. 26, 2014),

http://idsvoicesofhope.org/essay.php?e=33 .......... 18

vi

Written Essay by Joshua Johanson (June 3,

2013), http://idsvoicesofhope.org/essay.php

TT ninnesdcmnsditanebisnndtannienniimiiandapinbininenitiiinaiinie 9, 36

Written Essay by Stu Back (Dec. 16, 2013),

http://idsvoicesofhope.org/essay.php?e=16 ............ 1

1

INTRODUCTION AND INTEREST OF AMICIF:

I saw families—happy families. There were men who

spoke openly about [their same-sex attraction]

without shame or embarrassment. Their wives

seemed happy, fulfilled, and equally unashamed

about what their husbands experienced. . IT went

home, bewildered, unable to comprehend what I had

witnessed. These people were thoroughly, unapolo-

getically happy. ..I didn’t know how they did it; J

only knew I wanted it. It was a new, more realistic

vision of my ideal life. There was something to

hope for. -- Stu Back?

I want people to know that this choice, this choice I

made, that Anissa and I made together, ts possible

and can bring happiness and hope. We have been

able to do that. We’ve been able to have a sixteen-year

marriage. We're raising four fantastic sons. -- Brent

Olsen’

I am so happy that Brent was willing to share his

feelings of same-sex attraction with me and then give

me the choice to marry him. I am grateful for the

option that God has given us to have a family

together . .-- Anissa Olsen’

1 Amici are listed in full in Appendix A. This brief is filed with

the consent of all parties. Amici state that no counsel for any

party authored any portion of this brief, and no one other than

amici and their counsel funded its preparation or submission.

2 See Written Essay by Stu Back (Dec. 16, 2013), http:/Adsvoic

esofhope.org/essay .php?e=16.

3 See Video Essay by Brent and Anissa Olsen (Aug. 26, 2014),

http://Idsvoicesofhope.org/voice .php?v=59.

4 Id.

2

Amici are same-sex attracted men and their

wives. Like petitioners, amici same-sex attracted

men have a sexual orientation that attracts them to

members of the same sex. Most identified their

feelings at a young age. Some grew up during an era

when gays and lesbians were unwelcome and treated

with hostility. Others were raised in more accepting

environments, but nevertheless experienced the

isolation and confusion of feeling different. All re-

cognize that they can be open and public about their

sexual orientation now only because of the profound

and dramatic changes in American society, politics,

and culture arising from “a new perspective, a new

insight,” United States v. Windsor, 133 S. Ct. 2675,

2689 (2013) that has brought much needed tolerance

and understanding to the deeply misunderstood and

complex reality of same-sex attraction.

Unlike petitioners, however, amici choose to build

their families on the foundation of marriage between

a man and a woman. Most questioned, at some

point, whether it was possible for them to have a

successful marriage with a woman in light of their

physical and emotional attractions to men. Some

married decades ago when the pursuit of legal same-

sex relationships was never an option. Others

married more recently, when they could have chosen

same-sex relationships with significant social and

cultural support. All agree that marriage between a

man and a woman is inherently unique, and all have

chosen to marry and remain married to their

wives—notwithstanding their attractions to men—

because of their realization that such marriages

bring joy and happiness to themselves and to their

spouses, children, grand-children, and communities.

3

Their stories are not based on “reparative

therapy,” so-called attempts to “pray away the gay,”

or other efforts to change sexual orientation. Rather,

amici fully accept the reality of their same-sex

attractions and fully affirm their individual self-

worth, just as they are. But they also attest that

their attractions do not dictate their relationships.

While they do not have a choice about their attrac-

tions, they do have a choice about their relation-

ships. And rather than choose the culturally

acceptable and popularly celebrated “traditional”

same-sex relationship, these same-sex attracted men

instead have chosen marriage to a woman. They are

not alone. Analysis of the 2013 National Health

Interview Survey reveals that 51% of bisexual adults

with children and 18% of self-identified gay men and

lesbians with children were living in such marriages.

Amici support the rights of democratic bodies to

extend marital privileges, rights, and responsibilities

to same-sex couples. Through the deliberative and

experimental process of representative democracies,

truly diverse solutions can emerge. But if this Court

were to prematurely terminate the democratic

debate over how best to recognize and respond to the

complex reality of same-sex relationships by

constitutionalizing a right to same-sex marriage, it

would finalize and federalize this message—for the

same-sex attracted, marriage to a member of the

opposite sex is an impossibility, even meaningless,

and only same-sex marriage can bring gays and

lesbians the personal and family fulfillment and

happiness that is the universal desire of the human

heart. That one-size-fits-all message is false, and the

Court ought not to send it.

4

Worse still, a Constitutional right to same-sex

marriage can only come at the cost of marginalizing

and demeaning the marriages and families of amici

and many others like them. Petitioners premise

their equal-protection and due-process arguments on

the assumption that man-woman marriage laws

prohibit, foreclose, disqualify, and exclude gay men

and lesbians from marriage and disfavor and

demean their very identities and existence. But that

could only be true if the marriages of amici and

others like them are fakes and shams, so contrary to

nature as to be entirely undesirable. Petitioners

argue, in essence, that the pursuit of a same-sex

marriage is the only way for the same-sex attracted

“to be true” to themselves; by insisting so, they

demean and disparage amici and their families.

Whereas a democratic right to same-sex marriage

is familiarly premised on the proposition that

marriage should be extended to include same-sex

couples in order to expand individual liberty, a

constitutional right to same-sex marriage—based on

an alleged impermissible discrimination or denial of

right—is necessarily premised on the falsehood that

man-woman marriage is impossible, unnatural, and

dangervus for same-sex attracted men and women.

Legalizing same-sex marriage via the Fourteenth

Amendment, rather than the ballot box, entitles

same-sex couples to marriage only by erasing,

marginalizing, and demeaning the same-sex

attracted who live in man-woman marriages. Such

an erasure of another group’s identity and existence

is not a “liberty protected by the Constitution.”

Lawrence v. Texas, 539 U.S. 558, 568 (2003).

5

Rather than expand liberty, such a judgment

would not only ignore the deeply fulfilling marriages

between same-sex attracted men and women and

their spouses, but would also _ constitutionally

demean such marriages and families. Inescapably,

striking down man-woman marriage laws on the

basis of a constitutional deprivation would send a

message to the same-sex attracted that there is only

one choice for them, that man-woman marriage is

unattainable, that they are acting against their

nature for desiring it, and that pursuing it will be

dangerous for them, their spouses, and their

children. But, in reality, the opposite is true. The

institution of man-woman marriage is not an insult;

it is an ensign, beckoning to anyone—regardless of

sexual orientation—that the union of a man and a

woman is uniquely significant because it is endowed

with procreative power and complementary capacity.

SUMMARY OF THE ARGUMENT

This brief presents the reality of same-sex

attracted men and women married to members of

the opposite-sex, and it articulates why constitution-

alizing same-sex marriage sends harmful messages

about amici, their marriages, and their families.

We first explain (Section I) how petitioners’

equal-protection and due-process claims derive from

the false premise that, for the same-sex attracted,

the right to marry a member of the opposite sex is

meaningless. We disprove that premise by relating

the diverse and successful examples of amici, who

are same-sex attracted men and their wives.

6

Section II elucidates that amici are not alone. At

the time of the 2013 National Health Interview

Survey, 51% of bisexual adults with children and

18% of self-identified gay men and lesbians with

children were living in man-woman marriages. Such

evidence underscores the reality that same-sex

attracted men and women live profoundly, and

proudly, diverse lives. While some same-sex couples

seek same-sex marriages, other gay men and

lesbians eschew marriage as antithetical to gay

liberation. On the other hand, some same-sex

attracted individuals deliberately choose single lives

of celibacy, and others choose platonic same-sex

relationships. Last, but by no means least, are the

significant number of same-sex attracted men and

women who choose man-woman marriages.

Section III explains why the institution of man-

woman marriage is distinguishable from same-sex

relationships, emphasizing the uniquely procreative

power and complementary capacity of the union of a

man and a woman. Section IV warns of the danger to

amici should this Court strike down man-woman

marriage laws as constitutionally discriminatory.

The Court cannot do so without first demeaning the

marriages and families of amici, and others like

them, as impossible, unnatural, and dangerous.

7

ARGUMENT

I. Contrary to petitioners’ arguments, man-

woman marriage laws do not prohibit fore-

close, disqualify, and/or exclude same-sex

attracted men and women from the insti-

tution of man-woman marriage.

I can’t imagine what life would be like without Erin

and without my boys. Some people would probably

say, “You're not happy; youre just suppressing

things.” They can think what they want but I

wouldn't want it any other way. -- Danny Caldwell5

Underlying petitioners’ appeal is this premise:

the right of same-sex attracted men and women to

marry a member of the opposite sex is meaningless.

That premise underhes petitioners’ equal-

protection arguments that man-woman marriage

laws “prohibit gay men and lesbians from marrying,”

DeBoer Brief 30, “foreclose marriage for gay

people,” id. at 32, “disqualify an entire swath of

citizens” from marriage, id. at 33, and “exclud[e]

lesbians and gay men from the institution of

marriage,” Bourke Brief 28. Man-woman definitions

of marriage can prohibit, foreclose, disqualify, and

exclude gay men and lesbians from marriage only if

it is impossible or entirely undesirable—that is,

meaningless—for same-sex attracted men and

women to marry members of the opposite sex.

Petitioners do not argue that only some, or even

5 See Video Essay by Danny and Erin Caldwell (Sept. 23, 2013),

http:/dsvoicesofhope.org/voice.php?v=30.

8

many, gay men and lesbians are prohibited from

marrying; they insist, and their arguments depend

on their proving, that marriage is foreclosed for ail

same-sex attracted men and women.

This same premise underlies petitioners’ due-

process arguments that they do not seek a new right

to same-sex marriage but rather, in their words, “an

end to their exclusion from the existing fundamental

right to marry.” DeBoer Brief 21. Man-woman

marriage definitions, petitioners argue, “deny gay

people the ability to live within the structure of

our civil institutions.” Bourke Brief 25. Petitioners,

again, presume that same-sex attracted men and

women cannot, or should not, marry a member of the

opposite sex—else how could they be excluded from

the fundamental right of marriage and, therefore,

denied the ability to live within the structure of our

civil institutions?

Even for same-sex attracted men and women,

however, marriage to a member of the opposite sex is

not only possible, but can also be deeply fulfilling

and meaningful. Amici are examples of this reality.

Their individual journeys vary widely, but a common

thread is a desire to have a wife and children and to

live consistently with their beliefs about marriage

and family.

(1) Joshua Johanson® knew he was “different

than the other boys.” As a young adult, Joshua

6 To avoid repetitious citations, the beginning of each story

includes a single reference to the source material. See Video

Essay by Joshua and Alyssa Johanson (July 25, 2013),

http://idsvoicesofhope.org/voice.php?v=25; Written Essay by

9

moved to California and to “an environment that

openly encouraged same-sex relationships. There

were guys who were interested in me... and it felt

so good to be close to other men.” But Joshua didn’t

fee] right, so he sought support from a local church

community, where he opened up and shared with

others about his same-sex attraction.

Not long afterwards, he met Alyssa at a dance.

“She knew the real me from early on in the

relationship. She had accepted me completely, and I

was completely comfortable with her.” While they

had concerns about Joshua’s same-sex attraction,

Alyssa recognized that she loved him for who he was,

not in spite of his attractions, but because of them:

I found it very striking just after we

were planning to get engaged, my

brother had redelivered a note to me

that I wrote when I was probably

fourteen that outlined qualities I was

looking for . I was quite struck when

I looked at it so many years later,

almost double the age I was at when I!

wrote it, that Joshua was every single

one of those things, and every single

one of those things was still so

important to me... It was actually

because of some of these traits that he

inherently has that he was a very

different companion than a person who

has heterosexual attractions might be.

Joshua Johanson (June 3, 2013), http://idsvoicesofhope.org/

essay .php?v=24.

10

Joshua “wasn’t even completely convinced

marriage was a possibility,” and worried that his

attractions to men “would bring some difficulty into

marriage.” But, “I was wrong,” Joshua says. “Our

sex life has been amazing from day one. There was

no awkwardness or need for adjustment. It was just

pure and beautiful.” Joshua is very clear in

explaining that his marriage is not the result of

eliminating his same-sex attraction. “Even though

I’m in a wonderful relationship and marriage with

my wife, I still have same-sex attraction.” The key

to that apparent contradiction is that successful

marriages are possible not because of the denial of

homosexual attractions, but rather their acceptance.

(2) Bill Seger’ grew up in an age with little

understanding about same-sex attraction. After

many confusing years, he told himself, “Okay, this is

it, ['m gay, I can’t do anything about it. I might as

well just live it.” He pursued same-sex relationships,

but never felt right. “I wanted to have a family. I

wanted to have children and a wife. That was a big

issue for me through all this time: family, family,

family.” Bill and his wife Louise have been married

for more than thirty years, and are the parents of

three and grandparents of five.

(3) When Danny Caldwell® reached puberty, he

realized “that I had something a little bit different

that I didn’t think the other kids had to deal with.”

7 See Video Essay by Bill and Louise Seger (June 11, 2013),

http://ldsvoicesofhope.org/voice .php?v=22.

8 See Video Essay by Danny and Erin Caldwell (Sept. 23, 2013),

http://Idsvoicesofhope.org/voice.php?v=30.

11

As a young adult, Danny “started looking a lot on the

Internet for help with this, and all I could find were

things saying you just need to accept this; you just

need to be who you are .. because that is who I am

and that is who I was born to be. Deep down I

knew that wasn’t going to make me happy. What I

really wanted was a wife and kids but what I kept

hearing was, ‘Nope, that is not an option for you.’ So

I didn’t want to be alone and I thought this was the

only option.”

Danny wrote a letter to his mom, explaining his

feelings. “She helped me realize what I really did

want and that I wasn’t going to be happy settling for

something less than what I really wanted for

myself.” Not long after, he met his wife Erin. Eight

years, and two boys, later, Danny reflects: “There are

so many choices I could have made in my life, and

I’m so glad looking back now that I kept what was

important tome. .asacentral focus because I can’t

imagine what life would be like without Erin and

without my boys. Some people would probably say,

‘You're not happy; you're just suppressing things.’

They can think what they want but .. I wouldn't

want it any other way.”

(4) Dale Larsen,? now father of four and

grandfather of nine, recognized his attractions at an

early age. After nine years of marriage, and during

a period of stress, his attractions “skyrockted.” A gay

relative “convinced me that I needed to be who I

was—that that’s who I am and I needed to live my

9 See Video Essay by Dale and Unhui Larsen (Mar. 27, 2013),

http://ldsvoicesofhope org/voice.php?v=7.

12

life that way.” She arranged for him to go on a date

with another man, and Dale recalls, “I looked over

and I saw a couple, his brother and sister-in-law,

and their little kids and they had the same aged kids

I had and the same two boys and a girl. And all of a

sudden in my mind, I saw my own family sitting

there and the words that came into my mind were,

‘If you continue down this path, and you can, you

will lose them.’ I made a decision that that was it—I

was coming back home. I wanted a family so bad. I

wanted my wife. I loved my wife.”

(5) Jeff Bennion'® did not acknowledge his same-

sex attractions until he was a young adult. He had

always wanted a wife and kids, but as the years

went by, he gradually gave up on the possibility,

which led to a period of despair. After a turning

point in his life, he was introduced to Tanya, and

they began to date. He recalls, “I thought I would

have to feel a powerful physical attraction to a

woman in order to feel motivated and convinced that

I could make a traditional marriage work.” But

eventually, he decided to do things “backward.”

Rather than “start with physical attraction and then

proceed to emotional] intimacy, I was going to start

with friendship and emotional intimacy and then, I!

hoped, move to physical attraction.” Jeff and Tanya

married. Reflecting on their marriage, he writes:

It is built on a kind of love that isn’t

often sung about, that they don’t often

make movies about, but that is true. It’s

10 See Video Essay by Jeff and Tanya Bennion (Mar. 27, 2013),

http://idsvoicesofhope.org/voice.php?v=6.

13

a love that lasts, that you can count on.

It is reassuring. It fulfills and comforts

and strengthens and understands. It is

not just focused on itself. Most

important, it is love that you can build

two lives around, and even many more.

Tanya once asked Jeff if he missed the

possibility of being in a same-sex relationship. Jeff

answered:

Well, I still do experience those feelings,

but the better question to ask is: Jeff,

have you ever looked out there and seen

one of those [gay] couples and wished

you weren’t married to me? The answer

is no. Eight years on, I'm so glad I’m

married to you, and the love we have

now, it just keeps getting better, it

keeps getting stronger.

(6) Roland Smith!' grew up in an unwelcoming

era and an abusive environment. At home, his father

tried to “toughen him up.” At school, he was “bullied

alot...beaten up __. a lot.” His goal during high

school was “to just get home and be safe.” After being

attacked by three young men, a friend of Roland’s

reported the attack to an indifferent assistant

principal who responded, “Well, he’s just a queer

anyway.” Throughout his formative years, he “knew

I was on my own.”

11 See Video Essay by Roland Smith (Sept. 29, 2014),

http://ldsvoicesofhope.org/voice.php?v=63.

14

Roland and his wife met later in life. Each had

married and then had their marriages ena when

their respective spouses sought divorce. Roland

regrets that he did not tell his first wife about his

same-sex attraction before their marriage. After

becoming good friends, he asked his current wife to

read a manuscript of his life’s story. As she read

about all of the abuse, she described feeling that it

was as if she had been there herself. She felt that it

“increased our connection to each other by knowing.”

Their relationship began with friendship, not

romantic attraction. “It was something that came in

a deeper, richer way,” Roland describes. “I was

blessed with the opportunity of knowing her as a

woman and seeing her for the woman that she is

without having any sexual connotations to it.” After

their marriage, intimacy “added that beautiful rich

dimension to our life and to our relationship.”

Reflecting on ten years of marriage, his wife says,

When we built four relationship] the

way we did, with our friends, and

spirituality, and then brought in the

intimacy, it just built in a way that it

was unlike any other relationship that

I've ever had in my life. And we have a

beautiful marriage. It’s very fulfilling.

We’re connected. We finish each other's

sentences.

15

(7) During elementary school, Travis Fitz?

“didn’t fit in with other boys,” but as he grew older,

he developed close friendships with other young men

in his church community. As a young adult, he came

to accept himself and to accept that his same-sex

attraction “wasn’t something that was just going to

goaway. . It was whol! was, it was part of me,

and in being part of me, I needed to figure out a way

to handle it I needed to be able to know who I

was and be comfortable with who I was...

Acknowledging his same-sex attraction, however,

didn’t change his goals for life. Travis continued to

have “hope that all of my dreams could come true,”

including a wife and children. That dream was

realized after one of his close friends arranged a

blind date for him with Christine.

Travis did not tell Christine about his same-sex

attraction until after several years of marriage.

“How am I going to tell her? I was scared, I was

nervous, I didn’t know how to approach this.”

Christine was alarmed when Travis told her that he

needed to talk with her about something serious. A

thought came to her mind that Travis was gay and

would be leaving her and their children. She

remembers,

When he finally came out and said, “I

have same-sex attraction,” I just

remember feeling, “Is that it? You're not

going to tell me that you’re unhappy?

You're not going to tell me that you

12 See Video Essay by Travis and Christine Fitz (May 1, 2014),

http://idsvoicesofhope.org/voice.php?v=53.

16

don’t want to be married any more, that

you don’t want this? That’s it? We’re not

over?” And so at that point I was crying

because I was so relieved ... that it

didn’t mean that our relationship was

about to end, because I loved him so

much

Christine did have concerns. She wondered,

“what if he wakes up and he wants me now, but

what if one day he wakes up and he doesn’t?” But

she dismissed those thoughts as she realized “he had

never given me any hint that he was anything but

100% committed to me, to our family, and that he

loved me.” For them, “life just carried on” and

Christine says with confidence to Travis, “I know

who you are. You’ve shown me who you are and

I’ve loved you, and this has been part of you.”

(8) At a very young age, Kory Koontz'* identified

his same-sex attraction. After his first wife divorced

him, Kory considered pursuing a same-sex relation-

ship, but felt that “deep inside, I know that’s not

what I wanted.” A short time later, Kory met

Colleen, and they became friends working on a

theater project together. Each felt that they were

supposed to marry one another and the couple

became engaged before ever going on a date.

Recalling their wedding day, Kory says, “we were

friends, that’s all we were.”

13 See Video Essay by Kory and Colleen Koontz (Mar. 29, 2013),

http://idsvoicesofhope .org/voice.php?v=1.

17

Now, twenty years later, the father of five

children, Kory attests, “I stand as a voice to an

alterative choice: that a man with same-sex

attraction can be fulfilled emotionally, physically,

and sexually in a traditional relationship and

marriage.” Kory has felt judged by some of his gay

friends for his choice to marry a woman:

I don’t condemn you for your choice. I

accept and love you for who you are.

Why can’t you give me the same? Why

can’t you openly love and accept that

this is my choice? Yeah, I deal with the

attraction, but it’s . my choice about

what I do with it. Just like it was yours

of what you do with it. So I choose this.

Why does that make me wrong?

(9) Garrett Ferguson'* grew up “feeling different

than other guys.” After years of concealing his

same-sex attractions, he began to be open with

himself and others. He “knew any serious

relationship I committed to couldn’t be forced” and

eventually came to the decision that he would rather

live his life unmarried than to pursue a same-sex

relationship. “In my mind I was choosing the one

thing that scared me most—living a life alone as a

celibate man. . Ironically, after making that

choice | felt anything but loneliness, despair, or sad-

ness. . I wasn’t alone as long as [God] stood by

me—as long as I stood by Him. It was surprising

14 See Video Essay by Garrett and Sallie Ferguson (Nov. 4.

2013), http:/idsvoicesofhope.org/voice.php?v=35.

18

how accepting that I may never marry was so

liberating for me.”

Soon after, Garrett became reacquainted with

Sallie, a former coworker. He recalls, “I was unsure

if a successful relationship was even possible, but I

knew that I wanted it.” As they dated, Garrett says,

“[t]he impossible seemed to be happening,” and they

eventually married. Sallie reflects,

When we got married it really wasn't as

big of a deal as we both thought it was.

There were things that we worried

about way more, like we didn’t have

any money, and we were trying to

figure out how to be married. Suddenly

I had a lot of issues I didn’t know I had

because a lot of issues come up when

you get married. So Garrett had his,

and I had mine, and | was kind of like,

you deal with yours, and I'll deal with

mine and we'll come together and we'll

hopefully have this great marriage; it

did, and it worked.

(10) Brent Olsen'5 “remember{[s] distinctly boys

pushing me around in the halls, getting tripped,

pushed around, and those kinds of things.” Mixed in

with his fear was confusion because he “felt a clear,

distinct pull, like I was being drawn.‘ to the very

‘5 See Video Essay by Brent and Anissa Olsen (Aug. 26, 2014),

http://Idsvoicesofhope.org/voice.php?v=59; Written Essay by

Brent Olsen (Aug. 26, 2014), http://idsvoicesofhope.org/essay

.php?e=33; Written Essay by Anissa Olsen (Aug. 26, 2014),

http://Idsvoicesofhope.org/essay .php?e=34.

19

[boys] that I was scared of.” As a young adult, Brent

came to terms with his attractions. “I think I said

out loud to myself, . Tm attracted to men. It’s a

physical thing. It’s in my body and I have no idea

what to do with it.’ I felt hike I was the only one on

the planet.”

Brent was ready to give up dating, but then he

met Anissa. As they became closer to one another, he

felt inspired to talk with her about his attractions.

Anissa remembers, “One night, he. . told me he

had something very important to tell me.” She

hoped it might be “about our possible engagement,”

but instead Brent told her he felt attractions to men.

Anissa was surprised at first, but after thinking it

over, she responded, “We’re going to get through

this. You love me, I love you. We'll be fine.” At

the time, she knew “that it was right.” Years before,

she had made a list of attributes she desired in a

husband, and Brent “had all the attributes on my

list; he was definitely someone I wanted to marry.”

Brent and Anissa both believed that his same-

sex attractions “would go away” once married, but

Brent says, “the Lord had other plans.” He still felt

the attractions, and he was afraid to tell Anissa.

Ten years later, it came to a head when Brent told

her that his attractions had never changed. Anissa

was scared, but Brent’s openness started them “back

on a path toward renewed closeness.”

By “being open, being authentic” about his

attractions, Brent’s life turned around. It wasn’t

always easy. At one point, someone Brent had

trusted told him that he needed “to be true to

20

[himself], and leave [his] family,” which caused him

to doubt his decisions. But he also met other men

with experiences like his own, which replaced his

fears with faith. Now, Brent reflects, “I’m at a point

where I have so much relief because I'm no longer

holding out that [my attractions] will be removed

from me. Instead, I embrace it as a teacher because

it has taught me so much.” Brent no longer desires

to have his attractions “replaced with something

else” because he realizes that his life’s experiences

have made him and his marriage stronger.

Thinking about his life and his family, Brent

says, “I want people to know that this choice

Anissa and I made together is possible and can bring

happiness and hope. We have been able to do that.

We've been able to have a sixteen-year marriage.

We’re raising four fantastic sons.” Anissa is grateful

that Brent “wanted to give our marriage a chance.”

Looking back, she says, “I am so happy that Brent

was willing to share his feelings of same-sex

attraction with me and then give me the choice to

marry him. I am grateful for the option that God has

given us to have a family together o

Il. Significant numbers of same-sex attracted

men and women choose the unique insti-

tution of man-woman marriage.

[T]here are a lot of couples like us; just not everyone

has a reason to open their mouths. -- Wrylon Jones!®

16 See Video Essay by Lucas and Wrylon Jones (Jan. 21, 2014),

http://idsvoicesofhope.org/voice php?v=44.

21

This is something that ts a part of a lot of people’s

lives, and nobody is talking about it. -- Lolly Weed"

People like me have always been around, but we

seldom have any reason to speak up. -- Jeff Bennion!®

[T]here are hosts of other same-sex attracted men and

women. . quietly living their lives either as singles

or married, faithful to their [opposite-sex] spouses

and families. They don't seek to draw attention to

themselves. They are quiet, unsung heroes. And they

are legion. -- Doug Mainwaring’®

While petitioners’ claims reinforce a now popular

and culturally dogmatic perception that same-sex

marriage is the universal political and personal goal

of all same-sex attracted men and women, the reality

is far different. Even among those who “strongly

support the principle of marriage equality,”

sociologist Kathleen Hull observes, “at the level of

personal experience and desires, they are more

ambivalent.”2° And significant numbers of same-sex

attracted men and women also choose man-woman

marriage rather than pursue same-sex relationships

and marriage.

17 See Video Essay by Josh and Lolly Weed (Feb. 24, 2013),

http://idsvoicesofhope.org/voice.php?v= 12.

18 Unpublished Statement by Jeff Bennion, Mar. 27, 2015 (on

file with counsel of record).

18 Unpublished Statement by Doug Mainwaring, Mar. 24, 2015

(on file with counsel of record).

20 See Sharon Jayson, “Not all gays and lesbians want to marry,

research shows: Experts say many couples may get married at

first, but the numbers will level off,” USA Today, June 29,

2013, http://www.usatoday.com/story/news/nation/2013/06/27/

same-sex-marriage-research/2465023/.

22

The evidence on this point is straightforward. In

a study of the 2013 National Health Interview

Survey (NHIS), demographer Gary Gates of UCLA’s

Williams Institute estimates that 4 in 10 LGB adults

(40%) reported being married or in a cohabiting

relationship with a partner.?! Adjusting for the

increase in marriages following this Court’s ruling in

Windsor (from July through December of 2013),

Gates estimates that 19% of those same-sex couples

were married by the end of the year. Thus, even

assuming that the 40% of LGB adults who reported

being married or in a cohabiting relationship were

coupled with a same-sex partner (as explained

further below, that’s not always the case), Gates’

study suggests that, at the conclusion of 2013, no

more than 7.6% of the adult LGB population had

entered into same-sex marriages. By comparison,

more than 50% of the non-LGB population was

married.

While state man-woman marriage laws partly

explain the discrepancy, it is not the whole story.

Significant numbers of same-sex couples living in

jurisdictions that do not allow same-sex marriage

have already married in jurisdictions that do,?? so

while nationwide legalization would likely increase

21 Gary J. Gates, “LBG Families and Relationships: Analyses

of the 2013 National Health Interview Survey,” October 2014,

http://williamsinstitute law.ucla.edu/wp-content/uploads/lgb-

families-nhis-sep-2014.pdf.

22 Gates notes that as many as “12% of married same-sex

couples lived in the South,” id., suggesting that these couples

were married in other states that had legalized same-sex

marriage, since such marriages were not then legal in the

South.

23

the percentage, many same-sex couples who desire to

marry have already done so. Furthermore, studies

of other countries where same-sex marriage has

been legal do not show significantly higher rates of

same-sex marmage among LGB adults. Thus,

while the U.S. rate might rise, it is unlikely to be

dramatically higher.

The reality is that same-sex attracted men and

women live profoundly, and proudly, diverse lives.

As explanation for the low marriage rates, some

commentators have focused on the fact that there

are mixed views on whether marriage is a good

model for same-sex relationships:”4

In ways that may surprise many, the

marriage issue has proven controversial

even within lesbian, gay, bisexual, and

transgender (LGBT) communities.

Queer critics argue that marriage is a

mechanism of social and sexual control,

thus antithetical to the founding

principles of gay liberation. LGBT

23 A study of the Canadian Community Health Survey collected

from the years 2005, 2007, 2008, and 2009 (all years after

same-sex marriage became legal nationwide) found that 12.2%

of lesbians were married and 4.9% of gay men. See Douglas W.

Allen and Shih En Lu, Matching, Marriage, and Children:

Differences Across Sexual Orientation, unpublished, Dec. 2014,

available at http://www.sfu.ca/~allen/Matching16Dec20 14.pdf.

24 Kathleen E. Hull, “Same-Sex, Different Attitudes,” The

Society Pages: Social Science That Matters, Mar. 27, 2014,

http://thesocietypages.org/papers/same-sex-different-attitudes/;

see also Mary Bernstein and Verta Taylor, eds., The Marrying

Kind?: Debating Same-Sex Marriage within the Lesbian and

Gay Movement (2013).

24

feminists express concern that same-

sex marriage cannot be disentangled

from the patriarchal roots of the

institution of marriage itself.

But what receives much less attention is the

reality that many self-identifying LGB do not choose

same-sex romantic relationships at all. Some, for

example, choose celibacy and affirm the value of

single life.25 Consider the online community

“Spiritual Friendship,” which was “born out of

frustration with the prevailing narratives about

homosexuality from those who embrace [a]

traditionally Christian sexual ethic: an excessive

focus on political issues, and the ubiquity of

reparative therapy in one form or another. We want

to see more discussion of celibacy, friendship, the

value of single life, and similar topics.”

Others choose platonic same-sex relationships.

Consider, for example, two of the stories chronicled

in the recent film Desire of the Everlasting Hills:**

(1) “Even after breaking off the relationship, Rilene

remained friends with Margo [her former partner]

and cared for her in her final days as she died of

cancer”; and (2) “Paul explains that his friendship

25 See http://spiritualfriendship.org/about; see also, e.g., Eve

Tushnet, Gay and Catholic: Accepting My Sexuality, Finding

Community, Living My Faith (2014).

26 Desire of the Everlasting Hills (2014), https://everlastinghills

org.

25

with the man who was his intimate partner for about

25 years is better than ever, now that he is chaste.”27

Last, but by no means least, significant numbers

of same-sex attracted men and women actually

choose opposite-sex relationships. Gates’ study of the

NHIS reveals that, “[a}mong bisexual adults with

children, 51% were married with a different-sex

spouse, 11% had a different-sex unmarried partner,

and fonly] 4% had a same-sex spouse or partner.”

Even “[aJmong adults who identified as gay or

‘esbian and were raising children, 18% had a

different-sex married spouse and 4% had a different-

sex unmarried partner.”

Why would almost two-thirds of bisexual adults

with children and more than a fifth of gay or lesbian

adults with children elect man-woman relationships,

principally man-woman marriage? While in times

past such relationships were often the only legal and

culturally acceptable options, in today’s welcoming

climate, the decision of same-sex attracted men and

women to marry, and remain married, to opposite-

sex spouses is a testament to the uniqueness of man-

woman marriage as a familial relationship.

27 Kathryn Jean Lopez, “Bruised, Battered, Redeemed,” Na-

tional Review, July 22, 2014, http://www.nationalreview.com

/article/383337/bruised-battered-redeemed-kathryn-jean-lopez.

28 Gary J. Gates, “LBG Families and Relationships: Analyses

of the 2013 National Health Interview Survey,” October 2014,

http://williamsinstitute.law.ucla.edu/wp-content/uploads/lgb-

families-nhis-sep-2014_pdf.

26

III. The institution of man-woman marriage is

unique because of its procreative power and

complementary capacity.

Two men or two women together is, in truth, nothing

like a man and a woman creating a life and a family

together. Same-sex relationships are certainly very

legitimate, rewarding pursuits, leading to happiness

for many, but they are wholly different in experience

and nature. -- Doug Mainwaring”

I said to [my husband], we were crying, and I said

one plus one is way more than two, man and woman

equal way more. It was just this incredible experi-

ence; it was one of those moments where life just

expanded in one of those ways that you just can't

describe. We were like, wow, this is just so incredible

what the potential of what this man and woman can

do together. Not [just] us, but any man and any

woman. -- Peggy Matheson”

I have discovered that mothers “mother” and fathers

“father.” This dynamic seems ideal to me in teaching

and guiding our [sonj. . When he is looking for

comfort and nurturing (after hurting himself, for

example), he usually goes to his mother for comfort.

When he is looking for courage to do some

intimidating task, or to pick himself up after the pain

22 See Doug Mainwaring, “I’m Gay and I Oppose Same-Sex

Marriage, Mar. 8, 2013, http://thepublicdiscourse.com/2013/03

/9432/.

30 See Video Essay by Peggy Matheson (Mar. 27, 2013), http://id

svoicesofhope.org/voice.php?v=16.

27

and get back in the game, he looks to his father.

-- Jeff Bennion?*!

In seeking to prove that same-sex relationships

and man-woman marriage are “constitutionally

indistinguishable,” DeBoer Brief 60, petitioners offer

a definition of marriage divorced from children.

While petitioners characterize marriage as primarily

a “means in our society of seeking personal

fulfilment and acquiring community’ esteem,”

Bourke Brief 14, amici see something more. For

them, marriage is “inherently a unique relationship

between a man and a woman,” Mich. Comp. Laws §

551.1, owing to its procreative power for creating life

and complementary capacity for rearing children.

The procreative uniqueness of man-woman

marriage requires little explanation in light “of the

biological reality that couples of the same sex do not

have children in the same way.” Pet. App. 26a.

While Petitioners insist that “it demeans married

couples to say that marriage is simply about the

capacity to procreate,” Bourke Brief 47, their

insistence that marriage has nothing to do with

procreation—and is not even rationally related to

it—is, to use Petitioners’ own words, “a conception of

marriage so divorced from reality [that it] would wilt

in the glare of the public eye and mystify Americans

for generations to come,” Bourke Brief 50.

31 Unpublished Statement by Jeff Bennion, Mar. 27, 2015 (on

file with counsel of record); Unpublished Statement by Jeff

Bennion, April 1, 2015 (on file with counsel of record).

28

The complementary capacity of man-woman

marriage is no less significant than its procreative

power, though in an era with undefined gender roles

it may be less pronounced. While unique contri-

butions of men and women enhance all of our social,

cultural, and political institutions, perhaps nowhere

are those contributions more observable than in the

rearing of children in families. See, for example, Br.

of Amici Curiae Organizations and Scholars of

Gender-Diverse Parenting; Br. of Amici Curice

Scholars of Marriage.

But petitioners insist that whether children need

both a mother and father is no longer “debatable,”

DeBoer Brief 40, since “150 studies . spanning

nearly thirty years” have proven that they do not, id.

at 43, and any evidence to the contrary now

constitutes a “fringe viewpoint,” id. at 15. The

Seventh Circuit agreed with this assertion, opining,

“there is no _ scientific evidence that parenting

effectiveness is related to parental sexual orien-

tation,” Bostic v. Schaefer, 760 F.3d 352, 383 (4th

Cir.), cert. denied, 135 S. Ct. 316 (2014) (emphasis

added). But in highlighting the social science study

of “parental sexual orientation,” rather than gender-

diverse parenting, Bostic unwittingly acknowledges

the critical defect in the available social science,

which has focused almost exclusively on the former,

to the near exclusion of any study of the latter. See,

for example, Br. of Amici Curiae American College of

Pediatricians.

As same-sex attracted men and fathers of

children, amici agree emphatically that parental

sexual orientation has no bearing on parental

29

effectiveness or child outcomes. But that issue is fun-

damentally different than whether children need

both a mother and father. Through lived experience,

amici recognize the unique contributions that they

and their spouses provide their children through

gender-diverse parenting.

Consider Doug Mainwaring’s*® story. Doug first

recognized his “strong yearning for men at age eight”

and that “proclivity, once awakened, never faded.”

During his twenties, he felt strongly attracted to

close male friends, but limited his affections to

“philia (the love between true friends).” Doug first

met his wife in a choir and “found marriage to be

extremely rewarding.” They adopted two sons, but a

few years later their marriage ended. Feeling

“liberated” at first, Doug observes, “the divorce

allowed me to explore my homosexuality.” But after

dating and pursing “a couple of long-term [same-sex]

relationships,” Doug slowly concluded that “creating

a family with another man is not completely equal to

creating a family with a woman.” He also reasoned

that it deprived children of having “parents of both

genders at home.” So, after ten years of divorce, and

with “some doing, . we began to pull our family

back together.” Doug now reflects:

Over the last couple of years, I’ve found

our decision to rebuild our family

ratified time after time. One day as I

turned to climb the stairs I saw my

32 See Doug Mainwaring, “I'm Gay and I Oppose Same-Sex

Marriage,” http://www.thepublicdiscourse.com/20 13/03/9432/.

30

sixteen-year-old son walk past his mom

as she sat reading in the living room.

As he did, he paused and stooped down

to kiss her and give her a hug, and then

continued on. With two dads in the

house, this littlhe moment of warmth

and tenderness would never have

occurred. My varsity-track-and-football-

playing son and I can give each other a

bear hug or a pat on the back, but the

kiss thing is never going to happen. To

be fully formed, children need to be free

to generously receive from and express

affection to parents of both genders.

While examples of gender-differentiated experi-

ences undoubtedly resonate with many, petitioners

assert that these rationales “presume[] stereotypical

gender-based roles in opposite-sex marriages that

are factually antiquated.” DeBoer Brief 41. But

the benefits of gender-diverse parenting are not lim-

ited to so-called “stereotypical gender-based roles.”

Consider Joseph Stith’s** experience. During his

growing up years, Joseph doesn’t “remember ever

being attracted to someone of the opposite sex.” But

following six years in the United States Marine

Corps, he met and married his wife. Now, after

thirty years of marriage, Joseph believes that if he

had followed his “desires and impulses toward other

men, my life would be very different today.”

33 Unpublished Statement by Joseph Stith, Mar. 25, 2015 (on

file with counsel of record).

31

Like many amici, Joseph supports civil unions

for same-sex couples, but maintains that marriage is

uniqne and “can only be defined as the union

between a man and a woman,” especially because of

the unique contributions of fathers and mothers,

even in non-traditional roles:

I have abilities my wife came to rely on

and I was no substitute for her natural

talents as a woman in her care for our

children. I know how important it is for

children to be raised in a home with

both a father and a mother who love

them and are committed to their

success. My children have been told

many times bv their friends from single

parent homes. just how fortunate they

are to have both a Mom and a Dad even

with our reversed non-traditional roles

(I do the cooking and I| hate sports —

totally opposite of my dear wife. and it's

ok).

Vicki,** Joseph’s wife, describes having the “best

of both worlds.” She has a husband who comple-

ments her and with whom she has made a family of

two children and three grandchildren, yet Joseph's

unique qualities make Vicki the envy of her friends:

I found a man who was dedicated to my

happiness but with qualities and sensi-

tivities that my friends wished their

% Unpublished Statement by Vicki Stith, Mar. 30, 2015 (on file

with counsel of record).

32

husbands had. What woman wouldn't

want a husband that can cook, clean,

and share the load of building a home

together with children that love and

respect him? Had Joseph decided to

marrv another man instead of me, not

only would my life have been very dif-

ferent, my children would never have

been. The family that my husband

longed for all his life was more

important to him than anything else

and he proved that with his choices.

Even petitioners concede that reasonable

regulations on the right to marry “based on criteria

other than sexual orientation ‘may legitimately

be imposed.” Bourke Brief 23 n.4. And the signifi-

cant number of same-sex attracted men and women

married to opposite-sex spouses—including almost

one fifth of all gay men and lesbian women raising

children, see Section II supra—attest to the fact that

man-woman marriage laws are not designed to

exclude based on sexual orientation.

In addition to the man-woman definition,

marriage laws also regulate the very young, the

already married, and close family relatives. Each is

grounded in sociological and/or biological realities.

Thus, when petitioners ask this Court to examine

“the nature of the protected interest, not the clas-

ses of people entitled to claim protection,” Bourke

Brief 22, petitioners ignore that the “nature” of

marriage has, for millennia, been profoundly

influenced by the socially complementary and

33

biologically procreative capacity of man-woman

unions.

While the People may choose to redefine that

institution, they are hardly irrational for not doing

so. To the contrary, they have compelling reasons to

retain the man-woman definition. Petitioners bald

assertion that no “legitimate purpose[] of marriage []

is dependent on the gender of the partners,” DeBoer

Brief 64, ignores millennia of history, extensive

social science evidence validating gender-diverse

parenting, and the lived experience of countless

fathers and mothers—including many who experi-

ence same-sex attraction.

IV.A constitutional mandate requiring same-

sex marriage sends a harmful message that

it is impossible, unnatural, and dangerous

for the same-sex attracted to marry

members of the opposite sex.

Petitioners’ faulty premise that same-sex

attracted men and women cannot, or should not,

marry members of the opposite sex leads inescapably

to this equally false conclusion— it is unnatural and

dangerous for same-sex attracted men and women to

choose man-woman marriages. Constitutionally

mandating same-sex marriage would reinforce this

popular sentiment, injuring amici, their families,

and many others like them.

At the heart of petitioners’ appeal is the message

that man-woman marriage laws trap same-sex

attracted men and women in an irreconcilable

conflict with their sexual orientation. “No gay

34

person should be forced to choose between one’s

sexual orientation and one’s rights as an individual

to fundamental liberties, even assuming such a

choice could be made.” DeBoer Brief 52; Bourke

Brief 35. Petitioners’ premise—that limiting

marriage to man-woman couples interferes with

their personal liberty—is wrong. After Lawrence v.

Texas, 539 U.S. 558 (2003), petitioners are free to

pursue whatever romantic relationships they wish,

with whomever they wish. All that is at issue here is

whether the State must confer the status and

benefits of marriage on any romantic relationship

the partners wish to have so recognized.

Moreover, petitioners’ arguments assume that,

for the same-sex attracted, marriage to someone of

the opposite sex requires the impossible and

undesirable choice of eliminating one’s sexual orien-

tation in order to marry. But lived experience sug-

gests that pursuing man-woman marriage can bring

more freedo1a of choice, not less:

e [Ml]y feelings don't... define me. I'm not what

I feel; I’m what I do. -- Blaine Hickman™

© We can choose our destiny. We can choose the

direction we want. It’s not easy but the

blessings are enormous. -- Bill Seger

35 See Video Essay by Blaine and Lindsay Hickman (Dec. 9,

2013), http://\dsvoicesofhope.org/voice php?v=39.

% See Video Essay by Bill and Louise Seger (June 11, 2013),

http:/Adsvoicesofhope.org/voice.php?v=22.

35

e Ive learned that this is what I want; it is what

I believed I wanted in the first place. It is

wonderful for me to come back to this point

after a long journey and to find that this is

still what I want. -- Lucas Jones*7

While same-sex attracted men and women do not

choose to have their same-sex attractions, they do

choose whether to pursue same-sex or man-woman

relationships. Unfortunately, cultural messages

present the Hobson’s choice of either denying the

reality of those attractions or foregoing any possi-

bility of a man-woman marriage:

e I feel like that there are two choices that are

pushed out there. One is to deny, suppress, and

keep everything inside and pretend that you

don't experience same-sex attraction. That’s

one option. The second option is to be open and

[have a same-sex relationship]. Essentially

those are your two choices. Anything in

between is fake, it's not real. -- Brent Olsen**

e What I really wanted was a wife and kids but

what I kept hearing was, “Nope, that is not an

option for you.” -- Danny Caldwell*

37 See Video Essay by Lucas and Wrylon Jones (Jan. 21, 2014),

http://Idsvoicesofhope.org/voice.php?v=44.

38 See Video Essay by Brent and Anissa Olsen (Aug. 26. 2014),

http://idsvoicesofhope.org/voice .php?v=59F .

39 See Video Essay by Danny and Erin Caldwell (Sept. 23,

2013), http:/idsvoicesofhope.org/voice .php?v=30.

36

For the same-sex attracted who desire man-

woman marriage, the message that such marriages

are “not an option” or “fake” can be devastating:

e The general consensus seemed to be that these

marriages were doomed for failure. . I’m

still bitter about all the negativity that is in

our culture around this issue because I really

had to overcome a lot to even consider getting

married in the first place.-- Joshua Johanson“

e “Before you have kids, think twice about

whether you want to continue what you're

doing.” We reach out for the first time to

someone and that was the message we re-

ceived. It was a kick in the gut. -- Josh Weed*!

e For me, that was what was causing me to want

to kill myself. . . [I]t was not knowing that

there were other options. -- Danny Caldwell?

Petitioners’ reasoning reinforces the perception

that the same-sex attracted who choose man-woman

marriages are acting at odds with their identities.

For example, petitioners insist that man-woman

marriage laws must necessarily be the result of

“negative attitudes, or fear,” “private biases,”

“[p]rejudice” resulting from “insensitivity caused by

simple want of careful, rational reflection,” and/or

«© See Written Essay by Joshua Johanson (June 3, 2013),

http://idsvoicesofhope.org/essay .php?v=24.

41 See Video Essay by Josh and Lolly Weed (Feb. 24, 2013),

http://idsvoicesofhope.org/voice.php?v=12.

42 See Video Essay by Danny and Erin Caldwell! (Sept. 23,

2013), http:/idsvoicesofhope.org/voice.php?v=30.

37

“some instinctive mechanism to guard against people

who appear to be different in some respects from

ourselves.” DeBoer Brief 46; Bourke Brief 30-31.

But as same-sex attracted men themselves,

amici cannot be prejudiced against gays and lesbians

unless, of course, the pursuit of man-woman mar-

riage is so antithetical to their very being that they

are, in essence, at war with themselves in pursuing

an unnatural and irrational condition. And that is

exactly the message that petitioners ask this Court

to adopt. So odious are man-woman marriage laws,

petitioners say, that they “comsign” the “very

identities” of gays and lesbians to “official disfavor.”

Bourke Brief 3-4. Petitioners urge that a constitu-

tionally mandated right to same-sex marriage is

“essential to the happiness, autonomy, privacy and

liberty of gay people.” DeBoer Brief 57. Man-woman

marriage laws, they insist, “demean gay people’s

‘existence [and] control their destiny,” DeBoer Brief

59, ““disparage’ the ‘personhood and dignity’ of gay or

lesbian individuals,” id. at 60, and “demean the lives

of homosexual persons,” id. at 60.

Striking down man-woman marriage laws on the

basis of constitutional discrimination would thus

send a message to the same-sex attracted that there

is only one choice for them, that man-woman

marriage is unattainable, that they are acting

against their nature for desiring it, and that

pursuing it will be dangerous for them, their

spouses, and their children.

But the opposite is true. The man-woman defi-

nition of marriage is not an insult; it is an ensign,

38

beckoning to amyone—regardless of sexual

orientation—that the union of a man and a woman is

of unique significance in light of its procreative

power and complementary capacity. That is the

message this Court ought to send.

CONCLUSION

For the foregoing reasons, amici urge this Court

to affirm the decision of the court below.

Respectfully submitted,

DARRIN K. JOHNS

Counsel of Record

Law Firm of Darrin K. Johns P.C.

12 West 100 North, Suite 201-F

American Fork, UT 84003

(801) 228-7521

darrin.johns@darrinjohnslaw.com

APPENDIX

la

APPENDIX A: List of Amici

Amici Curiae are same-sex attracted men and their

wives who find profound joy and fulfillment in their

man-woman marriages. They are:

Jeffrey and Tanya Bennion celebrated their tenth

wedding anniversary last July. They have one son.

Jeff is a project and property manager for a real

estate firm. Tanya is a graphic and web designer.

Danny and Erin Caldwell have been married for

seven years and have three sons. Erin works as a

registered nurse, and Danny is a clinical ment]

health counselor in private practice.

Garrett and Sallie Ferguson will celebrate their fifth

wedding anniversary in December. They have one

boy and one girl. Sallie has put her teaching career

on hold while caring for their children. Garrett

works at an architecture firm.

Travis and Christine Fitz have been married for six

years. Christine is a stay-at-home mom for their

three children, and Travis works in management.

Kory Koontz has five children and has been married

to his wife for twenty years. Kory is an actor and

writer.

Joshua and Alyssa Johanson have been married for

six years, and have two boys. Alyssa is a chemical

engineer, and Joshua is a computational linguist.

2a

Dale Larsen has been married for thirty seven years,

and has four children and nine grandchildren. Dale

works as a tool and gauge technician.

Doug and Valerie Mainwaring will soon celebrate

their thirtieth wedding anniversary. They have two

sons. Valerie is a schoolteacher. Doug is a former

real estate agent and is now a freelance writer.

Brent and Anissa Olsen have been married for

sixteen years. Anissa is a full-time mom for their

four boys. Brent works in human resources.

Bill and Louise Seger have been married for nearly

thirty-five years. They have three children and five

grandchildren. Bill is a realtor, and Louise is a

cosmetologist and massage therapist.

Roland Smith is celebrating ten years of marriage.

He works in governmental accounting.

Joseph and Vicki Stith are celebrating thirty years of

marriage. They have two children and three

grandchildren. Vicki is a hospital quality analyst.

Joseph is a former United States Marine and has

been a management consultant in the healthcare

industry for twenty-five years and is now working

with a high-tech startup as director of business

development.