Amicus Curiae Brief — Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm'n, 138 S. Ct. 419 (2017) (No. 16-111)

RECORD FILED

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No. 16-11 OFFICL OF THE CLERS |

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In The

Supreme Court of the Anited States

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MASTERPIECE CAKESHOP, LTD., et ai.,

Petitioners,

Vv

COLORADO CIVIL RIGHTS COMMISSION, et ai.,

Respondents.

— o-

On Writ of Certiorari

to the Court of Appeals of Colorado

: -

BRIEF OF AMICI CURIAE THE NATIONAL BLACK

RELIGIOUS BROADCASTERS AND THE

NATIONAL HISPANIC CHRISTIAN LEADERSHIP

CONFERENCE IN SUPPORT OF PETITIONERS

- —

DAVID H. THOMPSON

Counsel of Record

COOPER & KIRK, PLLC

1523 New Hampshire

Avenue, N.W.

Washington, D.C. 20036

(202) 220-9600

dthompson@cooperkirk.com

Counsel for Amici Curiae the

National Black Religious

Broadcasters and the

National Hispanic Christian

Leadership Conference

September 7, 2017

re

————

1

TABLE OF CONTENTS

Page

yO PRT I ini cciceiceiniinscanscndcbeesiaceceachates il

Be ee COM FACE GUND octen cncsececcenscovegenseosee 1

| es OE ERS oe eee aeRO RE ee hae 2

SUMMARY OF ARGUMENT. ......-ccccccccccescccsscsccsoesese 5

CERES rien one Rene nt IOS OS SUR IM ato 7

I. Uinhke the Historically-Rooted Definition of

Marriage as u Relationship Between a Man and

«a Woman, Racialized Views of Marriage Are

Historical Aberrations that Depart from the

Common Law and Reinforce a Racial Caste

SN crieaidiedaciieeetea/ceidabnihdenatie cies coe anne 7

i, Unlike the Definition of Marriage as a Rela-

tionship Between a Man and a Woman, Racial-

ized Views of Marriage Are at War with the

Traditional Understanding and Purpose of

SIR <c ealsocinisaeeteacecen creda sangina Semesisa cemaanees 14

ul

TABLE OF AUTHORITIES

CASES Page

Baker v. Nelson,

i GO RF BD Oe EE) eee 11

Bob Jones Univ. v. United States,

er ee I es cr tdiivcciinsecdicarninseiinssassantiovoide cans 4

Burns v. State,

i IE incsinvnenniacaenssqrecscesrinsptpenimesacomeisie &

Church of the Lukumi Babalu Aye, Inc. v. City of

Hialeah,

508 U.S. 520 (19938)..............0006. inhnitnimeeneenetn 3

De Burgh v. De Burgh,

ee Es I ac nescccincesscerscokectsdsesrsnens 18

Dred Scott v. Sandford,

gt By RE yy ) Remeron 10

Hart v. Hoss & Elder,

26 La. Ann. 90 (Lit. 1874) ......cceccccesecssecececeeseeeeseees 8

Hernandez v. Robles,

4 o FBT & a) EUR pers 3

Kerrigan v. Commissioner of Pub. Health,

Re Cae Me CD: I vckciivecicsiidcecicssesiesnnnsas 10

Lawrence v. Texas,

I i IE sass os csccccalinsntennannnsbanbeiiiie ll

i

Loving v. Virginia,

388 U.S. 1 ¢1967)............ tpidiatamebienientts 9, 10, 17, 20

Obergefell v. Hodges,

ee ey osccsnsdach lisse siibasntdne'sbaaaais 2,3

Perez v. Lippold,

BO Fe ET Gel. TID cviiicsicscs<occ00nc. 10, 17, 18, 20

United States v. Windsor,

te ee 7

West Virginia Bd. of Educ. v. Barnette,

re Ne Wi ciodnndansiaiiechdsnsonassocacurnadsinadons 2

RULES

S. Cr. RULE

RE TENT EEE ne MA NR TA See AEE Sth SIs st 1

SAGES REALS MRE ET SEWN A POTS RGD St AEA RS RAYA 1

OTHER

The Holy Bible

CB ia TN ie aE EN A Be YI ese 19

BINIUDY icinscscssescisaihdese bresnilaeuiccduugesaeiinekameemcciabaiie 19

a Ee 19

RSS AR PINSON A NR Sat cM aly eae ee Se ey 19

acer Raines ees st neces Me Set ites 19

iv

Catechism of the Catholic Church ..........0....00..00200 19

THE BOOK OF COMMON PRAYER (2007). .................06 19

M.V. LEE BADGETT, WHEN GAY PEOPLE GET MARRIED

SIE cosh clin oc nciglins canadte opabs epeaReeseeneeeaaiaS 11

2 JOKL PRENTISS BISHOP, COMMENTARIES ON THE LAW

OF MARRIAGE & DIVORCE (lst ed. 1852)................. 9

Fay BoTHAM, ALMIGHTY GOD CREATED THE RACES:

CHRISTIANITY, INTERRACIAL MARRIAGE, AND AMERI-

CN I CIEE ss clit chicn seeds <sunuceccnssbesakebebaeriadsetunceeneie 20

CAROL EMIG & KRISTEN ANDERSON MOORE, CHILD

TREND: Res. BRIEF, MARRIAGE FROM A CHILD'S PER-

Ie Ge bcitkndnckecvexcdpeocesctassevsnsuncscsasincessecince 15

Gregory M. Herek, et al., Demographic, Psycho-logi-

cal, and Social Characteristics of Self-Identified Les-

bian, Gay, and Bisexual Adults in a US Probability

Sample, 7 SEXUALITY RES. & Soc. Pol'y 176 (2010)

PSE RR Ser ALAS a pn ep SS ERIE SALE ORE AEE 1}

John D. Inazu, A Confident Pluralism, 88 S. CAL. L.

EE , Ce CIBER vveeses at cnscencsvccvesesevcnsossestannereenses 12,13

Claude Levi-Strauss, Introduction, in 1 A HISTORY OF

THE FAMILY: DISTANT WORLDS, ANCIENT WORLDS

(Andre Burguiere, et a!., eds., 1996) ..............2..06 17

Barack Obama, Speech on Fatherhood at the Apostol-

ic Church of God (June 15, 2008).....................0.06 16

Richard Posner, Should There Be Homosexual Mar-

riage? And If So, Who Should Decide?, 95 MICH. 1.

BOG. BPE CRO ED corccectecocerssesusonvescsonsesvss tosses sotennsesese 10

Vv

CHARLES F, ROBINSON I], DANGEROUS LIAISONS (2006)

Isabel V. Sawhill, Families at Risk, in SETTING NA.

TIONAL PRIORITIES: THE 2000 ELECTION AND BEYOND

(Henry J. Aaron & Robert D. Reischauer, eds. 1999)

Sahbiietedecdedadddncked tivbdbedis bade veidadetebiels aanteieneaae 15, 16

Irving G. Tragen, Statutory Prohibitions Against In-

terracial Marriage, 32 CAL. L. Rev. 269 (1944)...... 7

Peter Wallenstein, Law and the Boundaries of Place

and Lace in Interracial Marriage. Interstate Comity,

Racial Identity, and Miscegenation Laws in North

Carolina, South Carolina, and Virginia, 1860s—

1960s, 32 AKRON L. REV. 557 (2999)....................... 8

PETER WALLENSTEIN, TELL THE CourRT I LOVE My

WIFE: RACE, MARRIAGE, AND LAW. -AN AMERICAN

a se dae pacadn see canusausasdasias &

Lynn D. Wardle & Lincoln C. Oliphant, Jn Praise of

Loving: Reflections on the “Loving Analogy” for

Same-Sex Marriage, 51 How. L.J. 117 (2007).... 7, 8

Press Release, The White Housc, Remarks by the

President on the Supreme Court Decision on Mar-

riage Equality (Junc 26, 2014)..............00....0... 12

Transcript: Robin Roberts ABC News Interview with

President Obama, ABCNEWS (May 9, 2012)... 11, 12

1

INTEREST OF AMICI CURIAE!

Amici are the National Black Religious Bruad-

casters and the National Hispame Christian Leader-

ship Conference. The National Black Religious Broad-

casters is a national coalition of over 10,000 black re-

ligious broadcasters throughout the country who use

broadcast and cable television, the internet, and radio

to minister and spread the Gospel. The National His-

panic Christian Leadership Conference-CONEL is the

largest Hispanic Evangelical organization in America,

representing 40,118 churches.

Together, Amici speak on behalf of millions of

people in the Nation’s black and Hispanic communi-

lies who believe in and advocate for the view that mar-

riage is a umon between one man and one woman.

They have an interest in ensuring that their First

Amendment rights to express and exercise these

deeply-held religious beliefs are protected. ‘hey sub-

mit this brief to debunk the spurious notion that un-

derstanding marriage to be a union between a man

and a woman is akin to holding racist views about

marriage.

‘ Latters consenting to the filing of amicus briefs from Pe-

titioners and Respondent the Culorado Civil Rights Commission

are on file with the Court, and Respondents Charlie Craig and

David Mullins have consented to the filing of this brief. See Sup.

Cr. R. 37.3(a). Pursuant to Sup. Cr. 8. 37.6, amicus certifies that

no counsc! for any party authored this brief in whole or in part,

no party or party's counsel made a monctary contribution to fund

its preparation or submission, and no person other than amicus,

its members, or its counsel made such a monetary contribution.

2

INTRODUCTION

When this Court recognized a fundamental right

to marriage that extends to same-sex couples, it

acknowledged widespread, good-faith disagreement

about the practice. Obergefell v. Hodges, 135 S. Ct.

2584, 2594 (2015).

Specifically, the Court “emphasized that reli-

gions, and those who adhere to religious doctrines,

may continuc to advocate with utmost, sincere convic-

tion that, by divine precepts, same-sex marriage

should not be condoned.” /d. The Constitution not only

permits such convictions; it removes them from the

realm of state coercion. “The First Amendment en-

sures that religious organizations and persons are

given proper protection as they seek to teach the prin-

ciples that are so fulfilling and so central to their lives

and faiths, and to their own deep aspirations to con-

tinue the family structure they have long revered.” Id.

This 1s consistent with the “fixed star in our con-

stitutional constellation,” that “no official, high or

petty, can prescribe what shall be orthodox in politics,

nationalism, rcligion, or other matters of opinion or

force citizens to confess by word or act their faith

therein.” West Va. Bd. of Educ. v. Barnette, 319 U.S.

624, 642 (1943). “If there are any circumstances which

permit an cxception” to this rule, id., they do not in-

clude an orthodoxy on same-sex marriage.

The decision below, and the law it upholds, dis-

regard that fixed star. Among many First Amendment

offenses, they permit government officials to pick and

3

choose which sincerely-held beliefs justify an excep-

tion to a public accommodations law interpreted to

prohibit those in the wedding industry from declining

to create custom expression that celebrates same-sex

marriage ceremonics. This practice implicates the

First Amendment protections this Court reaffirmed in

Obergefell. See Church of the Lukumi Babalu Aye, Inc.

vu. City of Hialeah, 508 U.S. 520, 537 (1993) (holding

that strict scrutiny applied to an ordinance prohibit-

ing “unnecessary” killing of animals because “applica-

tion of [an] ordinance’s test of necessity devalues reli-

gious reasons for killing by judging them tw be of

lesser import than nonrcligious reasons.’). Yet the un-

deniable imposition on and devaluation of religious

belicfs has been justified by, inter alia, resorting to the

same compelling governmental interests advanced to

overcome asserted First Amendment justifications for

racial discrimination.

The attempt to draw a legal and moral compar-

ison between opposition to same-sex marriage and op-

position to interracial marriage disrespects the “sin-

cere conviction” held by many religious and non-rcli-

gious persons of good faith, Obergefell, 135 S. Ct. at

2607, and belittles the suffering of those who lived un-

der the unjust anti-miscegenatiun laws that have

blighted our Nation’s history.

The decision to treat marriage as a fundamen-

tal right that extends to same-sex couples does not re-

move from the realm of legitimate disagreement qucs-

tions about the definition and moral precepts of mar-

riage. In this way, it stands in sharp contrast to our

4

“fundamental national public policy” against racial

discrimination. Bob Jones Univ. v. United States, 461

U.S. 574, 593 (1983). While traditional views of mar-

riage enjoy deep historical roots and cohere with the

purposes of marriage, anti-miscegenation laws repre-

sent a departure from the common law definition of

marriage, were borne of animus, and worked against

the purposes of that institution. There is no equiva-

lency, and the Court should reject any argument

premised on the cynical assumption that there ts.

5

SUMMARY OF ARGUMENT

|. ‘The understanding of marriage as an oppo-

site-sex relationship is as old as—and was until re-

cently as universal as- the institution of marriage it-

self. Its existence has never depended upon or been

correlated with a certain set of views about homosex.

uality. Nor has it been used as a tool to reinforce a

caste system in which a certain people are relegated

to the status of second-class citizens in every aspect of

their lives.

Racial restrictions on marriage, on the other

hand, have an ugly and peculiar pedigree in this

Country: «a departure from the common-law definition

of marriage, anti-miseegenation laws were uniformly

premised on the view that non-white races were infe-

rior and served an important role in perpetuating op-

pression and segregation.

Il. As this history reveals, the concern for

longstanding, well-recognized (albeit in recent years

hotly debated) purposes of marriage drives adherence

to the understanding of it as an opposite-sex union.

Central among these purposes ts to channel! relation-

ships cupable of producing offspring into stable family

units in which any resulting children will flourish. Re-

gardless of whether one agrees with the varied social

and religious underpinnings of this understanding,

they reflect. rational, caring belicfs that the Govern-

ment cannot possibly be said to have a compelling in-

terest in suppressing.

6

By contrast, interracial marriage bans served no

legitimate purpose. Instead, they perverted the pro-

creative feature of marriage into a tool for perpetuat-

ing racial segregation, and in so doing, undermined

the very social values marriage was intended to pro-

mote.

ry

/

ARGUMENT

I. Unlike the Historically-Rooted Definition

of Marriage as a Relationship Between a

Man and a Woman, Racialized Views of

Marriage Are Historical Aberrations that

Depart from the Common Law and Rein-

force a Racial Caste System.

As this Court has recognized, until very re-

cently “marriage between «a man and a woman... had

been thought of by most people as essential to the very

definition of that term and to its role and function

throughout the history of civilization.” United States

v. Windsor, 133 S. Ct. 2675, 2689 (2013). The same

cannot be said of racial restrictions: Interracial mar

riage bans are the exception in world history.

To be sure, anti-miscegenation laws once

blighted the legal! landscape of some of the States for

part of this Nation’s history. But such laws were never

universal throughout history, across civilizations, or

even in this Country. To the contrary, interracial mar-

riages were legal at common law, in six of the thirteen

original States at the time the Constitution was

adopted, and in many States that at no point ever en

acted anti-miscegenation laws. See, e.g., Irving G. T'ra-

gen, Statutory Prohibitions Against Interracial Mar-

riage, 32 CAL. L. REV. 269, 269 & n.2 (1944) (“|A]t com-

mon luw there was no ban on interracial marriage.”):

Lynn D. Wardle & Lincoln C. Oliphant, Jn Praise of

Loving: Reflections on the “Loving Analogy” for Same

Sex Marriage, 51 How. LJ. 117, 180—81 (2007) (State-

8

by-State description of historical anti-miscegenation

statutes); PETER WALLENSTEIN, TELL THE COURT |

Love My WIFE: RACE, MARRIAGE, AND |LAW—AN AMER.

ICAN History 41, 253-54 (2002). Other States aban-

doned such laws in the wake of the adoption of the

Fourteenth Amendment, at least until Reconstruction

gave way to the Jim Crow system of White Suprem-

acy.2 And outside the Jim Crow South, anti-miscege-

nation laws were both rare and rapidly disappearing

2 See Hart v. Hoss & Hider, 26 la. Ann. 90 (La. 1874)

(holding that the Civil Rights Act of 1866 invalidated anti-mis-

cegenation law); Burns v. State, 48 Ala. 195, 198-199 (1872)

(halding that the fourteenth Amendment invalidated anti-muis-

cegenation law); CHARLES F. ROBINSON IT, DANG:ROUS LIAISONS

29 (2006) (noting that in 1874 Arkansas omitted its anti-misce-

genation law from its revised civil code); id. (noting that in 1871

Mississippi omitted its anti-miscegenation law from its revised

civil code); id. at 30 (noting that im 1868 the Louisiana legis!ature

repealed the state's anti-miscegenation law); Wardle & Oliphant.

In Praise of Loving, 51 How. L.J. at 180 (noting that the I)linois

legislature repealed its anti-miscegenation law in 1874); see also

ROBINSON, DANGEROUS LIAISONS 29 (noting that in 1868 “South

Carolina implicitly abrogated its intermarriage law by adopting

a constitutional provision that ‘distinctions on account of race or

color in any case whatever, shall be prohibited, and al! class of

citizens shall enjoy all common, public, legal and political privi-

leges’ ”); Peter Wallenstein, Law and the Boundaries af Place and

Race wn Interracial Marriage: Interstate Comity, Ractal Identity,

and Miscegenation Laws in North Carolina, South Carolina, and

Virginia, 1860s—1960s, 32 AKRON L. Rtv. 557, 558, 561 (1999)

(noting that after 1868 South Carolina had a “temporary tvler-

ance of interracial marriage” that “attracted interracial couples

from a... neighboring state”).

vy

9

from the statute books at the time Loving v. Virginia

was decided."

Even where they existed, moreover, such laws

were never understood to be a defining characteristic

of marriage. And they were certainly never univer-

sally so understood, throughout history and across

civilizations. Indeed, even in ante-bellum America,

the leading treatise on murriage described racial re-

strictions on marriage as “impediments, which are

known only in particular countries, or States.” 2 JOFI.

PRENTISS BISHOP, COMMENTARIES ON THE LAW OF

MARRIAGE & DIVORCE § 213 (1st ed. 1852).

By contrast, the same treatise stated categori-

cally that “[ijt has always .. . been deemed requisite

to the entire validity of every marriage . . . that the

parties should be of different sex” and that “[mJar

riage between two persons of one sex could have no

validity.” Id. § 225. As countless courts have recog.

nized, “[uJntil a few decades ago, it was an accepted

truth for almost everyone who ever lived, in any soci-

ety in which marriage existed, that there could be

marriages only between participants of different sex.”

Hernandez v. Robles, 855 N.E.2d 1, 8 (N.Y. 2006).

Not only have racial distinctions never been

thought to go to the very definition of the institution

3 As the Court in Loviag explained, fourteen states had

repealed their bans on inter-racial marriages in the fifteen years

leading up to the Loving decision; such restrictions remained in

only 16 States, concentrated in the South. Loving v. Virginia, 388

US. 1, 6.501967).

10

of marriage, but historically, where they have existed,

they have been imposed for invidious motives that

bear no resemblance to those undergirding the under-

standing of marriage us an opposite-sex union. Penal-

ties for interracial marriage “arose as an incident to

slavery,” Loving v. Virginia, 388 U.S. 1, 6 (1967), and

were premised on the despicable view that black peo-

ple were “altogether unfit to associate with the white

race, either in social or political relations,” Dred Scott

v. Sandford, 60 U.S. (19 How.) 393, 407 (1857). Even

after slavery was abolished, prohibitions on interra-

cial marriage continued to be promoted and defended

on the ground that certain races were inferior to oth-

ers. See, e.g., Perez v. Lippold, 198 P.2d 17, 22—24 (Cal.

1948).

By contrast, the historical record makes unmis-

takably clear that the traditional view of marriage is

ubiquitous, sweeping across virtually all cultures and

all times, regardless views on same-sex relationships.

“(E]ven societies in which homusexual conduct was

the norm and was well accepted have not recognized

same sex marriage.” Kerrigan v. Commissioner of Pub.

Health, 957 A.2d 407, 522-23 (Conn. 2008) (Zarella,

J., dissenting): see also Richard Posner, Should There

Be Homosexual Marriage? And If So, Who Should De-

cide?, 95 MICH. J.. REV. 1578, 1579 (1997) (“[H]omosex-

ual marriage has nowhere been a common practice,

even in societies in which homosexuality was com-

mon.”). Indeed, ideas regarding sexual orientation

simply did not play a role in the institution’s devclop-

1]

ment or in its universal practice. While “|t}he institu-

tion of marriage as a union of man and woman,

uniquely involving the procreation and rearing of chil-

dren within a family, is as old as the book of Genesis,”

Baker v. Nelson, 191 N.W.2d 185, 186 (Minn. 1971),

appeal dismissed for want of a substantial federal

question, 409 U.S. 810 (1972), scholars have suggested

that “the concept of the homosexual as a distinct cat-

egory of person did not emerge until the late 19th cen-

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

Showing that support for traditional marriage

entails no animus toward LCBT citizens, many gays

and lesbians themselves opposed redefining marriage

to include same-sex couples. See Gregory M. Herek, et

al., Demographic, Psychological, and Social Charac-

teristics of Self-Identified Lesbian, Gay, and Bisexual

Adults in a US Probability Sample, 7 SEXUALITY RES.

& Soc. Po.’y 176, 194 (2010) (22.1% of self-identified

lesbian, gay, and bisexual individuals did not agree

with redefining marriage); M.V. LEE BADGETT, WHEN

GAY PropLE GET MARRIED 129 (2009). Gay and les-

bian opposition to same-sex marriage surely does not

reflect a desire to dishonor gays and lesbians or to pro-

claim their lesser worth.

Instead, the gendered view of marriage has al-

ways been, and is now, supported by countless people

of good faith who harbor no ill will toward gays and

lesbians. As President Obama recognized, even as he

announced his support for same-sex marriage, many

people who “feel very strongly” about preserving the

traditional definition of marriage do so not “from a

12

mean-spirited perspective” but rather because they

“care about families.” Transcript: Robin Roberts ABC

News Interview with President Obama, ABCNEWS

(May 9, 2012), https://goo.g/JHNd67. He echoed these

views in the wake of Obergefeli, when he urged citi-

zens to be “mindful of’ the fact that “Americans of

goodwill continue to hold a wide range of views on this

issue,” which are “based on sincere and deeply held

beliefs.” Press Release, The White House, Remarks by

the President on the Supreme Court Decision on Mar-

riage Equality (June 26, 2015), https://goo.gl/iqKallg.

Recognizing these different viewpoints, we must “re-

vere our deep commitment to religious freedom.” 7d.

These different historical pedigrees also mean

that the role that the racial view of marriage has

played in society differs markedly from the role played

hy the gendered view of marriage. Unlike the artistic

expression at issue in this case, which does not bar a

group of people from essential services, our country’s

terrible sin of invidious race discrimination, especially

during the Jim Crow era, created a pervasive and sig-

nificant barrier to African Americans’ full participa-

tion in society. As one scholar stated:

There remains... a crucial difference between

the race-based discrimination against African

Americans in the Jim Crow South and any

other form of discrimination or exclusion in our

country. The pervasive impediments to equal

citizenship for African Americans have not

been matched by any other recent episode in

American history. Our country has harmed

13

many people... But the systemic and struc-

tural injustices perpetuated against African

Amcricans—and the extraordinary remedies

those injustices warranted—remain in a class

of their own.

John D. Inazu, A Confident Pluralism, 88 S. CAL. L.

REV. 587, 603 (2015). And anti-miscegenation laws

were an important part of this odious system of op-

pression.

Conversely, an individual's objection to celebrat-

ing a same-sex marriage cannot reasonably he deemed

to reflect a state-sponsored judgment that people in

such relationships are inferior or undeserving, and it

certainly does not bring the power of the state to bear

in oppressing those who wish to enter such relation-

ships. This case in particular is net about excluding or

refusing to serve gays and lesbians, but only about de-

clining to lend one’s artistic expression to a samivc-sex

marriage ceremony. Market forces in our pluralistic

country, to say nothing of changing mores, are keep-

ing these conscientious objections to same-sex couples

fairly isolated. In every publicized case of a business

owner declining to participate in the celebration or

solemnization of a same-sex marriage, the service

sought by the couple was readily available from other

businesses. Neither does this isolated denial of a cus-

tom wedding cake send a symbolic message that soci-

ety views the affected individuals as inferior, as anti-

miseegenation laws did. To the contrary, and as dis-

cussed more fully below, the gendered definition of

14

murriage has prevailed in all societies throughout hu-

man histury not because of anti-gay animus but be-

cause marriage is closely connected to society's vital

interests in the uniquely procreative nature of oppo-

site-sex relationships.

Il. Unlike the Definition of Marriage as a Rela-

tionship Between a Man and a Woman, Ra-

cialized Views of Marriage Are at War with

the Traditiona] Understanding and Pur-

pose of Marriage.

History provides a ready answer to why the tra

ditional definition of marriage did not arise from ani-

mus against homosexuals: the institution of marriage

owes both its origin and its continued existence

throughout history and across civilizations to society’s

universal and compelling need to address the risks

and benefits that arise from the unique procreative

potential of sexual relationships between men and

women. Oppusition to interracial marriage, by con-

trast, has always been overtly (and usually explicitly)

premised on racial animus and works contrary to the

very valucs that the institution of marriage was

meant to promote.

Societies throughout history uniformly defined

murriage as a relationship between individuals of the

opposite sex not because individuals in such relation-

ships are deemed virtuous or morally praiseworthy,

but because of the unique potential such relationships

have either to harm or to further society's interest in

responsible procreation. That is why marriage has

15

never been conditioned on an inquiry into the virtues

or vices of individuals who wish to marry. Society can-

not prevent the immoral or the irresponsible from en-

gaging in potentially procreative scxual relationships,

hut it presumes that even such individuals are more

likely to assume the shared responsibility of caring for

any children that may result from such relationships

if they are married than if they are not.

It is undisputed that when procreation and chil-

drearing take place outside stable family units, chil-

dren suffer. As a leading survey of social science re-

search explains:

Children in single-parent families, children

born to unmarricd mothers, and children in

stepfamilies or cohabiting relationships face

higher risks of poor outcomes than do children

in intact families headed by two biological par-

ents. Parental divorce is also linked to a range

of poorer academic and behavioral outcomes

among children. There ts thus value for chil-

dren in promoting strong, stab)e marriages be-

tween biological parents.

CAROL EMIG & KRISTEN ANDERSON MOORE, CHILD

TRENDS RES. BRIEF. MARRIAGE FROM A CHILD'S PER-

SPECTIVE 6 (2002).

In addition, when parents, and particularly fa-

thers, do not take responsibility for their children, so-

ciety is forced to step in to assist, through social wel-

fare programs and by other means. Indeed, according

to a Brookings Institute study, $229 billion in welfare

16

expenditures between 1970 and 1996 can be at-

tributed to the breakdown of the marriage culture. Is-

abel V. Sawhill, Families at Risk, in SETTING NA-

TIONAL PRIORITIES: THE 2000 ELECTION AND BEYOND

at 108 (Henry J. Aaron & Robert D. Reischauer, eds.

1999).

More than simply draining State resources, the

adverse outcomes for children so often associated with

single parenthood and father absence, in particular,

harm society in other ways, as well. As President

Obama emphasized:

We know the statistics—that children whu

grow up without a father are five times more

likely to hive in poverty and commit crime; nine

times more likely to drop out of schools and

twenty times more likely to end up in prison.

They are more likely to have behavioral prob-

lems, or run away from home, or become teen-

age parents themselves. And the foundations of

our community are weaker because of it.

Barack Obama, Speech on Fatherhood at the Apos-

tolic Church of God (June 15, 2008), avarlable at

https://goo.gl/cguXyh.

Because only sexual relationships between men

and women can produce children, such relationships

have the potential to help—or harm—future genera-

tions in a way, and to an extent, that other types of

relationships do not. The traditional definition of mar-

riage simply reflects the undeniable biological reality

that opposite-sex unions—and only such unions—can

1?

produce children. Marriage, thus, is “a social] institu-

tion with a biological foundation.” Claude Levi-

Strauss, Introduction, in 1 A HISTORY OF THE FAMILY:

DISTANT WORLDS, ANCIENT WORLDS 5 (Andre Burgui-

ere, ct al., eds., 1996). People who subscribe to a view

of marriage that coheres with its biological foundation

do so out of conscientious concern for these social im-

plications of biological reality, not out of animus.

Whereas the traditional definition of marriage as

the union of a man and a woman follows from the in-

stitution’s traditional procreative purposes, the racial

distinctions in anti-miscegenation laws served no le-

gitimate purposes whatsvever. As the Loving Court

explained: “There is patently no legitimate overriding

purpose independent of invidious racial discrimina-

tion which justifies this classification. The fact that

Virginia prohibits only interracial marriages involv-

ing white persons demonstrates that the racial classi-

fications must stand on their own justification, as

measures designed to maintain White Supremacy.”

Loving, 388 U.S. at 11.

The avowedly racist purposes of the anti-misce-

genation laws—'to preserve ... racial integrity[,] . . .

prevent the corruption of blood; [and prevent] a mon-

grel breed of citizens,” id. at 7 (quotation marks omit-

ted)—recognized the procreative potential of inter-ra-

cial marital relationships, but sought to twist this core

purpose of marriage for racist ends. See also Perez v.

Lippold, 198 P.2d 17, 22—25 (Cal. 1948) (discussing

the state’s defense of anti-miscegenation law on the

18

ground that it “prevents the Caucasian race frum be-

ing contaminated by races whose members are by na-

ture physically and mentally inferior to Caucasians”).

Far from reflecting the traditional understanding and

purposes of marriage, unti-miscegenation laws were

thus at war with that understanding and those pur-

poses.

In addition to perverting the biological founda-

tion of marriage for racist ends, anti-miscegenation

laws worked against the socia) good that the tradi-

tional definition of marriage was meant to promote.

Whereas “the institution of marriage” serves “the pub-

lic interest” by “channelf[ing] biological drives that

might otherwise become socially destructive” and “en-

sur[ing] the care and education of children in a stable

environment,” De Burgh v. De Burgh, 250 P.2da 598,

601 (Cal. 1952), anti-miscegenation laws prevent the

formation of stable family units when relationships

between individuals of different races produce off-

spring. See Perez, 198 TP.2d at 23 (observing that inter-

racial marriage bans “covertly encourage] |” “illicit

sexual relations” resulting in offspring between indi-

viduals who are prohibited from marrying).

To be sure, many people who adhere to the tradi-

tional understanding of marriage do so out of sinccre

religious belicfs. Such religious beliefs, however, are

not grounded in invidious discrimination. Looking to

Christianity as but one example: whatever one’s posi-

tion on deeper theological debates on which this Court

should not and need not take a position, no one can

deny that the Bible describes marriage as an opposite

19

sex relationship. See, e.g., Mark 10:6—9; 1 Corinthians

11:11—12. The same Bible commands a!! to love their

neighbors as themselves, see, e.g., Marl 12:30-31, and

to judge not, lest they be judged, Matthew 7:1—3. It is

not only deeply offensive but nonsensical to presume

that all who would celebrate marriage as it is de-

scribed in the Bible do so out of hatred for their neigh-

bors.4

Religious faith in marriage as a sacred bond is

not even grounded in views about same-sex relation-

ships. Marriage is a theological institution dating to

the Book of Genesis, see, e.g., Genesis 2:18—24, cele-

brated as a covenant that models the relationship be-

tween Christ and the church, see, e.g., Ephesians

5:25-33, and instituted by God “for the procreation of

children and their nurture in the knowledge and love

of the Lord.” THE BOOK OF COMMON PRAYEK 423

(2007). The institution of marriage is held by Chris-

tiuns to guard against temptation in sexual] relaltion-

shins, 1 Corinthians 7:5, but teachings about mar-

riage come from different scriptural sources and are

supported by different bodies of doctrine than teach-

ings about same-sex relationships.

* As but onc example of the implementation of Jesus’ teach.

ing, the Catechism of the Catholic Church holds that men anu

women with homosexual desires “must be accepted with respect,

compassion, and sensitivity,’ and that “[e]very sign of unjust dis-

crimination in their regard should be avoided.” Catechism of the

Catholic Church § 2358.

20

The sume religious beliefs that motivate many

people of good faith to adhere the traditional defini-

tion of murriage helped serve to bring down anti-mis-

cegenation laws. Indeed, the first court to strike down

an interracial marriage ban did so in light of a reli-

gious argument advanced by an interracial Catholic

couple. The couple pointed out that the Catholic

Church “respects the requirements of the State for the

marriage of its citizens as long as they are in keeping

with the dignity and Divine purpose of marriage,” and

that the Church had consequently “condemned the

proposition that” the institution should be shaped “to

preserve and promote racial vigor and the purity of

blood.” FAY BOTHAM, ALMIGHTY GOD CREATED THE

RACES: CHRISTIANITY, INTERRACIAL MARRIAGE, AND

AMERICAN LAW 11, 21 (2009) (emphasis addeda).

Furthermore, in striking down the ban, the court

linked marriage to its procreative purpose, quoting

this Court for the proposition that “[m]arriage and

procreation are fundamental tu the very existence and

survival of the race.” Perez, 198 P.2d at 19 (quoting

Skinner v. Oklahoma, 316 U.S. 535, 541 (1942)). Two

decades later, this Court followed suit in Loving, rest-

ing its own due process analysis on the central procre-

ative purpose of marriage. 388 U.S. at 12 (quoting

Skinner, 316 U.S. at 536).

In short, unlike the racialized view of marriage,

the traditional view of marriage is no arbitrary grab-

bag of rules. It is a coherent vision that can make

sense of many of our shared convictions about mar-

riage—e.g., in the importance of its total commitment

21

and link to family life. ‘To conclude otherwise impugns

the motives of countless Americans who believe that

traditional marriage continues to serve socicty’s vital

interests, including the citizens and lawmakers of

nearly every state as of a decade ago, the Members of

Congress and President who supported enactment of

the federal Defense of Marriage Act, and until very re-

cently, President Obama.

So whether the traditional view is ultimately cor-

rect or mistaken, it is the fruit of honest and rich ra-

tional arguments. Because individuals who wish not

to participate in the solemnization of marriages with

which they disagree are motivated hy their faith and

a conscientious concern for the social implications of

opposite-sex relationships, not out of animus for

same-sex couples, there is no compelling interest that

justifies coercing them “to confess by word or act” a

faith or belief that is contrary to their own.

CONCLUSION

For the above reasons, this Court should reverse

the judgment of the Colorado Court of Appeals.

September 7, 2017

22

Respectfully submitted,

DAvip H. THOMPSON

Counsel of Record

CoorerR & KIRK, PLLC

1523 New Hampshire

Avenue, N.W.

Washington, D.C. 20036

(202) 220-9600

dthompson@cooperkirk.com

Counsel for Amict Curiae