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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0693%3A077

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2017

## Text

RECORD FILED
BRIEFS cup -7 207

o. 1
No. 16-11 OFFICL OF THE CLERS |

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ne

we ES

In The
Supreme Court of the Anited States
> —
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0693%3A077. Public record. Not legal advice.