Amicus Curiae Brief — Pavan v. Smith, 137 S. Ct. 2075 (2017) (No. 16-992)

FILED

Be 15 2017

FICE OF T way RK

No. 16-992 | SoPREMe cotine 63

IN THE

Supreme Court of the Gnited States

MARISA N. PAVAN, ET AL..,

Petitioners,

Vv.

NATHANIEL SMITH, M.D., MPH,

Respondent.

On Petition for a Writ of Certiorari

to the Supreme Court of Arkansas

BRIEF OF CONSTITUTIONAL

ACCOUNTABILITY CENTER AS AMICUS

CURIAE IN SUPPORT OF PETITIONERS

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

DAVID H. GANS

BRIAN R. FRAZELLE

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1200 18th Street NW

Suite 501

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amicus Curiae

March 15, 2017 * Counsel of Record

ELS eet a PSNR

WILSON-EPES PRINTING Co., INC. — (202) 789-0096 -— WASHINGTON, D. C. 20002

TABLE OF CONTENTS

THE COURT SHOULD GRANT REVIEW TO

HOLD THAT THE DECISION BELOW VIO-

LATES THE FOURTEENTH AMENDMENT.

A. As this Court Recognized in Obergefell,

the Fourteenth Amendment Guarantees

All Persons an Equal Right To Marry the

Person of Their Choice ..................cccc0cc000--

B. The Fourteenth Amendment and the Su-

premacy Clause Together Require That

the Equal Protection Guarantee Must Be

Enforced Against Contrary State Law.....

C. The Decision of the Court Below Is at

Odds with the Text and History of the

Fourteenth Amendment, as Well as This

Cee IID cco ccccscccccccccnccctesoccovesesous

EERSTE IRN INGER a AE aL

(i)

10

il

TABLE OF AUTHORITIES

Cases

Civil Rights Cases,

Be Ss Ae I ivicencnncccisasccsvesonisnioins

Cooper v. Aaron,

EE eee

Ho Ah Kow v. Nunan,

12 F. Cas. 252 (C.C.D. Cal. 1879)

(No. 6,456) (Field, C.J.) ....-......-...0..0000

Howlett v. Rose,

496 U.S. 356 (1990) ............20.cccececeseeees

J.E.B. v. Alabama ex rel. T.B.,

tg! jo eee

Loving v. Virginia,

Be Aes Be GOD seni veseacccce sonsveccessceseons

McDonald v. City of Chicago,

Be Os. FEE GID cncccesstvessccsscewvsesusves

Obergefell v. Hodges,

135 S. Ct. 2684 (2015)................2.e0c000

Romer v. Evans,

517 U.S. 620 (1996)............-sececessseseeess

Turner v. Safley,

gS

United States v. Windsor,

So ee Se | ne

Yick Wo v. Hopkins,

ee

Page(s)

wile 8

ili

TABLE OF AUTHORITIES -— cont'd

Page(s)

Zablocki v. Redhail,

Rs I tal inlane mining 3.7

Constitutional Provisions and Legislative Materials

2 The Records of the Federal Convention of

1787 (Max Farrand ed., 1911)................... 12

ee ee iitntttcnvetincisiesinptandvevinis 4,15

Cong. Globe, 39th Cong.,

I I sd icndacscpccnniaieneneuanieaionees passim

The Federalist No. 10 (James Madison)

(Clinton Rossiter ed., 1961) ...................... 11

The Federalist No. 44 (James Madison)

(Clinton Rossiter ed., 1961) ................... 11, 12

Benjamin B. Kendrick, The Journal of the

Joint Committee of Fifteen on Recon-

struction, 39th Congress, 1865-1867

ITI ints arhiidd ilita ditteh nd land anesaanabncannnaeiiaaplembbonitis 8

oF WO 5, ee ener eee 3, 11

if Bo ee 6S OS } een 5

Books, Articles, and Other Authorities

Akhil Reed Amar, The Bill of Rights: Crea-

tion and Reconstruction (1998)................-. 8

Akhil Reed Amar, Of Sovereignty and

Federalism, 96 Yale L.J. 1425 (1987)........ 12

Jack M. Balkin, Living Originalism (2011). 6

iv

TABLE OF AUTHORITIES ~- cont’d

Page(s)

Speech of Gov. Oliver Morton at Anderson,

Madison Cty., Indiana (Sept. 22, 1866),

in Cincinnati Commercial, Nov. 23, 1866,

reprinted in Speeches of the Campaign of

1866 in the States of Ohio, Indiana, and

EE icsiiiicsinccnitspanditnianciainintilabineed's 6

1

INTEREST OF AMICUS CURIAE'

Amicus Constitutional Accountability Center

(CAC) is a think tank, public interest law firm, and

action center dedicated to fulfilling the progressive

promise of our Constitution’s text and history. CAC

works in our courts, through our government, and

with legal scholars to improve understanding of the

Constitution and preserve the rights and freedoms it

guarantees. CAC accordingly has a strong interest in

this case and in the scope of the Fourteenth Amend-

ment’s protections for liberty and equality.

SUMMARY OF ARGUMENT

Under Arkansas law, when a woman married to a

man gives birth, the general rule is that her husband

must be listed as the second parent on the child’s

birth certificate, even when he is not the child’s bio-

logical parent. But when a woman married to anoth-

er woman gives birth, her spouse may not be listed as

the second parent on the child’s birth certificate. The

Petition for a Writ of Certiorari in this case presents

the important question whether such disparate

treatment is consistent with the Fourteenth Amend-

ment.

According to the Arkansas Supreme Court, it is,

notwithstanding this Court’s recent decision in Ober-

! Counsel for all parties received notice at least 10 days prior

to the due date of amicus’s intention to file this brief; all parties

have consented to the filing of this brief. Under Rule 37.6 of the

Rules of this Court, amicus states that no counsel for a party

authored this brief in whole or in part, and no counsel or party

made a monetary contribution intended to fund the preparation

or submission of this brief. No person other than amicus or its

counsel made a monetary contribution to its preparation or

submission.

2

gefell v. Hodges, 135 S. Ct. 2584 (2015). In that

court's view, Obergefell held only that the Fourteenth

Amendment requires that same-sex couples be al-

lowed to marry; it does not require that they be treat-

ed the same as opposite-sex couples when it comes to

the issuance of birth certificates for their children.

This crabbed understanding of this Court’s decision

in Obergefell is plainly wrong, as the Petition ex-

plains, and review is appropriate for that reason

alone. See Pet. 15-25. Amicus submits this brief to

demonstrate that this understanding of the Court's

decision in Obergefell is also at odds with the text and

history of the Fourteenth Amendment, and this

Court's review is warranted for that reason, as well.

Ratified 150 years ago in the wake of a bloody

Civil War fought over the issue of slavery, the Four-

teenth Amendment fundamentally altered our Con-

stitution’s protection of individual, personal rights,

adding to our nation’s charter sweeping guarantees of

liberty and equality. Erasing the stain of slavery—

the ultimate violation of personal liberty—from the

Constitution, the Amendment’s Framers affirmed

that “there are some inherent and inalienable rights,

pertaining to every citizen, which cannot be abolished

or abridged by State constitutions or laws,” including

the “right to live, the right of personal security, per-

sonal liberty, and the right to acquire and enjoy prop-

erty.” Cong. Globe, 39th Cong., lst Sess. 1832, 1833

(1866).

Among these personal rights that “cannot be abol-

ished or abridged by State constitutions or laws” is

the right to marry. Id. at 504; see id. (explaining that

the “attributes of a freeman according to the univer-

sal understanding of the American people” include

“the right of having a family, a wife, children, home”).

Indeed, as this Court recognized in Obergefell, “mar-

3

riage is fundamental under the Constitution,” Ober-

gefell, 135 S. Ct. at 2599, because of the “abiding con-

nection between marriage and liberty,” and the fact

that “[c]hoices about marriage shape an individual's

destiny.” Id.; see Loving v. Virginia, 388 U.S. 1, 12

(1967); Zablocki v. Redhail, 434 U.S. 374, 384 (1978):

Turner v. Safley, 482 U.S. 78, 95 (1987).

The Fourteenth Amendment's protection of the

fundamental right to marry trumps any contrary

state law because it is “the supreme Law of the

Land,” superior in force to “any Thing in the Consti-

tution or Laws of any State to the Contrary.” U.S.

Const. art. VI, cl. 2. The drafters of our Constitution

were acutely aware of legal wrongs state govern-

ments committed under the Articles of Confederation,

and they wrote the Constitution to impose checks on

the power of governing majorities in the states. Chief

among those checks was the Supremacy Clause,

which makes the Constitution “the supreme Law of

the Land,” id. By including in the Constitution a

sweeping declaration of constitutional supremacy, the

Framers firmly rejected the notion that federal con-

stitutional guarantees should be left to the democrat-

ic process and decided by the people of the states.

This Court should grant review and reverse the

decision of the court below because its decision is

fundamentally at odds with the Fourteenth Amend-

ment’s equal protection guarantee. By treating same-

sex married couples differently than opposite-sex

married couples, the Arkansas birth certificate laws

deny same-sex married couples the “right to partici-

pate in the benefits and responsibilities of marriage

to the same extent and on equal terms as opposite-

sex couples.” Pet. 15. In upholding these laws, the

court below denied same-sex married couples the full

liberty to which they are entitled under the Four-

4

teenth Amendment, as well as important “benefits

that the States have linked to marriage,” thereby

“jImpos[ing] stigma and injury of the kind prohibited

by our basic charter.” Obergefell, 135 S. Ct. at 2601,

2602.

Arkansas argues that “[t]he purpose of the [state

birth certificate] statutes is to truthfully record the

nexus of the biological mother and the biological fa-

ther to the child,” Pet. App. 20a, but that purported

purpose is belied by the fact that, in the context of

opposite-sex couples, the spouse of the biological

mother is, except in narrow circumstances, listed on

the birth certificate even if he is not the biological

parent of the child. Pet. 3. Indeed, Arkansas law

“expressly provides that when a married couple uses

donor insemination to have a child,” as petitioners

did here, “the child is ‘deemed the legitimate natural

child of . . . the woman’s husband,’ and the husband is

the child’s legal father.” Jd. at 4 (citing Ark. Code § 9-

10-201(a)). To treat same-sex married couples differ-

ently “serves to disrespect and subordinate” them,

Obergefell, 135 S. Ct. at 2604, in defiance of both the

Constitution and this Court’s precedents. This Court

should grant review and reverse the decision of the

court below.

5

ARGUMENT

THE COURT SHOULD GRANT REVIEW TO

HOLD THAT THE DECISION BELOW VIO-

LATES THE FOURTEENTH AMENDMENT

A. As this Court Recognized in Obergefeil,

the Fourteenth Amendment Guarantees

All Persons an Equal Right To Marry the

Person of Their Choice

Drafted in 1866 and ratified in 1868, the Four-

teenth Amendment “fundamentally altered our coun-

try’s federal system,” McDonald v. City of Chicago,

561 U.S. 742, 754 (2010), in order to “repair the Na-

tion from the damage slavery had caused,” id. at 807

(Thomas, J., concurring), and to secure for the nation

the “new birth of freedom” that President Abraham

Lincoln had promised at Gettysburg. Central to that

task was the protection of the full range of personal,

individual rights essential to liberty. To achieve

these ends, the Framers of Section 1 of the Four-

teenth Amendment chose sweeping language specifi-

cally intended to protect the full panoply of funda-

mental rights for all, providing that no State shall

“make or enforce any law which shall abridge the

privileges or immunities of citizens of the United

States; nor .. . deprive any person of life, liberty, or

property, without due process of law; nor deny to any

person within its jurisdiction the equal protection of

the laws.” U.S. Const. amend. XIV, § 1.

History shows that the Framers of the Four-

teenth Amendment wrote Section 1’s overlapping

guarantees to “forever disable” the states “from pass-

ing laws trenching upon those fundamental rights

and privileges which pertain to citizens of the United

States, and to all persons who may happen to be

within their jurisdiction.” Cong. Globe, 39th Cong.,

6

Ist Sess. 2766 (1866). “The great object of the first

section of thfe] amendment,” Senator Jacob Howard

explained, was “to restrain the power of the States

and compel them at all times to respect these great

fundamental guarantees.” Id.

The Fourteenth Amendment thus wrote into the

Constitution the idea that “[e]very human being in

the country, black or white, man or woman... has a

right to be protected in life, in property, and in liber-

ty.” Id. at 1255. In this way, Section 1 gave to “the

humblest, the poorest, the most despised . . . the

same rights and the same protection before the law

as it [gave] to the most powerful, the most wealthy, or

the most haughty.” Jd. at 2766; see Jack M. Balkin,

Living Originalism 198 (2011) (explaining that the

overlapping guarantees of Section 1 “together .. .

were designed to serve the structural goals of equal

citizenship and equality before the law”)

Erasing the stain of slavery—the ultimate viola-

tion of personal liberty—from the Constitution, the

Amendment's Framers affirmed that “there are some

inherent and inalienable rights, pertaining to every

citizen, which cannot be abolished or abridged by

State constitutions or laws,” including the “right to

live, the right of personal security, personal liberty,

and the right to acquire and enjoy property.” Cong.

Globe, 39th Cong., Ist Sess. 1832, 1833 (1866).

Among these personal rights is the right to marry.

Id. at 504 (explaining that the “attributes of a free-

man according to the universal understanding of the

American people” include “the right of having a fami-

ly, a wife, children, home”); id. at 343 (“[T]he poor

man, whose wife may be dressed in a cheap calico, is

as much entitled to have her protected by equal law

as is the rich man to have his jeweled bride protected

by the laws of the land[.]”); Speech of Gov. Oliver

7

Morton at Anderson, Madison Cty., Indiana (Sept. 22,

1866), in Cincinnati Commercial, Nov. 23, 1866, re-

printed in Speeches of the Campaign of 1866 in the

States of Ohio, Indiana, and Kentucky 35 (1866) (“We

say that the colored man has the same right to enjoy

his life and property, to have his family protected,

that any other man has.”). As this Court has long

recognized, “marriage is fundamental under the Con-

stitution,” Obergefell, 135 S. Ct. at 2599, because of

the “abiding connection between marriage and liber-

ty,” and the fact that “[c]hoices about marriage shape

an individual’s destiny.” Id.; see Loving, 388 U.S. at

12; Zablocki, 434 U.S. at 384; Turner, 482 U.S. at 95.

The Fourteenth Amendment not only protects

substantive fundamental rights, it also guarantees to

all persons residing in the United States the equal

protection of the laws, forbidding a state from enact-

ing a law that discriminatorily denies the right to

marry, or the benefits of marriage, to certain groups

or classes. The Fourteenth Amendment, which pro-

hibits a state from denying to “any person” the “equal

protection of the laws,” secures the same rights and

same protection under the law for all men and wom-

en, of any race, whether young or old, native or for-

eign born, citizen or alien, gay or heterosexual. See

Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886) (“These

provisions are universal in their application, to all

persons within the territorial jurisdiction, without

regard to any differences of race, of color, or of na-

tionality ... .”); Civil Rights Cases, 109 U.S. 3, 24

(1883) (“The Fourteenth Amendment extends its pro-

tection to races and classes, and prohibits any State

legislation which has the effect of denying to any race

or class, or to any individual, the equal protection of

the laws.”).

8

As the debates over the Fourteenth Amendment

show, the original meaning of the equal protection

guarantee “establishes equality before the law,”

Cong. Globe, 39th. Cong., 1st Sess. 2766 (1866), “abol-

ishes all class legislation in the States[,] and does

away with the injustice of subjecting one caste of per-

sons to a code not applicable to another.” Jd. The

meaning of equal protection was that the “law which

operated upon one man shall operate equally upon

all,” id. at 2459 (emphasis in original), thereby “se-

curing an equality of rights to all citizens of the Unit-

ed States, and of all persons within their jurisdic-

tion,” id. at 2502; see Civil Rights Cases, 109 U.S. at

24 (“[C]lass legislation . . . [is] obnoxious to the prohi-

bitions of the Fourteenth Amendment ....”); Ho Ah

Kow v. Nunan, 12 F. Cas. 252, 256 (C.C.D. Cal. 1879)

(No. 6,456) (Field, C.J.) (“{H]ostile and discriminating

legislation by a state against persons of any class,

sect, creed or nation, in whatever form ... is forbid-

den by the fourteenth amendment... .”).

Importantly, the Fourteenth Amendment’s broad

language was no accident. When the 39th Congress

drafted the Fourteenth Amendment, it chose univer-

sal language specifically designed to secure equal

rights for all. While the Amendment was written and

ratified in the aftermath of the Civil War and the end

of slavery, it protects all persons. “[S]ection 1 point-

edly spoke not of race but of more general liberty and

equality.” Akhil Reed Amar, The Bill of Rights: Crea-

tion and Reconstruction 260-61 n.* (1998). Indeed,

the Reconstruction-Era Framers specifically consid-

ered and rejected proposed constitutional language

that would have outlawed racial discrimination and

nothing else, see Benjamin B. Kendrick, The Journal

of the Joint Committee of Fifteen on Reconstruction,

39th Congress, 1865-1867, at 46, 50, 83 (1914), pre-

9

ferring a universal guarantee of equality that secured

equal rights to all persons. Whether the proposals

were broad in scope or were narrowly drafted to pro-

hibit racial discrimination in civil rights, the Framers

of the Fourteenth Amendment consistently rejected

limiting the Amendment’s equality guarantee to ra-

cial discrimination. See J.E.B. v. Alabama ex rel.

T.B., 511 U.S. 127, 151 (1994) (Kennedy, J., concur-

ring) (“Though in some initial drafts the Fourteenth

Amendment was written to prohibit discrimination

against ‘persons because of race, color or previous

condition of servitude,’ the Amendment submitted for

consideration and later ratified contained more com-

prehensive terms ....”). The Fourteenth Amend-

ment’s “neutral phrasing,” “extending its guarantee

to ‘any person,” id. at 152 (Kennedy, J., concurring),

was intended to secure equal rights for all.

The Fourteenth Amendment's Framers crafted

this broad guarantee of eauality for all persons to

bring the Constitution back into line with the funda-

mental principles of American equality, which had

been betrayed and stunted by the institution of slav-

ery. See McDonald, 561 U.S. at 807 (Thomas, J., con-

curring) (“[S]lavery, and the measures designed to

protect it, were irreconcilable with the principles of

equality ... and inalienable rights proclaimed by the

Declaration of Independence and embedded in our

constitutional structure.”). After nearly a century in

which the Constitution sanctioned racial slavery and

allowed all manner of state-sponsored discrimination,

the Fourteenth Amendment codified our nation’s

founding promise of equality through the text of the

Equal Protection Clause. As the Amendment’s

Framers explained time and again, the guarantee of

the equal protection of the laws was “essentially de-

clared in the Declaration of Independence,” Cong.

10

Globe, 39th Cong., lst Sess. 2961 (1866), and was

necessary to secure the promise of liberty for all per-

sons. “How can he have and enjoy equal rights of

‘life, liberty, and the pursuit of happiness’ without

‘equal protection of the laws? This is so self-evident

and just that no man... can fail to see and appreci-

ate it.” Id. at 2539.

In short, the Fourteenth Amendment established

as constitutional mandates the protection of substan-

tive fundamental rights, including the right to marry,

and equality under the law, forbidding the people of a

state from denying any group of persons their fun-

damental rights. Under the Amendment's plain text

and original meaning, this sweeping, universal guar-

antee of liberty and equality applies to all who wish

to exercise the right to marry, one of the “attributes

of a freeman according to the universal understand-

ing of the American people[.]” Cong. Globe, 39th

Cong., lst Sess. 504 (1866). This guarantee neces-

sarily trumps any state law to the contrary, as the

next Section discusses.

B. The Fourteenth Amendment and the Su-

premacy Clause Together Require That

the Equal Protection Guarantee Must Be

Enforced Against Contrary State Law

The Fourteenth Amendment’s guarantees of sub-

stantive fundamental rights, including the right to

marry, and of the equal protection of the laws “cannot

be wrested from any class of citizens or from the citi-

zens of any State by mere legislation,” Cong. Globe

39th Cong., Ist Sess. at 1095 (1866), “keep[ing] the

States within their orbits” and “keep|[ing] whatever

sovereignty [a State] may have in harmony with a re-

publican form of government and the Constitution of

the country,” id. at 1088. The Amendment “declares

particularly that no State shall do it—a wholesome

11

and needed check upon the great abuse of liberty

which several of the States have practiced, and which

they manifest too much purpose to continue.” Id.

app. at 256. Like their counterparts at the Founding,

the Framers of the Fourteenth Amendment under-

stood that limits on the authority of the states were

necessary “to restrict the power of the majority and to

protect the rights of the minority.” Jd. at 1095; cf.

The Federalist No. 10 (James Madison) (Clinton Ros-

siter ed., 1961) (discussing the need to ensure that

“the majority” would be “unable to concert and carry

into effect schemes of oppression”).

At the Founding, the Supremacy Clause, which

declares the Constitution to be the “supreme Law of

the Land,” rendering “any Thing in the Constitution

or Laws of any State to the Contrary” null and void

and binding “the Judges in every State,” U.S. Const.,

art. VI, cl. 2, established the basic principle that

where the Constitution limits state authority, state

prerogatives necessarily end, limiting the power of

state actors to flout the Constitution. Simply put, the

Supremacy Clause makes clear that the people of a

state may not adopt a state Constitution, or state

laws, that transgress the federal Constitution and

that state courts may not “dissociate themselves from

federal law because of disagreement with its content

or a refusal to recognize the superior authority of its

source.” Howlett v. Rose, 496 U.S. 356, 371 (1990).

This principle of constitutional supremacy is a “per-

manent and indispensable feature of our constitu-

tional system.” Cooper v. Aaron, 358 U.S. 1, 18,

(1958). As James Madison argued, without a su-

preme federal power overseeing the states, our sys-

tem of government would be a “monster, in which the

head was under the direction of the members.” The

Federalist No. 44, supra, at 283 (James Madison).

12

The Framers chose to make this declaration of

the Constitution’s supremacy exceptionally broad in

scope, rendering null and void all forms of state ac-

tion inconsistent with the Constitution, federal laws,

and treaties. As initially introduced by Anti-

Federalist Luther Martin, the Supremacy Clause was

anemic: Martin’s proposal did not establish the Con-

stitution as the supreme law of the land and would

have allowed the people of a state to adopt a state

constitution that conflicted with the federal Constitu-

tion. See 2 The Records of the Federal Convention of

1787, at 28-29 (Max Farrand ed., 1911); Akhil Reed

Amar, Of Sovereignty and Federalism, 96 Yale L.2J.

1425, 1458 (1987) (noting that “when the supremacy

clause was first introduced at Philadelphia .. . it

pointedly failed to specify the supremacy of the feder-

al Constitution over its state counterparts”). Fortu-

nately, the Framers recognized that such a system of

government would have “inver[ted] . . . the funda-

mental principles of all government; it would have

seen the authority of the whole society everywhere

subordinate to the authority of the parts,” The Feder-

alist No. 44, supra, at 283 (James Madison), and they

decisively rejected it. In contrast to Martin’s initial

proposal, the final form of the Supremacy Clause

written into our Founding charter “[i]s continental:

one Constitution, one land, one People.” Amar, Of

Sovereignty and Federalism, supra, at 1458.

State courts may not refuse to apply this Court’s

decision in Obergefell because they disagree with it.

“The principles announced in that decision and the

obedience of the States to them, according to the

command of the Constitution, are indispensable for

the protection of the freedoms guaranteed by our

fundamental charter for all of us.” Cooper, 358 U.S.

at 19-20. But that is what the Arkansas Supreme

13

Court did, flouting its obligation to faithfully apply

the precedents of this Court. This Court should grant

review to enforce the Constitution’s supremacy over

the state laws at issue here because those laws are at

odds with the Fourteenth Amendment, as the next

Section discusses.

C. The Decision of the Court Below Is at

Odds with the Text and History of the

Fourteenth Amendment, as Well as This

Court’s Precedents

Consistent with the text and history of both the

Fourteenth Amendment and the Supremacy Clause,

this Court has recognized that the Equal Protection

Clause protects minorities from state-sponsored dis-

crimination at the hands of majorities, “with-

draw[ing] from Government the power to degrade or

demean” through the democratic process. United

States v. Windsor, 133 S. Ct. 2675, 2695 (2013).

Likewise, this Court has recognized that states may

not deny to gay men or lesbians rights basic to “ordi-

nary civic life in a free society” or “make them une-

qual to everyone else.” Romer v. Evans, 517 U.S. 620,

631, 635 (1996).

In Obergefell, this Court followed these princi-

ples to their logical conclusion, holding that “the right

to marry is a fundamental right inherent in the liber-

ty of the person.” 135 S. Ct. at 2604. Thus, “under

the Due Process and Equal Protection Clauses of the

Fourteenth Amendment couples of the same-sex may

not be deprived of that right and that liberty.” Jd. In

so holding, this Court recognized that “[t]he States

have contributed to the fundamental character of the

marriage right by placing that institution at the cen-

ter of so many facets of the legal and social order.”

Id. at 2601. Thus, “by virtue of their exclusion from

that institution, same-sex couples are denied the con-

14

stellation of benefits that the States have linked to

marriage. This harm results in more than just mate-

rial burdens. Same-sex couples are consigned to an

instability many opposite-sex couples would deem in-

tolerable in their own lives.” Jd. at 2601; see id. (de-

scribing “birth and death certificates” as “aspects of

marital status”); id. at 2600 (noting that marriage

“safeguards children and families and thus draws

meaning from related rights of childrearing, procrea-

tion, and education”).

The court below lost sight of these foundational

equal protection principles, empowering the people of

a state to “disparage and to injure” loving, committed

same-sex couples, “whose moral and sexual choices

the Constitution protects,” Windsor, 133 S. Ct. at

2696, 2694, and denigrating their marriage to “sec-

ond-tier” status, id. at 2694; see Obergefell, 135 S. Ct.

at 2600-01. That contravenes Obergefell. While the

people of a state may, through their state legisla-

tures, create laws in the mine run of cases, Obergefell

makes clear that they cannot contravene the Four-

teenth Amendment's guarantee of equality of rights

under the law, denying same-sex couples the same

benefits associated with marriage provided to oppo-

site-sex couples.

According to the court below, there is no tension

between the Arkansas birth certificate statutes and

the Fourteenth Amendment because the “purpose of

the statutes is to truthfully record the nexus of the

biological mother and the biological father to the

child.” Pet. App. 20a; id. at 21a (“It does not violate

equal protection to acknowledge basic biological

truths.”). But the laws provide that, in the context of

opposite-sex couples, the spouse of the biological

mother should generally be listed on his child’s birth

certificate even if he is not the biological parent of the

15

child. Pet. 3; see Pet. App. 45a (Danielson, J., dis-

senting) (concluding that the state birth certificate

statutes focus on “marital” relationships, not “biologi-

cal relationships,” and “[t]he obvious reason for this is

to legitimate children whenever possible, even when

biological ties do not exist”).

In fact, Arkansas law “expressly provides that

when a married couple uses donor insemination to

have a child,” as petitioners did here, “the child is

‘deemed the legitimate natural child of . . . the wom-

an’s husband,’ and the husband is the child’s legal fa-

ther.” Pet. 4 (citing Ark. Code § 9-10-201(a)). Thus,

the state’s purported rationale provides no basis for

denying petitioners here the right to have both par-

ents listed on their children’s birth certificates when

similarly situated individuals in opposite-sex mar-

riages would be so listed as a matter of course. The

state’s laws that abridge that right violate the Four-

teenth Amendment, denying same-sex married cou-

ples the full constellation of benefits associated with

marriage under state law and treating them differ-

ently than similarly situated opposite-sex married

couples.

Significantly, if lower courts can deny same-sex

couples the same benefits of marriage accorded to op-

posite-sex couples on so flimsy a rationale as the one

offered here, it would permit lower courts to, in effect,

disregard this Court’s decision in Obergefell merely

because they disagree with it. Indeed, as the Petition

argues, allowing the decision here “to stand would

open the door for other courts to pursue a similarly

blatant path of denying same-sex couples important

marital rights and protections based on equally spe-

cious grounds .... This Court should grant review to

foreclose that destabilizing path.” Pet. 25.

16

This Court should not countenance the decision of

the court below to violate this Court’s precedents and

“impose stigma and injury of the kind prohibited by

our basic charter.” Obergefell, 135 S. Ct. at 2602.

This Court should grant review and hold that the de-

cision below violates the Constitution’s equal protec-

tion guarantee.

CONCLUSION

For the foregoing reasons, amicus urges the

Court to grant the Petition for a Writ of Certiorari.

Respectfully submitted,

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

DAVID H. GANS

BRIAN R. FRAZELLE

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1200 18th Street NW

Suite 501

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amicus Curiae

March 15, 2017 * Counsel of Record