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

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## Record

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

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0729%3A5. Public record. Not legal advice.