Mehlman Et Al Amicus Brief

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

IN THE
Supreme Court of the United States

JAMES OBERGEFELL, et al.,
Petitioners,
v.
RICHARD HODGES, DIRECTOR, OHIO DEPARTMENT
OF HEALTH, et al.,
Respondents.
ON WRITS OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BRIEF OF AMICI CURIAE KENNETH B. MEHLMAN

ET AL. SUPPORTING PETITIONERS
SEAN R. GALLAGHER
STACY A. CARPENTER
BENNETT L. COHEN
POLSINELLI PC
1515 Wynkoop Street
Suite 600
Denver, CO 80202
REGINALD J. BROWN
SETH P. WAXMAN
Counsel of Record
PAUL R.Q. WOLFSON
DINA B. MISHRA
WILMER CUTLER PICKERING
HALE AND DORR LLP
1875 Pennsylvania Ave., NW
Washington, DC 20006
(202) 663-6000
[email protected]
ADDITIONAL CAPTIONS AND COUNSEL LISTED ON INSIDE COVER
BRITTANI HENRY, et al., Petitioners,

v.
RICHARD HODGES, DIRECTOR, OHIO DEPARTMENT
OF HEALTH, et al., Respondents.
VALERIA TANCO, et al., Petitioners,
v.
WILLIAM EDWARD BILL HASLAM, et al., Respondents.
APRIL DEBOER, et al., Petitioners,
v.
RICHARD SNYDER, et al., Respondents.
GREGORY BOURKE, et al., Petitioners,
v.
STEVE BESHEAR, IN HIS OFFICIAL CAPACITY
AS GOVERNOR OF KENTUCKY, Respondent.
MARK C. FLEMING
FELICIA H. ELLSWORTH
ELISABETH M. OPPENHEIMER
ALLISON TRZOP
HALE AND DORR LLP
60 State Street
Boston, MA 02109
ALAN E. SCHOENFELD
HALE AND DORR LLP
7 World Trade Center
250 Greenwich Street
New York, NY 10007
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ........................................... ii
INTEREST OF AMICI CURIAE................................... 1
SUMMARY OF ARGUMENT ......................................... 1
ARGUMENT ....................................................................... 6
I.
EQUAL ACCESS TO CIVIL MARRIAGE PROMOTES THE CONSERVATIVE VALUES OF

STABILITY, MUTUAL SUPPORT, AND MUTUAL OBLIGATION ........................................................ 6
II. THE FOURTEENTH AMENDMENT REQUIRES

EQUAL ACCESS TO CIVIL MARRIAGE BECAUSE THERE IS NO LEGITIMATE, FACTBASED JUSTIFICATION FOR GOVERNMENT
TO EXCLUDE SAME-SEX COUPLES IN
COMMITTED RELATIONSHIPS .................................... 13
A. The Facts Do Not Support Any Of The
Putative Rationales For Marriage
Bans ....................................................................... 16
B. Even If The Marriage Bans Were
Based On Concerns For Tradition And
Caution In The Face Of Societal
Change, That Does Not Sustain Their
Constitutionality ................................................. 23
III. THIS COURT SHOULD ENSURE THAT GOVERNMENTS DO NOT DENY THE RIGHTS
AND RESPONSIBILITIES OF CIVIL MARRIAGE TO SAME-SEX COUPLES ................................. 27
CONCLUSION ................................................................. 32
APPENDIX: List of Amici Curiae ................................ 1a
(i)
ii
TABLE OF AUTHORITIES
CASES
Page(s)
Board of Trustees of University of Alabama v.
Garrett, 531 U.S. 356 (2001) ...................................... 14
Boddie v. Connecticut, 401 U.S. 371 (1971) ..................... 8
Bourke v. Beshear, 996 F. Supp. 2d 542
(W.D. Ky. 2014) ..................................................... 12, 25
Brown v. Board of Education, 347 U.S. 483
(1954) ............................................................................ 24
Buckley v. Valeo, 424 U.S. 1 (1976) ................................ 31
Citizens United v. FEC, 558 U.S. 310 (2010) ................ 30
City of Cleburne v. Cleburne Living Center,
473 U.S. 432 (1985) ..................................................... 30
Craig v. Boren, 429 U.S. 190 (1976) ................................ 23
DeBoer v. Snyder, 772 F.3d 388 (6th Cir.
2014) .................................................................... passim
DeBoer v. Snyder, 973 F. Supp. 2d 757
(E.D. Mich. 2014) ............................ 9, 14, 19, 20, 23, 25
Department of Agriculture v. Moreno, 413 U.S.
528 (1973) ..................................................................... 14
District of Columbia v. Heller, 554 U.S. 570
(2008) ...................................................................... 27, 31
F.S. Royster Guano Co. v. Virginia, 253 U.S.
412 (1920) ..................................................................... 14
First National Bank of Boston v. Bellotti,
435 U.S. 765 (1978) ..................................................... 31
Golinski v. OPM, 824 F. Supp. 2d 968
(N.D. Cal. 2012) ..................................................... 12, 25
iii
TABLE OF AUTHORITIESContinued
Page(s)
Hall v. Florida, 134 S. Ct. 1986 (2014) ........................... 27
Hamby v. Parnell, No. 14-089, 2014 WL
5089399 (D. Alaska Oct. 12, 2014)....................... 15, 20
Heller v. Doe, 509 U.S. 312 (1993) ............................. 14, 25
Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) ............... 3
Hunter v. Erickson, 393 U.S. 385 (1969) ........................ 26
Kitchen v. Herbert, 755 F.3d 1193 (10th Cir.
2014) ............................................................................. 17
Kitchen v. Herbert, 961 F. Supp. 2d 1181
(D. Utah 2013) ............................................................. 27
Lambs Chapel v. Center Moriches Union Free
School District, 508 U.S. 384 (1993) ......................... 31
Louisville Gas & Electric Co. v. Coleman,
277 U.S. 32 (1928) ....................................................... 14
Love v. Beshear, 989 F. Supp. 2d 536 (W.D. Ky.
2014) ....................................................................... 15, 17
Loving v. Virginia, 388 U.S. 1 (1967).................. 7, 8, 9, 30
Lucas v. Forty-Fourth General Assembly of
Colorado, 377 U.S. 713 (1964) ................................... 28
M.L.B. v. S.L.J., 519 U.S. 102 (1996)................................. 8
Maynard v. Hill, 125 U.S. 190 (1888) ............................... 7
McDonald v. City of Chicago, 561 U.S. 742
(2010) ............................................................................ 29
Meyer v. Nebraska, 262 U.S. 390 (1923) ........................... 8
Miller-El v. Cockrell, 537 U.S. 322 (2003) ..................... 27
iv
Page(s)
New York State Club Assn v. City of New
York, 487 U.S. 1 (1988) .............................................. 14
New York Times v. Sullivan, 376 U.S. 254
(1964) ............................................................................ 31
Palmore v. Sidoti, 466 U.S. 429 (1984) ........................... 24
Perry v. Schwarzenegger, 704 F. Supp. 2d 921
(N.D. Cal. 2010)................................................. 9, 20, 25
Pierce v. Society of Sisters, 268 U.S. 510 (1925).............. 8
Schuette v. Coalition To Defend Affirmative
Action, 134 S. Ct. 1623 (2014) ............................. 28, 29
Searcy v. Strange, No. 14-208, 2015 WL 328728
(S.D. Ala. Jan. 23, 2015) ............................................. 15
Skinner v. Oklahoma ex rel. Williamson,
316 U.S. 535 (1942) ....................................................... 8
Stanton v. Stanton, 421 U.S. 7 (1975) ............................. 23
Taylor v. Louisiana, 419 U.S. 522 (1975)....................... 24
Trammel v. United States, 445 U.S. 40 (1980) .............. 24
Turner v. Safley, 482 U.S. 78 (1987) ................................. 8
United States v. Lopez, 514 U.S. 549 (1995)................... 28
United States v. Windsor, 133 S. Ct. 2675
(2013) ................................................................... passim
Watson v. City of Memphis, 373 U.S. 526 (1963) .......... 26
West Virginia State Board of Education v.
Barnette, 319 U.S. 624 (1943) .................................... 30
Widmar v. Vincent, 454 U.S. 263 (1981) ........................ 31
v
Page(s)
Williams v. Illinois, 399 U.S. 235 (1970) ....................... 25
Windsor v. United States, 699 F.3d 169 (2d Cir.
2012) ............................................................................. 21
Wisconsin v. Yoder, 406 U.S. 205 (1972) ........................ 31
Zablocki v. Redhail, 434 U.S. 374 (1978) ..................... 6, 8
DOCKETED CASES
Loving v. Virginia, Appellee Brief, 388 U.S. 1
(1967) (No. 66-395) ...................................................... 30
Perry v. Schwarzenegger, Transcript, 704 F.
Supp. 2d 921 (N.D. Cal. 2010) (No. 09-2292) ............. 8
CONSTITUTIONAL AND STATUTORY PROVISIONS
Ala. Const. art. I, 3.01 ....................................................... 5
Ariz. Rev. Stat. Ann. 41-1493 to -1493.02 .................... 5
Conn. Gen. Stat. Ann. 52-571b ......................................... 5
D.C. Code 46-406(e) ........................................................... 5
Fla. Stat. Ann. 761.01-.05 ............................................... 5
Idaho Code Ann. 73-401 to -404 ..................................... 5
775 Ill. Comp. Stat. Ann. 35/1-/99 ...................................... 5
Kan. Stat. Ann. 60-5301 to -5305 ................................... 5
Ky. Rev. Stat. Ann. 446.350 ............................................. 5
La. Rev. Stat. Ann. 13:5231-:5242 ................................. 5
Md. Const., Declaration of Rights art. 36 ........................ 5
Miss. Code Ann. 11-61-1 ................................................... 5
vi
Page(s)
Mo. Ann. Stat. 1.302-.307 ................................................ 5
N.M. Stat. 28-22-1 to -5 ................................................... 5
Okla. Stat. Ann. tit. 51, 251-258 ..................................... 5
71 Pa. Cons. Stat. Ann. 2401-2407 ................................. 5
Pa. Const. art. 1, 3 ............................................................. 5
R.I. Gen. Laws 42-80.1-1 to -4 ........................................ 5
S.C. Code Ann. 1-32-10 to -60 ........................................ 5
Tenn. Code Ann. 4-1-407................................................... 5
Tex. Civ. Prac. & Rem. Code. Ann. 110.001.012 .................................................................................. 5
Utah Code Ann. 63L-5-101 to -403 ................................ 5
Va. Code Ann. 57-1 to -2.02 ............................................ 5
Va. Const. art. 1, 16 ........................................................... 5
OTHER AUTHORITIES
2 Burke, Edmund, The Works of the Right
Honourable Edmund Burke (Bell ed. 1892) .......... 25
Cameron, David, Address to the Conservative
Party Conference (Oct. 5, 2011), available
at http://www.bbc.co.uk/news/uk-politics15189614 ....................................................................... 13
Cherlin, Andrew J., American Marriage in the
Early Twenty-First Century, in 15 The
Future of Children 33 (2005) .................................... 10
Chernow, Ron, Washington: A Life (2010) .................... 22
vii
Page(s)
Choper, Jesse H. & John C. Yoo, Can the
Government Prohibit Gay Marriage?, 50 S.
Tex. L. Rev. 15 (2008) .......................................... 11, 22
2
de Tocqueville, Alexis, Democracy in

America (Henry Reeve trans., Saunders &
Otley 1835) ..................................................................... 7
Farr, Rachel H., et al., Parenting and Child

Development in Adoptive Families: Does
Parental Sexual Orientation Matter?, 14
Applied Developmental Sci. 164 (2010) ................... 20
Federalist No. 78 (Hamilton) (Jacob E. Cooke
ed., 1961) ...................................................................... 29
Gates, Gary J., LGBT Parenting in the United
States (Feb. 2013), available at http://
escholarship.org/uc/item/9xs6g8xx .......................... 11
Goldberg, Abbie E. & JuliAnna Z. Smith,
Predictors of Psychological Adjustment in
Early Placed Adopted Children With
Lesbian, Gay, and Heterosexual Parents,
27 J. Family Psychol. 431 (2013) ............................... 21
Goldwater, Barry, The Conscience of a
Conservative (1960) .................................................... 31
Goldwater, Barry, Speech at the Republican
National Convention (July 16, 1964), available at http://www.washingtonpost.com/
wp-srv/politics/daily/may98/goldwaterspee
ch.htm ............................................................................. 3
viii
Page(s)
Institute for American Values, When Marriage
Disappears: The New Middle America
(2010) ............................................................................ 10
Lavner, Justin A., et al., Can Gay and Lesbian
Parents Promote Healthy Development in
High-Risk Children Adopted From Foster
Care?, 82 Am. J. Orthopsychiatry 465
(2012) ............................................................................ 21
Madison, James, Speech in Congress on the
Removal Power (June 8, 1789), in 1 Annals
of Cong. 448 (Joseph Gales ed., 1790) ...................... 29
Perrin, Ellen C., et al., Technical Report:
Coparent or Second-Parent Adoption by
Same-Sex Parents, 109 Pediatrics 341
(2002) ............................................................................ 20
Supreme Court Rule 37.6 ................................................... 1
van Gelderen, Loes, et al., Quality of Life of
Adolescents Raised From Birth by Lesbian
Mothers: The US National Longitudinal
Family Study, 33 J. Developmental &
Behav. Pediatrics 17 (2012) ....................................... 21
5 The Writings of James Madison: 1787-1790
(Gaillard Hunt ed., 1904) ........................................... 28
INTEREST OF AMICI CURIAE1

Amici are social and political conservatives, moderates, and libertarians from diverse backgrounds. Many
have served as elected or appointed officeholders in
various Presidential administrations, as governors,
mayors, and other officeholders in States and cities
across the Nation, as members of Congress, as ambassadors, as military officers, as officials in political campaigns and political parties, and as advocates and activists for various political and social causes. Amici support traditional conservative values, including the belief in the importance of stable families, as well as the
commitment to limited government and the protection
of individual freedom. Because they believe that those
conservative values are consistent withindeed, are
advanced byaffording civil marriage rights to samesex couples, amici submit that the decision below
should be reversed.
A full list of amici is provided as an Appendix to
this brief.
SUMMARY OF ARGUMENT
In 2013, this Court struck down the federal Defense
of Marriage Act (DOMA), concluding that the law
which refused to honor for federal purposes the marriages of same-sex couples validly married under State
lawviolated the core promises of the United States
1
By letters on file with the Clerk, all parties have consented

to the filing of this brief. Pursuant to Supreme Court Rule 37.6,
amici state that no counsel for a party authored this brief in whole
or in part; no counsel or party made a monetary contribution intended to fund the preparation or submission of this brief; and no
personother than amici or their counselmade such a monetary
contribution.
2
Constitution. See United States v. Windsor, 133 S. Ct.
2675 (2013). The Court in Windsor recognized that the
[r]esponsibilities attendant to marriage, as well as
[the] rights, enhance the dignity and integrity of the
person. Id. at 2694. The Court therefore held that a
law treating same-sex couples differently from others
by withholding those rights and responsibilities demeans same-sex couples, impose[s] inequality and a
stigma on them, denies them equal dignity, treats
them as unworthy, and humiliates and makes vulnerable their children. Id. at 2693-2694. Those children,
the Court explained, should not be instruct[ed] that
the marriage of the parents who provide for and raise
them is less worthyand neither they nor their parents should suffer from the laws placement of samesex couples in an unstable position of having secondtier relationships. Id. at 2694, 2696. Thus, this Court
rejected a law that would restrict the freedom of
those couples and infringe the liberty of the person by
impos[ing] a disability on the classby disparag[ing] and injur[ing] a set of individuals entitled to
personhood and dignity. Id. at 2693, 2695-2696.
Although amici hold a broad spectrum of socially
and politically conservative, moderate, and libertarian
views, amici share the view that laws that bar same-sex
couples from the institution of civil marriage, with all
its attendant profoundly important rights and responsibilities, are inconsistent with the United States Constitutions dual promises of equal protection and due
process. The marriage bans challenged here, like the
act at issue in Windsor, target gay and lesbian couples
and their families for injurious governmental treatment. The bans are accordingly inconsistent with amicis understanding of the properly limited role of government. Rather, amici embrace Barry Goldwaters
3
expression of that understanding, namely that [w]e do
not seek to lead anyones life for himwe seek only to
secure his rights and to guarantee him opportunity to
strive, with government performing only those needed
and constitutionally sanctioned tasks which cannot otherwise be performed.2
Amici further believe that when the government
does act in ways that affect individual freedom in matters of family and child-rearing, it should promote family-supportive values like responsibility, fidelity, commitment, and stability. Much has been written about
the deleterious impact of family breakdown in our Nation today. There is a need for more Americans to
choose to participate in the institution of marriage. Yet
these bans, by denying each member of an entire class
of American citizens the right to marry the person he
or she loves, discourage those important family values.
They discourage responsibility, fidelity, and commitment. And they harm children, denying them and their
loving parents the basic legal protections that provide
stability and security so critical to child-rearing.
Many of the signatories to this brief previously did
not support civil marriage for same-sex couples; others
did not hold a position on the issue until recently. The
list of signatories to this brief overlaps with, but also
extends beyond, those who joined a similar brief in Hollingsworth v. Perry, 133 S. Ct. 2652 (2013), likewise
supporting there the couples challenging Californias
marriage-restrictive Proposition 8. As civil marriage
has become a reality for same-sex couples in 36 States
and the District of Columbia, amici, like many Ameri2
Goldwater, Speech at the Republican National Convention

(July 16, 1964), available at http://www.washingtonpost.com/wpsrv/politics/daily/may98/goldwaterspeech.htm.
4
cans, have considered the results, reexamined their own
positions, and concluded that there is no legitimate, factbased reason for denying same-sex couples the same
recognition in law that is available to opposite-sex couples. Rather, amici have concluded that marriage is
strengthened, and its value to society and to individual
families and couples is promoted, by providing access to
civil marriage for all American couplesheterosexual
or gay or lesbian alike. In particular, civil marriage
provides stability for the children of same-sex couples,
the value of which cannot be overestimated. In light of
these conclusions, amici believe that the Fourteenth
Amendment prohibits States from denying same-sex
couples the legal rights and responsibilities that flow
from the institution of civil marriage. This is especially
true where, as here, the validity of thousands of existing
marriages of same-sex couples could be thrown into
doubt by a contrary ruling. Indeed, amicis concern for
the stability of existing and future families is particularly heightened in this context.
Amici acknowledge that deeply held social, cultural,
and religious tenets may lead sincere and fair-minded
people to take the opposite view. But no matter how
strong, sincere, or longstanding these views, they cannot, under our constitutional system, serve as the basis
for denying this class of people access to the institution
of civil marriage in the absence of a legitimate, factbased governmental goal. Amici take this position with
the understanding that requiring access to civil marriage for same-sex coupleswhich is the only issue
raised in these casesneed not pose any threat to religious freedom or to the institution of religious marriage. Amici believe firmly that religious individuals
and organizations should, and will, express their own
views and make their own decisions about whether and
5
how to participate in marriages between persons of the
same sex, and that the government should not
intervene in those decisionsjust as it must not
intervene in these couples decisions to participate in
the institution of civil marriage.3
3
Amici support the free exercise of religion, and have the

deepest respect for those who defend it. Given the robust federal
and State protections for the free exercise of religion, however,
amici do not believe that access to civil marriage for same-sex couples should pose a threat to religious freedom. Amici note, for instance, that many States have expansive constitutional protections
for religious liberty. See, e.g., Pa. Const. art. 1, 3 (no human authority can, in any case whatever, control or interfere with the
rights of conscience); Md. Const., Declaration of Rights art. 36;
Va. Const. art. 1, 16. And numerous States have enacted statutes
designed to ensure religious liberty, both generally and in connection with access to civil marriage for same-sex couples. See, e.g.,
Ky. Rev. Stat. Ann. 446.350 (the government may not burden a
persons exercise of religion except through the least restrictive
means available, and for a compelling purpose); D.C. Code 46406(e) (religious societies or nonprofit organizations controlled by
religious societies are not required to provide services or accommodations related to the celebration of any marriage, or to promote any marriage through its programs, counseling, or retreats);
see also Conn. Gen. Stat. Ann. 52-571b; R.I. Gen. Laws 42-80.11 to -4; 775 Ill. Comp. Stat. Ann. 35/1-/99; Fla. Stat. Ann. 761.01.05; Ala. Const. art. I, 3.01; Ariz. Rev. Stat. Ann. 41-1493 to 1493.02; S.C. Code Ann. 1-32-10 to -60; Tex. Civ. Prac. & Rem.
Code. Ann. 110.001-.012; Idaho Code Ann. 73-401 to -404; N.M.
Stat. 28-22-1 to -5; Okla. Stat. Ann. tit. 51, 251-258; 71 Pa.
Cons. Stat. Ann. 2401-2407; Mo. Ann. Stat. 1.302-.307; Va.
Code Ann. 57-1 to -2.02; Utah Code Ann. 63L-5-101 to -403;
Tenn. Code Ann. 4-1-407; La. Rev. Stat. Ann. 13:5231-:5242;
Kan. Stat. Ann. 60-5301 to -5305 (2013); Miss. Code Ann. 11-611. These laws, as well as the protections afforded by the First
Amendment, reflect our Nations commitment to the accommodation of diverse perspectives. In a tolerant society, the right to
marry can and should coexist with the right to disagree respectfully and to decline to participate as individuals based on sincerely
held religious beliefs.
6
Amici believe strongly in the principle of judicial
restraint, under which courts generally defer to
legislatures and the electorate on matters of social
policy. Amici also believe that courts should not rush to
invoke the Constitution to remove issues from the
normal democratic process. But amici equally believe
that actions by legislatures and popular majorities can
on occasion pose significant threats to individual
freedom and that, when they do, courts have the power
toand shouldintervene.
Our constitutional
tradition empowers and requires the judiciary to
protect our most cherished liberties against
overreaching by the government, including overreach
through an act of the legislature or electorate. That
principle, no less than our commitment to democratic
self-government, is necessary to individual freedom and
limited government. It is precisely at moments like
this onewhen discriminatory laws appear to reflect
unexamined and unwarranted assumptions rather than
facts and evidence, and the rights of one group of
citizens hang in the balancethat the courts
intervention is most needed. Amici accordingly urge
this Court to reverse the judgment below.
ARGUMENT
I.
EQUAL ACCESS TO CIVIL MARRIAGE PROMOTES THE

CONSERVATIVE VALUES OF STABILITY, MUTUAL
SUPPORT, A ND M UTUAL OBLIGATION
Amici start from the premiserecognized by this

Court on numerous occasionsthat marriage is a
fundamental right protected by our Constitution and a
venerable institution that confers countless other
rights and responsibilities, both upon those who marry
and upon society at large. See, e.g., Zablocki v.
Redhail, 434 U.S. 374, 384 (1978) (Marriage is a coming
7
together for better or for worse, hopefully enduring,
and intimate to the degree of being sacred. It is an
association that promotes a way of life, not causes; a
harmony in living, not political faiths; a bilateral
loyalty, not commercial or social projects. Yet it is an
association for as noble a purpose as any involved in our
prior decisions. (internal quotation marks omitted)).
By reinforcing essential values such as commitment,
faithfulness, responsibility, and sacrifice, marriage is
the foundation of the secure families that form the
building blocks of our communities and our Nation. See
Maynard v. Hill, 125 U.S. 190, 205, 211 (1888)
(marriage is the foundation of the family and of
society, without which there would be neither
civilization nor progress).
It both provides a
protective shelter and reduces the need for reliance on
the state. As a perceptive observer of American
society wrote almost two centuries ago, There is
certainly no country in the world where the tie of
marriage is so much respected as in America .
[W]hen the American retires from the turmoil of public
life to the bosom of his family, he finds in it the image of
order and of peace. [H]e afterwards carries [that
image] with him into public affairs. 2 de Tocqueville,
Democracy in America 230 (Reeve trans., Saunders &
Otley 1835).
Choosing to marry is also a paradigmatic exercise of
human liberty. Loving v. Virginia, 388 U.S. 1, 12 (1967)
(The freedom to marry has long been recognized as one
of the vital personal rights essential to the orderly
pursuit of happiness by free men.). Those who have
been denied the right to marry may be the most
eloquent witnesses to its fundamental importance to
liberty. As an expert on the history of marriage
observed, [w]hen slaves were emancipated, they
8
flocked to get married. And this was not trivial to them,
by any means. [One] ex-slave who had also been a
Union soldier ... declared, The marriage covenant is the
foundation of all our rights. Transcript 202-203, Perry
v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010)
(No. 09-2292). Moreover, the mutual dependence and
obligation fostered by marriage affirmatively advance
the appropriately narrow and modest role of
government.
For those who choose to marry, the rights and
responsibilities conveyed by civil marriage provide a
bulwark against unwarranted government intervention
into deeply personal concerns such as medical and
child-rearing decisions. See, e.g., Pierce v. Society of
Sisters, 268 U.S. 510, 534-535 (1925) (affirming the
liberty of parents and guardians to direct the
upbringing and education of children under their
control); Meyer v. Nebraska, 262 U.S. 390, 401 (1923)
(recognizing the power of parents to control the
education of their own).
Thus, this Court has
recognized on numerous occasions that the freedom to
marry is one of the fundamental liberties that an
ordered society must strive to protect and promote.4
4
See, e.g., M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996) (Choices
about marriage, family life, and the upbringing of children are
among associational rights this Court has ranked as of basic importance in our society, rights sheltered by the Fourteenth
Amendment against the States unwarranted usurpation, disregard, or disrespect. (citation omitted)); Turner v. Safley, 482 U.S.
78, 95 (1987) ([T]he decision to marry is a fundamental right and
an expression[] of emotional support and public commitment.);
Zablocki, 434 U.S. at 384 ([T]he right to marry is of fundamental
importance for all individuals.); Loving, 388 U.S. at 12; Meyer, 262
U.S. at 399 (the right to marry, establish a home and bring up
children is a central part of constitutionally protected liberty); see
also, e.g., Boddie v. Connecticut, 401 U.S. 371, 376, 383 (1971)
9
This Court has reaffirmed that freedom by securing
marriage rights for prisoners, Turner v. Safley, 482
U.S. 78, 95 (1987); striking down laws requiring court
permission to marry, Zablocki, 434 U.S. at 388; and
eliminating discriminatory restrictions on the right to
marry, Loving, 388 U.S. at 12; Windsor, 133 S. Ct. at
2696. Taken together, both the Windsor and Loving
decisions stand for the proposition that, without some
overriding legitimate interest, the state cannot use its
domestic relations authority to legislate families out of
existence. DeBoer v. Snyder, 973 F. Supp. 2d 757, 774
(E.D. Mich.), revd, 772 F.3d 388 (6th Cir. 2014).
Our national commitment to civil marriageand
this Courts recognition of its fundamental status
reflects a common understanding that those who choose
to marry benefit tremendously from the stability and
mutual support and obligation that the legal
relationship confers. Some of these protections are
concrete. See, e.g., Perry v. Schwarzenegger, 704 F.
Supp. 2d 921, 962 (N.D. Cal. 2010) (married couples
fare better. They are physically healthier. They tend
to live longer. They engage in fewer risky behaviors.
They look better on measures of psychological wellbeing). Others are yet more profound, as the legal
relationship of marriage distinctly confers on couples
and their childrennumerous enhancements to
individual autonomy and family security.
For instance, marriage makes it immeasurably
easier for family members to plan with and decide for
one another. Married individuals can make medical
([M]arriage involves interests of basic importance in our society
and is a fundamental human relationship.); Skinner v. Oklahoma
ex rel. Williamson, 316 U.S. 535, 541 (1942) (marriage is one of
the basic civil rights of man).
10
decisions together (or for each other if one spouse is not
able to make a decision) and can make joint decisions
for the upbringing of children; they can plan jointly for
their financial future and their retirement; they can
hold property together; they can share a spouses
medical insurance policy and have the health coverage
continue for a period after a spouses death; and they
have increased protections against creditors upon the
death of a spouse. Somenot allof these rights and
responsibilities can be approximated outside marriage
with expensive legal assistance, but only marriage
provides a family with the security that those rights
and responsibilities will be automatically available
when they are most needed.
Perhaps most importantly, marriage protects
children. We know, for instance, that children who
grow up in intact, married families are significantly
more likely to graduate from high school, finish college,
become gainfully employed, and enjoy a stable family
life themselves[.] Institute for American Values,
When Marriage Disappears: The New Middle America
52 (2010); see also id. at 95 (Children who grow up
with cohabiting couples tend to have more negative life
outcomes compared to those growing up with married
couples. Prominent reasons are that cohabiting couples
have a much higher breakup rate than do married
couples, a lower level of household income, and a higher
level of child abuse and domestic violence. (footnote
omitted)). These protections have become even more
critical in recent decades, as marital rates have declined
and child-rearing has become increasingly untethered
to marriage. See, e.g., Cherlin, American Marriage in
the Early Twenty-First Century, in 15 The Future of
Children 33, 35-36 (2005).
11
The protections that marriage offers couples and
their children do not depend on whether the individuals
forming the married couple are of the same or opposite
sexes. Same-sex couples, just like couples composed of
a man and a woman, benefit from the security and
bilateral loyalty conferred by civil marriage. The same
is true for the children of those couples; it is stability,
not the sex of their parents, that protects them. See
infra pp. 18-21. The salutary effects of civil marriage
do not arise to any lesser degree when two women or
two men lawfully marry each other than when a man
and a woman marry. As Professors Jesse Choper and
John Yoowho support civil marriage for same-sex
couples as a policy choicehave explained:
With regard to gay marriage, the cost of a
prohibition is the restriction of the liberty of
two individuals of the same sex who seek the
same legal status for an intimate relationship
that is available to individuals of different
sexes. This harm may not be restricted just to
the individuals involved but may also involve
broader social costs.
If the government
believes that marriage has positive benefits for
society, some or all of those benefits may attach
to same-sex marriages as well.
Stable
relationships may produce more personal
income and less demands on welfare and
unemployment programs; it may create the
best conditions for the rearing of children; and
it may encourage individuals to invest and save
for the future.
Choper & Yoo, Can the Government Prohibit Gay
Marriage?, 50 S. Tex. L. Rev. 15, 33-34 (2008).
12
There is no question that the hundreds of thouthousands of children being raised by same-sex
couples5some married, some precluded from
marryingwould be protected by the security and
stability that civil marriage confers. This Court has
already suggested as much. See Windsor, 133 S. Ct. at
2694 (recognizing that DOMA placed same-sex couples
in the unstable position of a second-tier relationship
that humiliate[d] and harmed the children being
raised by those couples); id. at 2695 (rejecting DOMAs
imposition of financial harm [on] children of same-sex
couples by depriving their families of various marital
rights and responsibilities). The denial of civil marriage
to same-sex couples does not mean that their children
will be raised by married opposite-sex couples. Rather,
the choice here is between allowing same-sex couples to
marry versus depriving their children of married
parents altogether. Indeed, a decision that States may
exclude same-sex couples from civil marriage might call
into doubt the status of marriages that have already
been lawfully recognized, legally erasing existing
familiesan even starker humiliation than that
condemned in Windsor.
Courts across the country have repeatedly found
that it was the governments failure to recognize
same-sex marriages that harmed children, not having
married parents who happened to be of the same sex.
Bourke v. Beshear, 996 F. Supp. 2d 542, 553 (W.D. Ky.),
revd sub nom. DeBoer v. Snyder, 772 F.3d 388 (6th Cir.
2014); see also, e.g., Golinski v. OPM, 824 F. Supp. 2d
968, 992 (N.D. Cal. 2012) (The denial of recognition and
5
See Gates, LGBT Parenting in the United States 1 (Feb.

2013), available at http://escholarship.org/uc/item/9xs6g8xx (More
than 125,000 same-sex couple households include nearly 220,000
children under age 18.).
13
withholding of marital benefits to same-sex couples
does nothing to support opposite-sex parenting, but
rather merely serves to endanger children of same-sex
parents[.]).
It is precisely because marriage is so important in
producing and protecting strong and stable family
structures that the goal of strengthening families
favors civil marriage for same-sex couples. As British
Prime Minister and Conservative Party Leader David
Cameron explained, Conservatives believe in the ties
that bind us; that society is stronger when we make
vows to each other and support each other. So I dont
support gay marriage despite being a Conservative. I
support gay marriage because Im a Conservative.6
II. THE FOURTEENTH A MENDMENT REQUIRES EQUAL
ACCESS TO CIVIL MARRIAGE BECAUSE THERE IS NO
LEGITIMATE, FACT-BASED JUSTIFICATION FOR
GOVERNMENT TO EXCLUDE SAME-SEX COUPLES IN
COMMITTED RELATIONSHIPS
In Windsor, this Court held that DOMA was
invalid because it differentiat[ed] same-sex couples in
terms of their marital rights and responsibilities,
rendering them second-tier and humiliat[ing] the
children being raised by them. 133 S. Ct. at 2694. This
unequal classification of citizens, the Court explained,
exceeds the governments authority in light of the
Constitutions guarantees of equal protection, which
withdraw[] from Government the power to degrade or
demean in that manner. Id. at 2695. This Court ruled
that no legitimate purpose overcomes the purpose and
6
Cameron, Address to the Conservative Party Conference

(Oct. 5, 2011), available at http://www.bbc.co.uk/news/uk-politics15189614.
14
effect to disparage and to injure individuals who are
entitled to personhood and dignity. Id. at 2696. Just
as in Windsor, the laws in these cases have the
purpose and practical effect to impose a
disadvantage, a separate status, and so a stigma on
same-sex couples with respect to civil marriage rights
and responsibilities. Id. at 2693.
Laws that classify citizens and render them
unequal in their access to civil rights and
responsibilities raise grave constitutional questions,
and at a minimum such laws must have reasonable
support in fact, New York State Club Assn v. City of
N.Y., 487 U.S. 1, 17 (1988), and must operate so as
rationally to further a legitimate government goal,
Department of Agric. v. Moreno, 413 U.S. 528, 537
(1973). To survive scrutiny under the Equal Protection
Clause, a law must at the very least be founded in the
realities of the subject covered by that law. Heller v.
Doe, 509 U.S. 312, 321 (1993) ([E]ven the standard of
rationality as we so often have defined it must find
some footing in the realities of the subject addressed by
the legislation.).
[C]lassification[s] must be
reasonable, not arbitrary, and must rest upon some
ground of difference having a fair and substantial
relation to the object of the legislation, so that all
persons similarly circumstanced shall be treated alike.
F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415
(1920); see also Board of Trs. of Univ. of Ala. v. Garrett,
531 U.S. 356, 367 (2001) (attitudes unsubstantiated by
relevant facts are not sufficient to indicate the
furtherance of a legitimate government purpose);
Louisville Gas & Elec. Co. v. Coleman, 277 U.S. 32, 3637 (1928) ([M]ere difference is not enough; the
attempted classification must always rest upon some
15
difference which bears a reasonable and just relation to
the act[.]).
Recent rulings in civil marriage cases have
observed that discrimination against same-sex couples
in this context cannot survive any level of review
because it is not rationally related to a legitimate
governmental purpose grounded in fact. See, e.g.,
DeBoer, 973 F. Supp. 2d at 768 (The Court finds that
the [Michigan Marriage Amendment] impermissibly
discriminates against same-sex couples in violation of
the Equal Protection Clause because the provision does
not advance any conceivable legitimate state interest.),
revd, 772 F.3d 388 (6th Cir. 2014); Searcy v. Strange,
No. 14-208, 2015 WL 328728, at *5 (S.D. Ala. Jan. 23,
2015) (If anything, Alabamas prohibition detracts
from its goal of promoting optimal environments for
children.); Hamby v. Parnell, No. 14-089, 2014 WL
5089399, at *12 (D. Alaska Oct. 12, 2014) (Alaskas
same-sex marriage laws are a prime example of how
the varying treatment of different groups or persons is
so unrelated to the achievement of any combination of
legitimate purposes that we can only conclude that the
legislatures actions were irrational.); Love v. Beshear,
989 F. Supp. 2d 536, 547 (W.D. Ky. 2014) (Ultimately,
Kentuckys laws banning same-sex marriage cannot
withstand constitutional review regardless of the
standard.).
Amici do not believe there is a legitimate, factbased justification for excluding same-sex couples from
civil marriage.
Over the past two decades, the
arguments presented by proponents of such initiatives
have been discredited by social science, rejected by
courts, and contradicted by amicis personal experience
with same-sex couples, including those whose civil
marriages have been legally performed and recognized
16
in various States. Amici thus do not believe that any
reasonable support in fact exists for arguments that
allowing same-sex couples to join in civil marriage will
damage or distort the institution, jeopardize children,
or cause any other social ills. Rather, the facts and
evidence show that permitting civil marriage for samesex couples will enhance the institution, protect
children, and benefit society generally.
Banning
marriage for same-sex couples, in contrast, undermines
these critical societal goals: Such bans impede family
formation, harm children, and discourage fidelity,
responsibility, and stability.
A. The Facts Do Not Support Any Of The
Putative Rationales For Marriage Bans
Proponents of laws like those at issue here have
advanced several arguments that they contend support
the exclusion of same-sex couples from civil marriage,
principally relating to the bearing and raising of
children. In particular, proponents invoke (1) a childcentric, or conjugal, marriage culture: the notion that
allowing the marriages of same-sex couples will harm
the institution of marriage by severing it from childrearing; (2) child welfare: the notion that children are
better off when raised by two parents of different sexes;
and (3) biology: the notions that marriage is important
only for opposite-sex couples, who may procreate
accidentally, and that children are better off when
raised by two biological parents.
Each of these
arguments reflects an unexamined preconception rather
than fact and has been refuted by substantial evidence
and common experience. Moreover, as this Court
recognized in Windsor, it is the governmental exclusion
of same-sex couples from the rights and responsibilities
of civil marriage that is most injurious to hundreds of
17
thousands of children, as well as to the couples themthemselves.
Child-Centric, or Conjugal, Marriage Culture.
No credible evidence supports the theory that allowing
access to civil marriage for same-sex couples has any
adverse effect on the reality or the social perception of
the institution of marriage as the optimal setting for
the raising of children. To the contrary, ending the
exclusion of same-sex couples from civil marriage
rights would be a clear endorsement of the multiple
benefits of marriageincluding stability, lifetime
commitment, and financial support during crisis and old
ageand a reaffirmation of the social value of this
institution for all committed couples and their families.7
Marriage has undoubtedly faced serious challenges
over the last few decades, as demonstrated by high
divorce rates and the greater incidence of child-bearing
and child-rearing outside of marriage. Yet there is no
evidence to suggest that allowing committed same-sex
couples to marry has exacerbated or will in any way
accelerate those trends, which have their origins in
complex social forces. See, e.g., Kitchen v. Herbert, 755
F.3d 1193, 1223 (10th Cir.) (We emphatically agree with
the numerous cases decided since Windsor that it is
wholly illogical to believe that state recognition of the
love and commitment between same-sex couples will
alter the most intimate and personal decisions of
7
A ruling that marriage bans are consistent with the Fourteenth Amendment would gravely unsettle the lives of thousands
of same-sex couples who have married in States where bans have
been struck down as unconstitutional. Introducing that uncertainty into these couples marriages, and into their families lives,
would be the antithesis of reaffirming the values of stability, structure, and mutual support that underlie amicis commitment to the
institution of civil marriage.
18
opposite-sex couples.), cert. denied, 135 S. Ct. 265
(2014); Love, 989 F. Supp. 2d at 548 (Excluding samesex couples from marriage does not change the number
of heterosexual couples who choose to get married, the
number who choose to have children, or the number of
children they have.). If anything, the way to preserve
and promote the institution of civil marriage would be to
encourage more couples to marry, not to exclude this
entire category of American citizens from what this
Court has called a far-reaching legal acknowledgement
of the intimate relationship between two people.
Windsor, 133 S. Ct. at 2692. Such exclusion simply limits
the number of Americans who may marry and whose
children and families may benefit from the institution of
civil marriage.
Amici submit that this observation has only been
further empirically vindicated in the two years since
Windsor. The experience in States in which same-sex
couples are no longer excluded from civil marriage has
made abundantly clear that marriage serves as a
valuable and foundational institution for same-sex
couples and opposite-sex couples alike. Evidence has
also reinforced that more harm is done to a child-centric
marriage culture from depriving same-sex couples in
committed relationshipsand their childrenof the
rights and responsibilities of civil marriage, than from
opening civil marriage to them. Amici cannot imagine a
more vivid illustration of this than Petitioners April
DeBoer and Jayne Rowse, two nurses who seek to
marry so that they may jointly adopt the three children
they have brought into their family, each of whom had
been born into an environment that presented special
challenges, including prenatal drug abuse. Ending the
exclusion of this family from civil marriage, and from
the joint adoption opportunity attendant to it, would
19
ensure that each of these three children could have two
legal parents rather than one, and that both parents
could make critical decisions related to the health and
welfare of their children. Rather than reinforce this
bond between marriage and child-rearingand the
bond between this couple and the children they have
committed to raiseMichigans exclusionary law
sunders it, to the detriment of both this family and the
institution of civil marriage.
Child Welfare. If there were any persuasive
evidence that the civil marriages of same-sex couples
were detrimental to children, amici would give it great
weight. But there is not. As amici have come to
recognize, and as this Court made clear in Windsor,
child welfare is imperiled, not advanced, by excluding
same-sex parents raising children from civil marriage.
First and foremost, legally differentiating their
parents humiliates those children now being raised by
same-sex couples. Windsor, 133 S. Ct. at 2694. In
addition, governmental bans on civil marriage rights for
same-sex couples threaten their childrens financial
security and the stability of their entire families. See,
e.g., DeBoer, 973 F. Supp. 2d at 764 (finding that
children being raised by same-sex couples have only
one legal parent and are at risk of being placed in legal
limbo if that parent dies or is incapacitated. Denying
same-sex couples the ability to marry therefore has a
manifestly harmful and destabilizing effect on such
couples children.); see also Windsor, 133 S. Ct. at 26942695 (relying upon a laws financial harm to children of
same-sex couples and placement of same-sex couples
in an unstable position in declaring the law
unconstitutional). Rather than disagree, the court of
appeals in these cases further enumerated harms,
writing that the marriage bans at issue deprive[]
20
[same-sex couples] of benefits that range from the proprofound (the right to visit someone in a hospital as a
spouse or parent) to the mundane (the right to file joint
tax returns). These harms affect not only gay couples
but also their children. DeBoer v. Snyder, 772 F.3d
388, 407-408 (6th Cir. 2014).
In contrast to the clear evidence of harm to
children from laws excluding same-sex couples from
civil marriage, there is no grounding in facts or reality
to conclude that such exclusion supports or furthers the
interests of children.
Social scientists have
resoundingly rejected the claim that children raised by
same-sex parents fare worse than children raised by
other couples. Empirical research gathered during
several decades shows no systemic difference
between the child-rearing capabilities of same-sex and
heterosexual parents, but rather that the sexual
orientation of a childs parent has no measurable effect
on the childs well-being. Perrin et al., Technical
Report: Coparent or Second-Parent Adoption by
Same-Sex Parents, 109 Pediatrics 341, 343 (2002)
(finding no differences regarding emotional health,
parenting skills, and attitude towards parenting
between same-sex and other parents, and finding that
[n]o data have pointed to any risk to children as a
result of growing up in a family with 1 or more gay
parents); see also Farr et al., Parenting and Child
Development in Adoptive Families: Does Parental
Sexual Orientation Matter?, 14 Applied Developmental
Sci. 164, 175 (2010) (finding children adopted by samesex parents to be as well adjusted as those adopted by
heterosexual parents and that there were no
significant differences between same-sex and
heterosexual parents in terms of child adjustment,
21
parenting behaviors, or couples adjustment).8 The
court of appeals in these cases readily agreed: [G]ay
couples, no less than straight couples, are capable of
raising children and providing stable families for them.
The quality of such relationships, and the capacity to
raise children within them, turns not on sexual
orientation but on individual choices and individual
commitment. DeBoer, 772 F.3d at 405.
Scientific conclusions about the lack of harm to
children raised in same-sex households have only been
further vindicated. For instance, recent longitudinal
studies of households with same-sex parents have
found that the children of these families fared as well as
their peers with heterosexual parents on measures of
psychological well-being.9 In the adoption context, a
2013 study of children adopted into families with samesex and opposite-sex parents found that [c]hildrens
adjustment outcomes did not differ by family type.10
And a 2012 study found that high-risk children adopted
8
Courts that have examined the evidence have unanimously

agreed. See, e.g., DeBoer, 973 F. Supp. 2d at 768; Hamby, 2014 WL
5089399, at *11 & n.99; Perry, 704 F. Supp. 2d at 980. Assertions
to the contrary have been exposed as unsupported, biased, or both.
See, e.g., DeBoer, 973 F. Supp. 2d at 766-768 (explaining how Michigan relied upon a study hastily concocted at the behest of a thirdparty funder [who] clearly wanted a certain result and [the
studys author] obliged, as well as studies that were methodologically unsound).
9
E.g., van Gelderen et al., Quality of Life of Adolescents
Raised From Birth by Lesbian Mothers: The US National Longitudinal Family Study, 33 J. Developmental & Behav. Pediatrics
17 (2012).
10
Goldberg & Smith, Predictors of Psychological Adjustment

in Early Placed Adopted Children With Lesbian, Gay, and Heterosexual Parents, 27 J. Family Psychol. 431, 431 (2013).
22
from foster care did at least equally well whether
adopted by opposite-sex or same-sex parents, despite
gay and lesbian parents raising children with higher
levels of biological and environmental risks prior to
adoptive placement.11
Biology. There is also no biological justification for
denying civil marriage to same-sex couples. Allowing
same-sex couples to marry in no way undermines the
importance of marriage for opposite-sex couples who
enter into marriage to provide a stable family structure
for their children. Indeed, there is no evidence that
marriage between individuals of the same sex affects
opposite-sex couples decisions about procreation,
marriage, divorce, or parenting whatsoever.
Cf.
Windsor v. United States, 699 F.3d 169, 188 (2d Cir.
2012) (laws burdening same-sex couples right to civil
marriage do[] not provide any incremental reason for
opposite-sex couples to engage in responsible
procreation), affd, 133 S. Ct. 2675 (2013).
Moreover, our society has long recognized that civil
marriage also protects and benefits couples who are
unable, or who choose not, to bear children. Many
married couples adopt children and thus value the
child-protective institution of marriage. Others marry
after child-bearing age but still benefit from the web of
rights and obligations conferred by marriage. In
particular, marriage facilitates the opportunity and
ability of members of couples to support each other, as
well as their vulnerable relatives and fellow community
members of any age, and thereby to avoid reliance upon
government assistance and intervention. See Windsor,
11
Lavner et al., Can Gay and Lesbian Parents Promote

Healthy Development in High-Risk Children Adopted From Foster Care?, 82 Am. J. Orthopsychiatry 465, 465 (2012).
23
133 S. Ct. at 2695 (noting that it is expected that
spouses will support each other as an essential part of
married life); Choper & Yoo, supra, at 33-34.
Whatever the merits behind the speculation that
marriage was originally fashioned only to channel the
procreative impulse, it has been centuries since
marriage was so limited (if it ever was). Our Nations
first President and his wife had no children together,
but their marriage provided a protective family
structure for raising Martha Washingtons children by
her first marriage as well as her grandchildren, and for
the President and Martha Washington themselves. See
Chernow, Washington: A Life 78-83, 421-422 (2010).
In the present day, hundreds of thousands of
children are in fact being raised in loving families with
parents of the same sex. The last few decades have
demonstrated that many same-sex couples strongly
wish to raise children and are doing so; this is a social
development that will not be reversed, but will likely
only accelerate. Because amici believe that having
married parents is optimal for children, they conclude
that granting the rights and responsibilities of civil
marriage and its recognition to same-sex couples will
protect, not harm, their children, as well as the many
children who will be raised by same-sex couples in the
future. And these children are no less deserving than
others of those protections. Indeed, it is amicis
fervent hope that these children will grow up to
understand the integrity and closeness of their own
family and its concord with other families in their
community and in their daily lives. DeBoer, 973 F.
Supp. 2d at 775 (quoting Windsor, 133 S. Ct. at 2694).
24
B. Even If The Marriage Bans Were Based On
Concerns For Tradition And Caution In The
Face Of Societal Change, That Does Not
Sustain Their Constitutionality
That governments may have long treated same-sex
couples differently from opposite-sex couples where
civil marriage is concerned does not by itself provide a
permissible justification for discriminatory laws like
the marriage bans at issue here. The rule that a
classification must find support in a legitimate factual
justificationnot simply in its historical pedigreeis
central to our constitutional tradition.
This Courts gender discrimination cases, in
particular, make clear that formerly widespread
traditional views alone cannot justify a discriminatory
law under even the most permissive standard of review.
Stanton v. Stanton, 421 U.S. 7, 14-15 (1975) (old
notions and role-typing did not supply a rational
basis for classification); see also Craig v. Boren, 429 U.S.
190, 198-199 (1976) (rejecting increasingly outdated
misconceptions as loose-fitting characterizations
incapable of supporting state statutory schemes that
were premised upon their accuracy). This Court has
not hesitated to reconsider a laws outmoded
justifications and, where appropriate, to deem them
insufficient to survive an equal protection challenge.
See, e.g., Trammel v. United States, 445 U.S. 40, 52
(1980) (rejecting basis for law discriminating based on
sex because its ancient foundations have long since
disappeared as [c]hip by chip, over the years those
archaic notions [of womens roles] have been cast
aside); Taylor v. Louisiana, 419 U.S. 522, 537 (1975)
(If it was ever the case that women were unqualified to
sit on juries or were so situated that none of them
should be required to perform jury service, that time
25
has long since passed.). The governmental bans at isissue here rest on similarly ungrounded, archaic, and
obsolete beliefshowever sincerely, strongly, or long
heldand thus the Fourteenth Amendment requires
recognition of the bans invalidity.
This Court has long made clear that, when personal
liberty is at stake, the Constitution cannot continue to
enshrine previously unexamined societal assumptions
once new facts and information come to light. See
Palmore v. Sidoti, 466 U.S. 429, 434 (1984) (reversing
court of appeals decision that a child could be removed
from the mothers custody because the mother had
entered into an interracial marriage); Brown v. Board
of Educ., 347 U.S. 483, 492-494 (1954) ([W]e cannot
turn the clock back to 1896 when Plessy v. Ferguson
was written . Whatever may have been the extent of
psychological knowledge at the time of Plessy v.
Ferguson, this finding [that racial segregation denotes
inferiority] is amply supported by modern authority.).
Courts in cases like these have thus rejected the
bare invocation of tradition as a sufficient rational basis
for precluding same-sex couples from access to civil
marriage. See DeBoer, 973 F. Supp. 2d at 772 ( The
basic guarantees of our Constitution are warrants for
the here and now); Bourke, 996 F. Supp. 2d at 552
(holding that tradition cannot alone justify
infringement of individual liberties); Golinski, 824 F.
Supp. 2d at 998 ([T]he argument that the definition of
marriage should remain the same for the definitions
sake is a circular argument, not a rational
justification.); Perry, 704 F. Supp. 2d at 998 ([T]he
state must have an interest apart from the fact of the
tradition itself.).
26
Although amici firmly believe that beneficial instiinstitutions like marriage should not be changed lightly,
embracing marriage for same-sex couples would not
change the institution of marriage; it would strengthen
that institution. Moreover, amici do not believe that
courts are bound to disregard facts when considering
outmoded and injurious laws that stand against any
rectifying change. See 2 Burke, The Works of the Right
Honourable Edmund Burke 295 (Bell ed. 1892) (A
state without the means of some change is without the
means of its conservation.).
Our Nation has
undergone too many changes for the better already
especially in its repudiation of discrimination against
minoritiesto allow social policy to be dictated by
unexamined hypotheses undermined by evidence.
Thus, a law cannot be sustained when it no longer
reflects the realities of the subject that law
addresses. Heller, 509 U.S. at 321; see also id. at 326
(Ancient lineage of a legal concept does not give it
immunity from attack for lacking a rational basis.);
Williams v. Illinois, 399 U.S. 235, 239 (1970)
([N]either the antiquity of a practice nor the fact of
steadfast legislative and judicial adherence to it
through the centuries insulates it from constitutional
attack[.]). It is the traditional values served by civil
marriageresponsibility, fidelity, commitment, and
stability, among othersthat amici believe justify its
equal availability under law. Those values would be
served by ending governmental exclusion of same-sex
couples from the institution of civil marriage, not by
perpetuating it.12
12
To be sure, some Americans hold deep-seated religious objections to same-sex couples marrying. But amici do not believe
that civil marriage rights can or need be withheld from same-sex
couples for fear that the religious freedom of the faithful will be
27
Thus, amici view the court of appeals invocations of
[a] Burkean sense of caution and a wait-and-see
approach, DeBoer, 772 F.3d at 406, 409, as misplaced.
The laws at issue here are anything but cautious, as
they enact permanent government exclusions of samesex couples from civil marriageexclusions that are, in
many instances, enshrined against ordinary legislative
revision. That very lack of caution is made clear by the
fact that none of the governments has grounded its
purported caution in anything more than speculation
that unspecified adverse consequences could result.
This Court does not treat caution, by itself, as a
sufficient justification to deny individuals equal access
to fundamental rights. See, e.g., Watson v. City of
Memphis, 373 U.S. 526, 535-536 (1963) (rejecting a
governments purported interest in proceeding with
gradual change); Hunter v. Erickson, 393 U.S. 385,
392 (1969) (rejecting a government decision to move
slowly in the delicate area). And, as governments can
plead an interest in proceeding with caution in almost
any setting, Kitchen v. Herbert, 961 F. Supp. 2d 1181,
1213 (D. Utah 2013), treating such an interest as
sufficient to sustain otherwise discriminatory laws
would render this Courts review a nullity. Such a
result is untenable; as this Court recently confirmed,
even a governments desire to avail itself of the benefit
of State-by-State experimentation may not deny the
infringed. As discussed supra note 3, the First Amendment and
analogous State laws provide ample protection for expressions of
diverging views on the subject. And amici see no reason why a
decision from this Court holding that the Fourteenth Amendment
requires State governments to solemnize and recognize marriages
between same-sex couples should in any way prejudice the rights
of the faithful to voice their opinions on the subject, nor require
them to participate in or otherwise endorse civil marriages for
same-sex couples based on their sincerely held religious beliefs.
28
basic dignity the Constitution protects. Hall v. FloriFlorida, 134 S. Ct. 1986, 2001 (2014). Indeed, the
enshrinement of constitutional rights necessarily takes
certain policy choices off the table.
District of
Columbia v. Heller, 554 U.S. 570, 636 (2008). The choice
to enact a law that deprives committed same-sex
couples and their children of the rights and
responsibilities of civil marriage is one of those.
III. THIS COURT SHOULD ENSURE T HAT GOVERNMENTS
DO NOT DENY THE RIGHTS A ND RESPONSIBILITIES OF
CIVIL MARRIAGE TO SAME-SEX COUPLES
Amici recognize the admirable commitment of our
judiciary to exercise restraint when confronted with a
provision duly enacted by the people or their
representatives.
But deference does not imply
abandonment or abdication of judicial review. MillerEl v. Cockrell, 537 U.S. 322, 340 (2003).
State
governments do not have unfettered discretion to
define the full scope of the constitutional protection in
cases concerning individual rights and dignity. Hall,
134 S. Ct. at 1998. Instead, it is the courts role to set
aside laws that overstep the limits imposed by the
Constitutionthese limits reflect a different kind of
restraint, which the people wisely imposed to protect
segments of the population from deprivation of their
liberties without a legitimate basis. As Madison put it,
In our Governments the real power lies in the
majority of the Community, and the invasion of
private rights is chiefly to be apprehended, not
from acts of Government contrary to the sense
of its constituents, but from acts in which the
Government is the mere instrument of the
major number of the Constituents.
29
5 The Writings of James Madison: 1787-1790, at 272
(Hunt ed., 1904). Likewise, while it is the duty of the
political branches of government in the first and
primary instance to preserve and protect the
Constitution, the judiciary must not admit inability to
intervene when one or the other level of Government
has tipped the scales too far. United States v. Lopez,
514 U.S. 549, 577-578 (1995) (Kennedy, J., concurring).
This Court has repeatedly made clear that although
legislators and voters may generally exercise power
over certain subjectsincluding many contentious
social issuesthe governments power is limited when
it comes to injurious incursions upon the freedom of
minorities. See, e.g., Schuette v. Coalition To Defend
Affirmative Action, 134 S. Ct. 1623, 1636-1637 (2014)
(plurality opinion) (emphasizing that the Constitution
requires redress by the courts when the
encouragement or command of laws or other state
action inflicts hurt or injury on minorities); Lucas v.
Forty-Fourth Gen. Assembly of Colo., 377 U.S. 713, 736737 (1964) (A citizens constitutional rights can hardly
be infringed simply because a majority of the people
choose that it be.). The court of appeals mistook this
Courts teachings for a mandate to refrain from
judgment even where it is individuals and their
freedoms, not the democratic process, that are being
demean[ed]. Windsor, 133 S. Ct. at 2694 (placing
same-sex couples in an unstable position and treating
their relationships as second-tier is a differentiation
[that] demeans the couple); see DeBoer, 772 F.3d at 409
(quoting Schuette, 134 S. Ct. at 1637).
It is accordingly not a violation of principles of
judicial restraint for this Court to strike down laws that
infringe fundamental rights necessary to our system of
ordered liberty, McDonald v. City of Chicago, 561
30
U.S. 742, 778 (2010), particularly where they inflict rereal and specific injury, Schuette, 134 S. Ct. at 1631,
1636-1638. It is instead a key protection of limited,
constitutionally constrained government.
See
Federalist No. 78, at 524 (Hamilton) (Cooke ed., 1961)
([A] limited constitution can be preserved in
practice no other way than through the medium of the
courts of justice; whose duty it must be to declare all
acts contrary to the manifest tenor of the constitution
void.); see also Madison, Speech in Congress on the
Removal Power (June 8, 1789), in 1 Annals of Cong.
448, 457 (Gales ed., 1790) ([I]ndependent tribunals
will be an impenetrable bulwark against every
assumption of power in the legislative or executive;
they will be naturally led to resist every encroachment
upon rights expressly stipulated for in the
constitution[.]).
The right to marry indisputably falls within the
narrow band of specially protected liberties that this
Court ensures are protected from unwarranted
curtailment. This Courts special solicitude for marriage
is manifest in its decision in Loving. There, this Court
held a State ban on interracial marriage invalid under
the Fourteenth Amendment, rejecting arguments that
the Court should not address an issue of exclusively
State concern and that social science evidence
demonstrated that interracial marriage harmed
children, led to higher divorce rates, and weakened the
marital bond. See Appellee Br., Loving, 388 U.S. 1 (No.
66-395).13
13
This Court struck down Virginias ban on interracial marriage in Loving even though States were actively debating whether to repeal or to continue enforcing such laws. 388 U.S. at 6 & n.5;
see also id. at 7-8. This Courts action did not improperly short-
31
The bans at issue here have run afoul of our constitutional order by submitting a fundamental right to legislative or popular referendum. See City of Cleburne v.
Cleburne Living Ctr., 473 U.S. 432, 448 (1985) (It is
plain that the electorate as a whole, whether by referendum or otherwise, could not order [government] action violative of the Equal Protection Clause, and the
[government] may not avoid the strictures of that
Clause by deferring to the wishes or objections of some
fraction of the body politic. (citation omitted)); see also
West Virginia State Bd. of Educ. v. Barnette, 319 U.S.
624, 638 (1943) (The very purpose of a Bill of Rights
was to withdraw certain subjects from the vicissitudes
of political controversy, to place them beyond the reach
of majorities and officials and to establish them as legal
principles to be applied by the courts. Ones right to
life, liberty, and property, and other fundamental
rights may not be submitted to vote; they depend on
the outcome of no elections.). These cases accordingly
present one of the rare instances in which judicial
action is necessary to prevent overreaching by the
electorate. When fundamental liberties are at stake,
personal choices and assessments are not for the
Government to make, Citizens United v. FEC, 558
U.S. 310, 372 (2010), and courts must step in to prevent
any encroachment upon individual rights.
Our constitutional guarantees of freedom are no
less a part of our legal traditions than is the salutary
principle of judicial restraint, and this Court honors
those traditionsas well as conservative principles
circuit ongoing democratic developments in the sixteen States that
prohibited interracial marriage at the time, but rather fulfilled this
Courts responsibility to enforce the constitutional guarantee of
equal protection.
32
when it acts to secure constitutionally protected liberliberties against government overreaching.
Cf.
Goldwater, The Conscience of a Conservative 13-14
(1960) (The Conservative is the first to understand
that the practice of freedom requires the establishment
of order: it is impossible for one man to be free if
another is able to deny him the exercise of his freedom.
He knows that the utmost vigilance and care are
required to keep political power within its proper
bounds.).
Thus, this Court has invalidated laws infringing the
Second Amendment right to self-defense and to bear
arms. Heller, 554 U.S. at 635. It has protected the
right of all to participate in public debate on issues of
public concern. See First Natl Bank of Boston v.
Bellotti, 435 U.S. 765 (1978); Buckley v. Valeo, 424 U.S.
1 (1976); New York Times v. Sullivan, 376 U.S. 254
(1964). It has voided application of a State law that
interfered with the fundamental liberty of parents
to direct the upbringing and education of children.
Wisconsin v. Yoder, 406 U.S. 205, 233 (1972). It has
protected the rights of religious groups to assemble in
and use public facilities. See Lambs Chapel v. Center
Moriches Union Free Sch. Dist., 508 U.S. 384, 395-397
(1993); Widmar v. Vincent, 454 U.S. 263, 276-277 (1981).
And two years ago, this Court reaffirmed that State
laws defining and regulating marriage, of course, must
respect the constitutional rights of persons. Windsor,
133 S. Ct. at 2691 (citing Loving). Our society is more
free because the Court has exercised its power and
duty to enforce and support the Constitution in such a
manner. The Court should do so again in these cases.
33
CONCLUSION
The judgment of the court of appeals should be
reversed.
Respectfully submitted.
SEAN R. GALLAGHER
STACY A. CARPENTER
BENNETT L. COHEN
POLSINELLI PC
1515 Wynkoop Street
Suite 600
Denver, CO 80202
MARK C. FLEMING
FELICIA H. ELLSWORTH
ELISABETH M. OPPENHEIMER
ALLISON TRZOP
HALE AND DORR LLP
60 State Street
Boston, MA 02109
ALAN E. SCHOENFELD
HALE AND DORR LLP
7 World Trade Center
250 Greenwich Street
New York, NY 10007
MARCH 2015
REGINALD J. BROWN
SETH P. WAXMAN
Counsel of Record
PAUL R.Q. WOLFSON
DINA B. MISHRA
HALE AND DORR LLP
1875 Pennsylvania Ave., NW
Washington, DC 20006
(202) 663-6000
[email protected]
APPENDIX
1a
LIST OF AMICI CURIAE
Kenneth B. Mehlman, Chairman, Republican National
Committee, 2005-2007
Daniel J. Acciavatti, Member of the Michigan House
of Representatives, 32nd District, 2003-2008
Abe Adams, Deputy Digital Director, Romney-Ryan
2012
Tim Adams, Undersecretary of the Treasury for International Affairs, 2005-2007
Sarah Anderson, Communications and Research Director for the Michigan Republican Party, 2005-2007
Todd Anderson, Chief of Staff to the Republican
Speaker of the Michigan House of Representatives,
2001-2004
Gregory T. Angelo, Executive Director, Log Cabin
Republicans
Cliff S. Asness, Businessman, Philanthropist, and Author
David D. Aufhauser, General Counsel, Department of
the Treasury, 2001-2003
Joshua Baca, National Coalitions Director, Romney for
President 2012, and Former Congressional Staff Member to Representative Heather Wilson
Doug Badger, Executive Director, Oregon BushCheney 2004, and Chief of Staff, U.S. Congresswoman
Jennifer Dunn
John Bailey, Policy Director, Bush-Cheney 2004, and
Special Assistant to the President for Domestic Policy,
2007-2009
2a
Charlie Baker, Governor of Massachusetts, 2015Present
Melissa Hall Davis Balough, Energy and Environment Policy Director, Romney for President, 2007-2008
Lyn Bankes, Member of the Michigan House of Representatives, 19th District, 1985-1998
William E. Bill Baroni, Jr., New Jersey State Assemblyman, 2004-2008, New Jersey State Senator,
2008-2010, and Of Counsel at Hill Wallack LLP
Michael James Barton, Deputy Director of the Middle
East Policy Office, Pentagon, 2006-2009, and Homeland
Security Council Member, White House, 2003-2006
Charles Bass, Member of Congress, 1995-2007 and
2011-2013
Glynda A. Becker, Associate Director, White House
Office of Political Affairs, 2003-2006, and Environmental and Energy Specialist, U.S. Department of Commerce, 2002-2003
Rich Beeson, Political Director, Romney for President,
2011-2012, Political Director, Republican National
John B. Bellinger III, Legal Adviser to the Department of State, 2005-2009
Troy Benavidez, Presidential Advisory Council on
HIV AIDs, 2006-2009
Crystal Benton, Former Press Secretary to Senator
John McCain and Deputy Communications Director for
John McCain for President, 2008
Juliana Bergeron, New Hampshire Republican National Committeewoman, 2012-Present
3a
Elliot S. Berke, Counsel, Office of the Speaker, 2006,
General Counsel, Office of the Majority Leader, 20042006, and Special Counsel, U.S. Department of Housing
& Urban Development, 2002-2004
Jeff Berkowitz, Research Director, Republican National Committee, 2009-2010, and White House Associate Director of Scheduling-Research, 2005-2006
Jon Berrier, Communications and Political Affairs Coordinator, The White House, Office of the Vice President, 2005-2006
Michael Beylkin, Attorney at Law, Colorado
Katie Biber, General Counsel, Romney for President,
2007-2008 and 2011-2012
David E. Black, National Finance Team, Huntsman for
President, 2011-2012, and Press Advance Lead, Romney for President, 2012
Dan G. Blair, Deputy Director, U.S. Office of Personnel Management, 2002-2006 (Acting Director, 2005),
and Commissioner, Postal Regulatory Commission,
2006-2011 (Chair, 2006-2009)
Dan Blum, Deputy Campaign Manager, Scott Walker
for Governor, 2011-2012, and Senior Research Analyst,
Republican National Committee, 2007-2009
Mary Bono, Member of Congress, 1998-2013
Tucker Bounds, National Spokesman, John McCain for
President, 2008
Pat Brady, Chairman, Illinois GOP, 2009-2013
John M. Bridgeland, Director, White House Domestic
Policy Council, 2001-2002, and Assistant to the President and Director, U.S.A. Freedom Corps, 2002-2004
4a
Eric Brinker, Businessman and Philanthropist
Nancy Brinker, Ambassador to Hungary, 2001-2003,
and Chief of Protocol for the United States, 2007-2008
Neil R. Brown, Senior Professional Staff Member, Republican Staff, United States Senate Foreign Relations
Bill Brownson, National Board Chair, Log Cabin Republicans, 2003-2006
Brooks Brunson, Special Assistant to the Chief of
Staff, House Republican Conference, 2003-2005
Sean Cairncross, Deputy Executive Director and General Counsel, National Republican Senatorial Committee, 2009-2013, and Chief Counsel, Republican National
Sally Canfield, Policy Director, Romney for President,
2006-2008, and Deputy Chief of Staff, Senator Marco
Rubio, 2011-2015
Alex Castellanos, Republican Media Advisor
Dan Centinello, Deputy National Political Director,
Mitt Romney for President, 2011-2012, and Statewide
Field Director, Chris Christie for Governor, 2009
David C. Chavern, Business Association Executive
Mary Cheney, Director of Vice Presidential Operations, Bush-Cheney 2004, 2003-2004
Thomas J. Christensen, Deputy Assistant Secretary
of State for East Asian and Pacific Affairs, 2006-2008
Jim Cicconi, Assistant to the President and Deputy to
the Chief of Staff, 1989-1990
5a
Harry W. Clark, Counselor to Ambassador Robert B.
Zoellick and the Office of the U.S. Trade Representative, 2003-2004, and Senior Adviser to the Albright
Stonebridge Group
Gus Coldebella, Acting General Counsel, U.S. Department of Homeland Security, 2007-2009, and Deputy
General Counsel, U.S. Department of Homeland Security, 2005-2007
Susan M. Collins, U.S. Senator for Maine, 1997Present
Jeff Cook-McCormac, Philanthropic and Political Advisor
R. Clarke Cooper, U.S. Alternative Representative,
United Nations Security Council, 2007-2009
Mike Cox, Attorney General of Michigan, 2003-2011
Sara Craig, Iowa State Director, Romney for President, 2011-2012, and Virginia State Manager, Romney
for President, 2012
Julie Cram, Deputy Assistant to the President and Director of the White House Office of Public Liaison,
2007-2009
Tom Cross, Illinois State Representative, 1993-2015,
and Minority Leader of the Illinois House of Representatives, 2002-2013
S.E. Cupp, Author and Political Commentator
Carlos Curbelo, Member of Congress
Kevin Curran, Associate Director of Presidential Personnel, White House, 2006-2009
John C. Danforth, United States Senator, 1976-1995,
and U.S. Ambassador to the United Nations, 2004-2005
6a
Michael P. Davidson, Bush-Cheney 2004, and NonProfit CEO, 2008-Present
Michele Davis, Assistant Secretary for Public Affairs
and Director of Policy Planning, Department of the
Treasury, 2006-2009
Tyler Deaton, National Committeeman, New Hampshire Young Republicans, 2011-Present
Vincent DeVito, General Counsel, Massachusetts Republican Party, 2007-2013, Chief Legal Counsel, The
Baker Committee, 2013-2014, and Former U.S. Assistant Secretary for Policy and International Affairs
(Acting)
Bob Dold, Member of Congress, 2011-2013 and 2015Present
Ben Domenech, Publisher of The Federalist, and
Speechwriter for Secretary Tommy Thompson, U.S.
Department of Health and Human Services, 2003-2004
Alicia Davis Downs, Associate Political Director,
White House, 2001-2003
David Doyle, Chairman, Michigan Republican Party,
1991-1995
James C. Dozier, Republican Political Strategist and
Advisor
Leon Drolet, Member of Michigan House of Representatives, 2001-2006
Kenneth M. Duberstein, White House Chief of Staff,
1987-1989, and Assistant to the President, 1981-1984
Christine Dudley, Executive Director, Illinois Republican Party, 1993-1999, Regional Political Director, Republican National Committee, 1999-2002, and Political,
Public, and Government Affairs Consultant, 2002-2014
7a
Sean Duffy, Deputy Chief of Staff for Communications,
Colorado Governor Bill Owens, 2001-2005
Janet L. Duprey, New York State Assemblywoman,
2007-Present
Christian J. Edwards, Special Assistant to the President and Director of Press Advance, 2005-2007
Mark J. Ellis, State Chairman, Maine Republican Party, 2005-2006 and 2007-2009
Jamie Ensley, Chairman of the Board, Log Cabin Republicans, 2015-Present
Rob Epplin, Legislative Director, U.S. Senator Susan
Collins, 2008-2012, and U.S. Senator Gordon Smith,
1997-2008
Cary Evans, Senior Field Advisor, Rudy Giuliani for
President, 2007-2008, Regional Political Director, Republican National Committee, 2005-2007, and Regional
Political Director, Bush-Cheney 2004, 2003-2004
Elizabeth Noyer Feld, Public Affairs Specialist, White
House Office of Management and Budget, 1984-1986,
and Assistant to the Press Secretary for Vice President
George H. W. Bush, 1986-1987
Mason Fink, Finance Director, Romney for President,
2012
Kirk Fordham, Republican Congressional Chief of
Staff, 1995-2006
Carl Forti, Deputy Campaign Manager and Political
Director, Romney for President 2007-2008
Jill Hazelbaker Franks, Communications Director,
John McCain for President, 2007-2008
8a
Edward J. Gaffney, Jr., Esquire, Member of Michigan
House of Representatives, 2002-2008
Kathryn E. Gage, Deputy Campaign Manager, Romney for President 2012
Reed Galen, Director of Scheduling and Advance,
Bush-Cheney 2004, 2003-2004
Richard Galen, Communications Director, Speakers
Political Office, 1996-1997
Jenny Gaynor, Deputy Chief of Staff, Republican National Committee, 2005-2007, and Director of Correspondence, Bush-Cheney 2004
William C. T. Gaynor II, Associate Director Office of
Business Liaison, Department of Commerce, 2001-2003,
and Western Regional Finance Director, Bush-Cheney
2004
Mark Gerson, Chairman, Gerson Lehrman Group and
Author of The Neoconservative Vision: From the Cold
War to the Culture Wars and In the Classroom: Dispatches from an Inner-City School that Works
Chris Gibson, Member of Congress, 2011-Present
Josh Ginsberg, National Field Director, Romney for
President, 2007-2008
Rudolph W. Giuliani, Mayor of the City of New York,
1994-2001, United States Attorney, Southern District
of New York, 1983-1989, and Associate Attorney General of the United States, 1981-1983
James K. Glassman, Undersecretary of State for Public Diplomacy and Public Affairs, 2008-2009
Chris Gober, Deputy Counsel, Republican National
Committee, 2006-2007, and General Counsel, National
Republican Senatorial Committee, 2007-2008
9a
Patricia Godchaux, Member of the Michigan House of
Representatives, 40th District, 1997-2002
Gabriel E. Gomez, U.S. Senate Candidate, 2013
John Goodwin, Chief of Staff to Raul Labrador, Member of Congress, 2011-2013
Adam Gordon, Former Deputy District Attorney, San
Diego County District Attorneys Office, 2009-2014
Jennifer Gratz, Founder, XIV Foundation, and Executive Director, Michigan Civil Rights Initiative
Adrian Gray, Director of Strategy, Republican National Committee, 2005-2007
Richard Grenell, Spokesman, U.S. Ambassadors to the
United Nations, 2001-2008
Susan Grimes Gilbert, Member of the Michigan House
of Representatives, 1987-1996
Mark Grisanti, New York State Senator, 2011-2014
Joseph A. Grundfest, Commissioner, U.S. Securities
and Exchange Commission, 1985-1990
Patrick Guerriero, Mayor of Melrose, Massachusetts,
and Member of Massachusetts House of Representatives, 1993-2001
Chris Gulugian-Taylor, Director, Gubernatorial Campaigns and Statewide Organizations, Targeted Victory,
2011-Present
Carlos Gutierrez, Secretary of Commerce, 2005-2009
Stephen Hadley, Assistant to the President and National Security Advisor, 2005-2009
Brian Haley, Deputy Finance Director, John McCain
for President, 2008, and Finance Director, Tim
Pawlenty for President, 2012
10a
Richard L. Hanna, Member of Congress, 2011-Present
Jon Henke, New Media Advisor, Senate Republican
Leadership Communications Office, 2007
Jerri Ann Henry, Campaign Manager, Young Conservatives for the Freedom to Marry, 2015
Israel Hernandez, Assistant Secretary of Commerce
for International Trade, 2005-2009
David G. Herro, Businessman and Philanthropist
Dawson Hodgson, Member, Rhode Island Senate,
2011-2015
Rachel Hoff, Director of Defense Analysis, American
Action Forum, 2015, and D.C. National Committeewoman, Young Republicans, 2006-2009
Douglas Holtz-Eakin, Director, Congressional Budget
Office, 2003-2005
Dave Honigman, Former Member of the Michigan
Senate, and Former Member of the Michigan House of
Representatives
Margaret Hoover, Advisor to the Deputy Secretary of
Homeland Security, 2005-2006
Michael Huffington, Member of Congress, 1993-1995
Abby Huntsman, Political Commentator
Jon Huntsman, Governor of Utah, 2005-2009, Deputy
Assistant Secretary of Commerce, 1989-1992, U.S. Ambassador to Singapore, 1992-1993, U.S. Trade Ambassador, 2001-2003, and U.S. Ambassador to China, 20092011
Bob Inglis, U.S. Representative, South Carolina, 19931999 and 2005-2011
11a
Susan Jandernoa, Board Member Appointee, State of
Michigan Health Endowment
Michael Jandernoa, Board Member, Business Leaders
for Michigan
David A. Javdan, General Counsel, U.S. Small Business Administration, 2002-2006
Reuben Jeffery, Undersecretary of State for Economic, Energy, and Agricultural Affairs, 2007-2009
Coddy Johnson, National Field Director, Bush-Cheney
2004, White House Office of Political Affairs, and Regional Director Bush-Cheney 2000
Gary Johnson, Governor of New Mexico, 1995-2003,
and Libertarian Party Nominee for President, 2012
Nancy L. Johnson, Member of Congress, 1983-2007
Rick Johnson, Former Member of the Michigan House
of Representatives, and Former Speaker of the Michigan House of Representatives, 2001-2004
Brian Jones, Senior Advisor, Romney for President,
2012, and Communications Director, McCain for President, 2008
Brian W. Jones, General Counsel, U.S. Department of
Education, 2001-2005
Jennifer Jones, Republican Strategist
Elise Jordan, Director for Communications, National
Security Council, 2007-2008
Robert Kabel, Special Assistant to the President for
Legislative Affairs, 1982-1985
Neel Kashkari, Assistant Secretary of the Treasury,
2008-2009, and Republican Nominee for Governor of
California, 2014
12a
Theodore W. Kassinger, Deputy Secretary of Commerce, 2004-2005, and General Counsel of the Commerce Department, 2001-2004
Ron Kaufman, Senior Advisor, Romney for President,
2012, and Assistant to the President for Political Affairs and White House Political Director for President
George H. W. Bush
Jason Kauppi, Press Secretary, Office of the Governor
of Massachusetts, 2001
Loren Kaye, Deputy Cabinet Secretary, Governor
George Deukmejian, 1986-1991, and Cabinet Secretary
and Trade and Commerce Under Secretary, Governor
Pete Wilson, 1991-1996
Chrysovalantis Kefalas, Deputy Counsel to Governor
Robert L. Ehrlich, Jr., 2004-2007
Mark Steven Kirk, U.S. Senator for Illinois, 2010Present, and U.S. Representative to Congress for Illinois, 10th District, 2001-2010
Jonathan Kislak, Deputy Undersecretary of Agriculture for Small Community and Rural Development,
1989-1991
David H. Koch, Philanthropist
Jim Kolbe, Member of Congress, 1985-2007
Jeffrey Kupfer, Chief of Staff and Acting Deputy Secretary, Department of Energy, 2006-2009
Ed Kutler, Assistant to the Speaker of the House,
1995-1997
Wade Lairsen, Associate Director, White House Office
of Intergovernmental Affairs, 2007-2008
13a
David Langdon, Special Assistant to the Chairman,
Republican National Committee, 2004-2007, and Special
Assistant to the Governor, Romney for President 2008
James C. Langdon III, Office of the Chief of Staff,
Executive Assistant to both Special Assistants to the
President for Policy, 2005-2007
Kory A. Langhofer, Associate Counsel, Romney for
President, 2012, and Assistant United States Attorney,
U.S. Department of Justice, 2009-2011
Steven C. LaTourette, U.S. Representative, 19952013
Frank Lavin, Undersecretary of Commerce for International Trade, 2005-2007, U.S. Ambassador to Singapore, 2001-2005, and Director, White House Office of
Political Affairs, 1987-1989
Rick Lazio, Member of Congress, 1993-2001
Rek LeCounte, Young Conservative Leadership
Committee, 2014-Present
Simone Ledeen, Defense Fellow, 2004-2009
Kathryn Lehman, Chief of Staff, House Republican
Conference, 2003-2005
Eli Lehrer, Speechwriter to Senate Majority Leader
Bill Frist, 2004-2007
Andrew J.P. Levy, Deputy General Counsel, U.S. Department of Homeland Security, 2006-2009
Joseph J. Lhota, Republican Nominee for Mayor, The
City of New York, 2013
Mathew L. Lira, Republican Strategist
14a
Thomas A. Little, Vermont State Representative,
1992-2002 and Chairman of the Vermont House Judiciary Committee, 1999-2000
Daniel S. Loeb, Investor and Philanthropist
Sarah Longwell, Vice-Chair, Log Cabin Republicans,
2011-Present
Eduardo J. Lopez-Reyes, National Vice Chairman of
the Republican Liberty Caucus, 2011-Present
Richard N. Lorenc, Chief Operating Officer, Foundation for Economic Education, 2013-Present
Alex Lundry, Director of Data Science, Romney for
President, 2012
Paul Makarechian, Bush-Cheney 2004, and Business
Executive
Liz Mair, Online Communications Director and
Spokeswoman, Republican National Committee, 2008,
and Online Communications Strategist for Carly Fiorina, Rick Perry, Scott Walker, and Rand Paul
Christopher Maloney, Ohio Communications Director
and Spokesman, Romney for President, 2012
Adele Malpass, Chairwoman of Manhattan Republican
Party
Dana Edwards Manatos, Associate Director of Public
Liaison, White House, 2005-2007
N. Gregory Mankiw, Chairman, Council of Economic
Advisers, 2003-2005
Catherine Martin, Deputy Assistant to the President
and Deputy Communications Director for Policy and
Planning, 2005-2007
15a
Kevin Martin, Chairman, Federal Communications
Commission, 2005-2009
Meghan McCain, Political Commentator
Lauren McCann, Board Member, Young Conservatives for the Freedom to Marry, 2015
Stanley A. McChrystal, Four-Star General, United
States Army, 1976-2010
David McCormick, Undersecretary of the Treasury
for International Affairs, 2007-2009
Brent McGoldrick, Director of Advertising Analytics,
Romney for President 2012
Michael McHugh, Legislative Staff, Senator Gordon
Smith, 2006-2008, and Political Consultant
Mark McKinnon, Former Chief Media Advisor to President George W. Bush and Leading Reform Advocate
Aaron McLear, Press Secretary to Governor Arnold
Schwarzenegger, 2007-2011
Richard D. McLellan, Political Strategist and Policy
Advisor
T. Vance McMahan, U.S. Ambassador, United Nations
Economic and Social Council, 2008-2009
Greg McNeilly, Executive Director, Michigan Republican Party, 2003-2005
Joe Megyesy, Communications Director, Congressman
Mike Coffman, 2011-2012, and Press Secretary, Colorado Senate Republicans, 2006-2009
Bruce P. Mehlman, Assistant Secretary of Commerce,
2001-2003
16a
J. Frank Mermoud, Special Representative for Commercial and Business Affairs, U.S. Department of
State, 2002-2009
Dan Meyers, Republican National Committee, 2006
William Milliken, Governor of Michigan, 1969-1983
Zac Moffatt, Digital Director, Romney for President
2012, and Political Education Director, Republican National Committee, 2007-2008
Keith Molin, Former Director Michigan Department of
Labor, 1975-1977, and Former Director Michigan Department of Commerce, 1977-1979
Susan Molinari, Member of Congress, 1990-1997
Connie Morella, Member of Congress, 1987-2003, and
U.S. Ambassador to the Organization for Economic Cooperation and Development, 2003-2007
James L. Morgan III, Deputy Political Director, Republican National Committee, 1988-89, Deputy Political
Director, Bush for President, 1987-1988, and Executive
Director, Georgia Republican Party, 1984-1986
Andrew Moylan, Executive Director, R Street Institute, 2012-Present
Michael E. Murphy, Republican Political Consultant
James Murray, Deputy Chief of Staff to Michigan
Speaker Rick Johnson, 1990-2005
Beth Myers, Romney for President Campaign Manager, 2007-2008 and Senior Advisor, 2011-2012
David Karl Myers, Vice-Chair of the Howard County
Republican Party in Maryland, and Alternate Delegate
to the Republican National Party, 2012
17a
Michael Napolitano, White House Office of Political
Affairs, 2001-2003
Jennifer A. Nassour, Chair, Conservative Women for
a Better Future, 2011-Present, and Chair, Massachusetts Republican Party, 2009-2011
Ana Navarro, National Hispanic Co-Chair, John
McCain for President, 2008
Susan Neely, Special Assistant to the President, 20012002, and Assistant Secretary of Public Affairs, U.S.
Department of Homeland Security, 2003-2005
Nicole Neily, Board Member, Alumni for Liberty
Jill E. Neunaber, Iowa State Director, Romney for
President, 2012
Noam Neusner, Special Assistant to the President for
Economic Speechwriting, 2002-2005
Mina Nguyen, Deputy Assistant Secretary, U.S. Department of Treasury, 2006-2007
Cristyne L. Nicholas, Communications Director,
Mayor Rudolph Giuliani, 1993-1999
Mario Nicolais, Senior Research Analyst, Rudy Giuliani for President, 2007-2008, Republican Commissioner,
Colorado Reapportionment Commission, 2011, and
Spokesman, Coloradans for Freedom, 2012-2014
B.J. Nikkel, Colorado State Representative, 2009-2013,
and Majority Whip, 2011-2013
Marco Nunez, Deputy Regional Political Director for
the Western Region, Republican National Committee,
and Oregon Field Staff, Bush-Cheney 2004
18a
Robert OConnor, Staff Director, Committee on
Homeland Security, U.S. House of Representatives,
2005-2010
Meghan L. OSullivan, Special Assistant to the President, 2004-2007, and National Security Advisor for Iraq
and Afghanistan, 2005-2007
Richard W. Painter, Associate Counsel to the President, 2005-2007
Chuck Perricone, Former Member of the Michigan
House of Representatives, and Former Speaker of the
Michigan House of Representatives, 61st District
Mark J. Perry, Scholar at The American Enterprise
Institute, 2009-Present
Ruth Ann Petroff, Wyoming State Representative,
2011-Present
Nancy Mitchell Pfotenhauer, Regulatory Advisor,
Romney for President, 2012, Senior Policy Advisor National Spokesperson for John McCain for President
2008, and Chief Economist, George H. W. Bush Council
on Competitiveness, 1990-1991
Patrick Phillippi, Office of the Chairman, Republican
National Committee, 2002-2003
Alex Pisciarino, Research Analyst, Club for Growth,
2013-Present
Gregg Pitts, Director, White House Travel Office,
2006-2009
Karyn Polito, Lieutenant Governor of Massachusetts,
2015-Present
19a
Sarah Pompei, Communications Director, House of
Representatives, Majority Whips Office, 2011-2012,
and Deputy Communications Director, Romney for
President, 2012
Marge Byington Potter, Former Chairperson, Kent
County Board of Commissioners
Paul W. Potter, Chairman, Kent County Veterans
Services Committee, and Former Chairman, City of
Grand Rapids Planning Commission
J. Stanley Pottinger, Assistant U.S. Attorney General, Civil Rights Division, 1973-1977
Michael Powell, Chairman, Federal Communications
Commission, 2001-2005, Commissioner, Federal Communications Commission, 1997-2005
Larry Pressler, U.S. Senator from South Dakota,
1979-1997, and Member of Congress, 1975-1979
Deborah Pryce, Member of Congress, 1993-2009
John Reagan, New Hampshire State Representative,
2006-2011, and New Hampshire State Senator, 2012Present
John Field Reichardt, Republican Activist and Businessman
Blain Rethmeier, Special Assistant to the President
for Communications, White House, 2006-2007, and
Press Secretary, Senate Judiciary Committee, 20052006
Thomas M. Reynolds, Member of Congress, 1999-2009
James Richardson, Spokesman for the Republican National Committee, and Spokesman for Governors Haley
Barbour and Jon Huntsman
20a
Tom Ridge, Governor of Pennsylvania, 1995-2001, and
Secretary of Homeland Security, 2003-2005
Mark A. Robbins, General Counsel, U.S. Office of Personnel Management, 2001-2006
Kelley Robertson, Chief of Staff, Republican National
Joseph D. Rodota, Cabinet Secretary and Deputy
Chief of Staff, Governor Pete Wilson, 1993-1998
Brian Roehrkasse, Director of Public Affairs, Department of Justice, 2005-2008, and Press Secretary, Department of Homeland Security, 2003-2005
Harvey S. Rosen, Member, Council of Economic Advisers, 2003-2005, and Chairman, Council of Economic
Advisers, 2005
Ileana Ros-Lehtinen, Member of Congress, 1989Present
Richard J. Ross, Massachusetts State Senator, 2010Present
Lee Rudofsky, Deputy General Counsel, Romney for
President, 2012
Patrick Ruffini, eCampaign Director, Republican National Committee, 2005-2007
Patrick Sammon, President, Log Cabin Republicans,
2006-2009
Matthew T. Sanderson, Republican Campaign Attorney
Andrea Saul, Press Secretary, Romney for President,
2012
Skip Saviano, Member of Illinois House of Representatives, 1993-2013
21a
Teresa R. Sayward, Former New York State Assembly Member, 2003-2012
Corry Schiermeyer, Director for Global Communications, National Security Council, 2005-2007
Stephen E. Schmidt, Deputy Assistant to the President and Counselor to the Vice President, 2004-2006
Adam Schroadter, New Hampshire State Representative, 2010-Present
John J. H. Schwarz, M.D., Member of Congress, 20052007
George Scoville III, Independent Consultant
Judith L. Scranton, Member of the Michigan House of
Representatives, 66th District, 1997-2002
Joan Secchia, Former Trustee, Aquinas College
Peter Secchia, Former U.S. Ambassador to Italy, and
Former National Committeeman, Republican National
Committee
Christopher Shays, Member of Congress, 1987-2009
Torrey Shearer, Advisor, American Unity PAC, 2013Present
Erin Sheley, Former Deputy Director, Federalist Society Faculty Division, 2008-2010
Faryar Shirzad, Deputy Assistant to the President
and Deputy National Security Advisor for International Economic Affairs, 2004-2006
Lindsay Shuba, Member, Young Conservatives for the
Freedom to Marry, 2015
Tammy Simmons, New Hampshire State Representative
22a
Alan K. Simpson, United States Senator, 1979-1997,
and Senate Republican Whip, 1985-1995
Ken Spain, Communications Director, National Republican Congressional Committee, 2009-2010
Robert Steel, Undersecretary of the Treasury for Domestic Finance, 2006-2008
Christopher Potter Stewart, General Consultant, Dan
Innis for Congress, 2013-2015
Sarah Crawford Stewart, Senior Advisor, Huntsman
for President, 2011-2012, and New Hampshire Campaign Manager, Pawlenty for President, 2010-2011
Matt Stolhandske, Senior Research and Teaching Fellow, David Rockefeller Center, Harvard University
Candace L. Straight, Former Co-Chair of New Jersey
Republican Party State Committee, 2003-2004
Jane Swift, Governor of Massachusetts, 2001-2003
Jay Timmons, Executive Director, National Republican Senatorial Committee, 2003-2005, and Chief of Staff
to the Hon. George Allen, 1991-2003
Richard Tisei, Massachusetts State Senator 1991-2011,
and Senate Minority Leader 2007-2011
Michael E. Toner, Chairman and Commissioner, Federal Election Commission, 2002-2007
Frances Fragos Townsend, Homeland Security Advisor to the President, 2004-2008
Bryan N. Tramont, Chief of Staff, Federal Communications Commission, 2003-2005, and Senior Legal Advisor, Federal Communications Commission, 2000-2003
Jeff Trandahl, Clerk of the U.S. House of Representatives, 1998-2005
23a
Michael Turk, eCampaign Director for Bush-Cheney
2004, 2003-2004
John Ullyot, Communications Director, U.S. Senate
Armed Services Committee, 2003-2007
Sally A. Vastola, Executive Director, National Republican Congressional Committee, 2003-2006
Ann M. Veneman, United States Secretary of Agriculture, 2001-2005
Nina Verghese, Former Coalitions Director, Governor
Huntsman for President, and Deputy Regional Political
Director, Republican National Committee, 2007-2008
Jerry Vorva, J.D., Former Michigan State Representative, 20th District
Alexandra Vuksich, Director of Special Projects, Office of the Governor of California, 1991-1998
Mark Wallace, U.S. Ambassador to the United Nations, Representative for UN Management and Reform, 2006-2008
Nicolle Wallace, Assistant to the President and White
House Communications Director, 2005-2008
Chris Ward, Former Majority Floor Leader, Michigan
House of Representatives
Michael Wascom, Deputy Assistant Secretary of
Transportation for Governmental Affairs, Department
of Transportation, 2004-2005
William F. Weld, Governor of Massachusetts, 19911997, and Assistant U.S. Attorney General, Criminal
Division, 1986-1988
Richard Westfall, Solicitor General of Colorado, 19961999
24a
Meg Whitman, Republican Nominee for Governor of
California, 2010
August L. Wolf, Businessman and U.S. Olympian 1984
Paul Wolfowitz, Deputy Secretary of Defense, 20012005, and President of the World Bank Group, 20052007
Julie Myers Wood, Assistant Secretary of Homeland
Security for Immigration and Customs Enforcement,
2006-2008
Jay S. Zeidman, Office of Public Liaison, White House
2005-2007
Dan Zwonitzer, Wyoming State Representative, 2005present

Mehlman Et Al Amicus Brief

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Nos.

14-556, 14-562, 14-571, 14-574

Supreme Court of the United States

BRIEF OF AMICI CURIAE KENNETH B. MEHLMAN

ADDITIONAL CAPTIONS AND COUNSEL LISTED ON INSIDE COVER

BRITTANI HENRY, et al., Petitioners,

EQUAL ACCESS TO CIVIL MARRIAGE PROMOTES THE CONSERVATIVE VALUES OF

II. THE FOURTEENTH AMENDMENT REQUIRES

de Tocqueville, Alexis, Democracy in

Farr, Rachel H., et al., Parenting and Child

INTEREST OF AMICI CURIAE1

By letters on file with the Clerk, all parties have consented

Goldwater, Speech at the Republican National Convention

Amici support the free exercise of religion, and have the

EQUAL ACCESS TO CIVIL MARRIAGE PROMOTES THE

Amici start from the premiserecognized by this

See Gates, LGBT Parenting in the United States 1 (Feb.

Cameron, Address to the Conservative Party Conference

Courts that have examined the evidence have unanimously

Goldberg & Smith, Predictors of Psychological Adjustment

Lavner et al., Can Gay and Lesbian Parents Promote

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